by CHARLES NELSON and MARK GABRISH CONLAN
Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
At an earlier hearing in August, the judge in the case, Joan P. Weber, made a comment to the effect that the Nine “might not face jail time” even if they were convicted. On October 17, the prosecutor asked the judge to withdraw that statement. He also announced an offer that the city attorney is refusing to drop the charges, but is offering a plea bargain that would require any of the Nine who accepted it to plead guilty to violating California Penal Code section 415, which says that “any person who maliciously and willfully disturbs another person by loud and unreasonable noise” can be punished by up to 90 days in jail and/or a fine of up to $400.
The plea deal the prosecutor offered would involve a “waiver of time” — apparently meaning a suspended jail sentence — and would require them to do eight hours of community service unrelated to marriage equality. Once anyone who accepted the deal presented documentation that they performed the community service, they would be allowed to “withdraw the plea” and end the case with no criminal record against them. The prosecutor made the offer to the defendants as individuals and gave them until October 28 to decide. One member of the Nine, Felicity Bradley, has already taken the deal and done her eight hours of community service. Another, Mike Kennedy, plans to take the deal, according to his attorney.
Other members of the Equality Nine were more defiant. Michael Anderson, who with his partner Brian Baumgardner participated in the protest by attempting to enter the County Clerk’s office to request a marriage license, said he definitely would not plead out the case. If any of the Nine turn down the plea and insist on going to trial, the next scheduled hearing in the case will be on November 1 to set the trial date.
Judge Weber denied the defense motions to dismiss the case. She ruled that the First Amendment does not necessarily give you the legal right to block access to a public building, and she interpreted the law under which the Equality Nine are being charged, California Penal Code section 602.1 (b), as a “time, place and manner” restriction rather than an outright ban on speech. But the judge also said that if the protesters didn’t actually block access to the County Clerk’s office, Penal Code section 602.1 (c), which says, “Section (b) shall not apply to any person on the premises who is engaging in activities protected by the California Constitution or the Constitution of the United States,” would give them the right to be there to make their political point.
She said the factual issue in the case would be whether heterosexual couples were actually able to get married despite the defendants’ presence. “We will be making law here,” the judge said, adding that as far as she knows no one has ever been successfully prosecuted under this statute before.
“This case will be important,” said Equality Nine defendant Zakiya Khabir, “because Occupy San Diego is facing similar issues with police interference with a peaceful protest.” At the support rally S.A.M.E. held outside the courthouse before the hearing, another defendant, Cecile Veillard, also compared the Equality Nine to Occupy San Diego and said they were both fighting for the right to protest in public spaces.
“The Deputy City Attorney said in court today that we are being tried based on ‘blocking equal access to other members on the public attempting to conduct business,’” said Veillard after the court hearing. “First of all, this is a lie. Though we did sit in front of the doorways to the clerk’s office, not a single heterosexual couple was prevented access to the clerk’s office to obtain their marriage licenses that day. Secondly, the irony of the DCA’s statement should be obvious. Not only were we denied licenses for same-sex couples who had appointments that day, but we were in fact denied our rights to equal access to even enter the clerk’s office that day. A guard outside the door of the clerk’s office barred us from even entering the clerks’ office to speak with the desk clerk about honoring which had already been made [for] Tony and Tyler Dylan-Hyde and other same-sex couples that day. It is we who were denied equal access to conduct our business in the county clerk’s office on that day.”
The support rally before the hearing drew 40 people, many of whom came over from the Occupy San Diego action at the Civic Center Plaza to join in. A woman who did not identify herself, but was addressed by others present as “Jersey,” called Proposition 8, the voter-approved ban on same-sex marriage in California the Equality Nine were protesting, “trickle-down homophobia.” She said that what Proposition 8 and other anti-Queer laws “trickled down” to included teen bullying and suicide.
S.A.M.E. has been circulating a petition asking San Diego City Attorney Jan Goldsmith to drop all charges against the Nine. On September 28, they staged a rally in the Civic Center Plaza — ironically, where the Occupy San Diego action started nine days later — following which they took petitions containing nearly 2,500 signatures to Goldsmith’s office and gave them to his assistant, Carmen Sandoval.