Eric Alan Isaacson | 15.09.2003 23:09

City drops prosecution of attorney for possession of a flag pole at an antiwar demonstration.

rally in front of jail

On Friday, September 12, I appeared for trial on charges that I had violated San Diego Municipal Code section 53.30 - - by possessing a flag pole at an antiwar demonstration. Faced with the prospect of actually going to trial on the matter, the City dropped the case, which began with my arrest on March 19.

On that day, I had picked up a flag and joined an antiwar demonstration as it passed by my law offices in downtown San Diego. The demonstration was a noisy but peaceful one.

When it reached the intersection of Seventh and F Streets, however, the police suddenly - - and without provocation - - descended upon us and attacked the demonstrators with billy clubs. Surrounding the demonstration, the police held us all captive.

Several demonstrators, disturbed and frightened by the conduct of the police, implored the officers to let them leave. The police refused, but would give no reason for holding these people against their will.

A demonstrator called out for "witnesses" concerning the conduct of the police. As a middle-aged member of the bar, I figured that I would be as good a witness as any. So I volunteered, giving my business card to the people who had asked to leave.

As I did so, I was placed under arrest by a Sergeant McMillan - - on the ground that my flag pole was "too long." Sergeant McMillan said that it exceeded the six-foot limit imposed by Municipal Code section 53.30, and he wrote up a citation charging me with misdemeanor possession of an "illegal length pole."

My arrest was on an utterly false pretext. Although section 53.30 prohibits possession of "any metal stake, club, or pipe," at a demonstration or rally, it said nothing at all to regulate my aluminum flag pole's length.

Yet Sergeant McMillan used section 53.30 as an excuse to hold me for the rest of the evening - - with my hands handcuffed behind my back - - in a police van.

As I mentioned, Sergeant McMillan's citation charged me with a misdemeanor, for which I faced up to six months imprisonment if convicted. His citation also directed me to appear for arraignment on May 21, 2003, at the Superior Court on West Broadway, downtown.

I'm a lawyer, and I took the criminal charges seriously, retaining Antonio Yoon - - an extraordinary criminal-defense attorney - - to represent me. Needless to say, I was pleased to learn on May 21, that no charges had been filed.

No charges had filed downtown, where I had been ordered to appear for arraigment, that is. Sergeant McMillan apparently decided to file the charges at a different courthouse, where he got me cited for a failure to appear. The first I learned of this was when I later received a dunning letter from a debt-collection agency.

My lawyer, Mr. Yoon, got the failure-to-appear citation vacated, and the misdemeanor charges dismissed. I faced trial, then, only for an "infraction" - - for which the maximum penalty was a relatively small fine. I decided to fight it.

Mr. Yoon filed a motion to dismiss the case, arguing that my constitutional right to display a flag entails the right to carry a flag pole. Section 53.30's prohibition of "any metal stake, club, or pipe," cannot constitutionally be stretched to outlaw flag poles. In the alternative, Mr. Yoon argued, I was entitled to discovery from the City, to develop evidence and prove up a case of selective and vindictive prosectution.

The police do not arrest flag-waving pro-war demonstrators, hold them in handcuffs for hours, and charge them with a misdemeanor for possessing a flag pole, after all. And the police had not bothered with my own flag pole - - until I offered to be a witness regarding police misconduct on the evening of March 19.

The City of San Diego opposed our motion, arguing that section 53.30 is constitutional because it applies to all "parades and public assemblies equally and does not single out any particular person or group based on viewpoint." Section 53.30, the City argued, is lawful because it outlaws flag poles carried by Boy Scouts and high-school marching bands - - even if those who carry flags in parades approved by the police are never prosecuted.

My case was different from theirs, the City said, because "[o]n March 19, 2003, the United States edged closer and closer to full blown war with Iraq. That week, there were multiple protests. With each protest, tension mounted and enforcement was ramped up." The City explained that "[t]he police department instigated a zero-tolerance policy to maintain order," as "emotions were riding high amongst the protesters because war was about to begin."

That's right. The City of San Diego admitted that I had been subjected to a special "zero-tolerance policy," reserved for antiwar demonstrators. I had been prosecuted only because I was demonstrating against the war.

That, of course, was an admission of unconstitutional vindictive prosecution - - which the City asked the Court to ignore on the ground that "[t]here is no mention in the citation of Defendant's political leanings, nor of his feelings about the war."

My lawyer and I were ready for trial on Friday, September 12. Suze Bono and Julia Minton, who had witnessed my arrest, were prepared to testify about how I was arrested when I offered to be a witness concerning police misconduct. And Carol Jahnkow, of the Peace Resource Center, was ready to testify regarding the police department's practice of selective enforcement.

The City of San Diego thought that it could bully me into submission. But faced with a real defense, the City dismissed the case on the morning of trial.

Of course, it did so only after putting me through an ordeal - - and to the expense of hiring a lawyer and preparing a defense. A defense, I am sorry to say, that most people harassed by the police cannot afford to present.

3/19 photos 16.09.2003 15:13 rally in front of jail over a hundred simultaneous drummers in front of fed building violently arresting branden, hitting protesters no war, stop stupid bush bringing out the riot gear Ahh, the good old days... hyperpoem Homepage:: standard opperating procedure for police thugs 02.10.2003 19:23 sounds like standard operating procedure by police thugs. arrest anybody they disagree with and not worry about things like "the constitution" nobody