Chaker v. Crogan, 428 F. 3d 1215 (9th Cir. 2005)

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Viewpoint Discrimination Las Vegas Style

When it comes to the viewpoint discrimination or other aspects of the First Amendment, Darren Chaker, http://darrenchaker.org/seal-court-record, does not question that “[F]ree speech is certainly incidental to pedestrian traffic, for as the Supreme Court has noted, streets and sidewalks are the archetype of a public forum,” Id. at 30, citing Frisby v. Schultz, 487 U.S. at 480. This Las Vegas case, American Civil Liberties Union of Nevada v. City of Las Vegas (9th Cir. 2003) 333 F.3d 1092, involves the Fremont Street Experience Mall, an outdoor commercial entertainment venue built by the City and its private partners at a cost of tens of millions of dollars. The Mall was built over five lots of what was formerly known as Fremont Street in downtown Las Vegas. Surrounded mostly by Hotel/Casinos, the Mall itself is a tourist destination, showcasing an overhead canopy which functions as probably the world’s largest television. The Mall’s Management regularly provides entertainment, including free concerts, retail kiosks and stands that provide goods and services to visitors throughout the day and night. In a challenge to the City’s anti-solicitation ordinance that (1) is limited to a discrete geographic area, including the Mall; (2) was designed to preserve the character and viability of the Mall as a commercial entertainment venue; and (3) prevents unfair competition against retailers who have paid for the right to conduct business in the Mall.

Streets, sidewalks and parks are the archetype of a traditional public forum and held in trust for public use for purposes of assembly and expression. In a traditional public forum, restrictions on First Amendment activities are subject to strict scrutiny. Although reasonable time, place, manner restrictions may be constitutionally imposed, complete prohibitions against First Amendment activity are disfavored. By contrast, in non-public fora, such as a municipal airport or train station, regulation of speech is subject to a lesser standard and restrictions. Even in a non public forum, however, protected expression cannot be banned unless it can be shown that the speech in question is incompatible with the use and purpose of that locale. In this case, the District Court held that Fremont Street is not a public forum and upheld the solicitation ordinance and tabling restrictions under the reasonableness standard applicable to nonpublic fora.

The Fremont Street Experience encompasses thoroughfares that are an integral part of the transportation grid of downtown Las Vegas. To the casual visitor, the Fremont Street Experience does not look any different from the outdoor pedestrian malls that have become commonplace in cities nationwide. It represents efforts of City officials to bring business back downtown from suburban malls, the “Las Vegas Strip” and outlying areas where casinos flourish – however such efforts to redevelope the area cannot come at the cost of the First Amendment in Las Vegas, or anywhere else.

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Darren-Chaker ACLU

Darren-Chaker ACLU

Victory declared by Darren Chaker in his decade long effort to bring resolve to an unjust law.

Backgound of a First Amendment Case…

Over a decade ago, I had a car of mine painted. The paint shop up charged me on the price. I offered to pay the original estimate, but was given no option than pay their price or the car would be sold at auction. I made a complaint to the California Department of Consumer Affairs (Bureau of Automotive Repair) who cited the paint shop for not receiving proper authorization to charge for the added mark up. During that time, I drove my car home with a spare key since I offered to pay the price agreed on, and not what was charged without my permission. Despite, the fact the paint shop was cited by the Department of Consumer Affairs for not receiving proper authorization for increasing the estimate–the El Cajon Police Department (ECPD) arrested me for theft of services. The case was later dismissed by the court. In fact the court determined there was no legal basis (probable cause) to arrest me and ordered the records destroyed per Penal Code section 851.8. I subsequently made a complaint alleging the arresting detective used excessive force when arresting me for the paint job ‘theft’ when he twisted my wrist in lieu of simply saying “turn around put your hand behind your back.”

The ECPD found the complaint false even though the training manual’s spectrum of use of force states ‘hands on’ arrests should be initiated only when the arrestee is non-compliant. I was totally compliant. I went through one trial, the jury couldn’t decide on guilt or innocence, however the second trial—I was convicted of filing a false complaint in violation of Penal Code section 148.6.

Keeping in mind every beginning has an end—my conviction was the beginning of the end for Penal Code section 148.6, because little did anyone know the ramifications this case would have on law enforcement. In essence, this minor case dragged on for a decade visiting every appellate court in the state, the federal appellate court (9th Circuit) and the United States Supreme Court—and in the end—I won against all odds by overturning a unanimous California Supreme Court by finding the statute violated the First Amendment by penalizing only false complaints against police, but not false compliments—thus crystallizing viewpoint discrimination.

So many in law enforcement laughed at the 9th Circuit’s decision and think it was improper and couldn’t wait until the U.S. Supreme Court would reverse yet another flawed decision of the 9th Circuit. On May 15, 2006, the U.S. Supreme Court DENIED the Attorney General’s request for the U.S. Supreme Court to hear the case. Chaker v. Crogan is now FINAL!

The statute was very explicit and lopsided to chill one side of speech while allowing the free flow of false compliments on the other, inasmuch it only protected police–but left firemen, judges, attorneys, school teachers, and other professions without the benefit of protection from false complaints. Should a judge be any less protected from a false complaint of taking bribes, a school teacher molesting kids, or a fireman committing arson? Personally, I think the law should be expanded to include other core public officials.

Further, although my case was the first of its kind to strike down a penal statute at the federal appellate level. The English language does not possess the words to express my gratitude to the Legal Director of the ACLU (Los Angeles) Marc Rosenbaum, Director of First Amendment Litigation Peter Eliasberg, and Staff Attorney Dan Tokaji. The passion Marc Rosenbaum demonstrated during the 2 ½ hour oral argument before the 9th Circuit was phenomenal. Marc Rosenbaum is known nationally for constitutional law litigation, and has appeared repeatedly before the U.S. Supreme Court. On a side note, every attorney I have come to know at the ACLU is very well educated (Yale, Harvard grads) and could make a tremendous amount of money in the private sector, however don’t due to their passion to help others through the enforcement of the Bill of Rights. The ACLU was my backbone in this case for without them I could not stand.

Nonetheless, in lieu of the State amending the law so a draft could be submitted to the legislature, the State decided to challenge me again by asking the U.S. Supreme Court to hear the case to reverse the 9th Circuit. So, I hired E. Joshua Rosenkranz, also an incredible First Amendment attorney, who worked for two U.S. Supreme Court justices (Scalia & Brennan) and now works for the New York city office of Heller Ehrman–one of the largest firms in the country. See bio, http://www.hellerehrman.com/en/attorneys/bios/Rosenkranz_Joshua.htmlThankfully, once the U.S. Supreme Court considered the briefs submitted the illogical and non-linear thinking of the State, that Joshua Rosenkranz exposed, was rejected and the State’s request was denied finally bringing an end to this case. I am forever indebted to him for assembling a team of attorneys from across the nation, and an NYU First Amendment scholar to write the winning brief.

Soon after Chaker v. Crogan, which I litigated for nearly 7 of its 10 year life span, not only did this case strike down PC148.6 in California, and struck down Nevada’s analogous statute, it also recently nullified a similar Washington statute as well. (De La O v. Arnold-Williams, 2006 WL 2781278) (Not bad, 1 cases strikes down 3 different state laws) The case has been cited over 75 times as authority, and written about extensively.

Was it worth it? All that time and effort spent. Why not just pay a fine, get the case expunged after 18 months of informal probation, and move on? No one is above the law, including the State. The law was clearly contrary to the constitution, and the time I personally spent on this case was constructive and in the end—my name and this case will live on forever. I achieved my position through tenacity and intelligence. The ACLU and Heller Ehrman added resolve.

Further, although my case was the first of its kind to strike down a penal statute at the federal appellate level, there were additional cases striking down similar statutes:

• Eakins v. Nevada, a federal judge deemed a similar statute in Nevada was unconstitutional. The Nevada legislature rewrote it, http://www.leg.state.nv.us/72nd/Opinions2003/vwComments.cfm?drpMenu=697 then Chaker v. Crogan struck down that statute! The legislature rewrote the law again in response to Chaker v. Crogan.

• Hamilton v. San Bernardino, 107 F. Supp. 2d 1239 (C.D. Cal. 2000), lawsuit striking down same CA statute. http://www.cacd.uscourts.gov/CACD/RecentPubOp.nsf/bb61c530eab0911c882567cf005ac6f9/e836f1c8e9ed786b88256ecb00579899?OpenDocument&Highlight=0,hamilton%20

• Mangual v. Rotger-Sabat, 317 F.3d 45 (1st Cir. 2003), lawsuit striking down similar California statute in Puerto Rico.

Remember, adversity builds character. Absent that, I respect all of your views for who am I to censor speech if I am an advocate of it!!

Some of the dozens of media coverage pertaining to Chaker v. Crogan:

http://blogs.usatoday.com/ondeadline/2006/05/court_false_cla.html

http://www.signonsandiego.com/news/nation/20060515-1504-ca-policecomplaints.html

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/05/16/BAG88ISCOR1.DTL

http://www.supremecourtus.gov/docket/05-1118.htm

http://www.signonsandiego.com/uniontrib/20051113/news_1m13chaker.html

http://www.aclu-sc.org/News/Releases/2005/101406/ http://www.law.com/jsp/article.jsp?
id=1131098712570

http://www.calaware.org/news/weekly_detail.jsp?article_id=1029

http://www.sandiego.edu/usdlaw/about/news/calendars/event/2006_0303McLennon.php

No. 03-56885 (11/03/05)Before Circuit Judges Hug Jr., Pregerson and Berzonhttp://www.ca9.uscourts.gov/ca9/newopinions.nsf/CFA461FFB98287D4882570AE000E1261/$file/0356885.pdf?openelement

http://www.willamette.edu/wucl/wlo/9thcir/05cases/20051108.htm

http://www.rlwlaw.com/pdfs/RLW_News_Alert_11-09-05.pdf (law enforcement bulletins

http://www.jones-mayer.com/clientalerts/ca2018110905.asp enforcement bulletins)

http://lsr.nellco.org/cgi/viewcontent.cgi?article=1038&context=uconn/cpilj (law review)

Of course, remember we all make mistakes as those we elect constantly remind us. There’s no reason to look down on those who do. Too frequently, police look down on those they police, now–police are becoming equals to the criminal they seek:Lower Pay, Lower Standards: Low Moral with San Diego Policehttp://www.signonsandiego.com/uniontrib/20050710/news_1m10exodus.html Another

 

El Cajon Officer Arrested for Sexual Battery:
http://www.signonsandiego.com/uniontrib/20060310/news_2m10taylor.html

San Diego Sheriff Deputy Arrested for Murder by Shooting Her in The Face:
http://www.signonsandiego.com/uniontrib/20061216/news_2m16alpine.htmlCopWatch

San Diego Sheriff Deputy Arrested for Embezzlement:
http://www.10news.com/news/11234793/detail.html

San Diego Police Officer (21 Years Veteran) Arrested for Sexual Misconduct:
http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2006/05/16/state/n131331D70.DTL

El Cajon Officer Forces Females to Masturbate With His Baton Proven by DNA:
http://www.feeds4all.com/Item.aspx?ItemID=13802946

Los Angeles Officer Arrested for Sexual Battery While on Duty:
http://www.fox6.com/news/state/story.aspx?content_id=affcf28a-9ff1-44b0-9f0a-4fcaa16e4fa2

Los Angeles Officer Arrested for Molestation:
http://www.signonsandiego.com/uniontrib/20050711/news_1m11officer.html

Hundreds of California Judge’s Are Disciplined and Removed:
http://cjp.ca.gov/pubdisc.htm

Hundreds of California Attorneys Are Disciplined and Disbarred Each Year:
http://calbar.ca.gov/calbar/pdfs/reports/2005_Annual-Discipline-Report.pdf

Databases Focusing on Documenting Police Abuse:
http://www.copwatch.org/copwatch/search.php3 (searchable police abuse database)

http://www.policeabuse.org/director.html

http://www.narpa.org/amnesty%20international.htm (Amnesty Intl. paper on police abuse)

San Diego City Council advocated for a fraudulent pension system:
http://www.sandiegomagazine.com/media/San-Diego-Magazine/July-2006/The-Harder-They-Fall/

San Diego Federal Grand Jury Indicts San Diego City Council Members for Bribery:
http://www.primenews.com/probe.html

Former San Diego Mayor Convicted of 12 Counts of Perjury, but holds top radio talk show
http://www.calbar.ca.gov/calbar/2cbj/96may/art12.htm

3 San Diego Superior Court judges indicted for taking bribes: Judges Michael Greer, James Malkus and G. Dennis Adams http://www.calbar.ca.gov/calbar/2cbj/96may/art12.htm

Orange County Sheriff Michael Corona Indicted for corruption
http://abclocal.go.com/kabc/story?section=news/local&id=5732920

And the list goes on…I guess if I remained convicted, I would fit in with law enforcement, judges, and public officials…now I am an outcast!!