After a summer of radio silence, San Jose finally agreed to drop charges against the 70-odd people who allegedly broke curfew during the city’s George Floyd protests.
But it’s unclear when news of the development would have reached defendants had San Jose Inside not inquired about Mayor Sam Liccardo shirking the same rule. The chain of events leading up to the announcement suggests that the city was scrambling.
Here’s how it went down.
As we reported on Sept. 3, the mayor broadcast his own curfew violations by publicly logging cycling routes showing him out past the 8:30pm cutoff on nights when the order was still in effect. In responding to questions about those maps, which Liccardo published on a social network for athletes called Strava, mayoral spokeswoman Rachel Davis mentioned the city’s decision as an aside.
In an email sent close to 9pm on Sept. 2, Davis wrote that Acting City Attorney Nora Frimann “determined that the city would not prosecute any curfew violators”—as long as that was their only charge. The DA, which already resolved a while ago not to prosecute standalone curfew violators, will figure out what to do with the rest.
We promptly responded to Davis by noting how the city’s determination is “huge news” and asking when it actually opted to forgo prosecution. Davis said she didn’t know and suggested that we reach out to the city attorney’s office. We did. Straightaway
Frimann confirmed Davis’s claim the next morning, about a few hours after our mayor-breaking-curfew story published.
“We’ve been reviewing the citations to confirm the nature of the incidents underlying each of the citations,” she wrote in an email. “We have concluded that we will not be bringing forward the municipal code curfew violations, nor any ancillary charge relating to the curfew violation itself, such as a failure to disperse.”
When did the city decide?
“There isn’t a particular date,” she told us. “We’ve been discussing over the past month or so once we had obtained and reviewed all of the citations and related police reports and did our analysis of the charges.”
Since a lot of the defendants we interviewed were bracing for their first court dates in the coming few weeks, we asked how the city planned to get word out about this milestone.
“We will be notifying those individuals for whom we have contact information that we will not be pursuing the curfew violation charges,” Frimann answered.
Will those respondents get a formal notice about whether or not to show up to their schedule arraignments, at least?
“Yes,” she replied, “that will be part of the letter that is sent out.”
Taking that to mean the letters were already on the way, we asked when they were mailed. Frimann, still on the morning of Sept. 3, clarified that her office was still “working on getting the letters out.”
Several hours later on Sept. 3, the Mercury News followed up on our story with reaction from POA President Sgt. Paul Kelly, who decried the no-go on prosecution as “a monumental failure in leadership” that led to “needless confrontations” between cops and the public. “City leaders need to figure out that not all protesters are peaceful and that some seek to cause harm and destruction,” Kelly told the newspaper. “Those that do must be held accountable instead of being appeased.”
Otherwise, Kelly added in reference to taggers recently targeting Liccardo’s home, “the mayor and council members better get to Home Depot and buy enough paint and home repair supplies because the unruly defund-the-police mob is headed to their homes next.”
When the Merc pressed Frimann on what prompted the city to change its mind on curfew prosecutions, the city attorney demurred.
“I don’t know that anything changed,” she said, in apparent disregard for the significant change of plans this presents for those who’d been bracing for upcoming arraignments.
Meanwhile, and perhaps more notably, the Merc’s follow-up included new information about the city’s rationale for eschewing curfew prosecutions.
Citing a confidential memo Frimann circulated after San Jose Inside’s Liccardo-outing-himself-on-Strava story went live, the Merc reported that the city based its pronouncement, at least in part, on a 1993 court case that questioned the legality of the curfew Los Angeles imposed during the Rodney King uprising.
People v. Continola overturned three test cases involving people arrested for curfew offenses while just walking or driving around town. Judges determined that police should have limited curfew citations to people who threatened to “imperil lives or property or prevent, hinder or delay” first responders or law enforcement.
We circled back with Frimann an hour or two after the Merc’s follow-up ran to ask about the same memo. She declined to share it, citing attorney-client privilege, and reiterated her claim of there being no “exact date” when the city ruled out prosecution.
According to Frimann, that the charging decision wasn’t disclosed sooner had more to do with recent leadership changes in the city attorney’s office after her predecessor Rick Doyle’s retirement and untimely death. “Because of the transition in the office and the circumstances of the last week with his passing,” she wrote, “we didn’t get a chance to move forward on this until today [ Sept. 3].”
On Sept. 4, in response to our request to see a copy of the letters being sent out to defendants—at least the ones for whom the city has valid contact information—Frimann shared the following pro forma template:
Re: Curfew Violation Citation
Dear [INSERT NAME]:
On May 31, 2020, the City Council for City of San Jose enacted a citywide emergency curfew order. The curfew lasted from May 31st to June 4, 2020, and the curfew each night was from 8:30 p.m. to 5:00 a.m. the next morning. The San Jose Police Department enforced the curfew by issuing citations to individuals failing to follow the curfew pursuant to San Jose Municipal Code section 8.08.260(B), which reads as follows:
“It shall be a violation of this Code for any person, during an emergency, to do any act forbidden by any lawful rule or regulation issued pursuant to this chapter if such act is to give or be likely to give assistance to the enemy or to imperil the lives or property of inhabitants of this city, or to prevent, hinder or delay the defense or protection thereof.”
On May 31, 2020, you were issued a citation for violating San Jose’s emergency curfew order, pursuant to San Jose Municipal Code section 8.08.260(B). The San Jose City Attorney’s Office has made a determination not to pursue charges against you for that citation. Consequently, you are not required to appear in court on the date listed on your citation.
If you have any questions, please call our office at (408) 535-1900 and leave a message.
Very truly yours,
NORA FRIMANN, Acting City Attorney
Scott Largent, one of scores of people accused of violating the city’s emergency order during the late-May-through-early-June protests, said he’s thrilled to have one less thing to worry about. But he doesn’t understand why San Jose left everyone hanging for so long—especially since so many other cities made up their minds months ago.
“The fact that they didn’t drop the charges right away, like all these other cities were doing, really threw me off,” he said. “I was worried that they were going to consolidate this charge with some of the others I’m facing from other protests.”
Granted, San Jose would’ve probably lost the curfew case against him anyway considering that Largent is homeless and the language of the curfew order specifically exempted people without reliable shelter.
Largent said he kept telling cops about the exemption at the time of his arrest, to no avail. But, as SJPD Chief Eddie Garcia later acknowledged, his officers began enforcing the order just hours after City Manager Dave Sykes issued it and before they were briefed on its contents. The resulting blind enforcement and error-riddled citations—some of which referenced the wrong muni code—may have undermined the city’s case.
Councilman Raul Peralez—a reserve San Jose police officer who criticized the city’s efforts to prolong the curfew for more than a day or two—said he’s pleased with Frimann’s decision. “Considering the number of questionable and possibly unlawful curfew arrests that were made, including media personnel, I am not surprised at all by the decision of our city attorney,” he wrote Friday in a text message. “As she said, the decision to prosecute was always going to be in her hands, and simply implementing a curfew doesn’t guarantee charges will be filed.”
Annie Decker, an attorney for the ACLU of Northern California who spent the past few months pressing the city to drop the charges, applauded the fact that it finally did so.
“The curfew order itself was constitutionally suspect in timing and scope, and its enforcement also appears to have been unlawfully selective,” she told San Jose Inside.
For those who opposed prosecution, however, there’s still more work to be done.
“After letting them stew in uncertainty for months, the city still needs to provide clear directions to the cited individuals about next steps,” Decker said. “Moreover, the city must give them clean slates so that they do not continue to suffer downstream consequences and respond fully to our public record requests relating to the arrests.”
San Jose dropping the charges is the least it could do, noted her colleague, ACLU NorCal investigator Dylan Verner-Crist. He also ventures to guess that the timing may have had something to do with this news organization pressing for answers.
“Thousands of people turned out in San Jose to protest police brutality, with many of them going up against tear gas and rubber bullets before getting cited for a pretty petty curfew order,” he said. “Then, they’re left in the dark for three months with no clue about that’s going to happen. So yeah, I think it’s great that the city’s dropping this, but I don’t think it’s something to commend the city for. It’s really the lowest possible expectation.”
Daniel Mayfield, a criminal defense attorney who’s representing a handful of accused curfew scofflaws, expressed similar frustration about the lack of communication and said it’ll take a long time for the city to regain goodwill after this drawn-out saga.
Sgt. Kelly’s statement about the curfew causing needless police encounters couldn’t have been more true, Mayfield added. “The result,” he said, “is a further erosion in the trust of the people in the police. That is a problem.”
The solution, however, according to Mayfield, isn’t to empower police to engage in preventive detention, as Sgt. Kelly suggested in the Merc last week.
“The issue,” Mayfield said, “is not one of the so-called ‘thin blue line’ between Trump-style law-and-order and total chaos. … The issue is, rather, a question of the people of San Jose having trust in the police and the elected city leaders. That trust is not established by outlawing normal activity and claiming that the emergency laws, or the use of rubber bullets, is necessary to maintain order. Order is almost always maintained by mutual consent or by social contract.”