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Chalking the plank: Judge won't allow bank protester to claim first amendment rights
Arguments are set to begin tomorrow morning.
The First Amendment has no place in Superior Court Judge Howard M. Shore's courtroom, not when it comes to vandalism with water soluble chalk.
Today the trial began in the case of a San Diego man who is being charged with 13 counts of vandalism for writing anti-big-bank slogans with washable children's chalk on a sidewalk outside of three Bank of America branches in Mid-City.
On one side sat Jeff Olson, the 40-year-old political activist who protested against the bailout of the big banks early last year. On the other side was Deputy City Attorney Paige Hazard and law student and city attorney employee William Tanoury. Also accompanying Hazard were two other representatives from the City Attorney's side.
For Olson, and any free-speech advocates and political activists, the day couldn't have gone much worse.
Judge Shore granted Hazard's motion to prohibit Olson's attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.
"The State's Vandalism Statute does not mention First Amendment rights," ruled Judge Shore.
The trial, stated the judge, should only focus on whether or not Olson is guilty of vandalism and not what his motivations behind the vandalism were. Shore cited the case, Mackinney v. Nielsen 69 F.3d 1002 (9th Cir.1995), where a man was acquitted after a court ruled that use of chalk was not considered vandalism. The law was later changed to define vandalism as defacement "with graffiti or other inscribed material."
After the ruling, during recess, Olson exited the court breathing deep breaths.
"Oh my gosh," he said. "I can't believe this is happening."
Tosdal exited the court room shortly after. "I've never heard that before, that a court can prohibit an argument of first amendment rights"
Arguments are set to be heard tomorrow morning, after the jury is selected.
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Chalking the plank: Judge won't allow bank protester to claim first amendment rights
Arguments are set to begin tomorrow morning.
The First Amendment has no place in Superior Court Judge Howard M. Shore's courtroom, not when it comes to vandalism with water soluble chalk.
Today the trial began in the case of a San Diego man who is being charged with 13 counts of vandalism for writing anti-big-bank slogans with washable children's chalk on a sidewalk outside of three Bank of America branches in Mid-City.
On one side sat Jeff Olson, the 40-year-old political activist who protested against the bailout of the big banks early last year. On the other side was Deputy City Attorney Paige Hazard and law student and city attorney employee William Tanoury. Also accompanying Hazard were two other representatives from the City Attorney's side.
For Olson, and any free-speech advocates and political activists, the day couldn't have gone much worse.
Judge Shore granted Hazard's motion to prohibit Olson's attorney Tom Tosdal from mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial.
"The State's Vandalism Statute does not mention First Amendment rights," ruled Judge Shore.
The trial, stated the judge, should only focus on whether or not Olson is guilty of vandalism and not what his motivations behind the vandalism were. Shore cited the case, Mackinney v. Nielsen 69 F.3d 1002 (9th Cir.1995), where a man was acquitted after a court ruled that use of chalk was not considered vandalism. The law was later changed to define vandalism as defacement "with graffiti or other inscribed material."
After the ruling, during recess, Olson exited the court breathing deep breaths.
"Oh my gosh," he said. "I can't believe this is happening."
Tosdal exited the court room shortly after. "I've never heard that before, that a court can prohibit an argument of first amendment rights"
Arguments are set to be heard tomorrow morning, after the jury is selected.
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The judge said the trial should "not [focus on] what his motivations behind the vandalism were."
But Deputy City Attorney Hazard previously stated that, to the City, motivation was a distinguishing element in bringing this case:
"The People do not fear that this reading of section 594(A) will make criminals of every child using chalk. Chalk festivals may still be permitted. Kids acting without malice may still engage in their art."
The problem is the police get to decide what malice is. They can do whatever they want.
The jury gets to make the decision on malice.
The problem is that Olson's lawyer isn't allowed to bring up why Olson did it (it brings up the first-amendment issues). This means that they won't have the facts needed to decide the question of malice.
The problem is that whoever decides what malice is, it figured into the prosecution, but now may rebutted by the defense. Totally unfair.
Excellent point. If "malice" is an element in this case then very obviously Olson should be entitled to talk about his First Amendment rights.
If the prosecutor must show Malice as a material element of the statutory "offense" here, then the defense should be able to show an absence of Malice because he had an objectively reasonable belief he was expressing his First Amendment protected political opinions. Malice is a state of mind, and the defense has a defense here and must be permitted to make it.
Additionally, abuse of prosecutorial discretion should be in a pre-trial motion to dismiss. If the City Atty is on record as saying the same conduct--chalk writing by a child on the public right of way--would not be a chargeable offense--then the trigger for the decision to prosecute here was not the CONDUCT, but the CONTENT of the writings. The paper trail showing very active pressure from B of A to prosecute is great evidence of this also.
Then there is always Jury Nullification.....
The Judge is Howard H. Shore. Never was in private practice. An Assistant County DA before being appointed judge.
Hon. Howard Shore
Adjunct Professor of Law
•LLM, 1973, London School of Economics and Political Science •JD, 1972, University of San Diego •BS, 1969, Worcester Polytechnic Institute
Areas of Expertise
Judge Shore teaches scientific evidence.
Professional Experience
Shore works for the San Diego Municipal Court. Prior to this appointment, he spent 16 years as a deputy district attorney and prosecuted several hundred cases, many involving psychiatric and other expert evidence. Shore also served in the training division and lectured to deputies on evidentiary and psychiatric issues. He is a current faculty member of the California Continuing Judicial Studies Program.
Honors and Affiliations
Shore graduated from the University of San Diego School of Law, where he was a member of the San Diego Law Review. He is a member of the Louis M. Welsch American Inn of Court and a faculty member at the California Judicial College.
This guy needs to be recalled. He needs to explain his actions to the people.
Tosdal exited the court room shortly after. "I've never heard that before, that a court can prohibit an argument of first amendment rights"
Judge Shore has now become the lead prosecutor, b/c he KNEW this case would not result in a conviction if ALL the facts were open to the jury-so he gamed and rigged the trial.
50 people in the Courtroom tomorrow with chalk in their hands ?
Or some great Parents with their KIDS , chalk in hand, for a Civics lesson in the meaning of the First Amendment ? Because kids cannot have the required predicate Malice.....
Has anyone had their house broken into lately? Please, forget it. The system has more important things to manage. After all, breaking and entering is usually done without malice. The burglar doesn't even know you. So it's OK.
So are the artist at the Italian Festival going to be arrested for chalking the streets and sidewalks?
Not if they have a permit from the state, i.e., city, state and federal agencies governing the conduct of social, political activities. Also, I would remind them to secure legal releases from any business which may come into contact with anyone with chalk. These should be kept for a period of seven years to cover them from prosecution and civil liabilities. It would also be advisable to secure a bond, or other insurance to cover the costs should they arise.
We can only hope that the jury looks at the absurdity of this claim of vandalism for what it is, namely an attempt to stifle criticism. I would not call an acquittal in this case "jury nullification." I'd call it common sense.
The problem is the judge is acting like the lead prosecutor by excluding evidence/legal theories that would sink the prosecutions case, like a free speech defense. This shit happens ALL the time. Cynthia Sommer was falsely convicted of 1st degree murder b/c the judge let the prosecution argue absurd issues (like she bought breast implants!!) in 98% of the case, instead of material evidence that pointed to guilt. If it can happen in a 25-life murder trial it can happen anywhere.
Olson is in good hands. Tom Tosdal, Harvard Law graduate, is mentioned in a 2012 Mother Jones article about arrests and charges for chalk writing during protests. Perhaps Judge Shore knew of the winning Florida case involving free speech, so thinks it's a great idea to shut down that line of defense.
BSP, yes Olson is in very good hands. I interviewed Alex Schaefer, the man he advised in Los Angeles (mentioned in Mother Jones), for the Cover Story. He said that the City Attorney at the time was very political and clashed with the Mayor and ordered police to arrest chalkers. The City Atty then seemed to go back on it and dismissed the charges against Schaefer. So, no court hearings as is the case here. --dh
Do you think it makes a difference in this case that Olson wasn't arrested at the time of the chalking? (At least I don't think he was - maybe I missed something).
Time/place of arrest/detainment makes no difference. They don't even have to arrest him, they could just send him a letter saying charges have been filed and show up at court on day xyz for arraignment
Thanks. Yikes.
This is absurd. VOTE TO ACQUIT if you're on the jury -- you have ZERO obligation to listen to so much as a single word of the judge's orders. VOTE OUR CONSCIENCE.
Ignore the First Amendment? Yeah. That'll stand up to an appeal. THIS IS FASCISM AT WORK, CRUSHING SOME CITIZEN BY ILLEGALLY IGNORING THE ULTIMATE LAW OF THE LAND.
Can we show up at the closest BoA branch to the courtroom armed with chalk? How many will the SDPD arrest? This story is really pissing me off.
The best hope here is that at least one juror will refuse to vote for a conviction. Misdemeanors that have hung juries are only rarely retried--although Goldsmith could decide to do it--and he would have nothing more to worry about. One reason we have juries is to do what you suggest, i.e. vote one's conscience. Over the past couple centuries the US system has come to a point of telling juries that they are only judges of fact and evidence, and not the appropriateness of the law or the charges. That is not where it all started, and what is now dismissed as "jury nullification" was once the role of the jury. No matter how much instruction a judge gives to a jury and no matter how he/she cajoles the panel, people still think and react to a situation that they have to judge.
BTW, I doubt Olson would get jail time even if he were convicted of all of the counts. For pity's sake, it was just chalk, and having a judge slap him with the max jail time for each count (that's where the 13 years came from) is highly unlikely. Some probation and public service (perhaps removing graffiti) is more like it. But don't forget that this sweeping ruling opens the door to a successful appeal. And if Olson is convicted, many folks, including me, will donate to the cause.
Well said.
The irony for me is last year I went to the San Diego police and attorney's office to get this guy who chalked over a hundred swastikas and other Nazi graffiti on an elementary school, and they told me that this Nazi was protected by the First Amendment and they couldn't prosecute him. Nazis in elementary schools is ok, but criticizing a bank is not? We need to dump Goldsmith now!
McKinley Elementary
That's amazing. If you have records of your contacts/responses, you might share them w/Olson's attorney.
You have the information to make this a national story.
fredjones2005 June 26, 2013 @ 9:42 a.m. You have the information to make this a national story.
Your wish has been granted my young Padawan!
Arnieds needs to get back to me with the info on the Nazi stuff.
Arnieds, can you contact me with more information? I would like to look into this. [email protected] 619-519-2227 Thanks!
I hope that you're able to get this story about the city's refusal to charge the Nazi (if it checks out, of course) a global hearing. So glad that the author of this story is participating down here in "the bottom half of the Internet".
This judge needs recalled.
Wow, this story is covered on HuffPo. http://tinyurl.com/ok7vgfv
It is a national story now. It's on http://DrudgeReport.com
Russia Today just did a story on it.
http://rt.com/usa/california-man-13-prison-banks-237/
Lets throw some gasoline on it and make it a bond fire.
LOL!!!
I had a friend in North Carolina that just posted it on his FB page...
. https://www.facebook.com/PoliceStateUSA
Chalk another one up for $an Diego
Also since most of the MSM is now owned in Southern California, chance are very good that you will not be hearing (pun intended) a peep about this in your newspaper or on TV.
Welcome to the new SoCal reality:
The Golden Rule is now in effect, those with the Gold Rule US!
just graduated law school out here in syracuse, ny and saw this story from a friend on facebook. here's the email i sent them and their horseshit response:
Dear Mr. Goldsmith,
I recently became aware of this case, and while I am not a resident of San Diego, my mother, two sisters, and nephew are, and I am appalled that this prosecution is taking place.
I ask that your office drop these charges against Mr. Olson immediately for the sake of fairness and justice, and to preserve the dignity of our profession.
Best, James Marvel
STATEMENT FROM CITY ATTORNEY'S OFFICE ON PEOPLE V. OLSON (GRAFFITI CASE)
This is a graffiti case where the defendant is alleged to have engaged in the conduct on 13 different occasions. The trial judge has already held that, under California law, it is still graffiti even if the material can be removed with water. Most graffiti can be removed. Also, the judge and a different pre-trial judge held that the First Amendment is not a defense to vandalism/graffiti.
The defense is trying to make this case into a political statement, which it is not. This is just one of some 20,000 criminal cases that are referred to us annually by the police department. We have prosecutors who decide whether to issue cases. They are professionals. The City Attorney was not involved in deciding whether to issue this case as is typical practice in prosecution offices for most cases. He hadn't heard of this case until it was in the media.
The defense is whipping up hysteria about the prospect of 13 years in custody. This is not a 13 year custody case. It is a standard graffiti case compounded by the fact that the defendant is alleged to have done it on 13 separate occasions. Because there were 13 different occasions when the defendant allegedly engaged in the conduct, the law requires them to be set out separately in the complaint. This increases the maximum sentence, but it still is a graffiti case and nothing more. The courts routinely hear graffiti cases and handle them appropriately using judicial discretion.
It is not unusual for victims to contact police or prosecutors about a case. Our prosecutors are trained to focus only on their ethical standards in deciding whether to file a case.
We prosecute vandalism and theft cases regardless of who the perpetrator or victim might be. We don't decide, for example, based upon whether we like or dislike banks. That would be wrong under the law and such a practice by law enforcement would change our society in very damaging ways.
Thank you
and here's my reply to their statement:
The City of San Diego Attorney's Office (and the two judges who issued the absurd rulings on the 1st Amendment), need to go back to law school. It's clear Mr. Olson was engaged in political speech from the facts of the case, and not vandalism. I almost hope he gets convicted, so that an appellate judge can smack this down and explain basic 1st Amendment jurisprudence to you all. How embarrassing for our profession that this case is going forward.
Best, James Marvel
Hmm... vandalism? Like that butt-ugly polychromatic statue they erected near the waterfront? Theft? The Murph retrofitting and ticket guarantee? If the crime is large enough, there is no prosecution. "WE ONLY CRUSH LITTLE PEOPLE" So mind your place, citizen. And leave that dangerous, felonious chalk at home! MOST OF ALL, never criticize our "Too Big To Fail" banks. Because their executives will pull the strings on a judge and you'll be in court where the judge will cavalierly declare the First Amendment somehow vacated for the day. VERY CONVENIENT.
I actually called the UT today and asked why I could find zero trace of this story. They called me back and told me they were working on it. It's a national story but I guess they're just a little behind the times.
For any number of reasons, often including insufficient staff and space in the paper, the Manchester Mill (aka UTSan Diego) fails to report major stories of local interest. At the same time it takes huge space and puts in major effort to run "heartwarming" stories that have nearly no news value. The Mill's editor gets to decide what is news and what is not. He ignores stories such as this one that might embarrass some friend of the rag, such as Goldsmith.
Thanks for getting active, silence only helps hide the TRUTH.
Saying the UT "is behind the times" is more than a little ironic, doncha think?
This is a perfect example of NO NEWS being bad news.
I believe that since North Park is known as San Diego's Premier Art District, what has actually happening is that the City of San Diego Attorney's Office has declared that Sidewalk Chalk Art is now illegal, since they now have the ability to arrest Artists for expressing themselves with chalk in public!
I'm looking forward to seeing numbered signed prints by the Artist on display and being sold at the next Ray Street At Night (07/13/13) event, which I'm now sure will feature a free-to-the-public NP CHALK-IN to honor North Park's now famous Chalk Artist, Jeff Olson.
I hope Todd Gloria, the President of the City Council and also Council District Three will now consider promoting Art in North Park by installing a bronze plaque in the sidewalk in front of the Bank of America so that this important piece of NP Art History will be preserved for eternity!
Maybe if enough people in San Diego and especially all those in North Park stand up and support Jeff Olsen's right to display his Sidewalk Chalk Art, others will find the courage to actually take up a piece of chalk and express themselves artistically, despite what the City Attorney's Office may think of their Sidewalk Art and/or their right to express it.
All of us who live in North Park should get some chalk and write "ACQUIT JEFF OLSON" on the sidewalks in front of our houses.
Update: Gag Order Issued...
For Bank of America and the Wealthy, it may be true that Silence is Golden
But for the rest of us, it is yet another frightening example of what the future holds for all of us little people that live in what is now known as $an Diego...
Remember who Judge Howard Shore is? He is the same Judge who Bonnie Dumanis ordered to make rulings against medical marijuana defendant Jovan Jackson during his 2nd trial. Jovan was acquitted during his first trial but Dumanis vowed to persecute him again. Flunkie and troll Judge Shore ordered that Jovan could not use a medical marijuana defense on the grounds that all of members of Answerdam Collective must have participated in growing the cannabis used to serve its members.
Because he was denied his medical marijuana defense, Jovan was found guilty at his second trial but filed and won an appeal to that conviction in the Fourth District Court of Appeal (People v. Jackson Cal. Ct. App. - Oct. 24, 2012). This Judge is an idiot and count on him to make so many crazy rulings that courtroom observers will be scratching their heads in disbelief.
. http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=41&doc_id=1968254&doc_no=D058988&search=party&start=1&query_partyLastNameOrOrg=jackson&query_partyFirstName=jovan
Check out this case. The city will lose it has already been to the 9th Circuit Court. Mackinney v. Nielsen, 69 F. 3d 1002 - Court of Appeals, 9th Circuit 1995
The City Attorney needs to Google more.
http://scholar.google.com/scholar_case?case=4318141888469226807&hl=en&as_sdt=2&as_vis=1&oi=scholarr
Holy Bat Shit- awesome case FRED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Maybe we can reference this part to SDPD and Shore, as they are Nazi's; "Nielsen rushed to the scene and asked what Mackinney had said. Mackinney said that he told officer Davis that he was violating Mackinney's civil rights. Nielsen responded by grabbing the chalk from Mackinney's hand and throwing it behind him. He allegedly said to Mackinney, "I don't give a f—k about your civil rights."
Interested readers are hereby invited to "CHALK-U-PY San Diego 2013" - a protest of the arrest of Jeff Olson for writing political messages in Chalk, and the suppression of the First Amendment of the Constitution in court! This Saturday (6/29) Protesters intend on creating a chalk mural of the Constitution with focus on the First Amendment in front of the San Diego Hall of Justice. Details: https://www.facebook.com/events/475647312514564/
Please help spread the word.
Who was the genius that appointed this judge?
This is insanity. This judge is absolutely clueless. Why doesn't Jan Goldsmith, who supposedly just learned about this, pull the plug?
We have to protest this trampling of free speech rights.
CHALK-IN Bring your chalk (and your kids) to make drawings about freedom in front of the city attorney's office building at the Civic Center on Monday morning, 9 a.m.
Address of City Attorneys Office is 1200 Third Ave. His offices are in the big brown office building across from the Civic Center. I think it's private property up the stairs on the brick part (if memory serves from Occupy voter-registration arrests), so do your drawings in the plaza area just down the stairs.
Please spread the word!
This entire thing is a huge embarrassment to the City of San Diego and is a graphic demonstration of the very point Olson was trying to make, that Wall Street and the Big Banks own our public officials. The prosecuting attorney who filed this thing should have his/her head examined. The judge is very obviously trying to avoid further embarrassment by not giving the jury any basis for jury nullification. I think Olson should be acquitted in about 2 1/2 minutes with a verdict written in chalk. What a joke.
Well, thankfully, the jury just today acquitted Olson. The City Attorney's office continues to ring tone deaf by describing the case as just another ordinary graffiti case, and that no one should've protested such a prosecution for that reason, and because he would never have served any time, anyway, let alone a year apiece for all 13 counts.
What the City Attorney's office failed to perceive, however, in even bringing their ill-conceived "just another graffiti" case, is that Bank of America, which is criminal by every fair legal standard and expert opinion regarding at least mortgage practices, is also no sympathetic "defendant" in the court of public opinion regarding these practices, and that by prosecuting the Olson charge as just another graffiti case would bring that very same court of public opinion rightly crashing down on the City Attorney's office.
By these terms, it is simply revolting to even have threatened Olson with 13 years.
At the very least, the City Attorney's office made themselves look especially foolish to prosecute a little guy for chalking, when what he was chalking about is a hugely criminal bank that continues to chalk the little guy.
That no decision maker in that office could imagine this fallout demonstrates their lack of political imagination and civic decency to lay off a minor charge not worth prosecuting for these reasons.
How much did this farce cost the taxpayers? Al least no time or money will have to be used for an appeal. Like the city attorney doesn't already look foolish enough with that dead wallaby on his head. Bank of America, hah! Not my America.