SLO police were sending a message, defense attorney says of protest leader’s arrest
A criminal defense attorney says San Luis Obispo police’s arrest of a high-profile leader of a Black Lives Matter protest Tuesday night was meant to send a message.
“It seems like it’s primarily a political message,” Jeff Stein said by phone Wednesday. “As in, if you do this activity, there will be grief associated with it.”
Stein, who’s worked as a criminal defense attorney in San Luis Obispo County for more than 40 years but is not involved in the case, examined the Police Department’s news release and media reports about the arrest of Tianna Arata at The Tribune’s request.
He said that just because the Police Department feels it had probable cause to arrest Arata doesn’t mean prosecutors will pursue the case, which could be a difficult one to prove to 12 jurors in court.
Arata is one of a group of roughly a dozen black youth leaders who have featured prominently in local demonstrations. She was one of the main speakers at an NAACP rally June 4 at the San Luis Obispo Superior Courthouse that drew thousands of marchers.
Police arrested Arata on Tuesday at about 8 p.m. near Mitchell Park as she and other demonstrators were loading up a car after the protest — which at one point stopped traffic on Highway 101 — had already dispersed.
A Tribune reporter and witnesses at the scene saw at least four police officers in riot gear run up to Arata, surround and restrain her, and quickly pull her into a police vehicle without making any announcement.
A second protester was arrested on suspicion of assault on an officer after a confrontation ensued between police and bystanders following Arata’s arrest.
As of Wednesday afternoon, Arata was no longer in custody after being released from the County Jail without bail, her attorney, Dustin Tardiff, said.
Though no charges have officially been filed, a tentative arraignment date is set for September.
Tardiff on Wednesday called Arata’s arrest “outrageous” and said he hopes prosecutors decline to take the case.
“I’m hopeful that this was just a knee-jerk reaction (by the police), that they’ll backtrack and see how ridiculous this is, and these police will let these people move on with their lives,” Tardiff said.
Police accuse leader of ‘riot’
Police departments do not have the ability to criminally charge a suspect, but SLO police said in a news release that they arrested Arata on suspicion of participation in a riot, unlawful assembly, conspiracy, unlawful imprisonment, and resisting arrest.
Police noted in their news release that after the group entered Highway 101, protesters “damaged the hood of a passenger vehicle and smashed the rear window where a 4 year-old child was in the back seat and had glass shattered on him.”
Video and witness accounts contradict that narrative.
The department also put out a second news release Wednesday asking for the identity of a driver of a vehicle they say Arata struck with a flagpole during a march near downtown.
Despite calling the driver of the vehicle a “victim” of vandalism, drone footage released by the department appears to show the vehicle stopped at an intersection when it suddenly turns right into a small group of protesters at the head of the march, clearly striking them and dragging one briefly on the hood, before someone — likely Arata — appears to swing a flag and the vehicle speeds off.
In emailed responses Wednesday, San Luis Obispo police Capt. Jeff Smith defended Arata’s arrest, saying it was carried out after the event to avoid creating a confrontation with protesters. Smith said that the protesters’ taking to the highway did not allow vehicles to leave, resulting in false imprisonment of the motorists.
Smith also said that, under California law, “Any use of force or violence, disturbing the public peace, or any threat to use force or violence, if accompanied by immediate power of execution, by two or more persons acting together, and without authority of law, is a riot.”
Smith cited a state vehicle code prohibiting pedestrians from walking “upon any roadway outside of a business or residence district otherwise than close to his or her left-hand edge of the roadway.”
“The protest march entering the freeway created an immediate threat to public safety for both motorists and marchers,” Smith said, adding that Arata was arrested ”as the organizer and march leader of last night’s protest.”
Tardiff said Arata’s bail was initially set at $75,000, but that the jail eventually released her on her own recognizance without bail due to COVID-19 precautions at the facility.
‘Premature’ for the district attorney to comment
In its initial news release, the Police Department said “the decision to arrest Arata was made in coordination with the District Attorney’s Office based on Arata’s actions and the actions of the organized group.”
County District Attorney Dan Dow — whose office would file any charges against the protesters in court — declined to be interviewed about the case or any possible charges against Arata on Wednesday.
But Eric Dobroth, assistant deputy district attorney, said via email that he did confer with members of the department about legal issues during Tuesday’s protest, as he said his office has done at previous events.
Dobroth said the agency has not received any reports from the San Luis Obispo Police Department recommending criminal charges.
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He said the next step in the process is for the Police Department to complete their investigation, compile reports and evidence, and forward the case to the DA’s Office for review.
“We will then impartially review the facts and law to determine if a crime was committed and, if we believe we can prove a crime was committed, how to proceed,” Dobroth said. “At this point we have not received a referral from the Police Department, so it would be premature for our office to provide an opinion on what laws were broken (if any) or how Ms. Arata might be charged.”
He said prosecutors have an ethical obligation to only file charges they “believe can be proven to a jury unanimously beyond a reasonable doubt in light of all reasonably foreseeable defenses.”
‘It is outrageous how this went down’
Tardiff and several protesters and peacekeepers on Wednesday all said that Arata has been one of the leaders most vocal about avoiding any violence during the local demonstrations.
Cori Ramsay, who marched with protesters Tuesday, called Arata “aggressively peaceful.”
“She’s aggressive about telling us not to act violently, to avoid those situations,” Ramsay said. “It seems like every 10 minutes.”
“I think her role in the community speaks for itself,” Tardiff said. “People look up to her. She has a voice that people need to hear.”
Hannah Kenny and Laura Foxx, two of a group of peacekeepers at Tuesday’s protest who support protesters through de-escalation tactics with police and counter-protesters, provided a written statement to The Tribune Wednesday recounting Arata’s arrest.
Kenny and Foxx said that after the protest, several SLOPD officers “ambushed” Arata as she was getting into her vehicle.
“These officers did not state a reason for arrest. (Arata) stated on numerous occasions, ‘I’m not resisting,’ while being loaded with excessive force into the police vehicle,” they wrote. “Within minutes of the arrest, police forces from other cities within the county were on the scene with batons and rifles.”
None of the officers responded to questions on where Arata was being taken or what she was being arrested for, they said, and Arata was not allowed to contact family or a lawyer for several hours while being held.
As she was held, “SLOPD developed and released an extensive press statement all before the organizer had been told why she was being held, proving they paid more time and attention to their PR than to the rights of those arrested,” Kenny and Foxx wrote.
“It is outrageous how this went down,” Tardiff said. “This was a pretty violent arrest.”
Protesters ‘were just occupying the space’
Stein, the longtime criminal defense attorney and past president of the SLO Bar Association and the state’s defense attorneys association, said Wednesday that there’s a lot that can’t be determined about what charges Arata may actually face, if any.
Several of the charges she’s accused of by the Police Department could potentially be felonies or misdemeanors, and the information released so far is ambiguous, Stein said.
“The content of the (news) release made it sort of unascertainable what attribution they were making to Ms. Arata,” he said.
In regard to alleged “false imprisonment” of vehicles on Highway 101, the California penal code defines that charge as a “wobbler,” which could be filed as a misdemeanor or a felony. He explained the law is defined as effectively restraining a person or compelling them to stay or go somewhere against their will.
“Effectively preventing them from going about their business,” he said.
The difference between the less serious charge and the felony is whether violence or menace was used.
“I have a sense that this was a leadership situation where the leadership made the choice to do the (highway) blockade, but I doubt that (Arata’s) direction was to vandalize a vehicle or injure a child or whatever the police said,” Stein said. “It doesn’t sound like (protesters) were using force, they were just occupying the space.”
He explained that charges of conspiracy — essentially an agreement to commit an unlawful act — also wobble depending on the severity of the underlying crime.
“And these are clearly First Amendment-protected activities,” Stein said of Tuesday’s protest.
Asked about witness accounts that Arata was not read her Miranda rights before she was arrested, Stein said that if police were only detaining her and didn’t plan to use any of her statements for prosecution, a reading of her rights is irrelevant.
Asked about the case moving forward, Stein said that while police officers and prosecutors are “to some extent aligned” in their goals, they’re also separate.
“The most difficult of all tasks (for a prosecutor) is telling the cop, ‘Sorry, the case is not there,’” Stein said. “It’s a matter of whether the DA endorses the arrest conclusion … the answer may be it’s not chargeable.”
But prosecutorial discretion, Stein said, also allows the agency leeway in making public policy decisions through the filing of charges on cases of public importance. He cited highly publicized cases of “johns” being arrested for misdemeanor soliciting prostitution as an example
“They do that when they want to put out a message that this is conduct that they won’t tolerate,” he said.
Correction: This article has been corrected to accurately reflect the District Attorney’s Office’s communications with the San Luis Obispo Police Department during Tuesday’s protest.
This story was originally published July 22, 2020 at 6:19 PM.
