Explaining free
speech again
To the Editor:
An Open letter to Mendocino County Sheriff Tom Allman:
I have received a report that the manager of Raleys in Ukiah is hassling petitioners. Here is the report, followed by an explanation of the recent settlement with the County and changes in the Sheriff”s policies concerning free speech and petitioning.
My informant says: “The incident which took place on Sat May 24, 2014 around 12:30 p.m. to the best of my recollection went something like this. I entered Raleys, store … on 1315 N State Street and asked to speak to the Store Manager. I was directed to a tall elderly man with blondish, gray hair. I let him know that we would be petitioning for the five or so weeks to put an Ordinance on the ballot to ban fracking in Mendocino County. He told me that Raley”s store policy prohibited petitioning and that there was a “No Soliciting” sign on the front of the store which made this clear. He went on to say it was illegal to petition in front of Raley”s even off to the side because Raley”s was private property and it was illegal to petition on private property. When I countered this, and said that this was not true, and that it had in fact been recently contested in court and had been decided otherwise, he clarified his statement and said, ”Yes, political petitioning is allowed, but only if it is for a statewide initiative and yours is for the county.” The manager then called Carla Dieffenbach, the store director to speak with me, who initially reiterated what the manager had stated which was that petitioning was not allowed. After a somewhat heated discussion, Carla softened her stance if just a bit. She walked with me outside and directed me to where she would like the petitioners to gather signatures with the stipulation that she/Raley”s would be forced to put up a big sign behind the petitioners stating that Raley”s did not approve of any solicitors at their store.
“Later on this same day, I went to Walmart and spoke to an Assistant Store Manager to inform Walmart of our campaign and intent to gather signatures in front of their store. He informed me that all petitioners needed to first get approval and schedule the times and dates in advance on Walmart”s calendar through a Store Manager, and if the petitioners started petitioning without prior scheduling/approval, the sheriff would be called to force the petitioners to leave.”
The attorneys for Raley”s say that their policy is supported by California law. The case they”re relying on was decided in December 2012. It says that if a store is the “functional equivalent of a stand-alone store,” then it is not the equivalent of a town square, and thus not required to afford free speech protections. The rest of the case then describes various indicators as to what makes a store the functional equivalent of a stand-alone.
Their position is that all of the indicators must be present near the place of petitioning. Our position is that their presence anywhere in the shopping center or mall is sufficient to trigger the protections.
In the settlement and protocols, the County and the Sheriff acknowledge that free speech rights do indeed exist at private malls and shopping centers, though not at stand-alone stores nor right in front of the entrance (even the earlier cases said no to that). But for anyplace else, there will be a presumption that the area is protected for free speech purposes. The officer will not be put in the position of having to make a legal determination at the scene. As in similar situations, he/she will turn to the owner/manager and say, “This is a civil matter.” If the owner/manager wants the police to act, he/she will need to get a court order that a given space is, for some reason, either not protected, or is interfering with the normal course of business.
And why have we shifted the burden of proving that to the stores? Because (drum roll) you cannot deprive someone of an essential right without due process of the law. Fuentes v. Shevin. And the police should not be the tools of corporations in doing so.
I believe Sheriff Allman came to the same conclusion from the practical side of things. The settlement maximizes free speech, our most cherished right, while still protecting commercial interests. And it keeps his deputies from being put in the position of having to resolve disputes that are properly for the court. Everyone should support these protocols.
I am no longer an active member of the bar, so I cannot represent anyone.
Throughout this effort I have been supported by the good folks at the Mendocino Environmental Center. Their mission is to protect the Earth and to promote peace and social justice. Please consider becoming a member if you have not already. $40 per year. 106 W. Standley St, Ukiah, CA 95482. And listen to their radio station, KMEC 105.1FM (kmecradio.org ) for more information about this and other important issues.
Thank you all for doing the good work, the essential work, of democracy.
Dennis O”Brien, Mendocino County
What is gravely disabled?
To the Editor:
I retired almost two years ago from working in the Mendocino County mental health system. Near the end I worked with a disabled man. Steven was a gentle man, on SSI and clearly had some serious mental challenges which made it difficult for him to relate to people unless they were very accepting of him right where he was at; which was often a difficult place. He mumbled and rambled and it was often hard to understand or make sense of what he was saying. At other times, if you had the patience to listen closely, you could see he was very real and describing his life through his paranoid schizophrenic eyes and that he at times seemed very clear in what he was thinking and feeling. He had a hard time getting help he could accept and following through with the help that was offered him. He had turned to drugs and was probably addicted to methamphetamines, which was undoubtedly a contributing factor to the news I got yesterday. Steven, who was homeless and living out of his car as a result of being evicted from his mental health apartment, was found dead in his cell at the Mendocino County Jail.
Where was the help that Steven needed? What did he need and could anyone provide that? Here some jury instructions to help people determine if a person is gravely disabled in California: California Civil Jury Instructions (CACI) 4002.
The term “gravely disabled” means that a person is presently unable to provide for his or her basic needs for food, clothing, or shelter because of [a mental disorder/impairment by chronic alcoholism]. Insert one or more of the following: [Psychosis/bizarre or eccentric behavior/delusions/hallucinations/[is/are] not enough, by [itself/themselves], to find that [name of respondent] is gravely disabled. [He/She] must be unable to provide for the basic needs of food, clothing, or shelter because of [a mental disorder/impairment by chronic alcoholism].]
[If you find [name of respondent] will not take [his/her] prescribed medication without supervision and that a mental disorder makes [him/her] unable to provide for [his/her] basic needs for food, clothing or shelter without such medication, then you may conclude [name of respondent] is presently gravely disabled.
In determining whether [name of respondent] is presently gravely disabled, you may consider evidence that [he/she] did not take prescribed medication in the past. You may also consider evidence of [his/her] lack of insight into [his/her] mental condition.]
In considering whether [name of respondent] is presently gravely disabled, you may not consider the likelihood of future deterioration or relapse of a condition.
In California there are three reasons a person can be put into a mental institution: 1) danger to self 2) danger to others or 3) gravely disabled. Steven was hospitalized and released on more than one occasion, perhaps many. Was he gravely disabled? After I retired and he couldn”t pay for my help, he was interested in a work trade that I offered him: to work in my yard in exchange for me trying to help him stay in his place and other things he wanted help with, like getting his car fixed. Steven”s disability kept him from dealing with people in a clear way. After he was evicted and on the street for about a month or so he had clearly lost weight and wasn”t eating properly. My wife and I fed him the last time he did a work trade. In my eyes Steven was clearly gravely disabled. Even though he was still working with the mental health program up to the time of his death, why was his disability not recognized so he could have been put in some facility to save his life? I don”t know. I don”t know what kind of instructions people are given to define gravely disabled, in these times of shrinking budgets and shrinking mental health budgets particularly. I asked about this and the best answer I got was that he was not considered gravely disabled because there were no facilities to place him in. But I do know this: that had Steven been taken into custody in some facility, probably against his will, he would most likely be off of illegal drugs and alive today.
What is wrong with this picture? We as a society and community have no place for the gravely disabled. Will we continue to let them die on the street or in jail cell? I encourage all of us to take a hard look at this situation. It could be anyone”s relative or friend that is next. Despite his flaws Steven was a loving and caring person a great artist who wouldn”t hurt a flea. We can do better. How? How can we save more lives?
Harvey Baumoel, Ukiah