Judge Henderson, WalMart’s Newest Greeter (July 25, 2001)

In a small claims suit over my arrest for petitioning at WalMart, Mendocino County judge Richard J. Henderson ignored basic facts in the case to come up with an incompetent and defective decision. Because no local attorney would represent me, I was forced to sue the assistant manager who had me arrested and the retail giant, WalMart Corporation, which employs him in small claims court where damages are limited to $5,000 per defendant, and the plaintiff cannot appeal.

The judge ruled that while my arrest was “not proper and without legal basis,” the manager who had me arrested and WalMart Inc. are not liable for damages because they “acted in good faith and without malice.” In addition, he ruled that WalMart is “under no obligation to permit the public to use its private property as a forum for the exercise of free speech rights.”

WalMart assistant manager Richard Tellstrom called police when I refused to leave the premises in February 2000. I was petitioning for the Green Party’s Measure G to decriminalize personal use of marijuana in Mendocino County. It was subsequently approved by 58% of voters in the November election.

On the advice of Ukiah policeman John Lewis, the manager effected a citizen’s arrest for violation of trespass law and I was kept in a county jail holding cell for five hours until the store closed for the evening. 

Eight more activists were ritually arrested at the store a few days later to protest my incarceration. They were released after booking for trespass at Ukiah City Hall.

Mendocino County District Attorney Norman Vroman issued a formal opinion two weeks later refusing to file charges, finding that neither the petitioning nor the protest at WalMart amounted to trespass because according to reports he had there was no interference with business operations in either case.

I had been petitioning for the measure for eight weeks at the same location near the south main entrance of the store. My petitioning there was fruitful and crucial to the eventual qualification of Measure G for the ballot.

Tellstrom told the court that he had received no complaints about my petitioning until the day of the arrest, when I “apparently for the first time had become aggressive and somewhat confrontational in [my] approach,” according to the judge. The judge then used that conclusion to support his finding of Tellstrom’s good faith state of mind in ordering the arrest.

In court, the defendant, WalMart Inc., could only produce its own employees to testify to this supposed change in my heretofore peaceful and productive petitioning style. None of them remembered seeing me or hearing about me during the 70 hours I spent gathering signatures there since Christmas.

I denied that I was impeding paying customers who did not want to sign from entering the WalMart store, and I produced hundreds of petition signatures from people apparently unoffended by my approach. In addition, I introduced sworn testimony from a shopper who testified I was not impeding foot traffic. Moreover, I argued that to have become aggressive or confrontational would have slowed down the signature gathering, thus jeopardizing the eventual success of the drive.

On cross-examination one WalMart witness, a senior citizen “greeter” named Denver Jones who proudly proclaims his abject and total loyalty to the multinational behemoth, set the hour of his observation of my aggressive style of petitioning to be mid-day, when I had only arrived at 3:30pm that day.

But the mid-day time citation apparently stuck in the judge’s mind because he put that in his ruling as the time of arrest, when police reports and witness testimony show it was instead 5pm. Not only that, the learned judge repeatedly cited the year of the incident to be “2001” when in fact it was 2000, the year of the general election in which Measure G passed by such an impressive margin.

Courts have held there is no federal constitutional right to free speech on private property where the speech is related to the property and where speech could “be exercised elsewhere.” California courts have upheld limited political expression where the private property has public characteristics.

Past opinions have restricted this situation in the shopping mall, a retail format that WalMart has been making obsolete by offering within its walls every commodity it can supply at prices cheaper than its competitors. As a result of its vertical worldwide integration and aggressive marketing policies, WalMart has clawed its way to becoming the world’s largest retailer with over $193 billion in annual sales. While it has 3,000 domestic outlets and is the nation’s leading private employer with over a million workers, it has destroyed jobs and businesses in all 50 states in so doing.

On its way to the top, Sam Walton’s retail juggernaut has buried the Montgomery Wards, Bradlees, Home Base and Woolworth chains. J.C. Penney’s and Sears are next. The failed Montgomery War shopping center in South Ukiah is mute testimony to the fact that WalMart is now a mall within a wall, proof of its consuming desire to become the world’s only retailer.

If retail alternatives to WalMart are disappearing, so are effective venues for public speech.

In this sense, the protection of healthy democracy should compel courts to look not only at whether monopolies are beneficial or harmful, but whether to the degree other opportunities for public speech exist, they are comparably effective? I asked the court to consider that if retail alternatives to WalMart are disappearing, are not also effective venues for public speech?

If WalMart with its paternalistic deep South corporate culture is allowed to use its commercial dominance to shape permissible speech, it will create a society in which its acts are above the law and its opinions the only ones expressed.

In this case, police records show that Tellstrom believed his corporate employer would find marijuana decriminalization inappropriate for its family environment. Consequently, his insistence that I obey WalMart’s solicitation rules and apply for permission to petition is cynical and disingenuous. Those rules require five day advance notice and prior approval of the content of the material by store management. My cross-examination of Tellstrom showed that the assistant manager had received no training or guidance from the corporation as to how to screen solicitation applications, and knew of no objective standard that would guide his determination.

WalMart’s rules which require prior review of solicitation materials by the store manager in advance exceed the rights given property owners by courts and in my case would have ostensibly resulted in a refusal by Tellstrom to allow me to gather signatures. Nevertheless, Henderson ruled that I had failed to establish how WalMart’s rules would unreasonably have interfered with my rights to petition.

In his opinion, DA Vroman reviewed the case law and wrote that in such cases store rules cannot be more restrictive than required to protect their legitimate commercial interests, must be based on objective guidelines and cannot discriminate based on the subject matter of the petition. “Applying WalMart’s rules and regulations, it is apparent they are too narrow as applied to the individuals in question,” said Vroman.

The judge wrote that the main question before his court was whether the Ukiah WalMart shares sufficient characteristics with the open spaces in malls, which “have evolved into public forums.” Whereas DA Vroman noted in his opinion after reviewing the same cases that it is “the kind of place that makes it a public forum,” noting there was a fast food restaurant inside the building sporting a bench where weary shoppers were encouraged to sit down next to Ronald McDonald. There are also benches and vending machines in the foyer designed to keep children occupied.

Judge Henderson,, however, confined his examination to the area just outside the door where I was accustomed to petition. Henderson described this as “spartan” and listed a number of amenities that it would have to have to attract people to gather outside to “otherwise enjoy themselves,” but did not.

But it does. It has a covered walkway, landscaping, a bike rack, vending machines, a public bulletin board where shoppers can list items for sale, and a talking coin-operated big rig truck ride with a Southern accent. 

The judge ignored all my photographic evidence of the amenities placed by WalMart to attract the public to this area.

The fact that the judge got the year wrong is not just a boo-boo on his part, either. It indicates he not only glossed over documentary evidence and my extensive written brief, but was generally oblivious to the political context of the signature-gathering activity.

He failed to grasp the significance of the overwhelming acceptance by Mendocino County voters of the marijuana decriminalization cause that the Green Party was promoting. That is, a significant proportion of WalMart shoppers agreed with us, and our presence there was crucial to getting this measure before the voters in November so they could approve it. Therefore, we were doing the people’s work at the Ukiah WalMart, a higher purpose than the mere peddling of merchandise, and deserved the protection of the law.

In ruling that WalMart has no obligation to permit the public to use its private property as a forum for the exercise of free speech rights, Henderson is rewriting American history to place property rights above political rights, holding that property owners have discretion as to whether federal and state constitutions apply within the boundaries of their land.

The fact that public expression rights “evolved” in the open space of shopping malls is testament to the diligence of those who exercised those rights in the face of repression such as we see in this case. For a judge to hold that such a fundamental liberty as freedom of expression must be narrowly construed to apply only to retail situations which are now economically unprofitable is to maintain that the framers of the Constitution were deficient in not extending these rights to private property in a future in which the commons would become virtually uninhabited because they are not where you find the lowest prices.

The judge held that even though my arrest was illegal, I had no right to damages because the manager relied on legal advice from the police. This exposes the complicit role of the courts and law enforcement in corporate suppression of dissent and civil liberties. Officer Lewis told me he was aware of the Pruneyard decision at the time of arrest, but advised Tellstrom that a citizen’s arrest for trespass would serve to get the activist off the property until closing time, even though he had no evidence that I was in technical violation of the trespass law. It was never a police matter except that officer Lewis intervened to support WalMart’s opinion about Measure G and its power to evict those with whom it disagrees.

This decision is just another lesson that courts almost always consider property rights and the profits of large corporations ahead of principle or reason. In deciding cases where citizens challenge corporate power, they ignore facts and confine their review of the law to those cases which justify abuses by powerful particular interests of which the courts and law enforcement are the docile handmaidens. This was a decision of convenience, designed to fulfill the wishes of an out-of-state family richer than Bill Gates that controls the largest retail empire the world has ever seen.

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