Thursday, April 4, 2019
C.A. Says Violation of an Ordinance May Form Basis for Probable Cause Even if Charges Were Not Brought on the Basis of That Ordinance
By a MetNews Staff Writer
A freelance videographer who was taken into custody after he continued to walk toward City Hall as persons encamped on the grounds as part of Occupy Los Angeles were being dispersed, and became combative with police, yesterday lost his bid for reversal of a judgment in favor of the City of Los Angeles and several of its officers in his action for false arrest and a civil rights violation.
The plaintiff, Tyson Heder, who also sued for battery and intentional infliction of emotional distress, argued on appeal that Los Angeles Superior Court Judge Mark V. Mooney erred in instructing the jury that probable cause for the Nov. 30, 2011, arrest could be predicated on a violation of a city ordinance which provides:
“No person shall enter, remain, stay or loiter in any park between the hours of 10:30 p.m. and 5:00 a.m. of the following day.”
Relevance of Ordinance
That ordinance was irrelevant, Heder insisted, because he was not charged with violating it (nor were any of the approximately 300 persons who were arrested in connection with the evacuation for unlawful assembly). Rather, Heder was prosecuted for—and acquitted of—battery and obstructing a police officer in the course of his duties.
The Court of Appeal for this district yesterday affirmed the judgment in favor of the city in an opinion that was not certified for publication. Justice Victoria Chavez of Div. Two wrote:
“[I]t did not matter whether or not appellant was charged with a violation of the ordinance for the existence of the ordinance to provide a basis for probable cause. Appellant was in City Hall park after hours, in violation of the ordinance, and this fact gave rise to probable cause for his arrest. Because probable cause objectively existed based on a violation of the ordinance, the ordinance can support the jury’s finding of probable cause.”
Says Ordinance Suspended
That ordinance, Heder further argued, had been suspended by the City Council when, on Oct. 12, 2011, it passed a resolution declaring:
“[T]he City of Los Angeles hereby stands in SUPPORT for the continuation of the peaceful and vibrant exercise in First Amendment Rights carried out by ‘Occupy Los Angeles’….”
That resolution—which became effective without the mayor’s signature after the time for a veto lapsed—on its face, “does not purport to suspend the ordinance or any other criminal laws,” Chavez said. She added:
“[N]onlegislative action, such as that done by way of resolution, must not be inconsistent with any obligations set forth in the Charter or an ordinance….In other words, the resolution, unlike the ordinance, lacked the force of law.”
After two months of encampments on City Hall lawn, then-Mayor Antonio Villaraigosa on Nov. 25, 2011, proclaimed:
“City Hall Park will close at 12:01 AM on Monday, November 28, 2011, because the City of Los Angeles cannot maintain the public safety of a long-term encampment. During the period when City Hall Park is closed, a Free Speech area on the Spring Street City Hall steps will remain open during regular park hours.”
“The Mayor’s announcement of the park closure due to public safety concerns, undermines any suggestion that the resolution permitted protesters to remain in the park.”
Heder asserted that if he had been prosecuted under the ordinance, the prosecution would have run afoul of his First Amendment rights. Chavez responded:
“Even if he had been prosecuted for violation of the ordinance, reasonable content-neutral time and place restrictions on speech are permissible….Closing parks to the public at night is a content-neutral restriction that does not violate the protections offered by the Federal and California Constitutions….Thus, arresting a person in a park after closing, even if that person was in the park to engage in free speech, does not implicate free speech and assembly protections.”
Sue process and equal protection contentions were also rejected.
The case is Heder v. City of Los Angeles, B284623.
Joseph W. Singleton and Heather E. Sterling represented Heder and Deputy City Attorney Jonathan H. Eisenman acted for the city.
Copyright 2019, Metropolitan News Company