Opinion

City Attorney’s National Embarrassment Ends in a Solid Fail

City Attorney’s National Embarrassment Ends in a Solid Fail

Photo by Sam Hodgson

City Attorney Jan Goldsmith

Monday just started off bad for City Attorney Jan Goldsmith and kept going.

His crackdown on a sidewalk chalk protester made it to NPR (check out the number of shares on that Facebook post). It caused a new wave of national embarrassment. Soon, even the district attorney, Bonnie Dumanis, got on social media to distance herself from the case.

Scott Lewis on Politics LogoA Twitter user had panned her “Shame on San Diego’s @BonnieDumanis, prosecutes #Jeffrey Olson for vandalism, sidewalk chalk, washable, no profanity … ”

Dumanis wanted everyone to know it wasn’t her. “FYI, this is the CITY Attorney case. Not ours. …”

This was a public relations nightmare Dumanis wanted no part of.

As Monday progressed, the jury informed Goldsmith’s team it had lost the case — a solid, embarrassing fail to punctuate the long folly.

As the case went on its parade through the nation’s media, it took on a life of its own, slightly removed from reality. No, Jeff Olson probably was not going to end up in jail for doing something that labor and anti-abortion activists do pretty regularly with the apparent permission of police. But still, it went national because it struck a cord: The city attorney may not think this is a matter of free speech, but a lot of people did.

That we would spend time prosecuting a guy, going to trial, and losing, because he chalked up a sidewalk and parking lot at Bank of America came off as just plain foolish.

Monday also brought us clarity, from the reporter who tracked this case masterfully, Dorian Hargrove, on what Goldsmith’s prosecutors had offered Olson were he to plead out and resolve the case. The offers were odious.

This was a waste of resources — apparently incalculable — right when the city attorney was trying to argue that a cut to these neighborhood prosecutors was an intolerable and petty political attack led by the mayor.

The city attorney appeared to recognize the folly. But, as he often does, he danced an awkward line between wanting to blame someone else, this time his staff, and wanting to defend his actions.

In a statement, he said it was the cops and his staff who pursued the case. Vandalism is vandalism, wrote his spokesman Michael Giorgino in a statement. It doesn’t matter if you can remove it easily.

“Under the law, there is no First Amendment right to deface property, even if the writing is easily removed, whether the message is aimed at banks or any other person or group,” he wrote.

But then, in classic city attorney double speak, Giorgino added: “We are, however, sympathetic to the strong public reaction to this case and the jury’s message.”

I followed up with him and asked what he meant. It seems groups might want to know whether they would fall on his “sympathetic” side or on his “vandalism is vandalism” side were they to use chalk to make a point.

Giorgino wrote back:

I doubt you will see us issue washable chalk cases. [The Neighborhood Prosecution Unit] is reassessing its issuing guidelines in light of this case.  Even so, police officers can still ticket low-level graffiti as infractions without our office’s involvement. We only handle misdemeanors.

So there you go, folks. Whether you’re a labor organizer, anti-abortion activist, lone-wolf anti-bank voice or even just a kid, the city attorney’s office doubts you’ll face his wrath in the future, if you chalk up a sidewalk in anything close to anger.

As he sets new guidelines for his beleaguered neighborhood prosecutors, the city attorney might want to incorporate a simple rule: Don’t prosecute people for stupid things.

As managers, we all have to remind employees sometimes that they need to recognize when they’ve gotten too wrapped up in something and it’s no longer worth the time they’re spending on it.

And preferably do this before it makes national news.

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Scott Lewis

Scott Lewis

I'm Scott Lewis, the CEO of Voice of San Diego. Please contact me if you'd like at scott.lewis@voiceofsandiego.org or 619.325.0527 and follow me on Twitter (it's a blast!): @vosdscott.

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31 comments
Angela Keenan
Angela Keenan

This was a political prosecution, the San Diego city attorney should be fired by the people for such a waste of public funds, and the judge should be censured for not allowing a 1st amendment based defense, this clearly was a 1st amendment case, but not to worry, these 2 political lackey's got theirs when the jury... THE PEOPLE ... spoke, WELL DONE JURORS !!!

Kevin Swanson
Kevin Swanson

P.S. Are they ticketing all of the chalk artists in Little Italy?

Kevin Swanson
Kevin Swanson subscriber

P.S. Are they ticketing all of the chalk artists in Little Italy?

Kevin Swanson
Kevin Swanson

Amazing "Staff and Police" - just who is actually running the San Diego City Attorney's Office? 5 Staff attending the trial? Mr. Jones one of them? It sounds like the City Attorney's budget should be cut by 75% - especially if this is the type of misdemeanor that they choose to prosecute. No wonder they keep increasing the ticket fines and maintain ticketing of vehicles parked on the street where posted "no parking for street sweeping" signs create revenue for the City and frustration on the part of residents and visitors. Where, Oh Where, is Good Government?

Kevin Swanson
Kevin Swanson subscriber

Amazing "Staff and Police" - just who is actually running the San Diego City Attorney's Office? 5 Staff attending the trial? Mr. Jones one of them? It sounds like the City Attorney's budget should be cut by 75% - especially if this is the type of misdemeanor that they choose to prosecute. No wonder they keep increasing the ticket fines and maintain ticketing of vehicles parked on the street where posted "no parking for street sweeping" signs create revenue for the City and frustration on the part of residents and visitors. Where, Oh Where, is Good Government?

Todd McMillin
Todd McMillin

Hey, Scott Lewis how about being an investigative journalist and see why both City Attorney Jan Goldsmith and Judge Howard Shore were so hardcore about violating Mr. Olson's 1st Amendment Rights. If anything you might want to actually use investigating journalists to see if there's ties between both Mr. Goldsmith and Judge Shore with the Bank of America? Because, it's very clear that both the Judge and City Attorney were in cahoots with BofA to not only violate Mr. Olson's civil rights; but in the future violate the rights of any activists who speak out against big corporate interests. It wouldn't surprise me at all if either Judge Shore or CA Goldsmith should be investigated for corruption or bribery charges for their actions. The other investigative angle would to be if there's any friends or family of either individuals who work with BofA in someway as employees or management because this clearly smacks of judicial malfeasance on several levels. Maybe district attorney, Bonnie Dumanis should do her job and investigate both the City Attorney and Judge Shore because it's clear there's major judicial abuse of gag orders and that "bribery" or other incentives by BofA clearly need to be answered for.

Carrie Schneider
Carrie Schneider

"Monday just started off bad"..... Every day I am painful more aware of the death of the adjective form. I blame Apple.

Carrie Schneider
Carrie Schneider subscribermember

"Monday just started off bad"..... Every day I am painful more aware of the death of the adjective form. I blame Apple.

John Falchi
John Falchi

This is just one more foolish escaspade on the part of our San Diego City Attorney, Jan Goldsmith, and an expensive one at that! Furthermore the national publicity it engendered has not at all been favorable to our city!

John Falchi
John Falchi subscriber

This is just one more foolish escaspade on the part of our San Diego City Attorney, Jan Goldsmith, and an expensive one at that! Furthermore the national publicity it engendered has not at all been favorable to our city!

Don Wood
Don Wood

This is what you get when you put an old politician into a job that requires a competent attorney. Mr. Goldsmith is too busy attacking Mayor Filner and positioning himself with conservative campaign contributors to run for the mayor's job to pay any real attention to doing his own job of representing the mayor and city council in court. Take a hard look at his long list of failure in court. Take a hard look at how he lied to voters when he promised to only serve one term as city attorney, then reneged and ran for a second term. Do you really think this man would make a good mayor for San Diego? I sure don't think so. He needs to be booted out of office and replaced with a competent city attorney.

Don Wood
Don Wood subscriber

This is what you get when you put an old politician into a job that requires a competent attorney. Mr. Goldsmith is too busy attacking Mayor Filner and positioning himself with conservative campaign contributors to run for the mayor's job to pay any real attention to doing his own job of representing the mayor and city council in court. Take a hard look at his long list of failure in court. Take a hard look at how he lied to voters when he promised to only serve one term as city attorney, then reneged and ran for a second term. Do you really think this man would make a good mayor for San Diego? I sure don't think so. He needs to be booted out of office and replaced with a competent city attorney.

paul jamason
paul jamason

Good summary of events, but I'm also interested in why Goldsmith's office pursued such a questionable case. Why is there no mention of the city attorney's political affiliation, campaign donors, or prior First Amendment-related prosecutions to help explain his motivations?

paul jamason
paul jamason subscribermember

Good summary of events, but I'm also interested in why Goldsmith's office pursued such a questionable case. Why is there no mention of the city attorney's political affiliation, campaign donors, or prior First Amendment-related prosecutions to help explain his motivations?

Bill Paul
Bill Paul

Thanks for the info David. I am curious as to exactly who these individuals are that make up the Neighborhood Prosecution Unit. The City Attorney's web site just says: "The Neighborhood Prosecution Unit, in partnership with the San Diego Police Department, other agencies, and the community ..." It appears on the surface that this is a sneaky and biased means for law enforcement, prosecutors and unnamed community activists to influence the political process in San Diego neighborhoods. It would be in the average citizen's best interest if this obviously flawed program gets cut.

Bill Paul
Bill Paul subscriber

Thanks for the info David. I am curious as to exactly who these individuals are that make up the Neighborhood Prosecution Unit. The City Attorney's web site just says: "The Neighborhood Prosecution Unit, in partnership with the San Diego Police Department, other agencies, and the community ..." It appears on the surface that this is a sneaky and biased means for law enforcement, prosecutors and unnamed community activists to influence the political process in San Diego neighborhoods. It would be in the average citizen's best interest if this obviously flawed program gets cut.

David Lundin
David Lundin

Olson can now bring his claim and suit against Goldsmith, Bank of America and the City of San Diego for money damages arising from their conspiracy to deny him his Fourth and First Amendment rights. It is frightening that Goldsmith and his staff of "lawyers" did not even do preliminary legal research before filing this absurd criminal case. They continue to blather on the issue [will they continue to persecute chalk cases ? When? Where? Because of content and message ? Liberals beware; Republican chalk is OK ?], with no regard for the Constitution or clearly on-point reported cases of the federal courts. The Ninth Circuit Federal Court of Appeals affirmed a chalk writer’s absolute First Amendment rights to scrawl on a public sidewalk in this 1995 case that took me 2 minutes to find: http://caselaw.findlaw.com/us-9th-circuit/1464004.html. The Couth of Appeals also held the City [Berkeley in this case] could be liable for damages and attorney’s fees to the Defendant. Doubtful if anyone in the City Attorney’s Office bothered doing any research on the issue. The unprofessionalism of Goldsmith and his entire staff is staggering. And Goldsmith is disingenuous when he claims his office does not track costs by cases. The professional staff keep daily timesheets, and indicate what their work is, and on what cases. If the City prevails in civil cases [a RARE event, to be sure], the City can recover its fees if it maintains records. In the Olson matter, there were costs for the SDPD "Gang" squad, all done at the request of the security goon from B of A. That had to be several thousand dollars. The City Attorney staff did some factual work up, reviewed records and videos from B of A, so an investigator, 1-2 lawyers, 2-3 law clerks, support staff did a work up for several months, including the 3 proposed plea offers. So I estimate $75,000+ in staff time and resources. Before the trial prep. And that is a conservative number. Then the City Attorney had pre-trial motions [remember the Motion that generated the Judge's unconstitutional Order prohibiting any reference to the First Amendment?], trial prep of witnesses, other pre-trial Motions, jury selection, and a 6 day Jury trial. I estimate another $100,000 in public funds here. Minimum. California estimates it costs $14,000 a day to operate a superior courtroom--more for trials and juries. Costs of the facility, judicial salary, law clerk, security, courtroom clerk--- it all adds up. When you do the math---something Goldsmith most certainly does NOT want to do--- it is in excess of $300,000 for this silliness. For $300,000 the Mayor got rid of surface parking in Plaza de Panama in Balboa Park. Goldsmith, because of stupid decisions and wholly unprofessional decision-making, got the City a huge liability, and national embarrassment.,

David Lundin
David Lundin subscriber

Olson can now bring his claim and suit against Goldsmith, Bank of America and the City of San Diego for money damages arising from their conspiracy to deny him his Fourth and First Amendment rights. It is frightening that Goldsmith and his staff of "lawyers" did not even do preliminary legal research before filing this absurd criminal case. They continue to blather on the issue [will they continue to persecute chalk cases ? When? Where? Because of content and message ? Liberals beware; Republican chalk is OK ?], with no regard for the Constitution or clearly on-point reported cases of the federal courts. The Ninth Circuit Federal Court of Appeals affirmed a chalk writer’s absolute First Amendment rights to scrawl on a public sidewalk in this 1995 case that took me 2 minutes to find: http://caselaw.findlaw.com/us-9th-circuit/1464004.html. The Couth of Appeals also held the City [Berkeley in this case] could be liable for damages and attorney’s fees to the Defendant. Doubtful if anyone in the City Attorney’s Office bothered doing any research on the issue. The unprofessionalism of Goldsmith and his entire staff is staggering. And Goldsmith is disingenuous when he claims his office does not track costs by cases. The professional staff keep daily timesheets, and indicate what their work is, and on what cases. If the City prevails in civil cases [a RARE event, to be sure], the City can recover its fees if it maintains records. In the Olson matter, there were costs for the SDPD "Gang" squad, all done at the request of the security goon from B of A. That had to be several thousand dollars. The City Attorney staff did some factual work up, reviewed records and videos from B of A, so an investigator, 1-2 lawyers, 2-3 law clerks, support staff did a work up for several months, including the 3 proposed plea offers. So I estimate $75,000+ in staff time and resources. Before the trial prep. And that is a conservative number. Then the City Attorney had pre-trial motions [remember the Motion that generated the Judge's unconstitutional Order prohibiting any reference to the First Amendment?], trial prep of witnesses, other pre-trial Motions, jury selection, and a 6 day Jury trial. I estimate another $100,000 in public funds here. Minimum. California estimates it costs $14,000 a day to operate a superior courtroom--more for trials and juries. Costs of the facility, judicial salary, law clerk, security, courtroom clerk--- it all adds up. When you do the math---something Goldsmith most certainly does NOT want to do--- it is in excess of $300,000 for this silliness. For $300,000 the Mayor got rid of surface parking in Plaza de Panama in Balboa Park. Goldsmith, because of stupid decisions and wholly unprofessional decision-making, got the City a huge liability, and national embarrassment.,

Steve Mehlman
Steve Mehlman

“Under the law, there is no First Amendment right to deface property, even if the writing is easily removed, whether the message is aimed at banks or any other person or group." Unless, I guess, we're talking about anti-abortion protestors. According to the San Diego Reader, they used chalk in their protests of Planned Parenthood a year or two ago. No arrest, no prosecution from the City DA's office in that instance. Bad enough that Goldsmith showed incompetence and wasted valuable time and resources on the Olson case. But what's worse is the hypocrisy.

Benjamin Katz
Benjamin Katz

Thanks for the back of the envelope calculations. I hope that VOSD or one of the other publications in town does a PRA request to try to get actual specifics of what this case cost.

Olin Hyde
Olin Hyde

I'd like to know why Goldsmith has not brought charges against Bank of America for fraudulent loan originations and illegal foreclosures within the city limits. Clearly, he considers chalk graffiti a greater public danger than fraud.

Randy Dotinga
Randy Dotinga

The Berkeley case is complicated, and it doesn't seem to directly say chalk-on-sidewalk is legal.

Steve Mehlman
Steve Mehlman subscriber

“Under the law, there is no First Amendment right to deface property, even if the writing is easily removed, whether the message is aimed at banks or any other person or group." Unless, I guess, we're talking about anti-abortion protestors. According to the San Diego Reader, they used chalk in their protests of Planned Parenthood a year or two ago. No arrest, no prosecution from the City DA's office in that instance. Bad enough that Goldsmith showed incompetence and wasted valuable time and resources on the Olson case. But what's worse is the hypocrisy.

Benjamin Katz
Benjamin Katz subscribermember

Thanks for the back of the envelope calculations. I hope that VOSD or one of the other publications in town does a PRA request to try to get actual specifics of what this case cost.

Olin Hyde
Olin Hyde subscribermember

I'd like to know why Goldsmith has not brought charges against Bank of America for fraudulent loan originations and illegal foreclosures within the city limits. Clearly, he considers chalk graffiti a greater public danger than fraud.

Randy Dotinga
Randy Dotinga memberauthor

The Berkeley case is complicated, and it doesn't seem to directly say chalk-on-sidewalk is legal.

David Hall
David Hall

No, it's not that complicated. "Section 594, as it was worded in 1992, made it illegal to (1) deface “with paint or any other liquid,” (2) damage or (3) destroy any real or personal property that is not one's own.   It was not reasonable for Sergeant Nielsen to arrest Mackinney for a violation of § 594.   Mackinney wrote on the sidewalk with chalk.   Chalk is not “liquid,” and there is no evidence that the sidewalk was “damaged.”   No reasonable person could think that writing with chalk would damage a sidewalk.   In addition, if writing with chalk constitutes “damage,” it is hard to imagine any defacement “with paint or other liquid” that would not also constitute damage.   This reading would collapse the “defacement” provision of § 594 into the “damage” provision, violating the prohibition against construing statutes so as to render any of their provisions superfluous.   See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991)."

David Hall
David Hall subscriber

No, it's not that complicated. "Section 594, as it was worded in 1992, made it illegal to (1) deface “with paint or any other liquid,” (2) damage or (3) destroy any real or personal property that is not one's own.   It was not reasonable for Sergeant Nielsen to arrest Mackinney for a violation of § 594.   Mackinney wrote on the sidewalk with chalk.   Chalk is not “liquid,” and there is no evidence that the sidewalk was “damaged.”   No reasonable person could think that writing with chalk would damage a sidewalk.   In addition, if writing with chalk constitutes “damage,” it is hard to imagine any defacement “with paint or other liquid” that would not also constitute damage.   This reading would collapse the “defacement” provision of § 594 into the “damage” provision, violating the prohibition against construing statutes so as to render any of their provisions superfluous.   See Boise Cascade Corp. v. EPA, 942 F.2d 1427, 1432 (9th Cir.1991)."