The Morning Report
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Police and city officials have moved swiftly since Voice of San Diego revealed that police have for years been ticketing people under a 102-year-old statute banning seditious language that legal experts have said is plainly unconstitutional.
SDPD officials said officers will no longer be ticketing citizens for seditious language, and the City Council has taken steps to repeal the law.
But even if the measure is removed from the books, plenty of questions remain about how police wielded the law and what will happen moving forward.
Will people receive restitution and/or have their records cleared?
The ACLU of San Diego and Imperial Counties, as well as City Councilwomen Vivian Moreno and Monica Montgomery, have suggested that people who paid fines for seditious language tickets should have their money refunded and the offenses cleared from their records.
The city attorney’s office has also said it wouldn’t fight anyone’s efforts to have the charge expunged from their record.
But there’s a big gulf between simply not standing in the way of someone seeking to have the charge cleared from their record and proactively ensuring it happens.
If the city does go through with repealing the law, it would not in any way impact people who’ve already been cited and paid fines.
“Stopping enforcement is the bare minimum; expunging the records is a bare minimum. People also paid fines, so the city should make them whole,” said Jonathan Markovitz, a staff attorney for the ACLU of San Diego and Imperial Counties. “It should reimburse people who paid fines and it should cancel existing fines.”
Markovitz noted that people who failed to pay the initial fines were likely hit with additional fines and charges for failure to pay, and argued the city should repay all of those ballooning costs as well.
“The city is obligated, I think, to take some time to take stock of how much harm this caused – and then take measures to remedy or compensate people for that suffering,” he said.
Was there a directive by police officials to give out seditious language tickets?
Seditious language tickets aren’t being doled out in massive numbers, but there have been enough – at least 82 tickets written by 54 different officers since 2013 – to suggest it’s not a coincidence that officers were aware of an antiquated, 102-year-old statute and all happened to begin invoking it.
“The question is who discovered the statute? It’s a hundred-year-old statute, someone must’ve been reading something, discovered the statute and then trained the San Diego Police Department on this, because it wasn’t being used. And then suddenly it’s being used by lots of police officers,” said Eric Miller, a professor at Loyola Law School who focuses on policing.
Police Chief David Nisleit declined an interview request, and an SDPD spokesman did not respond to questions.
One person who received a citation previously told VOSD that several police officers approached and handcuffed him after they heard him arguing with a woman outside of a bar. When he told them the whole situation was bullshit, he said they appeared uncertain with what to cite him for but, after consulting with a superior, that senior officer told them, “Yeah, that’s seditious language.”
“I do think the city should investigate how this happened – whether there was training that told officers this was an appropriate method of policing,” Markovitz said.
Will officers who wrote seditious language tickets be punished?
If the city ultimately decides to vacate people’s seditious language tickets and make them whole for the fines they paid, doing so could be seen as an admission that those people had been wronged.
And if those people have been wronged, does that mean someone should be held responsible for those wrongs?
On top of legal experts’ contention that the law itself is unconstitutional, several people who received tickets told VOSD that they were not engaging in speech aimed at overthrowing the government, but that they were ticketed because they swore in officers’ presence or otherwise said things to offend the officers.
If that were the case, it would mean officers inappropriately doled out tickets as personal retribution and not because someone actually broke a law.
“I don’t know the disciplinary rules well enough to know whether enforcing an unconstitutional law is itself grounds for discipline,” Markovitz said. “I would suspect that enforcing an unconstitutional law for improper motives would be subject to discipline.”
What is the court commissioner’s role and responsibility?
Seditious language citations are infractions, which means those ticketed do not have a right to an attorney. It also means that neither the city attorney’s office, which prosecutes misdemeanors, nor the district attorney’s office, which prosecutes felonies, is involved. The police officer who wrote the ticket essentially acts as the prosecutor.
That leaves the court commissioner as the only person involved in many of these cases with any legal training (infractions are typically heard not by judges but by commissioners, a sort of junior varsity version of a judge). What responsibility does he or she have to ensure people are being treated fairly and that the ticket is appropriate?
In reality, not much.
“The quality of justice that happens in a low-level criminal court, especially a misdemeanor court on an infraction, is much less detailed than in other courts. It’s more of an administrative system,” said Miller.
He said that a judge’s interest in the case tends to correlate directly with whether someone has an attorney, and whether a defendant or their attorney puts a lot of work raising legal issues into the case.
“If all you want to do is process citations efficiently, then what you don’t want is someone requiring you to do legal research, because that takes up a lot of time,” Miller said. “The informal power of the judge is at its height in these low-visibility, low-level courts.”
Will officers simply use a different charge to punish speech that offends them?
On this question, Miller was definitive: “Yes.”
“Although the police are using the seditious language statute – it’s just a variation of resisting arrest, and throughout the country, the phenomenon of being arrested for what’s called contempt of cop is an everyday occurrence,” he said.
Even one of the commissioners who dismissed a seditious language ticket against someone who fought the charge suggested to the police officer who wrote the ticket that there were other options for punishing someone who mouthed off, Dillon Roark, who received the ticket, previously told VOSD.
The commissioner asked the police officer why he hadn’t simply used the municipal code for disturbing the peace instead. The officer agreed he should have.
Just to make sure I wasn’t missing something here, I asked criminal defense attorney Stacey Kartchner: Is swearing at or saying something to offend a cop against the law?
She, like Miller, was definitive: “No.”
Bonus Question: Will more police agencies begin charging people for using seditious language?
Last week, the Wall Street Journal reported that Attorney General William Barr recently encouraged federal prosecutors to aggressively charge those who participate in violent demonstrations, including by using rarely utilized sedition laws.
“Legal experts say the rarely used statute could be difficult to prove in court and potentially run up against First Amendment protections,” the Journal reported.