Every summer for at least the past seven years, when Ringling Brothers has come to Sports Arena in San Diego, other animal protection volunteers and I have passed out flyers near the ticket booth educating circus-goers about how Ringling employees beat elephants with bullhooks, shock them with electric prods, and keep them chained up for their whole lives, and how the USDA has levied major fines against Ringling for Animal Welfare Act violations. Most people who stop to take a flyer are genuinely concerned about these facts and thankful for the information.
In the past, whenever security for Ringling has called the police, the police have explained to them that we protesters are within our rights. The San Diego Municipal Code section requiring individuals to leave areas that are open to the public when asked to do so by the owner has a clear exception for peaceful picketing activity. (SDMC section 52.80.01). In my personal experience, this has been the case since at least 2006, when I obtained an order from the San Diego Superior Court granting a request for a preliminary injunction on this issue.
However, last summer, the particular officers who responded to the routine call from security were willing to write a ticket—but only if the security guard filled out a form to make it a “citizen’s arrest.” The police explained they were not there to debate the law and would not place us under arrest themselves, but that if a citizen’s arrest was made, they would facilitate that by writing a ticket.
One protester, Liz Jacobelly, who is in her 40's and has never been arrested, did not want to give up her rights and decided to let the police write her a ticket. I offered to represent Liz for free. When the ticket reached the City Attorney’s office, it should have been tossed out if read by any competent and ethical attorney. Instead, Deputy City Attorney Makini Hammond took Liz to trial.
The assigned judge was Sharon Majors-Lewis, who had been the head of Arnold Schwarzenegger’s judicial appointments committee and ended up being appointed to the bench herself. She is also a former chief prosecutor from the district attorney’s office and has a reputation for being extremely pro-prosecution.
Judge Majors-Lewis sided with the prosecutor in refusing to acknowledge the clear language in the ordinance allowing peaceful picketing activity, instead ruling that the only relevant issue was whether Liz had been asked to leave. Majors-Lewis also kept stating that because the charge was only an infraction, her ruling would be final and unappealable. However, this is not a correct statement of the law either, and the conviction will be appealed.
But this case never should have made it to first base, and the City Attorney’s office should not be actively conspiring with a private business to violate the free speech rights of protesters provided for by the legislative branch of our city government.
Liz’s case could simply be the result of an unethical and/or incompetent prosecutor just looking to score another conviction, and a judge all too willing to hand her one. Or, it could be the result of Ringling Brothers and/or Sports Arena asking allies in the City Attorney’s office to ignore the law and crack down on protesters. Either way, the result is the same: any police officer responding to calls from security at Sports Arena will now automatically ticket or arrest protesters who set foot onto the property, despite the clear wording in the municipal code allowing this activity. This effectively prevents any information about the way Ringling treats elephants—or any other issue of public importance—from reaching the public going into Sports Arena.
Elected City Attorney and former Superior Court Judge Jan Goldsmith should review the way the criminal division of his office is handling enforcement of SDMC section 52.80.01, because currently Ms. Hammond and perhaps other deputy city attorneys are acting as if the protection for free speech in areas that are open to the public simply does not exist. It is not the job of prosecutors to usurp the role of the legislature and re-write laws as they would like them to read, but only to enforce laws as they are written.