This afternoon, at around 1:30 p.m., local activist Ray Lutz was arrested after setting up a voter-registration table at the Civic Center Concourse near San Diego City Hall. Video of his arrest was posted to Twitter; you can view it in this story by Union-Tribune reporter Matt Hall.
In an email, San Diego Police Lt. Andra Brown told me Lutz was arrested for trespassing on private property:
Apparently, he set up a table, chair and box of items on the private property portion of the Civic Center Plaza. He was asked by security to leave the private property and he refused. SDPD officers were called and asked him to leave, as well. He again refused and was placed under citizen's arrest. SDPD officers effected the arrest on behalf of the arresting citizen. No force was used.
(Brown said that because the arrest report hasn't been electronically filed, she doesn't yet have the name of the citizen who arrested Lutz. Update: Hall reported Brown told him that a security guard made the citizens arrest.) ---
If you're familiar with the Civic Center, there are a set of steps that are considered a dividing line between public and private property. The area to the north of the steps, where Lutz set up his table, is private property, though the city rents out space in the building to house some city departments.
This raises the question of whether Lutz intended to be arrested. Yesterday, he sent this letter (hat tip to @ShinJeisan for the link) to the owners of the Civic Center Plaza building. In it, he argued that their property was akin to a public square and, therefore, open to public use protected by the First Amendment. Lutz cites a 1980 court decision, Pruneyard Shopping Center v. Robins. The Pruneyard decision is why folks are allowed to stand outside Targets and Walmarts and ask you to sign petitions or donate to a cause. It allows employees with a grievance to hand out leaflets at a mall, asking shoppers to boycott a tenant and allowed Carl DeMaio, a critic of the local Occupy movement, to collect signatures for two ballot measures he's backing. As Lutz puts it in his letter:
In essence, the decision embraced the notion that today, these privately owned malls have replaced the public square, and therefore, it is appropriate to require the malls to allow peaceful political activity, subject to time, place, and manner restrictions.
But the Civic Center building isn't a shopping mall. Again, from Lutz's letter:
First, it is clear that the area in front and on the sides of the Civic Center Plaza building, at 1200 3rd Ave. in San Diego, qualifies at least as much as would the area inside a public shopping center, such as the Pruneyard shopping center. The question here is whether your building has any right to restrict activities to time, place and manner, as would be the case in a private mall. I assert that those restrictions are largely not applicable to this case. Here is why: The plaza area is specifically known to be the central square of the city of San Diego. The purpose of this square is to allow access by the public and particularly to support the right for free speech. In fact, the square is directly adjacent to San Diego City Hall to the south, Civic Center Auditorium, operated by the City of San Diego, also to the south, and the Civic Center Plaza building is primarily leased to the City for public functions, to the north. There is no doubt that this is the official public square of the City of San Diego. Indeed, there is no other similar square in San Diego.
As I pointed out in this blog post, the Occupy movement's brought up some legitimate, provocative questions about free speech and how it's defined—and curtailed. What Lutz chooses to do with his arrest—if he chooses to do anything (there's a press conference with National Lawyers Guild at 7:30 p.m.)—will be interesting to watch.