Vandals, protestors, and the First Amendment

Noted legal scholar Tony Francois is a Senior Attorney at the Pacific Legal Foundation and longtime Californian. In this exclusive interview with Opportunity Now, he examines the juridical issues around vandalizing the mayor's house, not enforcing curfew citations, and managing escalating violence. 

Opportunity Now: What are some of the major legal issues you see with the vandalization of Mayor Liccardo's home in San Jose

Tony Francois: It's important to keep human nature in mind in these kinds of conversations, especially an appreciation of how mobs behave.  Somebody's protest may be completely reasonable, and as a society we believe firmly in defending that mode of expression. But it's vital to remember that when things cross the line and start to get out of hand, demonstrations can get violent and unmanageable pretty quickly.

We see it going on in lots of cities around the country: There's definitely a small group of people that go all in on violence, arson, vandalism, and assault as a way of expressing opposition to issues.

So the vandalism of Mayor Liccardo's house is an example of that.  Nobody would suggest you can't ever demonstrate in a residential neighborhood, but certainly there are reasonable limits that can and should be placed on those demonstrations: I bet Liccardo's neighbors did not sign up for having their neighborhood besieged by protestors because one of their neighbors is the mayor. Although we have seen the same thing happen in Sacramento and Portland: It's a tactic of the more radical demonstrators.

In fact, when the protests over George Floyd’s death became more national we started to see escalated tactics:  closing freeways, vandalism, looting, some assault. Not by everyone protesting police tactics, but by enough people to make it a concern. Of course city officials don't want this type of behavior to gain momentum and escalate, but cities responded differently. Some cities, like Portland and Seattle took a hands-off approach and the violence and mayhem escalated. Some like Sacramento and San Jose, imposed curfews, enforced laws, and the situation de-escalated.

ON: But San Jose decided not to charge people who violated the curfew.

TF: I can see why they didn't charge the people they cited. . The tactic is to get a grip on the violence quickly because you want to stop its momentum.

I know the SJPD didn't like it that nobody was charged, and the Police Chief made good observations: their officers came under criticism for enforcing the curfew, which is a hard ordinance to implement especially on short notice like they had the first night, and I am sure there were mistakes made on all sides.

But it's important to remember that the curfews themselves are not a normal type of law enforcement tool. It's not like people stealing stuff. The purpose isn't to stop people from being outside, there is nothing intrinsically wrong with that, so much as to quell a growing situation of violence.

You don't want a situation where authorities use curfew violations as an easy way of netting people who are doing worse crimes--that would be a very blunt instrument and constitutionally suspect..

So curfew citations can be seen as a way of just getting people dispersed and off the streets. Just giving a citation and not charging can be seen as the least intrusive way of trying to tamp down a violent situation.

So I think it's reasonable for San Jose to conclude that we don't need to prosecute these curfew citations if people were doing nothing more than being out after 8pm. But if they were doing more than that--arson, robbery, assault, vandalism, then the city definitely should prosecute. That strikes me as a good distinction for cities to draw, and respects the difference between First Amendment rights and violence.

ON: But isn't it a slippery slope when you send out the message that you won't enforce laws--or at least not charge people for breaking the law?

TF: In Portland they are way beyond this. They do "catch and release--" even for people charged with felonies. They get released without bail and never prosecuted. It's very risky: they only get these very dangerous people out of circulation for a few hours. And violence has ratcheted up because their approach is toothless. If they charged the violators,  made them post bail, and made it a condition of their bail that they can't repeat offend throwing bricks and using lasers, that would make a significant impact. 

ON: What potential crimes were committed in the vandalizing of Liccardo's home?

TF: Vandalizing a house usually means that people are breaking laws against trespass, against destruction of property, and perhaps other things like burglary.

In general, if somebody did that to an ordinary private citizen I think the police would show up in force, round up everybody and sort it out. If any angry group shows up outside your house, tears up your lawn, and paintballs your house, it's serious, it's not juvenile pranksters. 

Gathering at the mayor's house is probably o.k., but people are crossing the line when they throw stuff and damage property. From a legal perspective, I think you have to prosecute them if they damage property. Violence directed at a public official is especially concerning, because if you start to condone the use of violence for political objectives--and that's what vandalizing a public official's house is--you really undercut a fair political process. The public official is intimidated, undermined in the public square, and it gives the rioters more room to maneuver. Having the public official move, like in Portland, is the wrong answer.  The right answer is to arrest and charge everybody who's engaged in the vandalism, charge them with felonies, require them to post significant bail with conditions against repeat offending, and to have that bail revoked and them be incarcerated if they break the bail conditions.

Remember, we think of public officials as private citizens who temporarily have a public responsibility. The public officials hold a public trust, it's not their personal power. So part of that is there should be a zone of remnant private status around those officials, especially their homes. That's a reason why a raucous demonstration at City Hall is not the same as burning flags on the mayor's lawn.

Simply put, the distinction between protest  and violence, speech and intimidation, has to be understood and respected.  Even for limited government advocates, keeping the peace is one of the basic and limited purposes of government. And even if it means they might get bad press, the authorities should enforce the laws that keep the peace while keeping a close eye on First Amendment rights.

Pacific Legal Foundation can be found here.

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