Claim alleges law enforcement violated 1st amendment rights.
A Ukiah Valley resident, Dennis O’Brien says his 1st amendment rights were violated when a sheriff’s deputy threatened to arrest him and a signature gatherer at the Ukiah Crossroads Shopping Center, outside Raley’s Supermarket.
“The woman asked me if I would like to sign some ballot petitions. I said I would,” writes a O’Brien in a complaint filed with Mendocino County Counsel. According to O’Brien, the woman had at least 3 petitions for ballot measures aimed at the November election; he signed two of them. But, before he could sign the third one, a sheriff detective showed up and ordered them to leave.
“The woman stated what she was doing and said she was just exercising her free speech rights. Detective [Andrew] Whitaker stated that she was on private property, and that the store manager had requested that she leave,” states a letter from O’Brien.
“I then stated that the Supreme Court had held that a shopping center was the equivalent of a town square, and that it could be used for gathering signatures for political purposes,” But O’Brien alleges Whitaker replied that he was enforcing private property laws.
“Detective Whitaker then stated that if we did not stop, he would have to arrest us for trespassing on private property,” reads O’Brien’s complaint.
Obrien, who is a retired lawyer and served as a Small Claims Advisor to Mendocino County from 1993-2011, says he was was appalled his protected efforts were thwarted by law enforcement.
“I was shocked when an on-duty senior officer of the Mendocino County Sheriff’s Office violated the civil rights of two people who were engaged in the most protected form of free speech – the political dialogue that precedes any candidate or initiative qualifying for a ballot,” he states.
However justified and legal O’Brien’s actions may have been, the threat of arrest left him and the signature gatherer parting separate ways.
Now O’Brien’s is preparing to file a federal lawsuit against Mendocino County and the Mendocino County Sheriff’s Department. A letter sent to Thomas Parker, Mendocino County’s new lead legal Counsel, requested a humble settlement that includes a memorandum ackowledging the rights of free speech at shopping centers, including petitioning, training of sheriff’s on 1st amendment rights, notice to all political groups in the county reminding them gathering signatures at shopping malls is legal, and a $1,000 donation to a non-profit of O’Brien’s choice.
“Mr. O’Brien is absolutely correct, the citizens have the right to petition at a shopping center, providing they are not blocking the customers to and fro. They clearly have that right,” said a county official who asked to remain anonymous.
However, O’Brien tells The Independent he hasn’t heard a word from Mendocino County.
Mendocino County Sheriff Tom Allman did not return calls by print time, but Captain Randy Johnson said the office has no specific policy in dealing with petitioners at shopping centers.
“Each law officer at our agency has a pretty wide range of discretion because there’s such a wide range of circumstances that happen at any time,” he explains, “It’s really based on judgement calls and based on the facts you have at the time. It’s quite a challenge.”
Whitaker’s choice to enforce private property laws instead of free speech, may cost the county millions, if O’Brien has his way. On October 11th he filed an official complaint seeking $10 million in damages. The complaint cites Mendocino County, Detective Andrew Whitaker, Captain Randy Johnson, Sheriff Tom Allman, and the Mendocino County Board of Supervisors.
O’Brien’s complaint alleges Detective Whitaker engaged in the violation of civil rights, including freedom of speech and freedom of assembly; false authority/imprisonment; and the infliction of emotional distress.
According to O’Brien’s complaint, Detective Whitaker said Raley’s management had called the police and complained. Obrien questions the stores motivation since signature gatherers had used the shopping center in the past for specific ballot measures, like measure A: to rezone property for the development of a mega mall. But, writes O’Brien, this years signature gatherers wanted to place a ballot to tax people who make more than $250,000 annually.
Regardless of possible motivation, O’Brien says his actions were protected by the 1st amendment and he’s ready to take the county to task over it.
“Such an abuse of power discourages participation in the political process and destroys public confidence in those who are sworn to protect us,” he wrote.
The county has 45 days to respond. If the county’s legal team denies the allegations, O’Brien has 6 months to file suit. To file a federal suit, he has 1 year to the time of the alleged violation.
“Federal judges are more sympathetic to civil rights actions. If it went to a jury trial, which I will demand, I think a San Francisco jury would be more favorable than a local one,” says O’Brien.
O’Brien says he aims to file suit January 2013 in San Francisco federal court.