East County News Service
Jonathan Goetz and Miriam Raftery contributed to this report
November 1, 2016 (San Diego) – San Diego Superior Court Judge Janis Sammartino heard evidence October 26 in a case filed by the National Association of Colored Persons (NAAC) and seven protesters against the city of El Cajon, the Sheriff’s Department, and El Cajon Police.
The plaintiffs contend that police erred in declaring an unlawful assembly and arrested peaceful demonstrators holding a vigil in the parking lot of a small shopping center where Alfred Olango was fatally shot by El Cajon Police. They seek a restraining order to protect First Amendment rights of the protesters.
The state penal code section 407 allows an unlawful assembly to be declared whenever two or more people assembly to do an unlawful act, or do a lawful act in a “violent, boisterous or tumultuous assembly.” However, the California Supreme Court has narrowed that definition to allow declaration of an unlawful assembly only if the assembly is violent or poses a clear and present danger of imminent violence, or violate some other law.
Plaintiffs also contend that police cited incidents that occurred hours to order dispersal of a different group of people later on, barring people from even getting near the property in question. Police contended they heard that someone went to get a gun, but never found a weapon.
The rights of the property owner are also a factor. The mall owner has asked private security and police for help to stop demonstrations. But the California Supreme Court has held that if a shopping center is open to the public, free speech rights must be protected. However, property owners can reasonably restrict the time and place of speech activities.
El Cajon’s city attorney argued that a temporary restraining order would create an impossible enforcement standard for police, requiring that only agitators be removed, not everyone present. The city also pointed out that police did not break up every assembly, allowing some demonstrations to continue.
Judge Sammartino questioned plaintiff’s attorney Bryan Pease on precedents for differentiating between peaceful assemblies and non-peaceful gatherings, showing concern over whether prior unlawful activity should warrant declaration of an unlawful assembly later on with different participants.
Plaintiffs have requested a jury trial. A ruling is expected within the week.
Carl Box, one of those arrested, spoke at a press conference after the hearing. He says officers in full riot gear was meant to intimidate and have a chilling effect on free speech rights. ”We would like a community review board of the police, so we can have a say in police misconduct,” he added.