November 28, 2020

‘Monumental failure’: San Jose won’t charge protesters arrested for curfew violations

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Three months after protesters took to the streets over the police killing of George Floyd, San Jose officials have decided not to prosecute those arrested on allegations of violating curfew or ignoring orders to disperse during the summer demonstrations.

In a confidential memo sent to city leaders on Thursday, Acting City Attorney Nora Frimann said a 1993 court case regarding a curfew order issued during the Rodney King riots in Los Angeles put the legality of some of the dozens of arrests made for San Jose curfew violations into question and served as one of the key factors in the city’s decision.

The case — People v. Continola — overturned three test cases involving people arrested for merely walking on the streets or being in their cars after curfew. The judges at the time ruled that police should have limited their crackdown on the curfew order to individuals whose actions threatened to “imperil lives or property or prevent, hinder or delay” police or fire personnel — none of which the three individuals represented in the case were involved in.

San Jose Police Chief Eddie Garcia — frustrated by the city’s decision — said this was the first he had heard of the case.

“Shouldn’t we have heard about it as we were writing the ordinance or having conversations about it with the council?” Garcia said in an interview Thursday. “To have an ordinance that at the end of it doesn’t have any teeth to it serves little purpose.”

The move by San Jose comes months after cities and counties across California, including Los Angeles, Sacramento and Alameda counties, made similar decisions to drop all charges related to curfew violations during the George Floyd protests that began in late-May.

Some people facing charges in addition to the curfew violation — such as burglary, vandalism and assault — will still have the other charges sent to the Santa Clara County District Attorney’s Office for review and potential persecution.

Paul Kelly, president of the San Jose Police Officers Association, in a statement called the decision to drop charges related to curfew violations a “monumental failure in leadership” that put the city’s police officers “in harm’s way” and led to numerous “needless confrontations” between police and community members.

“City leaders need to figure out that not all protesters are peaceful and that some seek to cause harm and destruction,” Kelly said in the statement. “Those that do must be held accountable instead of being appeased. Otherwise, the Mayor and Councilmembers better get to Home Depot and buy enough paint and home repair supplies because the unruly de-fund the police mob is headed to their homes next (alluding to graffiti drawn on San Jose Mayor Sam Liccardo’s house over the weekend).”

The decision to drop the cases was only made public early Thursday morning due to an inquiry from San Jose Inside related to apparent curfew violations from Mayor Sam Liccardo, who was documented on a fitness app riding his bike past curfew on three of the four nights of the curfew.

Following two nights of chaotic, and at times violent protests, San Jose enacted an 8:30 p.m. curfew just hours before it went into effect on May 31. Over the course of the four-night-long curfew, cops used forceful tactics to arrest dozens of protests for violating it — at times without an apparent effort to distinguish between passive bystanders and those potentially engaged in crime — and detained at least two journalists, including a Mercury News reporter, despite an explicit exemption for news media, police officers, firefighters, utility employees and certain other essential workers.

Garcia has admitted that many officers lacked an adequate briefing before they were tasked with enforcing the order and that his department, at times, made tactical errors with how they initially handled the protests. Still, he said, the curfew worked.

“It’s tough to figure out how we will deal with these situations in the future because, to me, it seems like this was one of the least forceful of all the tools we have,” he said about the curfew, comparing it to rubber bullets and batons.

When first asked about the decision to drop the charges, Acting City Attorney Nora Frimann said it was a “matter of gathering the citations, reviewing them and making a “prosecutorial decision” — although she would not elaborate on what that meant.

In response to the question about the city’s change of mind, Frimann said “I don’t know that anything changed.”

“It was a tool, but whether or not we were going to prosecute on it was a decision we were going to make later,” she said.

Later, when confronted about the confidential memo that she sent to city leaders earlier in the day, she confirmed that the 1993 Rodney King riot case was a component of the city’s consideration during its “legal analysis” of the course of the last three months

Sarah Marinho, a San Jose-based attorney representing several people injured by San Jose officer during the protests, scolded city officials for not taking into account the toll their decisions have put on the dozens of people arrested.

“I don’t know if they realize or care, but when someone has been notified to appear in court and that they’re facing charges, that’s a stressful thing,” Marinho said. “So the city sitting on this for three months — after they never should have enforced it to begin with — is appalling.”

Although the city attorney said her department was working on getting the information out to people for the last couple of weeks, Marinho called the timing of it “a bad look.”

City officials did not confirm that they were dropping the cases until late Wednesday — when a San Jose Inside reporter approached them about Liccardo’s workout logs on the fitness app Strava.

From May 31 to June 3, the mayor’s Strava account showed that he was in violation of the order on three days — by 17 minutes one night, eight minutes another night and five minutes the final night.

In a statement issued to the media, Liccardo responded, “if somebody tracking my online cycling account now asserts that several months ago, I rode my bike for five minutes beyond the curfew, then — assuming that I actually remembered to turn off the tracker immediately upon stopping — they’re probably right.

“I’ll own it, and I can only presume that I miscalculated the duration of my return trip, and I apologize for my five-minute transgression,” he continued.

Marinho said it’s an example of what she sees as the main problem with the city’s curfew order — discriminatory enforcement.

“How come he gets to live his life and not think twice about it, yet people who were out that night to speak out against the sanctioned murder of a black man were being shot at with rubber bullets and arrested?” she said. “That is what’s outrageous.”

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Author: Maggie Angst

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