Defense lawyers for San Luis Obispo activist Tianna Arata filed a motion contending that San Luis Obispo County District Attorney Dan Dow and his office should be disqualified from prosecuting the case against the Black Lives Matter activist because of political bias.
Attorneys Patrick Fisher and Curtis Briggs contend that Arata, 20, has been “unlawfully targeted by the San Luis Obispo County District Attorney’s Office due to conflict of interest held by District Attorney Dan Dow, and that this conflict of interest has now permeated the entire District Attorney’s Office.”
Arata’s attorneys argue Dow is attempting to eradicate the Black Lives Matter movement from San Luis Obispo and gain support from his conservative and religious voter bases and political leaders to advance his political career.
They also argue that Michael L’Heureux, a District Attorney’s Office investigator, has “committed multiple felonies, including destroying at least one exculpatory audio recording and submitting false police reports.”
“(The attorneys) believe that further investigation would reveal criminal conspiracy by at least two members of the SLO DA’s Office,” they wrote in the motion, arguing that “an investigation by the California Attorney General is warranted.”
Arrata was arrested over her role in a July 21 protest in San Luis Obispo that ended with marchers blocking traffic on Highway 101.
She was charged with 13 misdemeanors, including five counts of false imprisonment, six counts of obstruction of thoroughfare, one count of disturbing the peace and one count of unlawful assembly.
The motion represents only one side of the case, and a formal response by the District Attorney’s Office had yet to be filed in San Luis Obispo Superior Court as of Tuesday evening.
If the motion is successful, the state Attorney General’s Office would take over the prosecution of the case, according to Briggs.
The hearing for Arata, a further arraignment, is scheduled for Dec. 3 in Judge Matthew Guerrero’s court, at which time the disqualification is expected to be addressed. Arata has not yet entered a plea.
Dow declined to comment specifically on the motion, writing in an email Tuesday night that motions seeking recusal of the prosecution on political grounds “generally have a very high burden to be granted.”
“We cannot respond to media inquiries regarding an ongoing case — especially on an issue that is being litigated,” Dow wrote to The Tribune on Tuesday.
Briggs told The Tribune that he believes Dow has handled the case unethically, and though motions like this one often have low odds for the defense, this motion has a “50-50 chance of succeeding.”
Tianna Arata attorneys argue First Amendment issues
The motion argues Dow turned “a blind eye” to First Amendment expression of the Black Lives Matter movement by singling out Arata and her fellow activists for charges.
Arata’s lawyers accused the District Attorney’s Office of using “immense” resources to build a case against Arata and help Dow “use the prosecution of Ms. Arata to gain national attention to endear himself to right-wing political leaders so that he can advance his political career beyond SLO.”
Arata was among an estimated 200 to 300 demonstrators who went onto the Highway 101 freeway and marched throughout the city, the lawyers wrote.
A total of eight people face charges in connection to the July 21 protest, including five people of color.
Elias Bautista, 23, was captured on video kicking a police officer as Arata is carried away to a patrol vehicle. Bautista faces one felony count of resisting a peace officer and two misdemeanor counts of resisting, obstructing, or delaying a peace officer.
In October, three months after the protest, the District Attorney’s Office charged three additional Black protesters for their roles in the demonstration.
Arata’s defense lawyers argued Dow failed to charge white drivers who they allege plowed into protesters amid the protest and said DA investigators improperly used language to elicit statements that fit the criminal charges against Arata.
“For example, one witness was asked: ‘... if it was his interpretation that the group was attempting to convey social justice or sociopolitical message, just trying to be disruptive and disturb people’s peace, or had some other intentions.’”
Patrick Fisher, the San Luis Obispo attorney for Black Lives Matter organizer Tianna Arata. David Middlecamp dmiddlecamp@thetribunenews.com
SLO County DA’s political ties
The motion cited Dow’s appearance on Aug. 11 on “Washington Watch with Tony Perkins,” a daily politics program for the Family Research Council, which “describes the Black Lives Matter movement as a ‘Marxist’ group who promote cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion,” the defense lawyers wrote.
“Dan Dow’s show of support towards Tony Perkins while he was tasked with ‘deciding’ whether to charges against Ms. Arata demonstrates either gross incompetence, poor judgment or most likely his true motivation of using Ms. Arata as a way to cater towards his base.”
They also cited Dow’s correspondence with the Facebook group Protect Paso on Sept. 4. Group members have described the Black Lives Matter Movement as “domestic terrorism” and “downright evil, no brains and no souls,” among other scathing assessments.
“Yet, rather than explain his charging decisions to the general public, Dan Dow felt it necessary to ensure this group knew that he did not back down to their cause,” the motion states.
Dow commented to the group he “kept hearing that there is a group of people who are upset that I did not file felony charges. I am writing to provide some legal context and explanation. So, if you are confused, or if you believe that I gave in to pressure by filing misdemeanors, please stop and read this message. I did not cave on anything,” the defense lawyers wrote, quoting Dow.
Dow also attended and spoke at a Pismo Beach event on Oct. 11 at which conservative activist Candace Owens appeared. The event was a fundraiser for the secessionist “New California” movement to declare a new state within Califomia.
At the event, Owens called the Black Lives Matter movement “one of the most racist movements that ever existed in this country,” the defense said.
Dow wrote to tell The Tribune, “Candace Owens is bright and intelligent, fearless woman and role model for young women everywhere.”
Other citations include an effort by Dow’s wife to raise campaign money on his behalf. She sent a mass email seeking donations for her husband in leading the fight in SLO County against anarchist groups, the motion states.
“There is no doubt this was in reference to Dan Dow’s personal crusade against the Black Lives Matter movement,” the motion says.
The motion cited the office’s refusal to consider 544,000 petition signatures and accusations from many that the office racist, as a potential reason the prosecution is digging in to charge the case unjustly.
Curtis Briggs, one of Tianna Arata’s attorneys, speaks to supporters during a rally on Thursday, Oct. 22, 2020, outside the San Luis Obispo County Courthouse. They were there to protest the court hearing for organizer Tianna Arata and others facing misdemeanor charges over a July 21 protest in San Luis Obispo. David Middlecamp dmiddlecamp@thetribunenews.com
Arata investigation complaints against DA
The defense motion also accuses the prosecution of trying to convince a driver stopped during the protest that he was a victim, even though he asserted he wasn’t in fear.
The driver of a black BMW named as a victim of false imprisonment told DA Investigator Michael L’Heureux that, although his vehicle was held up in traffic, ‘he was not in fear for his own safety, nor the destruction of any of his property.’
“He further stated that he felt as if DA Investigator L’Heureux was attempting to put words into his mouth and he believes DA Investigator L’Heureux was trying to convince him that he was a victim,” the motion states. “DA Investigator L’Heureux claims in his report that his audio recorder was unable to record this interview due to a ‘low battery’ warning.”
The motion further stated: “Rather than conduct an impartial investigation, the District Attorney’s Office was promoting a preconceived narrative that each white person was victim who was being attacked or attempting to flee, while the Black Lives Matter protesters were violent, attacking cars and committing vandalism.”
The motion also cited prosecution bias when the DA’s Office waited 28 days to file a misdemeanor charge in regard to a Sept. 2 incident in SLO involving a white man “aggressively driving his Harley Davidson motorcycle into group of Black students peacefully protesting at an intersection on Osos Street.”
“Meanwhile, he also issued citations against two Black protesters for walking across the street at the time the man drove through them, alleging the protesters were walking outside of the crosswalk and obstructing vehicle,” the defense lawyers wrote.
“Dan Dow’s bias towards Black Lives Matters protesters in the application of the law is illustrated by the fact that this white male, who clearly and intentionally assaulted Black protester using a thousand-pound piece of rolling steel as a deadly weapon, was issued a misdemeanor citation in 28 days, and the BLM protesters were cited with an equally serious crime.”
The crowd of applauds as Tianna Arata speaks during a #FreeTianna rally in August 2020 outside the San Luis Obispo County Courthouse. Event organizers called for District Attorney Dan Dow to drop the case against Arata. David Middlecamp dmiddlecamp@thetribunenews.com
2019 case involving Dow
The Arata prosecution is not the first time defense attorneys have sought to disqualify Dan Dow from a local case.
In the 2019 sexual battery case against Herbert Connor that Dow prosecuted in advance of SLO County’s DA election, the defense also sought his recusal on the basis of a conflict of interest and political motivation.
But the California Attorney General’s Office argued in support of Dow, stating he was within his rights to personally prosecute the case, based on his impartial consideration of the evidence.
Judge Jacqueline Duffy ruled in favor of Dow, allowing him to remain on the case, acting as the DA’s trial attorney for the prosecution. It’s rare for the district attorney of a county to act as the prosecution’s trial lawyer in a case.
“The district attorney properly met with the victim and independently determined that the prosecution should move forward despite a subordinate deputy district attorney having recommended otherwise,” the opposition to the defense’s motion noted.
District Attorney Dan Dow speaks at a commemorative rally on Sept. 11, 2020, in Atascadero. The rally was titled “Unify America: We are Stronger Together.” Laura Dickinson ldickinson@thetribunenews.com
The argument from the attorney general cited case precedent. “In every case there is a presumption the prosecutor has ‘properly and conscientiously discharg[ed] his duties’ and that ‘he has performed official duty properly.’”
The motion noted an opinion article Dow wrote for The Tribune in 2018 titled “Dan Dow: I stand up for victims of sexual assault and abuse,” arguing it had no affect on his decision to pursue evidence he believed to be a crime.
While the article didn’t directly mention the case, the defense had argued it indicated a conflict.
“Prosecutors who write for publication on subjects closely linked to their work do not necessarily create recusable conflicts,” the attorney general’s motion said.
This story was originally published November 18, 2020 at 11:59 AM.
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