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San Diego riot police arrive to remove protesters in 2010.
On August 24, 20l2, two years after they were arrested for protesting marriage inequality, all charges against San Diego's "Equality Nine" defendants have been dismissed. The activists were arrested on August 19, 2010 after staging a sit-in at the San Diego County Administration Building to express their support of marriage equality. Six of them steadfastly refused to plead guilty to misdemeanor charges and the City Attorney stubbornly refused to dismiss the questionable charges against them until August 24, 2012, in advance of a trial set to begin on September 18, 2012.
The case, which I blogged about here, arose on August 19, 2010 when, after the San Diego Clerk of Court refused to issue same-sex couples marriage licenses, one of the couples began a peaceful sit-in, which was joined in by others. No one was prevented from doing business at City Hall as the protesters chanted slogans, sang songs, and engaged the Clerk in conversation.
Soon more than 50 policemen in riot-gear showed up to remove the demonstrators. Ultimately, nine members of the San Diego Alliance for Marriage Equality were arrested and spent a night in jail.
Those who were arrested were charged with two misdemeanors: failure to disperse and interference with the business of a public agency.
The latter charge is based on California Penal Code section 602.1b, a law that contains a clause stating that "Section b shall not apply to any person on the premises who is engaging in activities protected by the California Constitution or the Constitution of the United States."
Hence, it is unlikely that this charge could have been sustained in this case since protests are clearly activities that are constitutionally protected.
From the very beginning, questions were posed as to why the nine were charged with misdemeanors instead of infractions as is usual in cases arising out of protests that do not involve violence. (In California law, infractions are not punishable by jail time and are not considered crimes, while misdemeanors are low-level crimes and may be punished by up to a year in jail.) Questions were also raised as to why the City Attorney would allocate so many scarce city resources in prosecuting the cases in the first place.
Over 3000 individuals signed petitions or sent messages urging the City Attorney to drop the charges against the Equality Nine, as the protesters became known.
During hearings on the case, San Diego Superior Court Judge Joan P. Weber repeatedly expressed skepticism about the charges and the City Attorney's decision to prosecute. In August 2011, she indicated that she was unlikely to impose jail time even if the Equality Nine were convicted and she expressed concerns that "this prosecution will cost taxpayers of this community thousands and thousands of dollars."
On October 17, 2011, in response to her prodding, City Attorney Jan Goldsmith offered a plea deal that would require the defendants to plead "no contest" to violating California Penal Code section 415 (which says that "any person who maliciously and willfully disturbs another person by loud and unreasonable noise" can be punished by up to 90 days in jail and/or a fine of up to $400).
The plea deal included a suspended jail sentence and required eight hours of community service at a nonprofit organization of the defendant's choice. Once anyone who accepted the plea deal presented documentation that they had performed the community service, they would be allowed to "withdraw the plea" and end the case with no criminal record.
Three of the nine defendants accepted the plea deal, but six rejected it. By accepting the plea deal they would have avoided jail time and criminal records, but they would have in effect admitted that they had been lawfully arrested. Their perspective is that they should not have been arrested and taken to jail in the first place. To protest peacefully is a constitutional right that should not be punished by the government.
Just as the trial of the case against the six remaining defendants was scheduled to begin on May 1, 2012, the case took another turn.
When it became obvious to the defense that the prosecutor was challenging gay jurors simply on the basis of their sexual orientation, the defense made a "Batson/Wheeler" motion, forcing the prosecution to produce a reason for the dismissals. California is one of only two states that forbid the systematic purging of juries on the basis of sexual orientation.
Judge Weber appeared to be visibly angry at the tactics of the prosecution, saying that she found them shocking. Ruling that the prosecution had deliberately dismissed two openly gay jurors for no reason other than their sexual orientation and that the defendants had been denied a representative jury, she dismissed the entire jury pool and re-scheduled the trial.
Judge Weber again urged the prosecution to consider reducing the charges to infractions, which would not require a jury trial. She observed that "I've never had so many jurors express concerns about why a prosecutor's office would move forward and spend time and money on a case of this nature."
City Attorney Jan Goldsmith released a statement saying that the dismissal of the final juror was based on his having participated in gay rights protests in the past rather than on his sexual orientation. He did not address the charge that all the openly gay jurors were dismissed.
The trial was scheduled to begin yet again, with a new jury pool and at thousands of dollars of additional cost, on September 18. However, on August 24, when the defendants' attorneys arrived for a court hearing, they learned that the City Attorney's office had filed a written motion to drop all charges and that Judge Weber had granted it.
The motion noted that the case had been pending for two years and that each of the defendants had remained law-abiding during that time.
Attorney Gerald Blank, who represents one of the activists, told the Union Tribune, that the City Attorney's Office did the right thing, but that he and his client had long asserted that the prosecution was doomed from the start.
"The demonstrators were acting in the lawful expression of their First Amendment rights," Blank said. "I believe the court would have found that to be true."
Cecile Veillard, one of the "Equality 9" said that the vindication shows that justice is possible when fought with a community standing up together.
"We didn't fight these charges alone," Veillard told Ben Cartwright of San Diego Lesbian and Gay News. "We had tremendous support from members of SAME and Canvass for a Cause (CFAC)."
Sarah Parish, a spokesperson for CFAC, released a statement expressing pride in "our colleagues who refused to surrender their civil rights and admit to false guilt just to make these charges go away. Today the charges were dropped, and although this belated justice does not erase the wrongs done to the Equality 9 and all LGBT people daily, it does mark one more victory on the side of equality."
Sean Bohac, another of the Equality 9, said "We were right to be in the county clerk's office on August 19, 2010, we are still right to be dissatisfied with any form of discrimination in society and we encourage people to organize and take a stand when they recognize it. Though we still don't have equal marriage rights in California, I have heard first-hand that our efforts have provided encouragement to those working for justice."
It is good that the ordeal is finally over. However, the obduracy of the City Attorney prolonged it far longer than necessary. He owes an apology to the people of San Diego as well as to the citizens he unjustly prosecuted.
The video below explains the aims of the protest that led to the arrests on August 19, 2010.