“This is what they do in banana republics and undemocratic societies.”—former San Diego City Attorney Mike Aguirre, calling arrest a violation of the Civil Rights Act and the First Amendment
By Miriam Raftery and Ron Logan
November 29, 2011 (San Diego) Updated November 30, 2011—Attorneys, civil rights activists and community leaders tonight are expressing outrage at the arrest tonight of Ray Lutz, former Democratic Congressional candidate who ran against Duncan Hunter in 2010 seeking to represent East County.
San Diego Police arrested Lutz late today for refusing to remove a voter registration table at the Civic Center Plaza downtown (dubbed "Freedom Plaza" by Occupy San Diego protesters). View arrest video.
Former San Diego City Attorney Mike Aguirre, in an exclusive interview with East County Magazine, called the arrest a violation of Title 42, Section 1983 of the Civil Rights Act, which prevents the state from denying voting rights, as well as the First Amendment constitutional right to free speech.
“Every San Diegan, whether the most conservative Republican or the most liberal Democrat, should be concerned that someone registering voters could be arrested on the city’s civic plaza because Republicans and Democrats register voters there, as do all parties,” Aguirre said. “This is the most constitutionally protected activity that you can engage in.”
Aguirre said registering voters is a protected activity on both public and private property open to the public. “In this case, it is so obvious that this person was singled out for political beliefs,” he said. “This kind of excess really gives us the opportunity to draw people’s attention to the dangers of a police state…Is there any member of the City Council that’s going to speak out?”
The former City Attorney suggested media should submit public records requests to find out who, if anyone, at City Hall instructed San Diego Police to arrest Lutz for setting up a voter registration table. “This is what they do in banana republicans and undemocratic societies,” he noted. Aguirre added that both the City and the property owner could be liable for violations of Lutz's rights.
“When they interrupt someone who is doing lawful voter registration, this is going too far,” Jess Durfee, chairman of the San Diego County Democratic Party, told ECM. Durfee raised the issue of selective enforcement, noting that for years, both Republicans and Democrats have set up registration tables and booths in the very same location each month to register new citizens after the naturalization ceremonies. “Will this affect our ability to register voters?”asked Durfee, who added that he suspects Mayor Jerry Sanders is “calling the shots and having San Diego Police do these actions that are a deterrent to the Occupy movement.”
San Diego Police Lieutenant Andra Brown said that Lutz was placed under citizen's arrest by the Civic Center building management when he refused to remove his items and leave. "SDPD officers responded to the location and also asked Mr Lutz to remove his items and leave. He again refused and was placed under citizens’ arrest. SDPD officers took custody of him."
Asked why others registering voters in the Civic Center Plaza have not been arrested in the past, she responded, "Those registering voters at the ceremonies to swear-in new citizens do so with a permit issued by Real Estate Assets Dept of the City as they are on the public portion of the plaza. Mr Lutz was on private property so that permit process does not apply."
Police took no action against others gathered for an Occupy San Diego event at the same time. Lt. Brown indicated that's because only Lutz was placed under citizens' arrest by a property owner.
Lutz, also an organizer in Occupy San Diego, has done voter registration for many years as a member of the Democratic Party Central Committee. He sent a letter yesterday to CB Ellis, owner of the building at 1200 Third Ave., asking to use the square to register voters as a peaceful political activity, but was not granted permission. But he and other legal authoriteis insist that a court case clearly sets a precedent allowing voter registration on private property in such circumstances.
A video on YouTube shows a police officer stating Lutz was arrested for “trespass” despite the fact that he held up a copy of a California Supreme Court case (Robins vs. Pruneyard) which ruled that people have a constitutional right to register voters in public places and even on private property that is open to the public. The case references the importance of the “public square” role--a description that would clearly appear to apply to the Civic Center Plaza, where City Hall is located.
Although there is some question whether Lutz had his table set up on the public or private portion of the Plaza, the law provides protection in either case, attorneys consulted agreed.
At issue is the table Lutz used, since San Diego Police have claimed the right to arrest protesters who set tents or any other objects on the ground. But a table filled with voter registration materials has protections under the U.S. Constitution, trumping local laws, legal experts say.
Attorney Rachel Scoma, director of programs for Canvass for a Cause, said Lutz was “targeted because of his activism, because of his community involvement, as he was practicing his civic duty.” Speaking at a press conference last night, he noted that her group has gone to court before, winning the right to register voters in front of Target stores. View video of the press conference: http://www.youtube.com/watch?v=O19ja_9ONT8.
“What we saw today was at least five police officers participating in the arrest of one man,” said Scoma, who is also a member of the Occupy movement. Calling the message of economic inequality “too important to be silenced,” she vowed, “This ends tomorrow at 10 a.m. when we will be registering voters. And we will be doing so with a table and a chair.”
The City was already facing pending lawsuits alleging selective enforcement and violation of the constitutional right to peaceful protest with regard to other Occupy arrests (at least 114 prior to today).
Photos taken by ECM photographer Ron Logan this evening showed other Occupy protesters with backpacks and other belongings on the ground, ignored by police who were present. A chalk artist painting a mural on the pavement was also allowed to continue his creative expression.
An Occupy member who calls himself “Chaplain Ron” said an officer told him that police are now interested in high-profile leaders in order to demoralize the movement. The chaplain said he “quoted Jesus” an example of why overthrowing a leader doesn’t work.
This is not the first brush with notoriety for Lutz. During his 2010 campaign, after Hunter refused early debates, Lutz staged a hunger strike that drew national attention including a CNN interview. The El Cajon resident is also past president of th East County Democratic Club and founder of Citizens Oversight Projects (COPS), a citizens watchdog organization. COPS has been responsible for pushing some local boards to comply with sunshine laws including the Brown Act and forced the El Cajon City Council to remove religious videos off a city-run TV station after counsel found them to be a violation of the U.S. Constitution.
Stephen Whitburn, a journalist who has run for San Diego’s City Council in the past, said he is “deeply concerned about the way our city leadership is using this city’s police force. Our good men and women who serve on the San Diego Police Department signed up to protect and serve the citizens of this city. Arresting somebody for registering voters on the Civic Center Concourse does absolutely nothing to protect anybody from anything,” he said at the press conference.
“What is just as disturbing about this is the clear violation of California Law," Whitburn added. "It is very disturbing to see the city of San Diego use its police department as a police state.”
Whitburn called on citizens of San Diego to let Mayor Sanders, Councilmembers and Police know that “we will not be intimidated by having he city authority attempt to abrogate our fundamental constitutional civil liberties. Won’t happen. Won’t stand for it. Won’t tolerate it,” he concluded. “We will stand up.”
Occupy San Diego has listed the following contacts for concerned citizens:
Mayor Jerry Sanders office: (619) 236-6330 firstname.lastname@example.org
San Diego Police Department: (619) 531-2000
San Diego Police Chief Lansdowne: (619) 531-2777
Lutz, released from jail after 11 hours in detention, issued this statement on November 30.
"I am safely out of jail for the heinous crime of registering voters in the public square. I want to say I am overwhelmed by the loving support of everyone in the movement, it makes those 11 hours under arrest and handcuff pain worth it," he wrote in an e-mail to supporters." Lutz hinted at legal action, adding that he is discussing "plans with attorneys for what our next step will be regarding moving this to the next level."