As the city takes steps to repeal a 102-year-old law banning seditious language, new details about how police wielded the law paint a picture of random harassment and punishment for those who complained.
The San Diego City Council’s Public Safety and Livable Neighborhoods Committee voted unanimously Wednesday to repeal a part of the municipal code — passed during World War I — that forbids people from making statements that “breach the public peace.” The repeal effort heads next to the full City Council, where the earliest it can be heard is Aug. 29. SDPD said last month that its officers have been directed to stop writing seditious language tickets.
“Seditious language” is language actively attempting to overthrow the government. Since 2013, 54 different SDPD officers have handed out at least 82 tickets for it. And while the city doesn’t keep copies of tickets for more than seven years, at least two other people have claimed they received one in the recent past.
Legal experts have called the law “blatantly unconstitutional.” A former city attorney referred to it as “medieval.” Meanwhile, support for its repeal has been widespread, including from the ACLU and the police department itself.
The ACLU for San Diego and Imperial Counties has even argued repealing the law doesn’t go far enough: The organization is also asking that officials clear all seditious language offenses from people’s records and refund any money paid as penalty. City Councilwomen Vivian Moreno and Monica Montgomery voiced support for that idea as well Wednesday.
In a statement, Hilary Nemchik, a spokeswoman for City Attorney Mara Elliott, said Elliot is supportive of the repeal and efforts to make amends for seditious language tickets, but that it doesn’t fall under her authority because she doesn’t prosecute the people cited. The tickets are infractions, which are handled administratively.
“Our office would not stand in the way of anyone’s effort to have this charge expunged from their record,” Nemchik wrote.
While the law’s days appear numbered, it’s done plenty of damage in recent history. Multiple people who did receive tickets under the law said they had to either appear in court, pay a fine of at least $100 or both. Some said officers used physical force, handcuffing or dragging them around in the course of giving them the ticket. One person even spent a night in jail after getting his.
Several claim that they were only cited because an officer took personal offense to something they’d said — usually about police and sometimes just quietly to themselves.
“I think that it’s likely that unless there is clear direction and will on the part of the city to stop biased policing, biased policing will continue,” said Jonathon Markovitz, a staff attorney for the San Diego ACLU. “And I think that getting rid of any one problematic ordinance is important, but it’s not going to solve it all.”
SDPD spokesperson Shawn Takeuchi declined to comment on any specific past tickets. In response to questions about overall police enforcement of a seditious language law, he sent VOSD the definition of a citation.
He had also declined to answer any questions about the 82 tickets issued between June 2013 and May 2020 for an earlier article, because the questions were “historical in nature.”
Feeling Seditious in Pacific Beach
Dillon Roark was a 23-year-old college student when he received his ticket on Aug. 29, 2015, outside a large Pacific Beach house party that had attracted a noise complaint. As the party was being broken up, he saw a police officer aggressively questioning a teenage attendee and stepped in to help her, he said.
The officer turned and shined a flashlight directly into his eyes, then threatened to forcibly remove him if he didn’t cross the street away from them, Roark said. Angry and tipsy, Roark said he shouted, “Fuck the police!” several times as he went.
Roark remembers sitting in his designated driver’s car, waiting for a friend in the backseat for several minutes, when a flashlight shined into the backseat. Next thing he knew, he was being ticketed.
“This cop went out of his way at that point to come and find me in a parked car on a dark street to bring in the ticket,” Roark said. “Because this happened like 10 minutes later.”
Roark estimates five police officers were out monitoring 40 or 50 people as they left the party. He was surprised they’d even heard him because of all the noise.
Less than two months later, Paul Howie was out with friends in Pacific Beach after bars had closed for the night. Intoxicated, he said, he got into an argument with several underage girls, so four or five police officers approached to defuse the situation.
The cops put him in handcuffs, and he started arguing with them, too, claiming that the whole thing was bullshit, he said. He said he got the impression the officers weren’t sure at first what to cite him for.
“They had to consult the senior guy,” he said. “And the senior guy told them, ‘Yeah, that’s seditious language.’ So it definitely didn’t seem like it was a consensus thing. It was more like, ‘We just need to get this guy for something, you know.’”
When No Other Ticket Will Do
Jawanza Watson previously told VOSD he was leaving his shift at a Pacific Beach bar around 2 a.m. when cops stopped him and ticketed him for singing a rap song with profanity.
“The police officers, they were in the car, or they were on the street,” Watson said. “They were in a car with their windows down. Looking for trouble. Looking for drunk intoxicated people.”
He said he thinks the officer, Jason Taub, whose name appears on his ticket, wanted him to play along and apologize. He wasn’t interested — he was angry, because across the street he could see a group of loud, drunk college students, just like him. They were White, though, and he said he thought police were profiling him, a Black man.
He said it seemed like a power trip.
“It was basically like, if I would have sunk down to his level and said, ‘Yes, sir,’ ‘No, sir,’ all that, I would have gotten no ticket,” Watson said. “I feel like it’s all about power. Like when he told me to stop saying … whatever I was saying, I didn’t stop saying it.”
Rhett Palmer and his friends were also out in Pacific Beach when he was cited for seditious language. Palmer had left with a flood of pedestrians after last call on Jan. 31, 2016.
As Palmer neared a Garnet Avenue crosswalk, he noticed a car in the turn lane with its blinker on, waiting for the pedestrians to cross, he said. Another car behind it in line was behaving “obnoxiously,” honking its horn and blasting music, he said. He was tipsy after two drinks, he said, so he yelled at it to stop.
“Before I knew it, it happened so quickly, but these police just rushed in with their car,” Palmer said. “I don’t even know how they heard it … And I’m like, ‘Oh, nice they’re going to tell this guy to chill out or something.’ And they came up to me and were like, ‘What are you doing? Are you trying to start a fight?’ And I was like, ‘No!’”
Palmer remembered that one officer accused him of being drunk, but he wasn’t. He thought they were out looking for trouble, too. They decided to write him a ticket.
“It all happened so quickly,” Palmer said.
When You Push Back
That’s typically where these stories end. People tend to pay their tickets and go on with life.
Roark did something different. He researched the charge in depth, challenged his ticket in court and was found not guilty.
During the trial, the officer didn’t seem to know what the term “seditious” even meant, Roark said.
When officer Jonathon Contreras took the stand, he told the judge that Roark had been aggressive, loud and trying to start a fight, Roark said. He didn’t mention seditious language, or any attempts to overthrow the government.
Roark went so far as to research and prepare a statement for the court on the constitutionality of the ticket. He remembered that the judge had to pull out a law book to double check the meaning of the seditious language law and asked the officer why he hadn’t used a municipal code against disturbing the peace instead.
Contreras backtracked, agreeing that he should have, Roark said.
“And it’s interesting, because in order for him to even write the ticket for seditious language, they had to have some type of understanding of what it meant, right?” Roark said. “Because like how would you even know to write a ticket for that? So at some point … they had to have been taught.”
One person who received the ticket sent a complaint to the city attorney’s office and managed to get it expunged. Emails show that the ticket was reviewed by John Hemmerling, at the time the lead deputy for the public safety unit and legal adviser for the police department. Hemmerling is a former police officer and currently in charge of the criminal and community justice divisions. The review was conducted under the direction of Jan Goldsmith, the city attorney at the time.
Hemmerling emailed the person back saying she had been ticketed under the wrong code section and would not have to pay or go to court.
Howie, ticketed after swearing at girls and telling police their encounter was “bullshit,” hired a lawyer to defend him in court while he was on vacation. The lawyer wound up pleading guilty for Howie after she realized that the legal retainer was more than the cost of the ticket.
Howie didn’t learn about it until later, but said he was fine with it. He said he considered his lawyer’s actions in his best financial interest. He paid $193 for the ticket, not counting $35 more in fees, according to emails exchanged between him and his lawyer at the time.
Watson moved a few months later, and never appeared in court.
Palmer said he eventually paid his fine, totaling about $100, without challenging it. But immediately after he got it, a bad series of events meant he also spent a night in jail.
Palmer said that he made his mistake while walking away from the officers after being ticketed: He remembered complaining, “Why don’t you guys worry about some real crimes?” and an officer yelling at him to come back.
Officers brought him to a parking lot they had set aside to transport intoxicated people to a drunk tank, Palmer said. He continued protesting that he wasn’t drunk — he’d been late to the bars that night, and he’d only had two beers before they closed, he said. But he was also angry, so he said, “It’s a good thing I’m not Black or you would have shot me already.”
They brought him to the drunk tank, a building set up with mats so that people could sleep off their buzz, Palmer said. He laid down on one. After the officers left, he got back up and asked the attendant if he could leave, since he was sober.
She let him go, he said, but the officers spotted him and took him to jail. He said he walked out the next morning with a booking document for “public intoxication” and a ticket for seditious language in his pocket.
A Call for Change and Amends
The city attorney’s office has moved quickly since August, drafting an ordinance to repeal municipal code 56.30.
The ACLU of San Diego has written two letters asking that the city repay any fines or bills paid and expunge any records resulting from the ordinance.
“If you really harm someone, you shouldn’t get to just say you won’t harm somebody else in the same way,” Markovitz, the ACLU attorney, said. “You have to owe something to the person that you harmed.”
Those who didn’t show up to their hearing or couldn’t pay the fine likely saw further bills after the fines went to debt collectors, or even warrants for their arrest, Markovitz said. People may have been introduced to the criminal justice system who shouldn’t have been, he said.
Markovitz sees similarities between the way police have been issuing seditious language tickets and the way they use an anti-encroachment law, which forbids putting private property on sidewalks so that homeowners don’t leave their garbage on the streets, to ticket homeless people. In both cases, police appear to have stretched the law far beyond its intended use. People acting obnoxiously outside bars in Pacific Beach were not advocating the overthrow of the government; homeless people sleeping outside are not errant trash cans.
“The city has been inventive in its use of the tools that are in its toolbox to criminalize the most vulnerable members of our society,” he said.
Without broader change, Markovitz argued, the city will probably just find another law to use as an excuse to punish speech they don’t like.
Correction: An earlier version of this post misspelled Jonathan Markovitz.