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Case tests "Pruneyard" Supreme Court Decision when applied to public areas

September 14, 2012 (San Diego) – El Cajon activist Ray Lutz, founder of the watchdog Citizens Oversight organization, filed suit on Sept. 13, 2012, alleging a false arrest on November 29, 2011, while he was registering voters in San Diego's Civic Center Plaza, effectively the town square of San Diego.

The suit named three defendants explicily: the City of San Diego, Police officer Tony Lessa, who arrested Lutz, and CBRE, "CB Richard Ellis Group" that manages the Civic Center Plaza Office Building and that performed a citizen's arrest for trespassing. The suit also names 25 John Does to allow for additional defendants to be named as determined by discovery.

Case #37-2012-00103865-CU-CR-CTL is assigned to Judge Denton. Attorney Bryan Pease is handling the case, Details can be found on this web page:   View Lutz’s statement here: The video of the arrest is here:

The Civic Center Plaza is the area where Occupy San Diego had set up their encampment starting on October 7, 2011. In the weeks prior to Lutz's arrest, the San Diego Police Department had conducted a number of purges of the public square, most frequently using the "encroachment law" (San Diego Municipal Code 54.0110) to prohibit the placement of any item on city property.

But Lutz placed his registration table in an area of the square that was designated as private property open for public use. SDMC 52.80.01 limits trespass on private property, but it is explicitly exempted for "peaceful political activities" in areas that are normally open to the public.

“Certainly, registering voters must be considered peaceful political activity that is a sacred right in our democracy,” Lutz, a former Congressional candidate and past president of the East County Democratic Club, stated in a press release. 

Lutz provided police officers and managers of the Civic Center Plaza Office Building a copy of Supreme Court Case known as the "Pruneyard" case (PRUNEYARD SHOPPING CENTER ET AL. v. ROBINS ET AL. No. 79-289, SUPREME COURT OF THE UNITED STATES, 447 U.S. 74; 100 S. Ct. 2035; 1980 U.S. LEXIS 129; 64 L. Ed.2d 741, March 18, 1980, Argued June 9, 1980, Decided), which states that the public has the right to use privately owned malls for peaceful political activity, such as gathering signatures or handing out political literature, with time, place, and manner restrictions.

Lutz had registered five voters and was in the middle of registering a woman who had just reached her 18th birthday and was registering for the first time, while three more citizens were waiting for their turn. Managers from the office building interrupted Lutz and requested that police arrest him for trespassing, which they did, citing SDMC 52.80.01.

"The defendants in this case who forced me to shut down my voter registration table in the public square of the city violated every notion of propriety," Ray Lutz said. "The law in the City of San Diego explicitly exempts 'peaceful political activity' on private property that is open to the public, and the Pruneyard Supreme Court case also supports the right of citizens to register voters, not only in privately owned and operated malls, but also in the public town square. This is just one ugly example of how the City of San Diego misused the power of arrest during the the Occupy San Diego protests in the Civic Center Plaza."

Lutz has previously filed a civil rights lawsuit over the arrest, as ECM previously reported.  That suit was dropped after charges were dropped against him.

Lt. Anda Brown with San Diego Police told ECM at that time that Lutz was arrested “based upon his refusal to remove his property from the private property, not his act of registering voters.”  During the Occupy protests, police have maintained that anyone who sets down tables or other objects in the publicly owned portion of the plaza will be subject to arrest. 

Lutz noted that the Occupy protests that occurred in the plaza targeted Wall Street, and the Civic Center Plaza Office Building that invoked the citizens arrest is emblematic of Wall Street: owned by JP Morgan Chase and operated by CBRE, owned by the who's who of wall street, including Goldman Sachs, Blum Capitol Partners, and State Street Corporation, to name a few, and whose chair is Richard Blum, the husband of Senator Diane Feinstein. Many connections of this nature were described in the original complaint written by former San Diego City Attorney, Michael Aguirre, here:

NOTE: the text of the suit can be viewed here:


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