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Citizen O’Brien’s Complaint

On August 13, 2012, Mr. Dennis O’Brien, of the Mendocino Environmental Center, filed a $10,000 claim against Mendocino County “for actions of Detective Andrew Whiteaker, failure to process timely complaint by Captain Randy Johnson, failure to initiate an investigation by Sheriff Allman, violation of civil rights, infliction of emotional distress, false authority and imprisonment.”

Mr. O'Brien says the incident occurred at the Ukiah Crossroads Shopping Center on North State Street near Empire Road and at the Sheriff's office on nearby Low Gap Road.

Mr. O'Brien's complaint elicited rude impatience and yawning indifference from the Supervisors.

“On April 16, 2012 at approximately 3:30pm I parked in the parking lot of the Ukiah Crossroads Shopping Center at the end of North State Street. As I walked toward Raley's Supermarket I saw a woman on the sidewalk with a clipboard in her hand. She was standing near a large stone pillar on the opposite side from the entrance to Raley's. She was not in any way interfering with foot traffic. If anyone tried to enter the store using the space she was occupying, they would have run into a stone pillar. As I approached, the woman asked me if I would like to sign some ballot petitions. I said I would. She had at least three petitions to get ballot measures on the ballot. I signed two of them. Before I could get to the next one Detective Andrew Whiteaker appeared. He was wearing a shirt with a Sheriff's logo on the left breast and Sheriff's Office badge on his belt. He stated that the woman seeking signatures to the ballot measure must leave. The woman stated what she was doing and said she was just exercising her free-speech rights. Detective Whiteaker stated she was on private property and that the store manager had requested that she leave. I then stated that the Supreme Court had held then a shopping center was the equivalent of a town square and that it could be used for gathering signatures for political purposes. Detective Whiteaker replied that he was enforcing California law and that the owner had the right to ask anyone to leave the place of business. I then asked him to identify himself. He stated he was Detective Whiteaker and confirmed he was a member of the Mendocino County Sheriff's Department. I asked if he was on duty and he said Yes. I've asked him if he was aware of the First Amendment, and he said Yes. I asked him if he knew that the First Amendment applied to the states. He said that did not affect his enforcement of private property laws. When I stated that I believed that Sheriff Allman would disagree, Detective Whiteaker replied that Sheriff Allman could not tell him how to enforce the law. I replied that Sheriff Allman could tell him if he was making a mistake. Detective Whiteaker then stated that if we did not stop he would have to arrest us for trespassing on private property. The woman gathering signatures left immediately and I walked into the store. I was not able to review or sign the additional ballot petitions that the woman had left with her. This is a sworn declaration that I have submitted to the Mendocino County Sheriff's Office as a formal complaint. The back page of what I've just passed out has my conversation with Captain Greg Van Patten who is the immediate supervisor of Detective Whiteaker. If you would like to hear more of that, one of you will have ask me. I'm out of time.”

Board Chair John McCowen, who owns the building at 106 West Standley which houses Mr. O'Brien and his activist colleagues, said,  “Thank you Mr. O'Brien. As you know, we are not allowed to consider items not on the agenda.”

O'Brien: “You are not allowed to act on them. You are allowed to discuss them.”

Mr. O’Brien is correct, according to the Brown Act and the Board’s own rules. Supervisors routinely engage members of the public in dialog on matters that citizens bring up. They just can’t vote on them.

McCowen: “Well, we are not really allowed to discuss it without having it on the agenda, so thank you for the information.”

In fact, however, soon after Mr. O'Brien shuffled off from the podium, acting County librarian Annette DeBacker and the Supervisors chirpily discussed her new job and the extra money she’s got to work with since Measure A passed last year giving the Library a big infusion of new funds.

O'Brien: “You're allowed to ask questions.”

O’Brien is again correct.

McCowen exasperated and raising his voice: “Thank you!”

O'Brien: “And you have 10 minutes to do that…”

O’Brien is again correct.

McCowen: “Well, thank you for the inform—”

O'Brien: “If any supervisor would like to hear the rest of the issue—”

McCowen: “Thank you, Mr. O'Brien. Thank you.”

No supervisors had any questions.

Supervisor Hamburg had pushed his big leather chair back from the Board dais and was busy fiddling with his cellphone.

* * *

In December of 2004, Dan Hamburg issued the following press release: “Wal-Mart Capitulates, Settles Free Speech Dispute with Ukiah Protesters. Plaintiffs in the case Dan Hamburg, et. al. v. Wal-Mart Stores, Inc. announced today that a settlement of the case has been reached. Wal-Mart will pay the plaintiffs $90,000 in order to avoid trial. The case arose after eight Ukiah citizens were arrested for protesting outside the Ukiah Wal-Mart store by the store manager. Wal-Mart claimed that a criminal trespass had been committed. District Attorney Norman Vroman refused to prosecute. The eight then sued Wal-Mart for false arrest. On November 2, 2002, Mendocino County Superior Court Judge Richard J. Henderson ruled against the plaintiffs and for Wal-Mart. The plaintiffs took their case to the state Court of Appeals which reversed Henderson in February of this year with a strong pro-free speech opinion. Following the appellate decision, Wal-Mart corporate spokeswoman Christi Gallagher stated, ‘Although disappointed that the appellate court reversed Judge Henderson, we are certainly looking forward to a vigorous defense in the trial court.’ However, at the mandated settlement conference on October 25, 2004, Wal-Mart attorney Robert K. Phillips instead offered the settlement. The appellate decision, which was published and has now become precedent for others to cite, establishes that it is not a criminal offense to refuse to obey/follow a store’s time, place and manner restrictions for the exercise of free speech. It also establishes that there is no ‘good faith’ defense to a false citizen’s arrest. Plaintiffs’ attorney Mark E. Merin of Sacramento called the decision ‘ground-breaking.’ He also maintains that the effect of the cash settlement will be to discourage stores from engaging in this kind of conduct in the future, knowing that they will have to quite literally ‘pay the consequences’.”

One might expect Hamburg then, now sitting as a Mendocino County Supervisor, would have intervened for O'Brien as the old boy got the bum's rush from McCowen, particularly since Hamburg was the lead successful plaintiff in an almost identical case begun by the late The One True Green Richard Johnson (may he rest in organic peace, his fatty forever lit) as the OTG and other his friends gathered signatures for… You guessed it! A marijuana initiative!

At the time of OTG and Hamburg's triumph, Mendo's Judge Richard Henderson ruling against OTG and Hamburg was unanimously overturned in Hamburg’s favor by the State Appellate Court.

(Henderson was put forward by Ukiah-area Wahoos in the late 1970s when a bitter failed recall effort was mounted against Hamburg during Hamburg's first tour as a county Supervisor. Hamburg had riled the Wahoos with a vote against a truly ghastly “visitor's center” project the Hoos of course thought was a swell idea.)

The MEC's O'Brien, trained as a lawyer we understand, probably is aware of Pruneyard Shopping Center v. Robins, a US Supreme Court decision issued on June 9, 1980 which arose out of a free speech dispute between the Pruneyard Shopping Center in Campbell, California, and several local high school students (who wished to solicit signatures for a petition against United Nations General Assembly Resolution 3379).

This case is famous for its role in establishing two important rules: under the California Constitution, individuals may peacefully exercise their right to free speech in parts of private shopping centers regularly held open to the public, subject to reasonable regulations adopted by the shopping centers; under the US Constitution, states can provide their citizens with broader rights in their constitutions than under the federal Constitution, so long as those rights do not infringe on any federal constitutional rights.

That’s the case that the late District Attorney Norman Vroman cited (mentioned in Hamburg’s 2004 press release) when he decided not to charge the protesters after they were placed under citizen's arrest by a Wal-Mart’manager. Vroman rightly pointed out that OTG, Hamburg et al hadn't violated any laws.

In April of 2000, Hamburg added some additional background to Vroman’s decision in an article Hamburg posted on “Vroman went on to state that analyzing Walmart’s rules and regulations, it is apparent that they are too narrow as applied to the individuals in question. Limiting someone to a three by four foot space that is approximately 17 feet away from the main entrance is more restrictive than is necessary to promote Walmart’s commercial interest. Furthermore, it appears that Walmart’s motivations are based on the fact that they feel that the subject matter of the petitions is personally offensive. This is the exact type of restriction that the courts have found to be constitutionally defective.”

The petition drive in question was the February 2000 effort to pass what later became Measure G which (sort of, but not really) decriminalized the personal use of marijuana in Mendocino County. A wimpy advisory measure, G said that pot should be a low priority crime for local cops. Measure G was later unfairly blamed for opening the door to a fresh influx of big-time illegal pot growers in Mendocino County.

Supervisor McCowen, before he became supervisor, among others, mounted Measure B, a successful effort in 2008 to repeal Measure G. And we all know how wonderfully successful that turned out to be.

Neither Measures G or B have had any discernible effect on the subsequent growth of the large trespass and public lands grows that fuel the marijuana industry in Mendocino County.

But it seems that Hamburg, perhaps channeling OTG from his cannabis bower in Pot Heaven, isn't much interested in free speech issues unless they involve him and/or the miracle drug.

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