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When thousands of people flooded San Diego’s streets earlier this year to protest police brutality against Black people, nearly 120 were scooped up and arrested in the first three days.
San Diego police records show 70 percent were detained for unlawful assembly violations, but four months later, no one from those initial protests has been charged – and the odds they ever will are getting smaller.
As it turns out, prosecutions for unlawful assembly in the region have been incredibly rare over the last decade. When they happened, the incidents at issue ranged from a group of women who chained themselves to City Hall, to a single man trespassing at a high school to Occupy San Diego.
We dug into where things stand with the unlawful assembly cases tied to this year’s racial justice protests, and how unlawful assembly prosecutions have been handled in years’ past.
The end of May and first days of June were chaotic: San Diego police unleashed flashbangs, rubber bullets and tear gas on crowds after ordering them to disperse.
Most San Diego protests held in later days have enjoyed a calmer reception with far fewer arrests, though tensions boiled over again last month during protests held following news a Kentucky grand jury did not indict any police officers for the March killing of Breonna Taylor, and in August following news Wisconsin police shot and paralyzed Jacob Blake. Still, those more recent clashes only resulted in a little more than a dozen arrests combined at events that drew much smaller crowds, according to SDPD officials.
A stream of police shootings of Black people with dire or fatal outcomes across the country have sparked debates about police reform and racial injustice. The protests that followed have also put a spotlight on another contentious issue: where First Amendment protester rights end and police powers begin.
Before police can begin making unlawful assembly arrests, they must first declare a gathering to be unlawful and order crowd members to disperse. Even peaceful protestors can find themselves in handcuffs if they don’t follow those orders – which sometimes come with very little notice or time to comply.
San Diego police officials claimed earlier this year that decisions to deploy force against protesters were only made after rocks or bottles were thrown at officers. In August, a protester outside police headquarters hit an officer in the head with a cane, causing a concussion, according to police officials. Another protester that month is charged with pepper spraying officers.
To date, though, far more protesters have been detained on unlawful assembly charges than on battery, vandalism or other serious charges in San Diego.
If all SDPD arrests for unlawful assembly this year were prosecuted, it would mark a gigantic increase in such prosecutions, records obtained by Voice of San Diego show.
San Diego police Lt. Shawn Takeuchi said the fact that the 2020 protests are about the police has no bearing on the dramatic uptick in unlawful assembly arrests this year.
“Unlawful assemblies were declared on certain days in the past several months because our officers witnessed violent acts toward them, or we witnessed criminal behavior and we have a duty to keep our officers safe and our community safe,” Takeuchi said. “During the last six months, we’ve facilitated numerous peaceful protests and in years past, which weren’t declared unlawful because we didn’t witness violent acts or criminal behavior.”
It helps when protest organizers talk to SDPD ahead of time about their plans and path so police can help them “have their voices heard” and to keep marches safe for attendees and vehicles, Takeuchi said. “We can redirect traffic.”
In more recent protests, Takeuchi said protesters are frequently showing up in gas masks, with shields and helmets, a marked difference from the initial protests sparked by the Minneapolis police killing of George Floyd.
Whether such steps are now being taken because protesters anticipate participating in violence – or being on the receiving end of police violence – is unclear.
No Unlawful Assembly Charges Yet
Police have the ability to declare a gathering unlawful, “whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner,” according to state law. The courts have interpreted the law to mean “assemblies which are violent or which pose a clear and present danger of imminent violence.”
In practice, police have wide discretion over when they can declare a protest unlawful, and the tipping point can vary from city to city and protest to protest.
“What is an unlawful assembly in San Diego might be a happy public gathering in San Francisco,” Gary Gibson, a San Diego criminal defense attorney and professor at California Western School of Law, told VOSD earlier this year.
SDPD records show San Diego police arrested nearly 120 people during protests held from May 31 to June 2. Nearly all of them involved people under 40, and at least 70 percent were people of color, police data provided to VOSD shows.
SDPD arrested 84 people for alleged violations of unlawful assembly orders in those early days, according to the SDPD numbers.
None of those 120 people arrested by SDPD has actually been charged with a crime four months later and none are in custody, according to the San Diego city attorney’s office, where the SDPD cases were sent.
City Attorney Mara Elliott indicated early on she was not interested in prosecuting peaceful protesters, and prolonged court closures have made pursuing such cases hard if not impossible during the COVID-19 pandemic – though the window to file charges doesn’t close until 12 months after the arrest.
Technically, all San Diego protest cases sent to the San Diego city attorney’s office remain under review for the time being, said Hilary Nemchik, a spokeswoman for the office. Prosecutors will review police officer body-worn camera footage for each case before deciding whether to file charges.
Takeuchi, the SDPD spokesman, said the standard police use to arrest someone – probable cause – is different than the legal standard prosecutors use to charge someone. He said he has faith all cases referred by SDPD will receive a thorough review.
When criminal courts more fully open, felony cases and in-custody misdemeanors will be prioritized, pushing some misdemeanor cases – like unlawful assembly – toward the bottom of the list.
With a growing court backlog, the odds every San Diego protester arrested will be charged and have their day in court are becoming more and more slim.
“I hope [Elliott] doesn’t file them, but it’s at their discretion to do so. And if they do, we will fight for our clients vigorously,” said Michael Ruiz, a supervising attorney for the San Diego County public defender’s misdemeanor unit.
Meanwhile, prosecutors in the San Diego County district attorney’s office – who can charge people across San Diego County with felonies or misdemeanors – also have not charged any protesters with unlawful assembly this year, but 23 people have been charged with other protest-related crimes, spokesman Steve Walker said.
Twenty people in East County are facing a total of 75 felony and misdemeanor charges, most of them tied to the La Mesa protests beginning May 30, which erupted in violence, looting and arson. Another man attending a San Diego protest in August was charged with more than a dozen felonies after allegedly pepper spraying police officers. One other man in San Diego faces charges of burglary and vandalism and another is charged with looting.
No police officers have been charged with any protest-related crimes this year, Walker said, though the case involving La Mesa Police Detective Eric Knudson, who fired a bean bag round at a 59-year-old woman’s face May 30 leaving her hospitalized, is still under review.
A Rare Charge
Before 2020, the San Diego city attorney’s office – which handles misdemeanor prosecutions within the city of San Diego – had rarely charged anyone with unlawful assembly, records obtained by VOSD show.
Just seven people over the last decade faced unlawful assembly charges brought by the San Diego city attorney, and they were tied to three protests.
Most recently, the city attorney charged four women with misdemeanors after attending an animal protest late last year.
All of the women worked with an animal rights organization called Direct Action Everywhere. One of them teaches activist classes to kids in Santa Monica. All four women chained themselves to San Diego City Hall and demanded a representative speak to them about condemning felony charges against activists who rescue animals from harsh conditions.
Katia Kimiya Shokrai, one of the four women, said the police gave them two hours to unchain themselves. Police then proceeded to cut their chains when the activists were unwilling to do so.
“It was a powerful experience to stand up for what you believe in,” she said.
Audrey Reese, another of the four, said she felt that way too.
“It motivated me more,” Reese said. “I felt inspired by the fact that I was arrested and that the other people I was with were arrested because we really care so much and we want to elevate this issue.”
Court records show all four pleaded guilty to a misdemeanor, but their charges were dismissed in exchange for community service through a diversion program.
Before that, the city attorney’s office charged Jose Marcos Cortes with unlawful assembly in late 2016 after he attended a rally against President Donald Trump at the federal courthouse downtown.
In the end, Cortes – who ran for Congress briefly earlier this year as a member of the Peace and Freedom Party – pleaded guilty to a different misdemeanor charge of disturbing the peace and did 25 hours of volunteer work to reduce it to an infraction.
Cortes said the ordeal motivated him to get more involved in activism.
“If you look at my intake photo, I’m smiling because I didn’t feel bad about what I did,” he said. “For sitting on the ground and defending free speech, I felt pretty good.”
Only one other event in the last 10 years has led prosecutors in the city attorney’s office to charge anyone with unlawful assembly: the Occupy San Diego protests in 2011.
The event was part of a national protest against wealth disparities and stemmed from news of big bank bailouts while many continued to struggle to find employment following the Great Recession.
Here’s how Sam Hodgson described the scene in November 2011:
The occupiers established a small makeshift village outside the Civic Center.
For a movement often derided for being listless or disorganized, it was remarkable to see a group of San Diegans so quickly establish a community, complete with food services, medical care, a small library and even a governing structure.
Just like any community, it housed an incredibly diverse group of people. At the makeshift encampment, I met socialists and anarchists. I met brilliant thinkers and people so spun out they could hardly form a sentence. I met people in suits and people with dreadlocks. I met people who legitimately wanted a peaceful protest and people who absolutely wanted conflict with police.
And everyone came with their own agenda.
Randy Scott Wolling was there, and he was among those arrested. He is homeless, and said he recalls being handcuffed so long people were forced to urinate on themselves.
Wolling said the protest felt like he had a big family. He stayed for the welcoming arms and to spread positive energy. Two weeks later, the police came and swept everyone up.
“If you grabbed your stuff instantly, you might’ve been able to take it but there was really no time,” he said. “I had more than a handful (of personal items). A lot of people did.”
Wolling was sentenced to one year of probation with 10 days in custody.
The San Diego County district attorney’s office has charged 22 people over the last 10 years with unlawful assembly, for an average just above two per year, said Walker, the spokesman. Unlike the city attorney cases, the charges do not appear to be tied to organized protests, but rather were part of individual, one-off cases.
In one instance, in 2014, court records show a 23-year-old brother of a Mount Miguel High School student showed up on campus and made threats against a teacher. He was charged with making threats, unlawful assembly and failing to register and leave school grounds. He was offered community service hours in exchange for dismissing the case, court records show.
In another case, two men were charged in April 2019 for drag racing, placing a barricade on the highway and unlawful assembly. In the end, both pleaded guilty to some charges and the unlawful assembly charges were dropped, according to the district attorney’s office.
Protecting Protesters vs. Punishing Violence
Some public officials across the country – like Florida Gov. Ron DeSantis – are eager to expand prosecuting powers against protesters. DeSantis introduced legislation in September that would increase penalties against protesters who fail to disperse when ordered, among other things.
But both of San Diego’s top prosecutors appear reluctant to charge every protester sent their way if their only offense was violating an unlawful assembly order. Both said they will draw a line at violence.
“I have no interest in prosecuting anyone for peacefully protesting,” Elliott, the city attorney, told the San Diego Union-Tribune in June. “That is a constitutional right and essential to our democracy, especially at this moment in time. However, I am concerned about cases that involve violence, property damage, or looting.”
“Peaceful protest is a time-honored tradition in our country, and we in law enforcement strive to protect these important First Amendment rights,” San Diego County District Attorney Summer Stephan said in a statement. “The majority of those protesting are doing so peacefully. But when protests turn violent, it is an insult to the rightful expressions of peaceful protesters, and law enforcement must act to protect the community.”