Wednesday, August 12, 2020
Court of Appeal:
Restraining Order Against City Council ‘Gadfly’ Survives First Amendment Challenge
By Sandra Hong, Staff Writer
One of Los Angeles County’s’ more flamboyant gadflies, who in the past has paraded as Batman and worn swastikas at city council meetings in various cities, has been told by this district’s Court of Appeal that his First Amendment argument doesn’t defeat a judge’s restraining order to stop harassing a particular deputy city attorney.
Div. Two Presiding Justice Elwood Lui said that threating statements made by Armando Herman during city council meetings against Los Angeles Deputy City Attorney Strefan Fauble were not protected under the First Amendment.
Herman argued that the restraining order, granted by Los Angeles Superior Court Judge Jennifer H. Cops, was invalid because he did not have subjective intent to harm Fauble.
“That claim, even if true, does not change our analysis,” Lui wrote in an unpublished opinion filed Monday, citing the 2011 California Supreme Court case of People v. Lowery, which determined that threatening speech falls outside of First Amendment protection, even when made without the “specific intent to intimidate.”
“The relevant issue is not what the speaker intended, but what a reasonable listener would understand.”
During an April 2019 Los Angeles City Council meeting, Herman made profanity-laced threats at Fauble and revealed his home address, saying “everyone should know” where he lived, according to Lui’s opinion.
At a Pasadena City Council meeting almost two weeks later, Herman again disclosed Fauble’s home address. Herman also submitted public speaker cards making profane threats with drawings of a Ku Klux Klan hood and lightning bolts above Fauble’s name.
In May 2019, Herman shouted profanities at Fauble while being escorted out of a Los Angeles City Council meeting for being disruptive.
The City of Los Angeles filed a workplace violence restraining order against Herman under Civil Code §527.8, which provides, in part:
“Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace, may seek a temporary restraining order….”
Cops granted the restraining order requiring Herman stay at least 10 yards away from Fauble during city meetings and cease disclosing his home address and making any contact with him.
Lui noted that Cops tailored the order to balance the needs of protecting Fauble’s safety with Herman’s First Amendment rights to speak at city meetings.
“Most of the prohibitions in the trial court’s Order…concern conduct rather than speech,” Lui observed. “The portions of the Order that do apply to speech…are based upon specific prior threatening conduct that was not protected by the First Amendment. The Order was therefore constitutionally permissible.”
The case is City of Los Angeles v. Herman, B298581.
Herman’s appearances before public bodies are not limited to addressing the city councils of Los Angeles and Pasadena. The Los Angeles Times on April 19, 2019 published a photo of Herman addressing the county Board of Supervisors, observing in the accompanying article that Herman “regularly exasperates the supervisors.”
An Aug. 19, 2019 article in the Downey Patriot reports that Herman not only consistently speaks at meetings of the Downey City Council but “is also a regular in Cerritos, Pasadena, Norwalk, and Bellflower, just to name a few.”
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