Tag Archives: lawsuit

Groundbreaking Lawsuit Filed Against the City and SFPD Chief Suhr

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Homeless activist Bob Offer-Westort taking part in an Occupy SF protest in 2011. Photo: SF Chronicle

Homeless activist Bob Offer-Westort taking part in an Occupy SF protest in 2011. Photo: SF Chronicle

The City and County of San Francisco and SFPD Chief, Greg Suhr are the subject of a groundbreaking lawsuit filed by the American Civil Liberties Union (ACLU) and activist Bob Offer-Westort, alleging that Mr. Offer-Westort rights were violated when SFPD searched his cellphone without a warrant at the time of his arrest in January 2012 at Jane Warner Plaza in the Castro.

According to the ACLU  this is the first “civil suit in California to challenge warrantless cell phone searches at arrest.” In 2011, the California Supreme Court ruled in the case of People v. Diaz that arrestees’ phones can be searched without violating the United States Constitution.

“This suit brings a challenge under the California Constitution’s stronger guarantees of privacy and freedom from unreasonable search and seizure, as well as a challenge under the U.S. and California Constitutions’ guarantees of freedom of speech and association,” the ACLU wrote in a statement.

The January protest Mr. Offer-Westort took part in was a reaction to Sup. Scott Wiener’s legislation around homeless citizens gathering at City parklettes and plazas-specifically Harvey Milk and Jane Warner Plazas-that managed to ban just about every activity conceivable in an attempt to make life so miserable for the homeless that they move on from any spot that has public furniture or space to rest.

This legislation was penned in an attempt to supplement SF’s already restrictive and controversial 2010 No Sit/Lie Law. Chief Suhr had also sent specific requests to Sup. Wiener to make sure the new legislation included targeted time periods during the day from 9AM to 9PM.

text-messagingMr. Offer-Westort, a well-known SF activist and member of the Coalition on Homelessness, pitched a tent in protest against this restrictive legislation at Jane Warner Plaza as part of a day of Citywide actions of civil disobedience against the legislation. He was eventually arrested by two SFPD officers and charged with a misdemeanor that carries up to a 500 dollar fine.

The rub of the lawsuit comes when one of the arresting policemen, identified only as Officer Chambers, started to go through his phone text messages. He had earlier been having a private exchange with a fellow activist in which they discussed the short comings of a local politician that Mr. Offer-Westort works with on an ongoing basis. He didn’t want that conversation made public as it’d affect his ability to do his job. He told SFPD that they didn’t have permission to look through his phone, but, they did anyway.

In the course of the warrantless search of Offer-Westort’s cell phone Officer Chambers read messages authored by individuals other than Offer-Westort who had not been arrested and messages that were unrelated to the crime for which Offer-Westort was arrested.

The lawsuit challenges the earlier CA Supreme Court ruling and calls into question personal privacy not to mention Fourth and Fifth Amendment issues.

The City hasn’t made comment on the lawsuit and SFPD policy excludes them from commenting on an ongoing lawsuit. It will be interesting to watch this case birthed at the corner of Market and Castro wind its way through the court to see what kind of historic and lasting changes it may have on future use of phone messages as evidence in the State and City.

UPDATE: SF City Attorney, Dennis Herrera to Fed Judge, “Toss Nudist Lawsuit”

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SF City Attorney Dennis Herrera (Photo: Luke Thomas)

Thursday, December 13th San Francisco City Attorney urged a federal judge to dismiss a lawsuit against San Francisco’s nudity ban filed by nude activists who say the ordinance violates their Constitutional rights.

“Public nudity bans are a longstanding feature of municipal codes throughout the nation, and their constitutionality has been repeatedly affirmed by the courts- including the U.S. Supreme Court,” City Attorney Dennis Herrera said in a statement.

As the Biscuit has reported a cadre of nudist have engaged progressive lawyer, Christina DiEdoardo, to bring a lawsuit against the City in regards to the new anti-nudity ordinance penned by Castro Supervisor Scott Wiener. The law was recently approved by the Board of Supervisors and has received Mayor Ed Lee’s signature. The new law goes into effect on Feb.1, 2013.

Mr. Herrera also stated that equal protection claims made by the plaintiffs could undermine the exceptions in the law, like permitting nudity at events like Bay to Breakers and the Folsom Street Fair. Some court observers found this not so subtle hint a reminder that the two tiered nudity ban could easily be adjusted from it’s present state into one of a more broad sweeping mentality that could easily encompass Folsom St. Fair and other unique LGBT public events

Ms. DiEdoardo, who is representing four nudity activists, said she was “disappointed by not surprised” by the city’s action.

 

Board of Supervisors narrowly approve city-wide ban on nudity in preliminary 6-5 vote

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Supervisor Scott Wiener talks to the media about nudity ban via SFist

The San Francisco Board of Supervisors narrowly approved Supervisor Scott Wiener’s city-wide ban on nudity in a 6-5 preliminary vote today.

Supervisors in opposition to Wieners city-wide nudity ban said that the ban would draw on limited police resources and eat away at the city’s reputation for tolerance. Supervisor John Avalos of District 11 said that he was voting against the measure because he was, “concerned about civil liberties, about free speech, about changing San Francisco’s style and how we are as a city.”

The ban amends the San Francisco Police Code by adding Section 154 to prohibit nudity on public streets, sidewalks, street medians, parklets, and plazas, and on public transit vehicles, stations, platforms, and stops, except as part of permitted parades, fairs, and festivals. Violations of the ban would risk a $100 fine, repeat violations could lead to a $500 fine and a year in jail.

While the ban makes exceptions for events like Folsom Street Fair and Pride, it does not allow for your average, run-of-the-mill, kinky community fundraisers or parties.

Last week, nudists retained attorney Christina DiEdoardo to file a class-action lawsuit against the city in the case the nudity ban passed citing that a ban would “infringe on the nudists’ right to free speech.”

A final vote on the ban is expected to come next week.