Legal Alerts Mar 23, 2015

Ninth Circuit Draws Clear Distinction Between California’s Meeting Disruption Statutes

Skid Row Demonstration Disrupts a Neighborhood “Walk,” But Police Make an Arrest for the Wrong Violation

Ninth Circuit Draws Clear Distinction Between California’s Meeting Disruption Statutes

A Los Angeles Skid Row advocacy group faced off against those participating in a “walk” through the Skid Row area sponsored by two business improvement districts. The walk was for public officials, law enforcement, members of the judiciary, students, academics, business owners, social service providers and the media and was designed to provide firsthand insight into the challenges posed by conditions in the area. The advocacy group’s position was that such walks actually promote victimization of Skid Row residents. After police warned the advocacy group protestors that disrupting the walk could lead to their arrest pursuant to California Penal Code section 403 (disturbing a public meeting), one of the advocacy group leaders yelled loudly less than a foot away from one of the walk attendees and was arrested. Although the arrestee was never charged, the advocacy group sued in federal court, claiming that section 403 is unconstitutional on its face as applied under the First and Fourteenth amendments.

After the district court dismissed the complaint, the advocacy group appealed to the Ninth Circuit U.S. Court of Appeals and renewed its arguments. While the court rejected the group’s constitutional challenges, it did find that the protester was improperly arrested for a violation of section 403 because, the court held, that section did not apply to the conduct here. The court’s conclusion is important because California law enforcement commonly invoke the provisions of section 403 in instances of disruption of public meetings. According to the Ninth Circuit, section 403 does not apply to such meetings.

Penal Code section 403 makes it a misdemeanor offense to willfully disturb or break up any assembly or meeting that is not unlawful in its character. However, the statute excepts from its coverage a meeting as defined in section 18340 of the California Elections Code. Section 18340 states that “[e]very person who, by threats, intimidations, or unlawful violence, willfully hinders or prevents electors from assembling in public meetings for the consideration of public questions is guilty of a misdemeanor.” (An “elector” is a resident citizen over the age of 18, i.e., an eligible voter.)

Thus, the issue was, what kind of meeting or assembly was the “walk” here? The distinction is important because the Elections Code section sets a different and higher standard of (mis)conduct — a more egregious standard — than the Penal Code section by referring to “threats, intimidations, or unlawful violence” willfully hindering or preventing electors from assembling in public meetings. After tracing the legislative history of the statutes, and applying its plain language, the court concluded that section 403 does not cover “political meetings,” including the walk here because of the reference to a meeting, as defined in Elections Code Section 18340. The walk involved the consideration of “public questions,” namely the conditions on Skid Row, and the participants were “electors.” Thus, the protestor was improperly arrested for a violation of Penal Code section 403. The appellate court did not resolve the question whether the protestor’s conduct violated the higher standard of the Elections Code section.

The decision is important to public entities and law enforcement agencies in California, as responses to disruption of agency meetings — which are “political meetings” — involving arrest or prosecution must be considered under the more stringent standards of the Elections Code, and not the Penal Code.

If you have questions about this ruling or how it will affect your municipality or agency, please contact the attorney author of this legal alert listed at right in the firm’s Public Policy and Ethics Compliance practice group or your BB&K attorney.

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