Stephen Greenberg: Law enforcement’s message for anti-BLM aggressors | TheUnion.com
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Stephen Greenberg: Law enforcement’s message for anti-BLM aggressors

“If you’re looking at this picture — don’t feel sorry for me," said Kerry-Ann Fuller, the masked woman in orange with her hands up. "I want you to feel indignant, like I did, that these men would put their hands on me or anyone else. I want you to feel resolve, like I did, to get back up, to walk strong and sure and stand like a bulwark, facing their anger, fear, and hatred.”
Submitted to The Union

What’s wrong with this picture? Or with the pictures in The Union’s Sept. 11 article about the August 9 incident in Nevada City? They showed people who “tried to block” the Black Lives Matter marchers. In fact, they “showed up” just to do that.

Here’s what’s wrong: Those pictures — and the videos circulating online — showed a crime being committed, by people who got away with it. According to Penal Code section 647c, “every person who willfully and maliciously obstructs the free movement of any person on any street, sidewalk, or other public place or on or in any place open to the public is guilty of a misdemeanor.”

You can exercise First Amendment rights by marching along a street or a sidewalk. True, you’re not supposed to block traffic. But the police can let you proceed with your short march, as they did that day. And that’s fine; there’s nothing “malicious” about your actions.



It’s different, though, when someone tries to physically block your way so you can’t exercise those rights. That’s as malicious as can be — not only a crime against you, but also against the First Amendment itself.

And there’s more: A group of people made the decision to commit that crime together. That’s actually a conspiracy, punishable as a felony (Penal Code section 182(a)(6)).



The Union has reported three law enforcement responses: one man arrested and charged with robbery and aggravated assault (both felonies); and two charged with misdemeanor battery, based on alleged sucker-punching and forcibly ripping away a sign. Apparently, those were some of the more obvious one-on-one violent acts. I think we can all understand those charges.

But what about the entire planned aggression itself, and the aggressors’ violation of 647c? Why haven’t we heard anything about these crimes committed before our very eyes?

I’m a criminal defense lawyer by training, trade, and temperament. But that doesn’t mean I’m against police and prosecutors properly doing their jobs. So, Nevada City Police Chief Ellis and District Attorney Newell: Why haven’t your offices said a public word about 647c, let alone acted to enforce it?

Full disclosure: I’ve asked them the same question by email, twice over the past eight weeks. But as of this writing, they haven’t responded.

Shortly after the incident, Chief Ellis’s press release stated that the “aggressive behavior” against the BLM protestors “will absolutely not be tolerated.” And the district attorney’s office declared it “will zealously prosecute all those who break the law or seek to use fear, violence or intimidation to silence others.”

So what about those who “willfully and maliciously obstructed the free movement” of the protestors, violating 647c?

As reported in The Union (8/28), Assistant District Attorney Walsh explained that “he would not be charging dozens of perpetrators for minor infractions. ‘We’re trying to take a reasonable approach,’ he said, adding that his office wants to respect people’s freedom of speech and right to protest.”

Wait — what? The district attorney wants to respect the aggressors’ “freedom” to “protest” against the BLM marchers by trying to block their way and herd them? But no one has such a right!

Actions — and inactions — speak louder than words, right? And if you’re an anti-BLM aggressor, local law enforcement’s selective actions send a pretty clear message: You’re free to interfere with and try to stop BLM marches; just don’t hit anybody. Or: You can be a vigilante in our town; but no violence, please.

That’s the wrong message, but we can assume it’s been delivered. On the day of the incident, one of the aggressors or a supporter posted on Facebook, “It’s nice when law enforcement is behind you letting you push these entitled liberal white mellinials [sic] out of town.”

I remembered that post while reading a recent Guardian article (9/16), “Armed civilian roadblocks in Oregon town fuel fears over vigilantism.” From the article: “Drivers who were stopped said they were asked to identify themselves and their connection to the town and claimed that on at least two occasions, police were on the scene and did not intervene in the illegal traffic stops.”

But then the reporter learned that “sheriff’s office instructions to halt illegal stops had immediate effect, and that there had been no further checkpoints or roadblocks since Saturday’s meeting.”

Chief Ellis and District Attorney Newell: What message are you choosing to send?

Stephen Greenberg is a Nevada City resident and attorney.


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