Other Major Cities Dropped Curfew Charges Months Ago. What Took San Jose So Long?

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.”

Jennifer Wadsworth is the news editor for San Jose Inside and Metro Silicon Valley. Email tips to [email protected]. Follow her on Twitter at @jennwadsworth. Or, click here to sign up for text updates about what she’s working on.

14 Comments

  1. I for one do not believe for an instant that the timing of Ms. Frimann’s recent announcement that all curfew violation charges in late May would be dropped shortly after SJI broke the story of Liccardo’s curfew violating bike rides was coincidental. I don’t buy Sam’s statement that his violation was inadvertent either.
    It sounds to me that the rides Sam took that ended after curfew covered a regular training ride route. I had such favorite routes for both biking and running. I always committed to memory my average time for such training rides or runs and my best time for them. Most avid runners and cyclists did that before apps came along to do it for you. Sam knew how much time it would take him to complete those rides those days, which means he would know when to start in order to get back before curfew. But he started later, for whatever reason. My take on the reason: like many elected officials, he has a “do as I say not as I do” attitude. Think Nancy Pelosi and Salongate. It may not be overt, but it’s there in most career politicians, kinda like systemic racism.
    I do not know enough about individual charges against the SJ Curfew 70 to decide if the mass capitulation/dismissals was warranted. Given the admission of Mr. Largent that he has more than one other charge pending, I am leaning toward the position that he should have known better than to keep showing up at protests where some of the “protesters” are in fact agitators.
    The bottom line is this entire episode was handled poorly by the Mayor and Council and the SJPD Command. I never saw in all the video I watched anything that warranted an emergency curfew order. The cops on the line weren’t briefed properly. Their Rules of Engagement were undoubtedly too vague. Then the entire department was thrown under the bus when ALL charges were dropped. Those men and women put their lives on the line every day even without the recent civil unrest; but in this instance they were treated badly by the Mayor and Council and by the City Attorney.

  2. Given that protests here were a near certainty, with the prospect of widespread property damage and violence a distinct possibility, San Jose leaders were faced with two questions: what to do, and what not to do. Here is what they decided.

    What to do: put the police in harm’s way, provide them with emergency measures to limit destruction, pray they save the city, then get back to the important business of plotting against the Trump Administration.

    What not to do: accept political risk by expressing support for the police department, stand behind your own emergency measures, condemn the lawless supporters of Antifa and BLM, allow anything as quaint as justice, transparency, or honor to serve as a distraction from the important business of plotting against the Trump Administration.

    Since I have no tolerance for jackasses who would bring ruin to our city and put our police officers at risk, the loathing I feel for the rioters is no less than that which I feel for our city leaders. Their outrages are indistinguishable. Rubber bullets for them all!

  3. San Jose government is shady……

    Our political leaders are allowing the community to be silenced and this is just another “Tool” that the “Free Speech Suppression Team” is using in the Anti-Democratic City of San Jose.

    This was not a Portland or Seattle situation….. or as Captain Dwyer said “A War Zone” hahahahahaha….

    When you try and go the correct channel to have your grievances addressed in the City of San you will not have the outcome that is provided by other municipalities.

    There’s the right way….. then the San Jose way…

    When you have exhausted any and all resources that is the time to Civilly and Peacefully Protest.

    Just not in San Jose…. We tear up speaker cards (Good work Sam), adjourn meetings with members of the public waiting to speak, combine multiple items together with minimal time to speak, ignore community requests for help, Violate the Brown Act all the time, remove tax paying citizens from meetings for clapping, elected officials and staff go silent when called out on misconduct, the Mayor goes on a Bike Ride, IPA does not return calls, Internal Affairs plays stupid and tries to get you to go away, the “Illness Spreading Germ” City Attorneys get their claws in via the Civil Channel and sue you, false police reports are filed, aggravated perjury is common with all City Staff, Legal retaliation is common when the city is at fault, Rumors and Lies are spread out thru briefing at the PD (Thanks Eddie!!!), and the list goes on and on…..

    And one more thing….. POA President Paul Kelly has really been drinking the Kool-Aid!!!! What a Muppet!!!! Another one that needs to kick rocks from our City…. This guy just says things that make me cringe. Time to vote that “Dirty Dog” out as POA President…

    We need Regime change all around the board at the San Jose Police Department.

    TAKE RESPONSIBLY FOR WHAT HAPPENED…. The City and PD made a BIG MISTAKE….. Man up and do the right thing….. Apologize to the public that you used as target practice (Especially the Homeless and Mentally ill that had no wear to shelter from those rubber missiles) Make the people you hurt whole again and stop dragging this out so long….

    Who broke the Window? Telling the truth is not going to be easy (Sam and Eddie)

    This also applies to all of you elected / appointed officials…… I know your reading this….. all of you have gone silent and that more then shows your true colors….

    Sheriff = No Comment
    Public Defender = No Comment “First Line of Defense”
    Probation = No Comment
    Supervisors = No Comment (Except Susan Ellenberg / you go girl!!!!)
    County Counsel James “The Devil” Williams = No Comment
    San Jose City Attorney = No Comment / Having lunch with Satan
    Police Chief Pumpkin Head = ??????????? Vacation?? Setting up Scott Largent??
    City Council = No Comment
    San Jose Mayor Sam Liccardo = On a bike ride

    This list could also go on and on….

    Thank you, Jennifer Wadsworth, for pulling the pants down on the City!!! This is what is needed to expose all the corruption in San Jose Government….. well…. Santa Clara County Government as a WHOLE… This is the type of reporting we need and its not going to be pretty. I’m sure the push back has been harsh but the American Public values the TRUTH and so do I.

  4. The People of the State of California vs. Scott Largent (1 person calling out the “Big Chief”)
    Case # C1905612

    Trial starts on September 14th 2020 at the Hall of Justice…. AGAIN!!!!!

    This will be round three for the City of San Jose and the Santa Clara County District Attorney’s office to crash and burn yet again over constitutionally protected activity.

    Cases like these should never materialize and it just shows you how things really work in our Legal System.

    Tax payer waste brought to you in part by the “ALL Boys” club….

    Stinky Sam Liccardo
    DA Frozen Rosen
    Judge Jeremiah “Stupid” Scott AKA…. Stewy…

    The damage the “Three Stooges” have caused to our City / County is shocking….

    See it for yourself folks…. Chest Camera’s below…

    https://www.youtube.com/watch?v=YT5mT5ch9Vs&t=331s

    FYI Folks…. The 70 people that where arrested are not out of the woods yet. The City can and more likely go after them on a “Civil Level” to make things more difficult. This is also a process to offset the lawsuits that will be filed for all these “Wrongful” arrests. I am sure the City Attorney is working overtime to plot against all these good flag waiving Americans that where doing nothing wrong.

    The attorneys are worse then the Cops in San Jose… any yes… they get a free pass…

  5. I watched the video of Scott Largent from the link Largent put up, which he undoubtedly believes supports the righteousness of his position/cause. Seems to me Largent is a whiney, self-absorbed, self-appointed arbiter of what is right and what is wrong. The cops know him, and were incredibly patient with the guy, whose mouth works but whose ears don’t.

  6. I watched the video also. What I saw was just another incident of the police harassing a citizen for exercising his constitutional rights. Typical bootlicker blaming the victim even when confronted with visual evidence of police harassment.

  7. McFly, you saw harassment when there was only respectful questioning of Largent, who refused to cooperate with ultra respectful cops asking him to calm down and asking him to explain why he had no court documents to prove his assertions. IF he had no such appears, it’s because he walked out of the courtroom without them. The court clerk ALWAYS prepares a document showing what the hearing was about and when the next court date will be.

  8. Democrat leaders like Lucky Liccardo are the new face of fascism. The sentimental friendly face. It’s disgusting and Straussian. He thinks because he has a trust fund, went to Harvard, and gets away with ripping everyone off like his father and uncle did, he can be King.
    He is not the only GOOD American sucking on and pumping Nazi Neoliberalism.

  9. What you needed is someone like Sheriff Grady Judd telling the public that :”This is San Jose, CA. We like guns. We own guns. I encourage people to own guns. To those trouble makers that want to loot houses and businesses then I am going to tell you that’s a bad idea. I am going to tell owners that if you try to loot and invade their properties that they should just blow you out the door”.

    Result: No more looting or riots.

    https://www.youtube.com/watch?v=nwFuXu665-k

Leave a Reply

Your email address will not be published. Required fields are marked *