On June 20, a man tore down Black Lives Matter artwork on a fence in Petaluma’s Leghorns Park. The action, which was witnessed by numerous protesters, kicked off a legal debate between police and protesters.
The Petaluma Police Department, citing advice from the Sonoma County District Attorney and Petaluma City Attorney, argue that although they do not condone the man’s actions, they also can’t do anything to stop him because the artwork is not formally permitted.
The action of removing the artwork could be considered free speech under the First Amendment, Deputy Police Chief Brian Miller said in an interview last week. He said that the District Attorney’s office advised that the man was “acting on behalf of the City” when he tore down and destroyed the signs.
Miller said that Police Chief Ken Savano discussed the artwork issue with William Brockley, an assistant district attorney, as well as Petaluma City Attorney Eric Danly.
Asked for comment, Brian Staebell, a chief deputy district attorney, said that Brockley spoke to the chief, but he did not say that the man was acting on behalf of the city or that his removal of the signs was protected speech. Staebell explained that the District Attorney’s office does not “advise police departments on who to arrest and who not to arrest and who to cite and who not to cite.”
Miller did not respond to a query asking why he told the Bohemian that Brockley had given that legal advice to the police when Staebell said that he definitely had not.
Petaluma City Attorney Eric Danly said, “The person who removed the signs was not acting as an agent of the City. It is unlikely that mere sign removal would qualify as expressive activity protected by the the U.S. Constitution or the California Constitution.
In three cellphone videos of the man forcibly removing artwork and speaking with protesters on June 20, protesters claim that the man, whose name has not been disclosed by law enforcement, visited the park several times over the course of days to remove artwork created in support of the nationwide Black Lives Matter protests. In response, organizers now regularly drop by the park to keep an eye on the artwork.
In the videos, protesters form a line in front of the artwork and hold a somewhat heated conversation with the man, dressed in a hooded jacket, face mask and gloves, about the meaning of the nationwide protests. Eventually a protester calls the police, hoping they will be able to handle the problem.
In the videos, protesters discuss pressing charges against the man for destroying the artwork and hitting one woman in the face with his elbow while removing the artwork.
The police have opted not to press charges against the man for shoving and striking artists and removing the art.
In a videoed interaction, a Petaluma Police officer explains that he can not arrest or charge the man for removing and destroying the art work because the artwork exists in something of a legal grey zone.
Confused, one woman responds, “It sounds like there’s nothing we can do to stop him from ripping down the signs.”
The officer explained that the city was choosing not to enforce the municipal code that usually bars citizens from installing unpermitted art or signs in many spaces. Because the art was technically not permitted, the police could not prosecute the man for removing it, the officer says.
“We can’t play favorites, so to speak,” the officer comments. “If we’re charging him with taking down the signs, then we’d have to charge you for putting up the signs.”
He later tells a woman who had been struck by the man as he vandalized the artwork that she would have to “make a citizen’s arrest” if she wanted the matter pursued.
Indeed, the twisting legal logic of this episode leads to an odd place. If it stands, the man would essentially be allowed to remove and destroy the artwork with legal impunity. And it would open the door for anyone to destroy unpermitted signs and artwork that was located on City-owned property, including at City Council meetings or during a political protest or, to be a bit surreal, during the Butter & Eggs Day Parade.
Is Art only allowed to be displayed in public places if The Law approves of if?
City Attorney Danly said, “The signs have only remained on the fences by virtue of the City choosing not to enforce the section for the time being. As a result, there are not readily available or clear legal bases for the police department to prohibit the removal of signs that are prohibited from being affixed in the first place.”
Danly did not respond to yet another follow-up question about whether members of the public are allowed to remove and destroy the art work, which could be considered private property, similar to a car parked beyond the parking meter time limit on a public street. Although the car may be parked in violation of a municipal code, that does not give a public citizen permission to take the law into their own hands by removing and destroying the vehicle. Or does it?
The long term fate of the artwork may be addressed at a city council meeting next week, Danly says.
City staff are preparing an agenda item for the City Council’s Monday, July 6 meeting to formally permit the artwork. If that resolution is passed and the man returns to remove the signs again, police would be obligated to press charges.
But the Council members might want to ask Chief why he apparently told his officers that the man was expressing his right to free speech and acting on behalf of the city when he vandalized their private property, the artwork. And why Miller later claimed that the District Attorney and City Attorney had created that argument, when they did not.
And the most important underlying question looms huge: If the out-of-control man had been Black or Latino or Native American, would he be alive today?