Sacramento activism on trial

Five days from now, activist Maile Hampton is scheduled to stand trial for the crime of touching a fellow protester’s arm for a handful of seconds in January 2015.

And the future of Sacramento’s protest community could be shaped by the outcome.

The charge facing Hampton is one of misdemeanor obstruction of a peace officer.

The majority of misdemeanor allegations never see an actual trial, as judges and lawyers prefer to reserve limited taxpayer resources for exploring serious criminal accusations. But when tensions between activists and law enforcement do erupt into charges, Sacramento prosecutors are more likely than their counterparts in one nearby jurisdiction to take small-time infractions and misdemeanors the full distance, even to costly jury trials, according to records obtained by SN&R and interviews with multiple activists and attorneys.

The intent is unmistakable, they claim: Speak out and pay fines. Embarrass the political elite and go to jail.

“I do think handing out these kinds of charges to someone involved in a social movement is a very practical way of having a chilling effect on their First Amendment rights,” said veteran defense attorney Linda Parisi, who is representing Hampton.

Hampton’s impending trial isn’t the only courtroom drama pushing this theme, however.

Sean Thompson, an advocate for the homeless, is staring down a felony assault charge for smearing former Mayor Kevin Johnson with a cream pie. Veteran labor activist Eric Sunderland spent two years in Sacramento’s criminal court system for standing in the wrong spot during a Wal-Mart protest. And Hampton’s brother Jamier Sale has paid hundreds of dollars in fines for strolling too slow through a crosswalk during a demonstration—not to mention being informally banned from the Sacramento International Airport for protesting Donald Trump’s campaign stop there in June.

Hampton, Sale, Sunderland and Thompson are all well-known organizers in Sacramento’s protest community. Whether that’s just a coincidence or a pathfinder for what constitutes unusual treatment and selective enforcement, it’s having a stifling effect, protest leaders say.

“Compared to other cities, Sacramento’s protests are small,” Sale said in an interview with SN&R. “We have activists who are out, but they’re a small group and part of that is because people keep hearing about these things that are happening to us. People wonder, ’Why is the protest community so small in Sacramento?’” Sale said in an interview with SN&R. “This is why.”

When it comes to jury trials for misdemeanor obstruction charges, Sacramento County prosecutors waged more than three times as many as prosecutors in Alameda County, a political hotbed with a similar population and demographics, according to a review of court data obtained by SN&R.

In all, Sacramento County’s halls of justice were the site of 1,089 criminal jury trials between January 2014 and October 2016. Exactly 24 of those were held to determine the guilt or innocence of a person charged with a misdemeanor count of obstructing a peace officer—the same charge Hampton faces for touching another protestor for a few seconds.

That means cases like Hampton’s represented 2.2 percent of all jury trials in Sacramento County in nearly three years. While misdemeanor obstruction trials are uncommon in Sacramento, records obtained by SN&R suggest local prosecutors are hauling far more individuals in front of juries for the charge than their counterparts in Alameda County, the California jurisdiction most similar to Sacramento in population size. Alameda Superior Court held only seven jury trials for misdemeanor obstruction in the last three years, less than a third of Sacramento’s 24.

That’s significant since it’s a charge often connected to demonstrating.

Sacramento County Chief Deputy District Attorney Steve Grippi confirmed in an email that misdemeanor obstruction is one of several violations his office can file for protest arrests, though he denied that bringing a higher rate of those cases to jury trials proves harsh treatment for activists.

“While resisting or interfering with a lawful arrest can often be associated with unlawful assembly arrests, the vast majority of [those cases] have absolutely nothing to do with protestors and demonstrators,” Grippi noted.

The DA’s office didn’t provide case logs to back up that claim, but SN&R is aware of one such case. In December 2015, the DA’s office won a jury conviction for misdemeanor obstruction against a North Sacramento couple who refused to exit their home to a SWAT team platoon there to investigate false claims of a gun stash. While no firearms were found, the couple was arrested for refusing to accommodate the raid.

Grippi also contended that the state capital is a bastion for activism, making legal confrontations more likely. “Sacramento County sees an inordinate share of political protests and demonstrations,” Grippi wrote. “Despite that reality, we do not charge an excessive number of so-called protest cases.”

Yet the proposition that local law enforcement deals with more dissidents than their collegues in Alameda County is a shaky one: Between 2014 and October 2016, Bay Area news organizations reported more than 50 different demonstrations from the streets of Oakland to the UC Berkeley campus, some of which included crowds ranging from 200 to 2,000 activists blocking freeways, shutting down the Port of Oakland and laying on train tracks. One even included widespread public nudity.

Attorney Todd Leras, who’s worked both as a local and federal prosecutor, said the yearslong court cases and jury trials he’s now seeing as a defense attorney fly in the face of campaign promises District Attorney Anne Marie Schubert made when the two competed for office in 2014.

“When we were at a debate, she made comments that she wasn’t going to waste time prosecuting people for peaceful protests,” Leras said. “Regardless of what conversations she’s involved with around these cases, the prosecutors in her office are not keeping her campaign promises.”

The stance that local prosecutors take toward activists came under national scrutiny during the early phases of Hampton’s case.

The ordeal started at a Black Lives Matter event near the capital in January 2015, when Hampton put a hand on a fellow protestor who was being grabbed by police. Video evidence shows Hampton touched the man out of concern, for less than three seconds. While police never ended up arresting the man who was between Hampton and the officers, that didn’t stop them from later taking Hampton into custody at home on a felony charge of “lynching” him out of their custody.

Parisi said the charge against Hampton wasn’t a case of a lone police officer being creative: It actually took Parisi several court appearances to convince the DA’s office of how inappropriate the lynching allegation was.

Meanwhile, news that a 20-year-old, multiracial resident had to appear in court for “lynching” triggered a national uproar. California lawmakers and Gov. Jerry Brown unanimously changed the age-old state law that year, divorcing the historic connotation of lynching from the crime of prying another person from the hands of police.

The DA’s office eventually dropped the racially-charged violation against Hampton, but quietly kept the case going by pursuing the lesser misdemeanor obstruction charge.

Grippi declined to discuss the details of Hampton’s case or the impending trial, which is scheduled to begin January 10.

Parisi told SN&R the costly event is going forward because prosecutors have yet to offer Hampton what the defense considers to be a reasonable plea bargain. The attorney added that the case is complicated by the fact that Hampton was exercising personal rights as an activist during the incident.

“Peaceful protests and the right to expression are part of the foundation of a democratic society,” Parisi said.

Prosecutors gave Sunderland his own reason to rethink his activism.

The labor organizer was one of several people cited for obstructing traffic during a protest at the Wal-Mart in Rancho Cordova in 2014. When he and the other ticket recipients showed up to traffic court, prosecutors announced they were re-filing the infractions as more serious misdemeanor crimes. It took two full years for a volunteer team of defense attorneys to obtain an acceptable plea deal and prevent taxpayers from footing the bill for a trial.

Leras represented Sunderland and was surprised by the level of pressure from his former colleagues.

“I can tell you that myself and the other defense attorneys thought the district attorney’s office was being absolutely ridiculous and punitive,” Leras recalled. “The court itself finally made its own offer to settle the case, because it was clear the matter didn’t deserve this much attention.”

Sale wasn’t as fortunate in 2014, when he had his most memorable brush with authorities.

Sale was among some 200 demonstrators making a show against police brutality outside the Arden Fair mall when police grabbed him—and only him—in the crosswalk to be cited for jaywalking. Sale later appeared in court with witnesses, photos and videos to prove he was inside the crosswalk.

Sale would never get the chance to defend himself.

According to an appeal filed in 2015 by attorney Jeffrey Kravitz, when Sale showed up to address the ticket, Judge Patricia C. Esgro allowed a Sacramento police officer to simply alter his charge as they stood there. The violation was switched from jaywalking to obstructing traffic.

The appeal states that swapping the charge was done without warning to Sale, and that Esgro abused her judicial discretion by failing to instruct Sale of his legal rights and options. The appeal also claimed that Sale was not allowed to present witnesses and evidence in his defense before Esgro found him guilty.

Cres Vellucci of the National Lawyers Guild, the oldest U.S. bar association formed around protecting civil rights, watched Sale’s hearing unfold.

“Each time Jamier tried to explain himself to the judge, he was cut off,” Vellucci said. “It was just a matter of the judge telling him that he was guilty.”

Since Sale’s case was handled in traffic court, the constitutional right to be represented by an attorney didn’t apply. Sale was fined $250, plus an extra $50 fee to have a payment plan implemented. He has come to refer to that fine as his “personal protest tax,” owed to the city of Sacramento.

“I don’t have $300 just lying around, but it’s still a small price to pay,” Sale told SN&R. “They can cite us for all these little things, but it won’t stop us from being out here to do what we think is right.”

The nexus between personal convictions and criminal prosecutions is at the forefront of Thompson’s story.

The military veteran made headlines in September by sidling up to the former mayor with a pie and drenching his face with coconut cream. Johnson responded by reportedly punching Thompson multiple times.

While the level of Thompson’s culpability in the incident is debated (Johnson faced no charges for throwing blows), a recent preliminary hearing reinforced for Thompson that his fate in court is intertwined with his position as an activist.

Thompson had spoken out numerous times about his belief that Johnson and other city leaders have pushed callous and dismissive policies toward their homeless constituents. He ultimately decided to make a public statement about the mayor with a soft, fluffy dessert not known for inflicting injuries.

On November 3, Thompson’s attorney, Claire White, walked into the preliminary hearing with hopes of getting the assault charge dropped from a felony to a misdemeanor. Deputy District Attorney Anthony Ortiz argued for keeping the legal stakes as high as possible for Thompson. It was a position White told Judge Paul Seave made no sense given what usually constitutes a felony assault in California.

“The felonies we see in cases with this charge are for vicious attacks where significant injuries are sustained,” White asserted. “We have a young man who squashed a pie in someone’s face. This is textbook misdemeanor behavior.”

Ortiz’s counter argument offered a rare glimpse into the district attorney’s approach to pursuing charges against political dissenters.

Addressing the judge, Ortiz acknowledged that Johnson’s claim of getting “whiplash” from the pastry wasn’t the only reason for wanting a felony assault charge upheld. The prosecutor pointed to Thompson’s current activism as a motivating factor in keeping the charge severe.

“Even after this incident happened, he called the mayor an asshole—he referred to him as a clown,” Ortiz said in closing statements. “The defendant has shown no remorse.”

Legally, remorse can be a mitigating factor judges and prosecutors consider when weighing the severity of charges or sentencing. Ortiz stressed that Thompson’s decision not to renounce his political statement about Johnson was an element of the prosecutor’s refusal to sign off on lowering his charges.

Seave ultimately sided with the DA’s office. Walking out of the courtroom, a surprised White told her client, “I guess they want a real fight.”

It’s a fight the taxpayers will have to finance.

For the National Lawyers Guild, the common thread linking Sale, Hampton and Thompson is that they’re all considered leaders within the local activist community.

“Jamier Sale and Maile Hampton happen to be individuals who have helped organize some of these events. It’s not a secret,” Vellucci noted. “Sean Thompson had been arrested for protesting numerous times, and he was well-known as a key activist before the pie incident with the mayor.”

Sunderland’s activism has been even better documented by Sacramento media.

When asked if county prosecutors ever discuss with arresting officers whether a defendant is perceived as a leader at a protest event, Grippi declined to give a direct answer. His email did state that the office recognizes the importance of the First Amendment.

“We are cognizant of the vital role of protest in American democracy and strive to evaluate potential charges related to conduct occurring during demonstrations with sensitivity to the importance of free speech and dissent,” Grippi wrote. “We also recognize there will be those who will exercise their right to disagree with charging decisions. … This, too, is part of a healthy democracy.”

On a corner of the capital lawn, during a recent protest against the next president, Sale thought of Hampton and decided the pieces don’t add up.

“How many of our public resources are being used to hold this misdemeanor trial for my sister?” he wondered aloud. “The only reason they would spend all that money is to try to dissuade people from protesting.”