Petition for Writ of Certiorari — Lloyd v. Long

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Case No. T) goserti F. SPAWOL, dR

CLERK

UNITED STATES SUPREME COURT

OCTOBER_1990 TERM

REES LLOYD,

Cal. Supreme

Ct. No. S014029

Cal. Court of

App. No. G006130

0O.C. Sup. Ct.

No. 35 98 28

Petitioner,

RICHARD T. LONG,

Respondent.

ee ee ee ee ee ee ee ee ee

Petition for Writ of Certiorari

to the Court of Appeal of the

State of California

PETITION FOR WRIT OF CERTIORARI

MEIR J. WESTREICH

Attorney at Law

522 East Broadway, Suite 102

Glendale, California 91205

818-548-8498

[Attorney of Record for Petitioner]

HUGH MANES

MANES & WATSON

3600 Wilshire Blvd, Suite 1710

Los Angeles, California 90010

213-381-7793

Case No.

UNITED STATES SUPREME COURT

OCTOBER 1990 TERM

REES LLOYD,

Cal. Supreme

Petitioner, Ct. No. S014029

Cal. Court of

Vv. App. No. G006130

O.C. Sup. Ct.

RICHARD T. LONG, No. 35 98 28

Respondent.

me ee ee ee ee ee eee eee ee”

Petition for Writ of Certiorari

to the Court of Appeal of the

State of California

PETITION FOR WRIT OF CERTIORARI

MEIR J. WESTREICH

Attorney at Law

522 East Broadway, Suite 102

Glendale, California 91205

818-548-8498

[Attorney of Record for Petitioner]

HUGH MANES

MANES & WATSON

3600 Wilshire Blvd, Suite 1710

Los Angeles, California 90010

213-381-7793

ISSUES PRESENTED FOR REVIEW

A. Whether a state court

application of its public accommodations

and anti-discrimination statute to impose

substantial civil damages on petitioner}

who, while attending a lawful public

political assembly, aggressively

challenged the presence of respondent

police officer who was present in his

official capacity to covertly monitor the

participants for official purposes,

conflicts with decisions of this Court

concerning political speech / petition

and expressive association as protected

under the First Amendment?

B. Whether a state court ruling

that the availability of a judicial

remedy justified imposing substantial

Civil penalties on petitioner for

1, In addition to. petitioner-

defendant Rees Lloyd, two additional

defendants were the American Civil

Liberties Union of Southern California

{hereinafter "ACLU"] and Linda Valentino.

employing forms of speech / petition

protected under the First Amendment to

effect the departure of a police

officer, present in his official capacity

to covertly monitor lawful public

political activity, conflicts with

decisions of this Court concerning

political speech / petition and

expressive association?

TABLE OF CONTENTS

ISSUES PRESENTED FOR REVIEW .....i

OFFICIAL AND UNOFFICIAL

REPORT OF OPINION HEREIN ......1

JURISDICTIONAL STATEMENT .......41

STATE STATUTORY PROVISIONS AND

POSSIBLE APPLICABILITY OF

28 U.S.C. sec.2403(b) .....22.-2 2

STATEMENT OF THE CASE ......e+-«-e2

A. Preservation of Federal

Issues Presented .......2

B. Statement of Material

Fogee ss « « «% « & « «42

AINGUMENE cc ec ee eee ee tl tll lee

A. Whether a state court

application of its public

accommodations and anti-

discrimination statute to

impose substantial civil

damages on petitioner who,

while attending a lawful

public political assembly,

aggressively challenged

the presence of respondent

police officer who was

present in his official

capacity to covertly

monitor the participants

for official purposes,

conflicts with decisions

of this Court concerning

political speech / petition

and expressive association

as protected under the

First Amendment? ...... .21

iii

B. Whether a state court

ruling that the

availability of a judicial

remedy justified imposing

substantial civil

penalties on petitioner

for employing forms of

speech / petition

protected under the First

Amendment to effect the

departure of a police

officer, present in his

official capacity to

covertly monitor lawful

public political activity,

conflicts with decisions

of this Court concerning

political speech /

petition and expressive

association? ....++« « « «46

GCOMGCTAIBIGHN «© ec ec ce eeeeeeee 6 Oe

APPENDICES ...

Appendix A: Denial of Review

by California Supreme Court

(April 19, 1990)... :

Appendix B: Opinion of

California Court of Appeal

(December 22, 1989),

as modified, with Denial of

Petition for Rehearing

(January 19, 1990) . .

Appendix C: Jury Instructions

by Trial Court [Partial)}

Appendix D: Judgment, with

Special Jury Verdicts

(August 17, 1987)

Appendix E: Minute Order, re

Attorney's Fees & Costs

Appendix F: California Unruh

Civil Rights Act, secs.

S51, 51.5, 51.7 & 52(a)

TABLE OF AUTHORITIES

Board of Directors of Rotary,

int'l v. Duarte,

481 U.S. 537 (1987) ......

Corp., 463 U.S. 60 (1983) ..

Boos v. Barry, 485 U.S. ’

108 S.Ct. ’

99 L.Ed.2d 333 (1988) ....

Brandon v. Holt,

469 U.S. 464 (1985) ......

456 U.S. 45 (1982) ... .-

475 U.S. 292 (1986) ...+.. «

Clipper Express v. Rocky Mountain

Motor Tariff Bureau, Inc.,

690 F.2d 1240 (9th Cir. 1982),

cert. denied,

103 S.Ct. 1234 (1982) ..

379 U.S. 536 (1965) .... .

Builders, 472 U.S. 749

(1964) ceeccerevvvvcecees

Fcc v. League of Women Voters,

468 U.S. 364 (1984) ...

-38,45

379 U.S. 64 (1964) .... . . passim

Gertz v. Welch,

418 U.S. 323 (1974) ....

Dist., 439 U.S. 410 (1979) ..

457 U.S. 800 (1982) ......

482 U.S. 451 (1987) .....

485 U.S. , 108 S.Ct. 876,

99 L.Ed.2d 41 (1988). ...

In re Primus, 436 U.S. 412 (1978).

473 U.S. 159 (1985) ..

216 Cal.App.3d 1287,

265 Cal.Rptr. 96 (1989) ...

475 U.S. 335 (1986) .....

444 U.S. 277 (1980) ..

472 U.S. 479 (1985) ......

458 U.S. 886 (1982)...

Ww Vv iv

376 U.S. 254 (1964) .....

New York State Club Ass'n, Inc. _

v. New York City,

-S. ’ S.Ct. ;

-Ed.2d 1 (1988).

vii

passim

« « 32

-50,56

passim

-50,58

passim

Organization for a Better Austin v.

Keefe, 402 U.S. 415 (1971). ... . 30

Perry Educ. Ass'n v. Perry Local

Educators Ass'n,

T°. 8 ee a: ee ee

Roberts v. United States Jaycees,

468 U.S.609 (1984) ..... . passim

Smith v. Arkansas State Hwy Employees,

S64 U.S. G63 CUBIS) 1c we ee st tl

Terminiello v. City of Chicago,

337 U.B. 1 €3969} « «+ © 6 es we oe

Will v. Michigan Dept. of State Police,

491 U.S. , 108 8.ct. i,

105 L. 80.36 @6 (1908) . 2. 1 wt cs

STATUTES

28 U.S.C. S@G.1257 « «© «6 «© © © 2

28 U.S.C. sec.2403(b) ... 2

Cal. Civ. Code #ec.51 . «6 « « « «2,37,42

Cal. Civ. CGo@e @0c.31.5 . «s« sees @

Gal. Civ. Go@e o60@.51.7 « « 8 © © & s 2

Cal. Civ. Code 86¢.S2 . + « «6 « 064,37,42

Cal. Code of Civ. Proc. sec.473 .. . 10

Cal. Educ. Code secs.40041-47 .. . . 35

viii

OFFICIAL AND UNOFFICIAL

REPORTS OF OPINION HEREIN

The opinion below appears as

follows in the official and unofficial

reports of the State of California.

Long v. Valentino, et al.,

216 Cal.App.3d 1287, 265 Cal.

Rptr. 96 (1989) (as modified?).

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is

invoked, by this Petition for Writ of

Certiorari to the Court of Appeal of the

State of California, Fourth District,

Division Three, its judgment having been

entered December 22, 1989, as modified

January 19, 1990, and a timely petition

1, The Opinion, filed December 22,

1989, is set forth verbatim in Appendix

B, as modified January 19, 1990, with the

Opinion set forth with the modifications

incorporated -- i.e. as it appears in the

Official Reports. The Order Denying

Rehearing, which was initially

incorporated with the Order Modifying

Opinion, is set forth separately at the

end of Appendix B.

for hearing to the Supreme Court of

California having been denied on April

19, 1990, pursuant to 28 U.S.C. sec.1257

and United States Supreme Court

Rule 10.1(c).

STATE STATUTORY PROVISIONS AND POSSIBLE

APPLICABILITY OF 28 U.S.C. sec.2403(b)

The instant Petition for Writ of

Certiorari draws into question the

constitutionality of California Civil

Code secs.5l, Sie De S5i.7 & 52 (a)

[Appendix Fj, as applied and interpreted

herein, and consequently, 28 U.S.C.

sec.2403(b) may be applicable.

STATEMENT OF THE CASE

Preservation of Federal Issues Presented

Respondent-plaintiff Richard T.

Long, a Newport Beach, California police

officer, filed an action against

petitioner-defendant Rees Lloyd and co-

defendant's ACLU and Linda Valentino?,

claiming negligent and intentional

infliction of emotional distress and

discriminatory ejection under’ the

California Unruh Act.

Prior to trial, defendants filed a

motion for summary judgment, asserting

that their speech and conduct was

protected under the First Amendment,

barring civil damages therefor; and that

defendants’ rights were violated by the

covert monitoring of their political

activity by plaintiff Long when he was

confronted. Said motion was denied.

[ER? 20; 140-41]. At trial, the same

2, All three defendants’ were

jointly represented at trial, with

attorney of record herein having been one

of several counsel of record for all

three defendants. ACLU had _ separate

counsel on appeal prior to settling.

3, References to "ER" indicate the

Excerpts of the Record which were

prepared by counsel in lieu of the

Clerk's Transcript of the Superior Court

for purposes of the appeal below.

arguments were raised in trial briefs and

proposed instructions. [RT 1073-75;

ER 14-69a].

At trial in the Superior Court found

and held, and instructed the jury, that

"rt]he speech and conduct of each

Defendant was subject to protections as

free speech or association" -- i.e.

protected by the First Amendment, in the

sense that none of the established

exceptions -- defamation, obscenity,

imminent threat of immediate violence, or

fighting words -- applied. [Appendix C5]

(RT 718-23; ER 73]. The trial court

submitted to the jury the Unruh Act

discrimination claim? as to all

4. The trial court directed a

verdict and dismissed all of the

negligent infliction of emotional

distress claims [RT 722-23], the

intentional infliction of emotional

distress claims as to defendants ACLU and

Valentino [RT 718-19], and all of the

Unruh Act claims grounded on intimidation

by threat of violence [RT 987-1018]. The

trial court submitted to the jury the

intentional infliction of emotional

defendants, but to accommodate the

protected nature of defendants' speech

and conduct, ruled that plaintiff must

prove that he was actually ejected and

that defendants' sole motivation was the

fact that plaintiff was a _ police

officer?. [Appendix C2-C6]

(RT 988; ER 72-75].

Over defendants' objections, the

trial court refused to distinguish, in

the Unruh Act instructions te the jury,

between Long's official and private

distress claim as to defendant Lloyd, but

to accommodate the protected nature of

his speech and conduct, added the element

that plaintiff must prove that "Defendant

Lloyd acted with actual malice."

[Appendix C2] [RT 718-19; ER 71]. The

jury found that Lloyd did not act with

malice, and entered a verdict in his

favor on that claim. [Appendix D7] [ER 114).

oP These two new elements appear

nowhere in the Unruh Act, and have no

Support in any decisional law under the

Act, prior to the decision herein.

capacities®. [Appendix C2-C6] [RT

1074-75; ER 39-40, 49, 57-61, 68-69].

The jury found against all defendants

under the Unruh Act, apportioning damages

as follows: $10,000. as to petitioner;

$9,000. as to defendant ACLU; and $1000.

as to defendant Valentino. [Appendix

D1-D6]. With attorney's fees and costs

added, the apportioned judgments were

$46,016.51 as to petitioner Lloyd;

$41,414. 86 as to ACLU; and $4601.65 as

to defendant Valentino’. Defendants

6. The jury was not asked to decide

whether defendants were motivated solely

by the fact that Long was a police

officer present in his official capacity

and at the direction of the Chief of

Police, seeking information for official

purposes. Conversely, the jury was not

asked to determine whether the

defendants were solely motivated by

Officer Long's occupation, without

reference to his official function or his

activities in covertly gathering and

recording information on the political

views of ACLU and others, and reporting

it to the Chief of Police.

7; The jury assessed $20,000. in

damages, to which was added $72,033. in

attorneys' fees and costs, which was

Valentino and Lloyd appealed®.

Long did not cross-appeal and on

appeal did not dispute any of the trial

court's rulings.

Following issuance of its published

opinion on December 22, 1989, Petitioner

filed a timely Petition for Rehearing.

On January 19, 1990, the Court of Appeal

filed an Order Modifying Opinion, without

modifying the judgment, and denied

defendant Lloyd's Petition for Rehearing.

[Appendix B45}.

The Court of Appeal ruled [2-1] in

its initial opinion that Valentino's

conduct was protected speech and conduct

under the First Amendment, that her

involvement in the ultimate "ejection"

of Officer Long was too attenuated, and

that consequently the judgment against

apportioned at 45% against ACLU, 50%

against Lloyd, and 5% against Valentino.

8. ACLU, concerned about further

financial exposure, settled with Long.

her was reversed and entered in her

favor. [Appendix B1-B24].

The Court of Appeal also ruled [3-0]

in its opinion, as modified, that Lloyd's

conduct did constitute an ejection; that

despite the protected nature of Lloyd's

speech and conduct, it caused an unlawful

discrimination; that even though Officer

Long was indisputably "on duty"? and in

his official capacity!°, performing

purely official functions, he may assert

9. Petitioner does not distinguish

between on or off duty, since even on

duty officers have certain personal

rights. Rather, Petitioner urges that it

is the officer's capacity and function

which determines whether he may assert

personal rights or is circumscribed by

the limits imposed upon the government

which he is representing.

10, The Appellate Opinion,

indicates that Long's presence at the

conference was "(w]jith the knowledge and

approval of the police chief ... ."™

The record reflects, however, that Long

attended the conference at the express

direction of the chief of police,

[RT 36-38, 555-56, 660-62, 668, 691-92,

822-23, 928, 932-33], and Long stipulated

to this finding of fact, [RT 37; ER 76].

personal rights and seek civil damages

under the Unruh Act for being "given the

bum's rush" in a political assembly in a

public forum, even though it was effected

by protected forms of political speech,

including the exercise of the right to

petition a government official for

redress of grievances. [Appendix

B25-B44). The Court of Appeal further

held that even if Officer Long was

engaged in improper’ surveillance of

protected political activity -- the Court

appeared to believe he was [Appendix

B29-B30, B34-B35]] -- such conduct did

not justify defendants' use of protected

forms of speech to effect his departure

in a manner which was "stressful and

humiliating . . . giv{ing him] the bum's

rush." [Appendix B30-B34]}.

The Court of Appeal also "declined"

to address the lawfulness of Officer

Long's presence, as a defense to

petitioner's conduct, asserting that it

was not properly raised by affirmative

defense, although it was “belatedly

raise(d] in (petitioner's) trial brief."

[Appendix B33]. However, the defense was

fully tried and argued to the trial court

and jury (RT 1073-75; ER 14-69a], and the

jury was explicitly instructed thereon

(ER 77-78] while other instructions

proposed by petitioner in respect to this

defense were rejected [ER 85-88), all

without procedural or pleading objection

by plaintiff -- i.e. he did not contend

at trial or before the Court of Appeal

that the defense was not properly

preserved or plead, or that its

submission prejudiced him by unfair

surprise. Pleadings may be amended to

conform to the proof at trial, and issues

may be tried with the consent of the

parties. See Cal. Code of Civ. Proc.

sec.473.

The Court of Appeal, however, then

proceeded to rule on the merits of this

defense as well. [Appendix B33-B35]}. The

Court of Appeal ruled that petitioner's

failure to avail himself of available

judicial remedies, both before and after

he challenged Officer Long, and his

resort to "self-help" in dealing with an

officer engagina in covert and officially

authorized monitoring of the lawful

political activity, violated the

officer's rights. [Exhibit B4, B33-B35).

The Court of Appeal viewed petitioner's

conduct, in response to Officer Long's

wrongful conduct, as amounting to an

attempt to remedy a wrong by violating

the officer's rights -- and concluded

that “two wrongs do not make a right".

[Appendix B34-B37]}. The Court of Appeal

dismissed petitioner's argument that

because of Officer Long's status at the

time that petitioner acted -- i.e. Long

was present and acting in his official

capacity -- petitioner's actions were not

a “wrong" and that self-help by use of

protected forms of speech to induce him

to cease his monitoring of the political

assembly was itself fully protected

activity under the First Amendment.

[Appendix B4, B35-B37).

Finally, the Court of Appeal

directed that Long recover further

attorney's fees on appeal from

petitioner, to be determined on remand

to the Superior Court.

Thereafter, petitioner filed a

timely Petition for Review to the

California Supreme Court, which was

denied on April 19, 1990. [Appendix A}.

Statement of Material Facts

On October 11, 1980, the American

Civil liberties Union of Southern

California held a legislative conference

in a local Newport Beach high school.

This conference was open to the public,

and was convened to educate individuals

on civil liberties issues pending in

national and local legislatures and to

discuss strategies and approaches. to

dealing with then.

ACLU policy, as presented at trial,

took the position that law enforcement

monitoring of lawful public political

activity, in the absence of probable

cause of criminal activity, imminent

danger of violence, or other immediate

public safety concerns, is a violation of

the First Amendment rights of those

taking part in the activities; further,

that covert monitoring presented an even

greater infringement because the general

prevalence of such activity could have a

widespread chilling effect even when such

monitoring is not occurring. ACLU was

pursuing these policies by litigation--

e.g. a lawsuit against the Los Angeles

Police Department Public Disorder and

Intelligence Division [PDID]; by

legislation -- e.g. a bill by

Assemblywoman Maxine Waters that would

have amended Penal Code sec.148 to

exclude pure speech as a basis’ for

"interfering with a police officer; and

by initiative -- e.g. a local Los Angeles

initiative establishing a civilian

review board for complaints of police

misconduct. In the PDID suit, one of the

contentions was that community relations

officers of the Police Department

covertly attended ACLU public programs

and press conferences.

The Conference included a Police

Practices Seminar. Among the guest

speakers were Assemblywoman Waters, to

discuss her bill; Jeff Cohen, to discuss

the aforementioned initiative campaign,

which he had organized; and defendant

Linda Valentino, the director of a

police-community relations’ project

sponsored by the Friends’ Service

Committee, to discuss the PDID

litigation, in which she was a plaintiff,

having been herself subjected to covert

surveillance by ppip1l. Petitioner

Lloyd, then employed by the ACLU

Foundation of Southern Californial? as a

staff attorney, attended the seminar.

The conference was also attended by

the Newport Beach Police Department's

Community Relations and Press Officer,

plaintiff Richard Long, who attended in

plain clothes at the direction of his

Chief of Police. Officer Long did not

11, Other guest speakers invited

and attending the conference included

then Congressman Jerry Patterson and a

deputy district attorney. Also invited

as participants, but not attending, were

State Senator Diane Watson and the Laguna

Beach Chief of Police.

12, A separate sister corporation

of the ACLU Southern California, it was

not a party to this action.

identify himself as an officer to anyone,

and when paying his admission fee and

obtaining his name tag, did not sign the

conference register. He also tape-

recorded the address of the ACLU Chapter

President, and took extensive notes on

the political remarks of various

speakers, including officials of the

ACLU and guest speakers.

Following the conference, Officer

Long rewrote his notes, had them typed,

then destroyed the two hand-written

drafts. Even the typed version (third

draft) reflected notes of comments from

speakers which were almost exclusively of

a political nature, mostly on more

controversial issues.

During the day, two persons

attending the conference became

suspicious of Officer Long, and reported

him to attorney Ron Talmo, Orange County

Chapter Legal Director for ACLU, who

believed he recognized Officer Long.

After confirming Officer Long's identity

by speaking with him, Talmo reported his

presence to the Conference Chair, Meir J.

Westreich, who separately informed

Valentino and Lloyd of Officer Long's

presence, and suggested that Valentino

ask Officer Long to identify himself.

During the Police Practices Seminar,

Valentino -- after remarking about police

community relations officers spying on

lawful public political activity--

asked; "Would you care to comment on that

Officer Long?" Long did not respond, and

Valentino completed her remarks. The

final speaker then addressed the seminar.

After that, as general discussion was

about to ensue, defendant Lloyd asked

Officer Long to identify himself, at

which time he _ stood up. Lloyd then

demanded that Long step outside to

discuss his presence.

Long declined to leave, instead

engaging in a colloguy with the people at

the seminar. Guest speakers and others

questioned Long, in varying degrees of

upset and anger, as to his purpose and

his intended use of his notes. Long

insisted falsely that he was present in a

purely private capacity, having attended

on his "own time" and at his own expense.

He also indicated that his notes would be

"available" to the police department. He

then stepped outside, and repeated his

false assurances, at which time

defendant Lloyd invited him back in.

Long declined and left.

At trial below, Officer Long

conceded and stipulated that he had

attended in his official capacity at the

direction of the Chief of Police, was

paid for his time at the conference, and

was reimbursed for his expenses in

attending. He further asserted that he

attended to learn about ACLU's’ views

concerning police community relations,

and prepared his notes to assist himself

in his intended report to the Chief of

Police. He also admitted to taping the

ACLU Chapter President.

Long testified that he thought at

first "he was being called out", but that

he did not believe then that Lloyd was

trying to physically attack him, nor was

he actually being challenged to fight or

assaulted, merely that he thought matters

"were heading in that direction", but

never reached that point. [RT 611-15,

675-82, 690). Further, Officer Long

testified that he did not leave because

of anything that Lloyd had stated to hin,

but rather because of the overall effect

of what was said to him by many of the

persons present. [Rt 610-12, 614-15, 619,

675-80, 1016]. Long expressly stipulated

on the record that the trip into the

hallway with Lloyd was not an "ejection"

-- notwithstanding Lloyd's’ statements

demanding that he step outside to discuss

matters -- relying instead solely on the

overall atmosphere in the seminar room.

(RT 1016}.

Officer Long explained the

discrepancies between his statements at

the conference and his’ subsequent

testimony as being based on his

"misunderstanding" at the time he

attended.

ARGUMENT

Where an invasion of the First

Amendment right to free speech is

involved, this Court will undertake an

independent review of the entire record.

See NAACP v. Claiborne Hardware Co., 458

U.S. 886, 915 n.50 (1982) (and Supreme

Court cases cited therein); Cox v.

Louisiana, 379 U.S. 536, 545 & n.8.

(1965). "The fact that such activity is

===

constitutionally protected, however,

imposes a special obligation on this

Court to examine critically the basis on

which liability was imposed," NAACP v.

Claiborne Hardware Co., supra, 458 U.S.

at 915 & n.50, including to the extent of

disregarding any "'insubstantial findings

of fact screening reality .. . where a

claim of constitutionality is effectively

made. . . .' [Citation omitted]." id.,

458 U.S. at 924. Interpretation of the

Unruh Act is clearly a question of law.

See id., 458 U.S. at 912-15 & nn.47-49.

co i j fe)

ts Cc a 320

discrimination statute to impose

s ant ivi e t ne

fe) e ssiv

ch e sen sponden

c Oo Ww ese Ss

California's Unruh Act, an anti-

discrimination, public accommodations

law, as now conclusively construed by the

California Courts, now stands as the

first authority in the United States

which permits a police officer engaging

in covert surveillance to obtain civil

damages for being subjected to a

protected form of political speech or

petition challenging his right to be

present and engaging in his surveillance

activities. The affirmance of this

statute by the California courts, its

conclusive construction to permit

recovery of such civil damages, and a

final civil judgment for what, on remand

henner eee

will now exceed $65,000. against

petitioner alone, are directly contrary

to numerous decisions of this Court

providing that purely political speech

and association is absolutely privileged

against such state-imposed civil or

criminal penalties.

Moreover, so long as police officers

can obtain such civil damages merely

because they feel humiliated or

embarrassed by aggressive speech directed

to him concerning the performance of his

duties, two results can fairly be

expected: first, most people will be

intimidated by the threat of such civil

damages, and will refrain from exercising

their constitutional right to challenge

police officers by protected forms of

speech and conduct; and second, covert

police surveillance will flourish, with

offending officers and police departments

being confident that their illegal

activities can only be challenged in

court, and not in the political realm.

Indeed, this application of a

statute intended to protect individuals

from arbitrary forms of discrimination in

their daily, public affairs is now

extended to prevent lawful political

assemblies from engaging in peaceful, if

aggressive, efforts to establish and

maintain their right to be free of

covert police surveillance. The

California courts have effectively

declared that even unlawful police spying

is now shielded from public political

speech unless proffered in the most

courteous manner, and in dulcet tones.

Yet, there is an extensive body of

cases which have declared, in one form or

another, that such self-evidently

political speech -- i.e. speech on

matters of public concern or involving

public officials or figures -- is

entitled to the highest degree of

protection under the First Amendment.

This protection has been applied to bar

all forms of criminal and civil penalties

for such speech, treating it as

absolutely privileged from all government

imposed penalties. See e.g. Hustler

Magazine, Inc. v. Falwell, 485 U.S. ,

108 S.Ct. 876, 880-82, 99 L.Ed.2d 41

(1988) (offensive nondefamatory speech

concerning public figure absolutely

privileged from civil damages remedies) ;

Houston v. Hill, 482 U.S. 451, 461-62

(1987) (offensive, reviling speech

directed to police officer, challenging

the manner in which he is performing his

official duties, absolutely privileged

from criminal penalties); NAACP vy.

Claiborne Hardware Co., supra, 458 U.S.

at 907-908, 913-16 (political speech,

employing nonimmediate threats of

violence and ostracism to coerce fellow

——EE—

blacks to support political boycott and

having effect of destroying boycotted

businesses, absolutely privileged from

civil damages); Garrison v. Louisiana,

379 U.S. 64, 73 (1964) (statements

concerning public officials uttered out

of hatred absolutely privileged from

criminal penalties).

The trial court herein ruled, the

California Court of Appeal accepted, and

Officer Long did not dispute before the

California Court of Appeal or the

California Supreme Court, that the forms

of speech and conduct of petitioner were

at all times protected -- i.e. not

“obscenity”, "“defamation", “fighting

words" or “incitement” to or "threats" of

“imminent violence", which would strip

the speech or conduct of its First

Amendment protection. See e.g.

Hustler Magazine v. Falwell, supra,

108 S.Ct. at 882; Houston v. Hill,

asennad

supra, 96 L.Ed.2d 398, 412-13; Garrison

v. Louisiana, supra, 379 U.S. at 73.

Under Houston v. Hill, supra, no

criminal penalties could have been

assessed against defendant Lloyd for his

protected speech or conduct herein,

however "stressful and humiliating” the

speech might have been to Officer Long.

Under NAACP v. Claiborne Hardware Co.,

supra, no civil damages could have been

assessed against defendant Lloyd for

damaging Officer Long's occupation by

coercing or inducing others, by peer

pressure and humiliation and

nonimmediate threats of violence, to

“give him the bum's rush." Under Hustler

Magazine, Inc. v. Falwell, supra, no

civil damages could have been assessed

against defendant Lloyd for his use of

the most offensive, repugnant speech with

————

which he intentionally inflicted

emotional distress on Officer Long.

Under Garrison v. Louisiana, supra, no

criminal penalties could have’ been

assessed against defendant Lloyd for

damaging public statements about Officer

Long, uttered in hatred.

Yet, the California Court of Appeal

has now conclusively ruled under

California's public accommodations anti-

discrimination statute, that petitioner

could have publicly asked Long to leave;

he could have yelled at him or screamed

at him; he could have denounced his

presence; he could have "refused

service" to Long; he could have

"pDrivately ejected [him] under

circumstances that did not cause a

stressful and humiliating departure."

But the Court of Appeal ruled that

petitioner's protected speech / conduct

was legally actionable under the Unruh

—

Act because Officer Long was publicly

told that "he must leave"; that he "was

given the bum's rush"; that his departure

was caused under circumstances that were

"stressful and humiliating". The Court

of Appeal did not cite a single authority

-- nor did Officer Long -- to support

these remarkable and unprecedented

distinctions.

In fact, NAACP v. Claiborne Hardware

Co., supra, is clearly to the contrary.

In that case, the victims of the

"Coercive" speech were all private

persons or businesses -- i.e. they were

not even public officials or figures.

The NAACP had organized and enforced a

boycott of businesses which it deemed to

engage in discriminatory practices. To

make it effective, various forms of

concerted activity were used to coerce

black people to comply with the boycott,

including abstract threats of violence

toward and peer humiliation in Church of

those who did not cooperate. The boycott

itself was directed at businesses only,

and successfully destroyed many of then,

causing what the jury found to be

$7,000,000. in damages.

This Court held that peaceful

political speech and speech-related

conduct is absolutely privileged and

could not form the basis for civil

damages liability, even though the

merchants could prove actual and severe

financial losses caused by the peaceful

political speech. See NAACP v. Claiborne

Hardware Co., supra, 458 U.S. at 908-917.

This Court ‘further declared that

"(s)peech does not lose its protected

character, however, simply because it may

embarrass others or coerce them into

action." Id., 458 U.S. 910 (emphasis

_ added). See Organization for a _ Better

Austin v. Keefe, 402 U.S. 415,

418-19 (1971). The NAACP Court reasoned

that political speech is the highest

order of speech protected under the First

Amendment, see NAACP v. Claiborne

Hardware Co., supra, 458 U.S. at 913, and

that the "state . . . may not award

damages for the consequences’ of

nonviolent, protected activity." oT

458 U.S. at 918. The Court added:

"{t)o the extent that the

court's judgment rests on

the ground that ‘'many' black

citizens were ‘intimidated' by

'threats' of ‘social ostracism,

vilification, and traduction',

it is flatly inconsistent with

the First Amendment."

Id., 458 U.S. at 921.

Yet, under the formulation of the

Court of Appeal, California courts may

now impose civil damages on NAACP for the

same protected, peaceful political

conduct involved in NAACP v. Claiborne

Hardware Co., supra, as violations of the

Unruh Act. The NAACP, like ACLU, is

covered by the Unruh Acti3. The objects

of the boycott were discriminated against

because of their occupation -- consumer

businesses -- and were subjected to

severe damages. The NAACP did not limit

its speech to friendly, nonstressful

requests or private efforts. The NAACP

employed indisputably coercive forms of

speech and conduct, which served to

humiliate and economically destroy

numerous private persons, merchants who

were also "human beings".

The California Court of Appeal has

ruled that the State of California, by

statute, permits private and

nonhumiliating protected speech to secure

13, Defendants never contested that

ACLU as an entity does “engage in

business", as that term is

jurisdictionally applied under the Unruh

Act. But ACLU is also an essentially

political organization whose activities-

- especially a legislative conference on

indisputably public issues in a public

forum -- are protected by the First

Amendment. See In re Primus, 436 U.S.412

(1978).

the departure of a police officer who is

present as an official representative of

government, but provides a civil damages

remedy for forms of protected political

speech/petition which have the effect of

publicly coercing that departure or which

hurt the feelings of the officer. By so

doing, the California Courts have

established a test by which the degree of

protection certain political speech

enjoys under the constitution is measured

by the content and effect of the speech,

and the intent of the speaker. This too

is unprecedented, and indeed there is

considerable authority that such

considerations are forbidden when applied

to protected forms of political speech

in a political forum. See NAACP v.

Claiborne Hardware Co., supra, 458 U.S.

at 909-910 (no civil damages permissible

for “coercive effects" of protected

political speech); ust Magazine v.

Falwell, supra 108 S.Ct. at 880-81

(motives irrelevant in public debate

about public figures); Garrison vv.

Louisiana, supra, 379 U.S. at 73-75 (same

for public officers). The salient factor

in all of the aforementioned cases,

establishing an absolute privilege from

all government imposed criminal or civil

penalties for certain types of speech, is

its essentially political character,

occurring in a public forun.

"We have long recognized that

not all speech is of equal

First Amendment importance. It

is speech on ‘matters of public

concern' that is ‘at the heart

of the First Amendment's

protection.' ° . ° °

(citations omitted). 'Speech

concerning public affairs is

more than self-expression; it

is the essence of self-

government. (citations

omitted). Accordingly, the

Court has frequently reaffirmed

that speech on public issues

occupies the ‘highest rung of

the hierarchy of First

Amendment values' and is

entitled to special

protection.' (citations

omitted) ."

es a oo es

‘athe,

ee ve ee eee renee ar eee ety eee |

SMa A EE SOR MIR. ALT Ce ee]

Dun _& Bradstreet v. Greenmoss Bldrs.,

supra, 472 U.S. at 758-5914,

Speech / petition in a public forum

created by designation of the state for

expressive activity!> may be subjected to

reasonable regulations as to time, place

and manner, so long as they are content

neutral and narrowly tailored to serve

the governmental interest without

prohibiting the speech / petition. See

Perry Educ. Ass'n v. Perry Local

Educators Ass'n, 460 U.S. 37, 44-46

(1983); Boos v. Barry, 485 U.S. __, 108

S.Ct. , 99 L.Ed.2d 333, 345 (1988).

14, Accord, Hustler Magazine v.

Falwell, supra, 108 S.Ct. at 882; FCC v.

W V 468 U.S. 364,

381-82, (1984); Bolger v. Young Drug

Products Corp., 463 U.S. 60, 64-5

(1983); NAACP v. Claiborne Hardware Co.,

supra, 458 U.S. at 913.

15, Public schools, by virtue of

the Civic Center Act, see Cal.Educ.Code

secs.40041-47, are made available to

public use for expressive activity during

hours when school is not in session, and

to the extent used in that fashion are

"public fora".

Yet, the California Court of Appeal

completely ignored these well-established

distinctions based on the _ political

nature of the protected speech and its

occurrence in a public forum!®. Thus, in

its Opinion, the Court of Appeal poses

three illustrative examples as analogous

to the facts herein. Each illustration-

- a car rental agency, a restaurant and a

transportation company -- involves a

purely commercial enterprise, engaging in

commercial activity, without any hint of

any political content or that the locus

of the activity is a public forum as

understood in First Amendment

16, Not only does the Court of

Appeal fail to address the special

constitutional protection normally

afforded political assemblies and speech

in a public forum, it argues, to the

contrary, that the fact that the

conference was a "public meeting"

protected Officer Long's right to civil

damages for being "ejected" by pure

political speech / petition which was

"stressful" and "humiliating" to Officer

Long.

jurisprudence!’. [Appendix B36].

However,

"(wjhile States have broad

power to regulate economic

activity, we do not find a

comparable right to prohibit

peaceful political activity

such as that found in the

boycott in this case."

458 U.S. at 913.

Indeed, the Unruh Act, on its face

purports to regulate only commercial

activity, barring arbitrary

discrimination in public accommodations

and other business and commercial

activity. See Cal. Civil Code secs.51,52.

17, In describing an officer's

rights, the Court of Appeal also combined

commercial and noncommercial contexts, as

though they were interchangeable.

"(Police officers] may not be

denied an apartment, or ejected from

a_public meeting merely because of

their occupation, whether working a

shift or on vacation. We find

defendants' position on this point,

at least as articulated at oral

argument, to be as reprehensible as

the police abuses decried above."

[Appendix B30-B31]} (emphasis added).

This Court, in analyzing the

applicability and scope of such statutes,

has focused its analysis on whether the

entity in question is primarily a

commercial or business enterprise or

entity, as distinct from one existing for

primarily First Amendment related

purposes. See Board of Directors of

Rotary Int'l v. Duarte, 481 U.S. 537,

548-50 (1987) (Rotary clubs covered by

Unruh Act because First Amendment

associational interests are "slight", if

any); New York State Club Ass'n v. New

York City, __ U.S. ; 6.6. __,

101 L.Ed.2d 1, 16 (1988) (same for

private clubs covered by New York

ordinance); Roberts v. Jaycees, 468 U.S.

609, 614-15, 624-26 (1984) (same for

Jaycees covered by Minn. law).

In so doing, this Court has

expressly recognized that associations

which exist for primarily political

purposes are not -- and could not be--

covered by anti-discrimination

enactments.

"(The ordinance) does not

require clubs 'to abandon or

alter' any activities that are

protected by the First

Amendment. If a club seeks to

exclude individuals who do not

share the views that the clubs

members wish to promote, the

Law erects no obstacles to this

end."

New York Club Ass'n, Inc v. New York

City, supra, 101 L.Ed.2d

at 16 (emphasis in original).

"An individual's freedom to

speak . . . and to petition the

government for redress of

grievances could not be

. vigorously protected from

interference from the _ state

unless a correlative freedom to

engage in group effort toward

those ends were not also

guaranteed."

Roberts v. United States Jaycees, supra,

468 U.S. at 622.

Yet, the California Appellate Courts

have now interpreted the Unruh Act to

prohibit concerted political activity of

an indisputably political nature -- i.e.

the ACLU and groups such as assembled at

the ACLU Legislative Conference are

barred by the Unruh Act from employing

protected concerted political activity

to "coerce" the departure of a police

officer present for the official purpose

of monitoring their speech and assembly.

To make this statutory interpretation

constitutionally palatable, the

California Court of Appeal read into the

statute substantial limiting factors when

the statute is to be applied to public

officials who, in their official

capacities, are subjected to otherwise

protected political speech/petition.

Thus, although the Unruh Act forbids

all forms of “arbitrary discrimination"

or denial of “full and equal

accommodations, advantages, facilities,

privileges or services in all business

establishments of every kind whatsoever"

see Cal. Civil Code secs.51, 52, such

discrimination against an officer in his

official capacity entitles the officer to

civil damages only if the officer can

also prove that he was "ejected"18 either

"publicly" or in a manner which was

"stressful" or “humiliating"!9, and that

the exclusive motivation of the

discriminating person or entity is to

18. This new element was fashioned

by the trial court and adopted by the

Court of Appeal without discussion,

[Appendix B35-B36), much less citation to

statute or case authority. There is

none. On appeal, defendants did not

dispute that Long was "ejected" in the

sense that such conduct by defendants

would normally constitute a constructive

ejection under the Unruh Act if the

conduct in question were not political in

nature and directed to an official in his

official capacity.

19, These refinements on the

"ejection" element were added by the

Court of Appeal in Opinion [Appendix B35-

B37), without citation to statute or

case authority. There is none.

discriminate based on his occupation as a

police officer. [Appendix B34-B37].

However, the federal courts have

uniformly held that laws’ regulating

business practices do not apply to

political activities. See New York Club

Ass'n, Inc v. New York City, supra, 101

L.Ed.2d at 16; Brown v. Hartlage, 456

U.S. 45, 47, 52-57 (1982)? NAACP v.

Claiborne Hardware Co., supra, 458 U.S.

at 913-15. Regulation of protected

‘political activity must be explicit, and

normally the courts will not impute such

regulation into a statute which on its

face regulates only commercial or

business activity. See Clipper Express v.

Rocky Mountain Motor Tariff Bureau; Inc.,

690 F.2d 1240, 1254-55 & n.21 (9th Cir.

1982) cert. denied, 103 S.Ct. 1234

(1983).

Even when a_ statute is properly

deemed a regulation of First Amendment

A te 6

ES vee Se ee ee ert wee eet te. ee

protected political activity, the statute

would nevertheless be constitutionally

defective unless it also _ contains

carefully crafted provisions providing

the "precision" and "narrow tailoring"

necessary to limit the infringement of or

adverse impact on protected speech. See

Chicago Teachers Union _v. Hudson, 475

U.S. 292, 303 & n.11 (1986) ("first

amendment requires limiting provisions be

carefully tailored to minimize

infringement."). However, the provisions

of "precision" which the trial court

adopted and which were affirmed and

refined by the Court of Appeal are

constitutionally defective because they

focus on the coercive effect of protected

political activity, see NAACP v.

Claiborne Hardware Co., supra, 458 U.S.

at 909-910, 921, and the _ subjective

motivations of the political speaker, see

Hustler Magazine v. Falwell, supra, 108

S.Ct. at 880-81; Garrison v. Louisiana,

supra, 379 U.S. at 73-75. ‘

Under this new interpretation of the

Unruh Act, political groups engaged in

public political activity could no longer

challenge the presence of anyone -- not

even a “club seek[{ing] to exclude

individuals who do not share the views

that the clubs members wish to promote,"

see New York Club Ass'n, Inc v. New York

City, supra, 101 L.Ed.2d at 16. The Ku

Klux Klan could not object to the

presence of blacks in a way that is

stressful to them; "pro-choice" groups

could not publicly object to the

presence of "right-to-lifers"; NAACP

members could not attempt to embarrass or

humiliate persons not participating in

its boycott activities; Republicans could

not use protected forms of speech to

exclude Democrats from a é Republican

convention.

Clearly, this is not an acceptable

interpretation of the First Amendment.

This Court has made it clear that these

public accommodations laws would not

apply to prohibit or restrict political

speech and association, as distinct from

primarily commercial clubs’ and

enterprises. See New York State Club

Ass'n v. New York City, supra, 101

L.Ed.2d at 16; Board of Directors of

Rotary Int'l v. Duarte, supra, 481 U.S.

at 548-50; Roberts v. Jaycees, supra, 468

U.S. at 614-15, 624-26.

Petitioner used protected forms of

political speech and conduct, in a purely

political forum sponsored by a political

organization conducting political

activities. The issue of whether police

officers may attend public political

activities, in their official capacities

for the purpose of monitoring peaceful

and lawful political activity, is itself

a political question. The use of

protected forms of political speech and

conduct by a political organization or

its members to effect the purpose of

establishing their right to engage in

such activity without being covertly

monitored by a police officer in his

official capacity is fully protected

activity which the state may not

constitutionally punish, whether civilly

or criminally. Thus, the Unruh Act, as

currently applied by the California

Courts to prohibit petitioner's political

speech, and upholding the civil judgment

against him, is thus unconstitutionally

applied.

Whether state cou

th Vv ° med

uetiviaa ¢ , bstantial ivil

nalties _o titione fe)

forms of speech / petition protected

;

‘

RR Phinda I soe —s

de irs e e effe

S ove onito

lawful public political activity,

conflicts with decisions of this Court

concerning political speech / petition

ont ; eo

The State of California has gouged a

new and unprecedented exception to the

First Amendment, declaring that even when

a police officer is officially engaged in

unlawful monitoring of lawful political

activity, the persons or groups being

monitored are barred by the Unruh Act

from engaging in political "self-help" by

employing protected forms of political

speech/petition to induce the officer to

cease his unlawful actions and depart.

The Court of Appeal cites no authority,

and provides little legal analysis, to

support this remarkable proposition.

Instead, it declares that "two wrongs do

not make a right" and that’ the

appropriate remedy is judicial relief.

[Appendix B4, B33-B36].

The most obvious flaw in this

reasoning is that it presupposes that the

availability of a judicial remedy for

official conduct by a police officer that

infringes an individual's or _ group's

constitutional rights precludes’ that

individual or group from employing

protected political speech or concerted

activity to remedy the constitutional

wrong-doing; further, that such protected

political speech or concerted activity is

therefore itself a second "wrong". This

turns the First Amendment on its head,

which first and foremost assures that

persons or groups are secured in their

right to engage in protected political

activity, see NAACP v. Claiborne Hardware

Co., supra, 458 U.S. at 909-10. In fact,

the state is prohibited by the supremacy

clause from imposing any form of

statutory conditions or limitations,

including by provision of alternative

"remedies", on federally secured

constitutional rights. See Martinez v.

California, 444 U.S. 277, 284 n.8 (1980)

(to apply restrictive state procedures to

federal constitutional claims, even in

state courts, would "transmute a basic

guarantee into an illusory promise").

Moreover, the petition right by

definition protects the right of

individuals and groups to target

government officials for protected

political speech and concerted activity,

in order to attempt to induce the

officials to comply with the political

objectives of the speakers, particularly

when in reference to their official

duties. The courts, therefore, have

treated speech concerning or directed to

public officials differently than other

speech, thereby effectively

"discriminating" against these officials.

Defamatory speech directed toward public

officials is not actionable, as it would

be for other persons who are not public

officials or figures, unless there is

also proof of actual malice. See New

York Times Co. v. § ivan supra

(public official); Gertz v. Welch, supra

(public figure)29. Malicious prosecution

suits against police officers require

special standards to balance the petition

right against the tort policy involved.

See MacDonald _v. Smith, supra ("actual

malice" standard for false petitions).

"Fighting words" are defined more

narrowly when directed towards police

20. The Supreme Court first adopted

the "actual malice" standard for

defamatory speech concerning public

officials, then later extended the same

protection even to defamatory speech

concerning private persons who become

"public figures" based on public interest

in them or some event to which they are

connected.

officers than when directed towards other

persons, "'and policeman are not exempt

from criticism any more than cabinet

ministers.'" See Houston v. Hill, supra,

482 U.S. at 462-63 & n.12 (citation

omitted). Proof of bad motive may be

controlling in many areas of tort law,

but not in discussion of public figures.

See Hustler Magazine Co. v. Falwell,

Supra, 108 S.Ct. at 881.

This special treatment is mirrored

by special protections for such

officials, in the form of immunity from

civil damages flowing from their wrongful

acts while acting in their official

Capacities. See Garrison v. Louisiana,

supra, 379 U.S. at 74 (absolute immunity

for defamatory publication in performance

of official duty); Malley v. Briggs, 475

U.S. 335, 344-46 & nn.7 & 9 (1986)

(qualified immunity for false arrest if

reasonable, objective belief in probable

cause while acting in official capacity) ;

Harlow v. Fitzgerald, 457 U.S. 800 (1982)

(qualified immunity for reasonable,

objective ignorance of law while acting

in official capacity).

"It would give public servants

an unjustified preference over

the public they serve, if

critics of official conduct did

not have a fair equivalent of

the immunity granted to the

officials themselves."

Garrison v. Louisiana, supra,

379 U.S. at 74.

The California Court of Appeal,

however, dismissed the distinction

between an official acting in his private

and official capacities, noting that even

when acting as an official

representative of government, the officer

is still "a human being", and therefore

also entitled to seek civil damages when

subjected to civil torts. [Appendix

B34-37}. Yet, this Court rejected this

argument when it was urged on behalf of

ge te

ee ee a et — ce

persons who are acting purely in a

private capacity. See Hustler Magazine,

Inc. v, Falwell, supra, 108 S.Ct. at 877-

79 (Falwell was a “human being" and not a

public official); NAACP v. Claiborne

Hardware Co., supra, 458 U.S. at 916 &

n.51, 921 (private businesses owned by

"human beings", with no official

connection, and private patrons coerced

into cooperating with the boycott).

Indeed, this Court held in NAACP that

civil damages may not be awarded between

private parties for protected political

speech and conduct because such damages

are a state remedy being enforced by the

state courts. See id., 458 U.S. at 915-16

& nn.49,51.

Moreover, there is ample authority,

in related contexts, that an official

acting in a representative or official

capacity is indistinguishable from -the

governmental entity which he represents,

in terms of liability and immunity. See

will Michi Dept € stat Poli

491 U.S. , 109 S.Ct. , 105 L.Ed.2d

45, 57-58 (1989); Kentucky v. Graham, 473

U.S. 159, 165-66 (1985); Brandon v. Holt,

469 U.S. 464, 471 (1985). This Court

made an observation that is useful in

this case:

"Petitioner asserts,

alternatively, that state

officials should be considered

'persons' under sec.1983 even

though acting in their official

capacities. In this case,

petitioner named as defendant

not only the Michigan

Department of State Police but

also the Director of State

Police in his official

capacity.

"Obviously, state

officials literaily are

persons. But a suit against a

state official in his or her

official capacity is not a suit

against the official but rather

a suit against the official's

office. [Citation omitted]. As

such, it is no different from a

suit against the official's

office."

Wi Vv.

supra, 105 L.Ed.2d at 57-58. Thus, a

public official, acting in his official

capacity, is subject to the same

constitutional limitations and restraints

applicable to the government he

represents. The government, therefore,

should not be permitted to indirectly

avoid those limitations and restraints by

affording its officials, acting in their

official capacities, civil damages

remedies for forms of political speech

otherwise protected from government

penalty.

The Court of Appeal also dismissed

the application of the petition clause.

[Appendix B35]. Yet, protected speech

and assembly, when directed to a

government ocfficial, by definition

implicates the petition clause as well,

and therefore is entitled to a higher

order of protection under the First

Amendment because of its express mention

in the constitution. See Roberts vv.

United States Jaycees, 468 U.S.609, 622

(1984) (free speech and right to

petition not effective without

correlative right to employ group

effort) 21. The right to petition

government is protected whether or not

the government wishes to hear it. See

mith v. Arkansas Stat mployees

441 U.S. 463 (1979) (workers' entitled to

proffer grievances but employer not

required to respond). An official

especially cannot complain at having

received such petitions if he has invited

1%. See Givhan v. Western Line Cons.

School Dist., 439 U.S. 410, 415-16 & n.4

(1979). In this case, Officer Long

testified that his purpose in attending

the conference was to learn ACLU's views

21. Accord, McDonald v. Smith, 472

U.S. 479, 488 n.2, 105 S.Ct. 2787, 86

L.Ed.2dad 384 (1985) (Brennan, J.

concurring) (citing NAACP v. Claiborne

Hardware Co., etc., exercise of right to

petition often intertwined with

concomitant rights to free speech and assembly) .

on the scheduled topics -- including

police monitoring of lawful public

political activity, which is precisely

what he received.

"the First Amendment protects a

significant amount of verbal

criticism and challenge

directed at police officers.

"Speech is often provocative

and challenging .... {But

it] is nevertheless protected

against censorship or

punishment, unless shown likely

to produce a clear and present

danger of a serious substantive

evil that rises above public

inconvenience, annoyance or

UREGSS.* « « 6 «

nw . « . . The freedom of

individuals verbally to oppose

or challenge police action

without thereby risking arrest

is one of the principal

characteristics by which we

distinguish a free nation from

a police state."

Houston v. Hill, supra, 482 U.S. 451,

461-62. 3

Yet, once again, the California

Court of Appeal simply dismissed this

constitutional issue. Under the rule

declared in the Appellate Opinion, had

the facts in Houston v. Hill, supra

occurred at the ACLU Conference, and had

the officer felt stressed or humiliated

and responded by leaving the conference,

that officer would have been entitled to

civil damages under the Unruh Act.

Clearly, that is contrary to the

clear import of this Court's holding in

Houston v. Hill, supra, given the well-

established rule that "what a State may

not constitutionally bring about by

means of a criminal statute is likewise

beyond the reach of its civil law...

." because the fear of civil liability

might be "markedly more inhibiting than

the fear of prosecution under a criminal

statute." New York Times Co. Vv.

Sullivan, supra, 376 U.S. at 277. Yet,

under the Appellate Opinion herein, the

rule in California is that no criminal

penalties can be imposed, but civil

damages are permissible.

Moreover, to permit such civil

sanctions for defendant's protected

political speech/petition directed to an

officer in his official capacity if it is

"stressful" or "humiliating" to him

"runs afoul of our longstanding

refusal to allow damages to be

awarded because the speech in

question may have an adverse

emotional impact on the

audience."

Hustler Magazine v. Falwell, supra, 108

S.Ct. at 88222,

The Court of Appeal simply ignores

the fact that by providing public

officials with such a civil damages

remedy for speech directed at them in

their official capacities, and

concerning their official duties, the

Court is restricting speech and petitions

which may otherwise be directed to the

government. The full breadth of

political speech / petition afforded by

the First Amendment cannot be maintained

22. Accord, Terminiello v. City of

Chicago, 337 U.S. 1, 4-5 (1949).

while also protecting officials from the

incidental discomfort which such speech /

petition may cause. Conversely, if

public officials are to be afforded a

civil damages remedy for being subjected

to discomfiting speech / petitions

directed to them in their official

capacities and concerning their official

functions, then a new and unprecedented

exception to the constitutional

protection for such speech / petition is

being carved out of the First Amendment-

- i.e. that direct challenges to a public

officials' performance of his official

duties cannot be done in a manner which

will expose the official to humiliation,

stress or public ridicule.

Such an unprecedented development in

constitutional law is an important

question of law which should be addressed

by this Court. The consequences of this

rule of law and the public awareness that

an individual has been burdened with a

substantial monetary judgment of $46,000.

for such protected political

speech/petition, if left untouched, will

be stunning. Any individual who chooses

to employ hostile or aggressive forms of

protected political speech/petition

toward the government hereinafter will do

so at the risk of exposing himself to

substantial civil damages if its effects

are to coerce or embarrass a public

official. The chilling effect of such a

rule on all forms of protected political

speech that are antagonistic to the

government or ts officials is both

obvious, and clearly a departure from

existing First Amendment jurisprudence.

The plain fact is that the persons

attending the conference had a protected

First Amendment right not to associate

with a police officer who wished to

monitor their political activity for

. 61

Item

official purposes, a right which the

Unruh Act in no way limits. "Freedom of

association . . . plainly presupposes a

freedom not to associate. (Citation

omitted.)" Roberts v. it s

Jaycees, supra, 468 U.S. at 623. Accord,

Chicago Teachers Union, Local No. 1, AFT,

AFL-CIO v. Hudson, supra, 475 U.S. at 302

ns. Officer Long indisputably was

present to monitor defendants' political

activity, and in fact did so. Defendants

and many others present plainly did not

wish to associate with him if that was

his purpose, and indeed it was.

The notion that the First Amendment

does not protect political "self-help",

when pursued by protected forms of speech

or conduct as a means of pressuring the

government or its officials to act in

accordance with the desires of the

speaker, strikes at the core of the First —

Amendment. To compel the speaker to

resort to judicial remedies instead would

utterly transform the First Amendment

from its primary mission: to protect the

individual right to address hostile,

provocative, challenging speech to

government officials concerning political

issues of public importance. Such a

judicial precedent, if permitted to

remain, would merely be a judicial

surrender to the "'eternal temptation. .

. to [punish] the speaker rather than to

correct the conditions about which

[defendants] complain,'" see Houston v.

Hill, supra, 482 U.S. at 406 »n.15.

Plainly, the Unruh Acts as_ currently

applied by the California Courts to

sustain a civil judgment against

petitioner, violates petitioner's First

Amendment rights.

CONCLUSION

Petitioner urges this Court to

accept for review, on Petition for Writ

of Certiorari the aforementioned Issues

Presented for Review, and vacate the

judgment as it relates to hin.

Dated: July 18, 1990

Respectfully submitted,

MEIR J. WESTREICH

HUGH MANES

By: Meir J. Westreich

Attorneys for Petitioner-

Defendant Rees Lloyd

Case No.

UNITED STATES SUPREME COURT

OCTOBER 1990 TERM

REES LLOYD,

Cal. Supreme

Petitioner, Ct. No. S014029

Cal. Court of

Vv. App. No. G006130

O.C. Sup. Ct.

RICHARD T. LONG, No. 35 98 28

Respondent.

ee ee ee ee ee ee eee eee ee ee

Petition for Writ of Certiorari

to the Court of Appeal of the

State of California

APPENDIX OF PETITIONER

MEIR J. WESTREICH

Attorney at Law

522 East Broadway, Suite 102

Glendale, California 91205

J 818-548-8498

[Attorney of Record for Petitioner]

HUGH MANES

MANES & WATSON

3600 Wilshire Blvd, Suite 1710

Los Angeles, California 90010

213-381-7793

FILED April 19,1990

ORDER DENYING REVIEW

AFTER JUDGMENT

BY THE COURT OF APPEAL

Fourth Appellate District,

Division Three,

No. G006130

8014029

IN THE SUPREME COURT OF THE

STATE OF CALIFORNIA

IN BANK

RICHARD T. LONG, Respondent

Vv.

LINDA VALENTINO, Et Al., Appellants

Petitions for review DENIED.

LUCAS

Chief Justice

APPENDIX ‘'A' -1-

FILED DECEMBER 22, 1989

MODIFIED JANUARY 19, 1990

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Defendants and Appellants.

RICHARD T. LONG, ) G006130

Plaintiff and Respondent,) (Superior

) Court No.

v. ) 35-98-28)

)

LINDA VALENTINO et al., ) OPINION

)

Appeal from a judgment of the Superior

Court of Orange County, Henry T. Moore,

Jr., Judge. Affirmed in part and reversed

in part with directions.

Meir J. Westreich and Manes & Watson,

Hugh R. Manes for Defendants and

Appellants.

Stevenson, Epstein & DePasquale and

Jeffrey M. Epstein for Plaintiff and

Respondent. se lt

APPENDIX "B" 1

This is a novel case, a successful

civil rights action brought by a police

officer, Richard Long, against a chapter of

the American Civil Liberties Union, a

conference participant who spoke on the

topic of police espionage at political

, As the

meetings, and an ACLU attorney.

issues are framed by defendants Linda

Valentino and Rees Lloyd, essentially three

questions are presented: (1) Can the Unruh

Civil Rights Act (Civ. Code, §51 et seq.)

be violated by First Amendment protected

speech? (2) Can private persons be held

accountable for a violation of the act

based on the use of words alone directed

toward a police officer acting in an

' The ACLU has since made its peace

with Long and is no longer a party. The

irony in this situation is obvious and

brings to mind the words of the late singer

and songwriter Jim Croce: "Sometimes you

eat the bear, and sometimes the bear eats

you."

APPENDIX "B" 2

official capacity? And (3) is it lawful

for government agents to attend public

political events to gather information

concerning the speakers or the organization

involved? °*

The short answer to the first question

is, the First Amendment does not shield a

speaker who uses words alone to violate the

Unruh Act, although the speech itself may

not be the object of prior restraint ( a

problem not presented on this record). The

second issue requires a qualified

affirmative response in the context of this

case. The third cannot be answered with

any rule of universal application, and we

* Other issues are raised but are

either mooted by our discussion or subsumed

in the resolution of the three major topics

noted. There is no contention that the

damages or attorneys fees assessed were

excessive. (The judgment awarded $4,601.65

in damages against Valentino and $46,016.51

as to Lloyd.) We express no view on those

matters accordingly.

APPENDIX "B" 3

make no effort to address it on the merits.

Defendants did not seek relief on that

basis via cross-complaint, nor did they

assert Long's conduct as an affirmative

defense in their answer. Moreover, we will

hold that a violation of the Unruh Act

cannot be defended on the basis that it was

an allegedly justifiable response to

another's transgression of the act. The

law affords the means to prevent and

redress alleged civil rights abuses by

public officers and agencies; self-help

amounting to a retaliation in kind is not

one of them.°

We will conclude the judgment against

Lloyd must be affirmed. The verdict must

. Use of self-defense against an

assault by a government official acting

under color of authority, e.g., by a victim

of an attempted rape, would still be

permissible, of course. It is obviously

not a violation of the Unruh Act to resist

a criminal attack.

APPENDIX "B"4

be set aside with respect to Valentino,

however, because the tenuous connection

between her words and Lloyd's reaction is

insufficient as a matter of constitutional

law to affix liability: The judgment

against her amounts’ to an overbroad

application of the Unruh Act and conflicts

with federal and state constitutional

guarantees of freedom of expression.

Long was the Newport Beach Police

Department Community Programs Officer. In

that role he was the official police

liaison with the community and the press

and reported directly to the chief of

police. He attended and organized various

meetings in the city. In the fall of 1980,

he read of an ACLU Legislative Conference

in which police practices would be a topic.

The meeting was advertised as open to the

APPENDIX "B" 5

public at a public facility, Newport Harbor

High School, on October 11, 1980.

With the knowledge and approval of the

police chief, Long appeared on that date.

Attired in mufti, his usual dress when

attending community events, Long paid the

modest admission and lunch fees and

indicated an interest in seminars dealing

with the federal criminal code and police

practices. He was given a name tag which

he wore during the conference. Long did

not sign the register, which did not ask

for attendees' occupations, because, as he '

explained at trial, he was unaware of it.

Long said he would have enrolled had his

attention been drawn to the register.

There was evidence others failed to sign in

as well. No warning of any kind was given

that representatives of government or law

enforcement agencies were not welcome at

APPENDIX "B" 6

the conference. (Ironically, one police

chief, who did not attend, was an invited

guest.)

Long took extensive notes and also,

surreptitiously it appears, tape-recorded

a speech by the president of the Orange

County chapter. Sometime during the

morning, ACLU staff attorney Ronald Talmo

recognized plaintiff from a recent

television appearance as a police

spokesman. Talmo asked the officer his

reason for attending the conference, and

Long told him he was there to hear any

criticism that might be made of his

department and to learn of the ACLU's

perception of Newport Beach police. Talmo

did not suggest Long was not welcome, but

he notified Meir Westreich of the officer's

presence.

Westreich was an ACLU board member and

APPENDIX "B" 7

chair of the conference. He was also a

witness and counsel for Valentino in the

trial court and continues to represent her

on appeal. Talmo and Westreich discussed

the matter briefly. Apparently by

happenstance, Westreich then met

sequentially with Valentino, Lloyd, and

Ramona Ripston, Executive Director of both

the ACLU and the ACLU Foundation,

concerning what, if anything, should be

done about Long's attendance. Westreich

suggested to Valentino that she reveal the

officer's presence during her part of a

seminar on the subject of police

surveillance of public meetings. The idea,

according to Westreich and Valentino, was

tq warn the participants that a police

officer was among them and to obtain an

explanation of purpose from Long himself.

Valentino was an employee of the

APPENDIX "B" 8

"Friends Service Committee" and coordinator

of its "Police Surveillance Project." At

that time she was a plaintiff in an action

against the Los Angeles Police Department

involving the allegedly unlawful monitoring

of political events. Community relations

officers were accused of participation in

that activity. During her presentation on

the subject of police surveillance of

public meetings and discussion of the Los

Angeles litigation, Valentino turned to

Long and, according to hin, stated

accusatorially, "Would you care to comment

on that Officer Long?" At trial she denied

knowing which member of the audience he

was, however, and suggested it was pure

coincidence that she might have looked in

Long's direction when she issued her

challenge.

Some 20 minutes later, during a

APPENDIX "B" 9

question and answer session after Valentino

and the next speaker on the program

finished, ACLU staff attorney Lloyd rose

and asked Valentino bathe a police

officer was in attendance. She replied she

was not sure, but had been told a Newport

Beach policeman named Richard Long was in

the audience. Lloyd then demanded that

Long identify himself. Long did so; and

Lloyd said, "I want you outside. I'd like

to discuss some of the principles of the

ACLU with you." Lloyd started to walk out,

but Long remained in his seat. Lloyd then

approached the officer and said, "I want

you outside right now." His tone of voice

"was pretty malevolent," according to Long.

"He wasn't being nice about it." He then

put a finger in Long's face and ordered him

out again. Long refused, stating he did

not have to leave and had done nothing

APPENDIX "B" 10

wrong. The impasse continued in this vein

until Lloyd threatened to slap the officer

or slap him with a lawsuit. The sentence

was not completed apparently, but Long's

testimony tended to support Lloyd's version

that the latter was the import of the

statement. Nonetheless, Lloyd's behavior

was such that Long felt as if he were being

invited outside to fight. Long rose and

announced he would leave if allowed to

speak first.

Officer Long then told the attendees

he was not there to spy on them. He hada

legitimate interest in knowing of any

concerns they might have with respect to

hie @eperteent. Long would communicate

what he learned to the police chief so

"that we could do something about these

problems." He added he was not attempting

to interfere with their rights or freedom

APPENDIX "B" 11

of speech but his own rights were being

violated by being ejected. Long denied his

notes were destined for police intelligence

files, although he would make them

available to the department if asked. He

explained he was off duty and on his own

time. (He would later withdraw that claim

and admit the opposite was true.)

Long, who testified the incident made

him “extremely upset," left the room.

Outside, two elderly ladies apologized to

him; and Lloyd, now "cordial and polite as

could be," came up and stated, "now that

you've identified yourself and everybody

knows what your intentions are[,] come on

back inside. You know, you can come back

inside." Long refused, however, "[b]ecause

I was embarrassed, I was humiliated by

these people. You got all these people

sitting there looking at you like you done

; APPENDIX "B" 12

something wrong."

Three theories were advanced at trial

against the ACLU, Lloyd, and Valentino:

negligent and intentional infliction of

emotional distress and unlawful

discrimination under the Unruh Civil Rights

Act. The court directed verdicts for

defendants on the negligent infliction of

emotional distress cause of action and that

component of the Unruh Civil Rights Act

claim grounded on intimidation by threat of

violence (Civ. Code, §51.7). The court

also determined there was’ insufficient

evidence to submit the _ intentional

infliction of emotional distress cause of

action against the ACLU and Valentino to

the jury; Long has not cross-appealed on

those points. The issues of whether Lloyd

intentionally and with malice subjected

plaintiff to emotional distress and whether

APPENDIX "B" 13

all three defendants unlawfully

discriminated against Long based on his

occupation as a peace officer were

submitted to the jury. Long prevailed on

the latter theory against the ACLU, Lloyd,

and Valentino.

Il.

At the outset it is worth noting that

Valentino ) and Lloyd do not argue the

evidence is insufficient to support the

jury's factual determination that Long was

indeed ejected from the conference, nor do

they contend physical expulsion from a

public meeting based on an individual's

occupation is permissible under the Unruh

Act. They do claim a government agent" may

be verbally ejected, however, without

violating the law.

We consider the case against Valentino

first because it is easily resolved.

APPENDIX "B" 14

Surprisingly, she does not directly attack

the sufficiency of the evidence to support

the verdict. The matter would be even

easier to dispose of if she _ had.

Nevertheless, she is correct that the First

Amendment of the United States Constitution

and article I, section 2, subdivision (a)

of the Constitution of California protected

the words she uttered and the Unruh Act

would infringe on the _ constitutional

guarantees of freedom of speech if its net

could be so broadly cast. We will examine

in the section following whether speech

clearly calculated to effect a

discriminatory expulsion of an individual

from a public meeting because of his or

her trade or occupation retains its First

Amendment protection in the context of a

Civil suit for damages, but tnat is

unnecessary with respect to the case

APPENDIX "B" 15

against Valentino.

The application of the Unruh Act to

her words runs afoul of constitutional

overbreadth restrictions; At the most she

merely requested Long to identify himself.

Her words taken literally only invited him

to comment. When he chose to do neither,

she concluded her presentation and sat

down. Lloyd asked Valentino about her

revelation well before he ejected Long.

She simply gave a neutral and factually

accurate reply. Her words were protected

by the First Amendment.

In a special verdict the jury answered

the following question in the affirmative:

"Did Linda Valentino eject, or aid, incite

or conspire in ejecting[] Officer Long from

the police practices seminar?"

Indisputably, she did not eject the

officer. And, beyond speculation and

APPENDIX "B" 16

conjecture, there is only the most meager

circumstantial evidence to sponsor the

notion that she acted in concert or

conspired with Lloyd or anyone else to

precipitate his departure.’ The only

‘ we respectfully disagree with the

premises of our colleague's dissent

regarding the disposition of Valentino's

appeal. As explained below, to the extent

she might have expected others to violate

the Unruh Act by ejecting Long after she

revealed his presence, we believe her

speech was protected because there could

have been no reason to expect a violent

reaction against the officer and nothing

less could suffice to avoid conflict with

the First Amendment. We also reject the

notion that she acted as part of a

conspiracy because there was no direct

evidence of that.

In an ordinary conspiracy case,

Valentino's mention of Long's name and

occupation might be taken as circumstantial

evidence of her participation in a plot to

cause his ejection; but we agree with these

words of Justice Kaus (although they were

not adopted by the other members of the

panel): "Therefore, unless one is prepared

to say that anyone who organizes a

demonstration by high school students

assumes the risk of their misbehavior, it

must be that the First Amendment prohibits

conspiracy prosecutions in this area where

the People's case that the demonstrations,

as planned, involved illegal means, rests

APPENDIX "B" 17

———————————————

reasonable basis for the jury finding is

that she incited the ejection.

Although Valentino does not attack

that finding head on, she must prevail

nonetheless. Where an invasion of a

constitutionally protected right is

alleged, in this case the First Amendment

right to free speech, we must undertake an

independent review of the entire record.

(Cox v. Louisiana (1965) 379 U.S. 536, 545,

fn. 8.) That examination yields but one

conclusion: Valentino is’ entitled to

judgment as a matter of law. Her words no

more displayed a desire to incite a

violation of the Unruh Act than wearing a

jacket bearing the words "Fuck the Draft"

entirely on circumstantial evidence."

(Castro v. Superior Court (1970) 9 Cal.

App.3d 675, 694.) There being no direct

evidence of Valentino's participation ina

conspiracy to eject Long, this theory was

unavailable to plaintiff, even if the jury

adopted it.)

APPENDIX "B" 18

demonstrated "an intent to incite

disobedience to or disruption of the

draft...." (Cohen v. California, (1971) 403

U.S. 15, 18.)

Even assuming we could sustain a

finding that she intended to, and did,

incite Lloyd's reaction, however, mere

incitement of another to commit a

nonviolent civil rights violation may not

be punished. A speaker may freely attack

institutions, trades, occupations, groups,

races and ethnic majorities or minorities

in this country in hopes that others will

discriminate against them. Those who

implement such abuses in response to an

obnoxious exhortation may be punished under

appropriate statutes. But one of the

prices we pay to retain our liberty of

expression is that the speaker may not,

unless the speech is obscene or threatens

APPENDIX "B" 19

to produce an immediate violent reaction.

In Chaplinsky v. New Hampshire (1942)

315 U.S. 568, the Supreme Court agreed

"'face-to-face words plainly likely to

cause a breach of the peace by the

addressee'" do not enjoy constitutional

protection. (Id., at p. 573.) Violent

reaction could not have been expected here,

of course, since the addressee _— a police

officer. (See Houston v. Hill (1987) 482

U.S. 451, 462; Lewis v. Cit ew Orleans

(1974) 415 U.S. 130, 135 (conc. opn. of

Powell, J.).) Moreover, the incitement in

this case was allegedly to violate the

civil rights of another, not to provoke

violence. Evils lesser than the immediate

incitement of a violent reaction will

rarely justify punishing speech. (See

Schenck v. United States (1919) 249

U.S.47.)

APPENDIX "B" 20

In Terminiello v. Chicago (1949) 337

U.S. 1, a speaker who denounced Jews and

Blacks was prosecuted under a municipal

ordinance prohibiting breaches of the

peace. The trial judge instructed that

speech which "stirs the public to anger,

invites dispute, brings about a condition

of unrest, or creates a disturbance" would

violate the ordinance. (Id., at p. 3.) The

Supreme Court struck down the ordinance,

noting, "[A] function of free speech...is

to invite dispute. It may indeed best

serve its high purpose when it induces a

condition of unrest, creates

dissatisfaction with conditions as they

are, or even stirs people to anger. Speech

is often provocative and Challenging. It

may strike at prejudices and preconceptions

and have profound unsettling effects as it

presses for acceptance of an idea....[T]he

APPENDIX "B" 21

alternative would lead to standardization

of ideas either by legislatures, courts, or

dominant political or community groups."

(Id., at pp. 4-5.) By contrast,

Valentino's words were comparatively mild.

In Feiner v. New York (1951) 340 U.S.

315, the Supreme Court did apply Chaplinsky

to uphold an arrest where an inflammatory

speech verged on the provocation of a

violent reaction; but in Edwards v. South

Carolina (1963) 372 U.S. 229, the high

court seemingly retreated from even that

position. There, civil rights

demonstrators were asked to leave the

grounds of the South Carolina Legislature

because unsympathetic onlookers were

becoming increasingly agitated.

Nonetheless, the court refused to apply the

"hostile crowd" exception because of the

potential chilling effect on such protected

APPENDIX "B" 22

activities. (See also Cox v. Louisiana,

Supra, 379 U.S. 536.)

To reiterate: All Valentino did was

ask a policeman to identify himself and

later reveal his presence by name to the

assemblage. She did not eject him or even

ask him to leave. Nothing in the record

Suggests she sought his departure, and at

trial she specifically denied an intention

to provoke his eviction from the meeting.

The only evidence is that she wished to

inform the audience of his presence and

learn his purpose. To be sure, she

believed it was improper for police to

attend such events; but the state may not

constitutionally impinge upon her right to

express that view to a policeman, an

audience, or an audience containing a

policeman. Nor may the state deny her the

right to identify a policeman ina peaceful

APPENDIX "B" 23

public gathering or to ask the officer to

comment or identify himself. (Houston v.

Hill, supra, 482 U.S. 451.) Although she

did not, she could have asked him to leave

or expressed the opinion that he should.

Iii.

Lloyd went considerably farther,

however. We must reject his sweeping claim

that a violation of the Unruh Act

accomplished by words alone is_ not

actionable. It is true, as defendants

argue, that speech is generally protected

by the First Amendment, even if it is

intended to interfere with the performance

of an officer's duty, provide no physical

interference results. (Houston v. Hill,

Supra, 482 U.S. at p. 469.) Here, the

words did accomplish a physical event,

Long's ejection; and, although this is not

a criminal action, analogy to criminal law

APPENDIX "B" 24

is useful. Speech may be subject to

criminal prosecution in a variety of

contexts, e.g., attempted robbery,

conspiracy, contempt of court, extortion,

fraud, offers to sell narcotics,

solicitation of various sorts, treason, and

so on, provided only that it is accompanied

by the appropriate mens rea. But the same

words spoken without that mens rea, as in

a play or movie, for example, enjoy

complete constitutional protection.

The same is true in the context of

the Unruh Act, which can be violated ina

number of ways by words alone. If the

speech is meant to, and does, offend the

law, utterance of the words themselves may

be protected; but the speaker is subject to

the consequences. This state's version of

the First Amendment, which is even more

liberally construed (see Leeb v. DeLong

APPENDIX "B" 25

(1988) 198 Cal.App.3d 47, 52, fn. 1),

literally says just that: "Every person

may freely speak, write and publish his or

her sentiments on all subjects, being

responsible for the abuse of this right.

A law may not restrain or abridge liberty

of speech or press." (Cal. Const., art. I,

§2, subd. (a), emphasis added.)

We would be shocked to hear the ACLU

adopt the position that the words, "I won't

rent to you because you are a (insert

racial expletive)," are constitutionally

protected in the sense that a racially

based refusal to rent to a member of a

minority must go unredressed merely because

it was communicated directly to the victin.

And defendants' attorneys correctly agreed

at oral argument that an announcement such

as "You can't eat in my diner because you

are a lawyer, bricklayer, female, or Indian

APPENDIX "B" 26

chief" would be actionable under the Unruh

Act, although words alone were the means

employed to effect unlawful discrimination.

(See Koire v. Metro Car Wash (1985) 40

Cal.3d 24, 325-36; Marina Point, Ltd., v.

Wolfson (1982) 30 Cal.3d 721, 726.)

Nevertheless, defendants do urge an

exception for on-duty police officers, a

proposition we consider in the following

section.

Lloyd indisputably caused the ejection

of Officer Long in contravention of the

Unruh Act. That he accomplished this by

words alone is immaterial for the same

reason we do not literally punish a bandit

for mere use of the words, "Stick ‘em up,

you moron." We punish him for the act of

attempting to take the property of another

by force and fear. It is of no moment that

language was the vehicle to the goal in

APPENDIX "B" 27

this and our hypothetical case. Physical

force alone could have been employed in

either; and the words, while they may have

contained a kernel of expression in each

instance (e.g., “you moron"), amount to

conduct designed to accomplish a direct

violation of the law and not primarily a

means of conveying an idea or point of

view.

Long was not asked to leave; he was

told he must do so. In ovr criminal law

hypothetical, that is the difference

between panhandling and attempted robbery.

Words alone are not being punished in this

case. The same speech in jest or on stage

or screen has complete protection because

it is just that: speech. Lloyd's words

were considerably different, however. The

jury was quite correctly instructed that if

they were merely intended as _ free

APPENDIX "B" 28

expression, as opposed to accomplishing

Long's expulsion from the meeting in

violation of the Unruh Act, it should find

for Lloyd. The issue was resolved against

him, and the jury could hardly have reached

a contrary verdict on this record.

Finally, we turn to the core of the

defense argument, that on-duty police

officers are not subject to Unruh Act

protection when they attend public

political meetings for the purpose of

gathering information concerning

individuals or organizations. Before

embarking on our analysis, we offer this

caveat: We do not condone the practice of

spying on and infiltrating political

organizations and maintaining dossiers on

public and private figures who are not

suspected of criminal activity or of

APPENDIX "B" 29

being a threat to national security by

organizations who are supposed to enforce

the law. This court shares defendants’

revulsion of such abuses of the executive

power. And we are mindful that while Long

spoke of a laudable purpose, improved

police-community relations, the fact is he

took copious notes and used a clandestine

tape recorder even though, by all accounts,

his department was not mentioned until

Valentino disclosed his presence.

At the same time, however, police

officers are literally on duty 24 hours a

day under California law. (See People v.

Corey (1978) 21 Ca.3d 738, 746; People v.

Derby (1960) 177 Cal.App.2d 626, 631; Pen.

Code, §§142, 830.1.) And they are as much

entitled to the protection of the Unruh

Act as any other citizen. They may not be

refused service in a restaurant, denied an

APPENDIX "B" 30

apartment, or ejected from a public meeting

merely because of their occupation, whether

working a shift or on vacation. We find

defendants' position on this point, at

least as articulated at oral argument, to

be as reprehensible as the police abuses

decried above. Police officers as

individuals have rights, too, and can bring

actions for violation of those rights even

though their injury has arisen in some way

related to the performance of their duties.

(City of Long Beach v. Bozek (1982) 31

Cal.3d 527, 538, fn. 9.)

A somewhat different problem is

presented by the contention that a police

officer on a mission to spy on individuals

and organizations holding a public meeting

may be excluded, however. We agree that is

not quite the same as refusing to serve a

beat cop a cup of coffee because the owner

APPENDIX "B" 31

does not like police. The fulcrum of

defendants' argument is White v. Davis

(1975) 13 Cal.3@ 757. There, the

California Supreme Court held a complaint

alleging covert infiltration of classrooms

on the UCLA campus hy the Los Angeles

Police negeataeat for the purpose of

compiling intelligence and dossiers on

students and professors stated causes of

action for violations of freedom of speech

and assembly, as well as the state

constitutional right of privacy.

The court leaned heavily on the

concept of academic freedom in reaching its

conclusions, however; and that is a major

distinction between our facts and those of

White. Participants in this’ public

conference should have had very different

expectations than the students and faculty

of UCLA in the classroom. Well-known

APPENDIX "B" 32

Fe RR RET Re AR ET RE,

politicians attended and spoke at this

event. Press coverage was probable and may

have been sought and obtained, for all we

know. The ACLU itself advertised the

conference in the press as open to the

public without restriction. A classroom at

UCLA is not a public forum; this meeting

was.

Although defendants ask us to resolve

the lawfulness of Long's conduct now, we

must decline.’ They included exactly no

affirmative defenses in their answer, nor

did they cross-complain against Long or the

city to assert a violation of their civil

rights. Had they cross-complained, we would

have a very different case, perhaps, and

> Defendants did belatedly raise White

in their trial brief. Assuming that was

sufficient, White is so thoroughly

distinguishable from the present situation,

both legally and factually, it is

essentially irrelevant.

APPENDIX "B" 33

one much more similar to White. But Lloyd

did not resort to the legal process before

or after he violated Long's rights under

the Unruh Act. He chose to use self-help

at the outset and has yet to properly

tender the White issue.

Even if applicable to the present

facts, White cannot excuse Lloyd's conduct.

He is no more entitled to relief based on

Long's allegedly improper activities than

would be the owner of a diner, who after

being denied an apartment because of her

race, sex, or occupation, refused service

to the offending landlord for the identical

reason. Neither violation excuses the

other. We have found no authority on this

precise point and rely on a_ basic

principle of our jurisprudence: Two wrongs

do not make a right. Assuming Long was

engaged in improper surveillance at the

APPENDIX "B" 34

instance of his department, the remedy

selected by Lloyd cannot be condoned.

Defendants have also attempted to draw

a distinction between officers merely on

duty and those acting in an official

capacity and have attempted to couple that

argument with the strained contention that

Lloyd's behavior was somehow protected by

the constitutional right to petition the

government. We are not impressed. (See

City of Long Beach v. Bozek, supra, 31

Cal.3d at p. 538, fn. 9.) If the question

was whether the City of Newport Beach could

maintain an Unruh Act complaint in its own

name based on Long's treatment, we would

agree with the defendants. But while an

officer acting in an official capacity does

represent an institution, he is still a

human being. He can be yelled at, screamed

at, asked to leave. Free speech can be

APPENDIX "B" 35

exercised to the fullest in denouncing his

presence, and that he must endure. But he

may not be the object of a discriminatory

ejection from a public meeting.

A car rental agency cannot refuse to

rent an automobile to an officer because

his purpose was to examine it for possible

violations of safety standards. A

restaurant cannot refuse service to a

health inspector who was not hungry but did

wish to check the food for flies. Anda

transportation company cannot refuse the

fare of a civil rights investigator who

wished to observe whether minorities were

being required to ride in the back of the

bus. These are examples of discrimination

based on employment. It is of no moment

that a government agent is acting for

official as opposed to personal reasons

when he becomes the object of unlawful

APPENDIX "B" 36

discrimination.

Ordinarily, the damages might not

amount to much in such cases; although the

agent's mission was affected, no personal

insult was inflicted. But, as here, that

will not always be the case. For example,

Long could have been privately ejected

under circumstances that did not cause a

stressful and humiliating departure. His

damages would have been minimal or

nonexistent. But to return to our

hypotheticals, he was not simply refused

service; he was given the bum's rush as

well. That conduct was not protected by

the First Amendment or article I, section

2, subdivision (a) of the state

Constitution.

The judgment is affirmed with respect

to defendant Lloyd and reversed as to

defendant Valentino with directions to

APPENDIX "B" 37

enter judgment in her favor. Valentino

shall receive costs on appeal. Long is

entitled to costs and attorneys fees

expended to defend Lloyd's portion of the

appeal as determined by the superior court

upon return of the remittitur.

CROSBY, J.

I concur.

WALLIN, J.

APPENDIX "B" 38

SCOVILLE, P. J., Concurring and Dissenting.

I concur in the majority opinion

insofar as it holds that speech alone may

violate the Unruh Civil Rights Act. But

I dissent from that part of the opinion

which holds Valentino did not violate the

Act because her speech was "neutral and

factually accurate” and thus protected by

the First Amendment. (Maj. Opn., ante,

p.9.)

The jury expressly found that

Valentino ejected, or aided, incited, or

conspired in ejecting Long from the public

seminar. A review of the record supports

that finding. It is undisputed that

Valentino was told prior to giving her

speech on the subject of police

surveillance of public meetings that there

was a local police officer in attendance.

She testified that ACLU representative Meir

APPENDIX "B" 39

Westreich told her she "should make it

known" to the workshop that there might be

an officer present and "see what happened."

She agreed to do so, telling those in

attendance "that meetings such as the one

we were in at that moment were frequently

targets of undercover officers that came

and took notes and tape recorded and took

down what people said and put them in

files." She then looked out over the

audience and asked, "Would you care to

comment on that, Officer Long?" Not

surprisingly, there was no response. When

she was questioned later during the

question-and-answer session whether a

policeman was present, she replied that she

had been led to believe an officer was in

the audience. Long was asked to identify

himself. When he did, Valentino watched

Silently as Lloyd, an ACLU attorney,

APPENDIX "B" 40

verbally ejected him from the room.

The majority characterizes Valentino's

question as a mere request for Long to

identify himself and an invitation for him

to comment. That was her defense. It was

also a defense roundly rejected by the

jury. The majority then characterizes her

statement as to Long's presence as simply

a factually true reply. Speech alone is,

as the majority points out, generally

protected by the First Amendment. But

speech which serves to accomplish a

physical event, such as Long's ejection

from the workshop, is not. The issue then

is whether Valentino's speech was

protected, or whether it effected a

violation of the Unruh Act.

Viewed in the abstract, asking seminar

participants if they would like toa comment

on the issues, or stating that a certain

APPENDIX "B" 41

person is in the audience, is , without

more, protected speech. However,

constitutional rights cannot be judged in

the abstract; they must be judged in

context. Accordingly, whether Valentino's

speech was protected must be viewed in

light of the totality of the circumstances.

And I refuse to put blinders on to what was

happening here.

Valentino asked Long if he would like

to comment on the issues in order to single

him out in front of the other participants

as a police officer. Moreover, the

questions was asked at the urging of an

ACLU representative and with the intent of

seeing what would happen. What happened

probably did not come as much of a surprise

to either Valentino or the ACLU

representative who prompted her.

Identifying Long as a police officer right

APPENDIX "B" 42

after telling the seminar participants the

police frequently conduct surveillance of

these meetings was likely to lead to but

one conclusion: Long was a police

surveillant. It was also likely to lead to

Long's ejection. Either he would be

forcibly ejected because he was there in

his official capacity, or he would be

humiliated into leaving even though he was

there in his personal capacity. Indeed,

after he assured Lloyd he was there in his

personal capacity, Long felt too humiliated

and distressed to go back to the workshop

because the emotions of the participants

ran so high.

Contrary to the majority opinion there

is substantial evidence from which the jury

could have concluded Valentino ejected Long

from the workshop or conspired to eject

him. "As long as two or more persons agree

APPENDIX "B" 43

to perform a wrongful act, the law places

civil liability for the resulting damage on

all of them, regardless of whether they

actually commit the tort themselves.

(Citation. ]"(Wyatt v. Union Mortgage Co.

(1979) 24 Cal. 3d 773, 784, emphasis in

original.) "Furthermore, the requisite

concurrence and knowledge ‘'*may be

inferred from the nature of the acts done,

the relation of the parties ...

and other circumstances.'"'[(Citation.]) (Id.

at p. 785.)

I would affirm the entire judgment.

SCOVILLE, P. J.

APPENDIX "B" 44

ORDER MODIFYING OPINION AND DENYING

PETITION FOR REHEARING

FILED JANUARY 19,1990

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICHARD T. LONG, ) 6006130

Plaintiff and Respondent,) (Superior

) Court No.

Vv. ) 35-98-28)

)

LINDA VALENTINO et al., ) ORDER

Defendants and Appellants.)

)

The opinion filed December 22, 1989,

and certified for publication is modified

as follows: { Modifications made in

foregoing Opinion, Appendix "B". }

These modifications do not effect a

change in the judgment. The petition for

rehearing is DENIED.

CROSBY, J.

I concur. WALLIN, J.

I concur in the denial of the petition for

rehearing. SCOVILLE, P.J.

APPENDIX "B" 45

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

CASE NO. 35 98 28

RICHARD T. LONG,

Plaintitf,

JURY INSTRUCTIONS

vs. GIVEN BY COURT

AMERICAN CIVIL

LIBERTIES UNION,

etc., et al.,

[ PARTIAL ]

Defendants.

ee eee ee ee eee ee ee eee ee ee”

APPENDIX "C" 1

JURY INSTRUCTION NO. 7 (REV.)

Officer Long may recover under Claim

number 2, as to Defendant Lloyd only, if he

proves that he suffered severe emotional

distress proximately caused by the

outrageous unprivileged conduct of

Defendant Lloyd, done either with the

intent to cause emotional distress or with

reckless disregard of the probability of

causing such emotional distress, and with

actual malice.

The elements of a cause of action for

intentional infliction of severe emotional

distress are:

1. Defendant Lloyd engaged in an

outrageous, unprivileged conduct;

2. Defendant Lloyd did so with the

intent to cause, or with reckless disregard

of the probability of causing emotional

APPENDIX "C" 2

distress;

3. The Plaintiff suffered severe

emotional distress;

4. Such outrageous, unprivileged

conduct of the Defendant was a proximate

cause of the emotional distress suffered by

the Plaintiffs; and

5. Defendant Lloyd acted with actual

malice.

APPENDIX "C" 3

JURY INSTRUCTION NO. 31 (REV.)

In order for Officer Long to prevail

in Claim No. 1 as to ae particular

Defendant, he must prove by a preponderance

of the evidence all of the facts necessary

to establish the following:

2. That officer Long was in fact

ejected;

2. That the Defendant ejected Officer

Long or aided or incited his ejection;

3. That the Defendant did so

arbitrarily; and

4. That Officer Long was damaged.

APPENDIX "C" 4

JURY INSTRUCTION NO. 38(C)

It is the duty of the Court to decide

which speech or conduct of the Defendants

is protected as free speech and

association. The speech and conduct of

each Defendant at the conference are

subject to protections as free speech or

association. You are to treat these

findings, made by the Court, as binding

upon you. ;

You are cautioned that this

instruction, though binding upon you, does

not end your inquiry. A privilege to

assert one's legal rights must be exercised

for a lawful objective. It is your duty to

determine whether Defendants were actually

motivated by a desire to exercise or

protect these rights; or whether, instead

any Defendant was motivated solely by a

desire to discriminate arbitrarily against

APPENDIX "C" 5

Officer Long because of his status as a

police officer; or whether Defendant Lloyd

was motivated by a desire to intentionally

inflict emotional distress, with actual

malice.

APPENDIX "C" 6

JURY INSTRUCTION NO. 40 (REV.)

As to Defendants ACLU and Linda

Valentino, you must decide whether

Defendants were motivated by a desire to

discriminate arbitrarily, or, instead, by

a desire to exercise or protect free speech

or association rights.

If you find that Defendant ACLU or

Linda Valentino were motivated solely by

the fact of Plaintiff's status as a police

officer, you should find for Officer Long

and against that Defendant.

If you find that the desire to

exercise or protect the rights of free

speech and association, of themselves or

other seminar participants, was a

motivating factor of Defendants ACLU or

Valentino, then you should find for those

Defendants.

As to Defendant Rees Lloyd, you must

APPENDIX "C" 7

decide whether he was motivated by a desire

to discriminate arbitrarily, or by an

intent to inflict emotional distress or,

instead, by the desire to exercise or

protect free speech or association rights.

If you find that Defendant Lloyd was

motivated solely by the fact of Plaintiff's

status as a police officer; or solely by an

intent to inflict emotional distress with

actual malice; or solely by a combination

thereof; you should find for Officer Long

and against Defendant Lloyd.

If you find that the desire to

exercise or protect the rights of free

speech and association, of himself or other

seminar participants, was- a motivating

factor of Defendant Lloyd, then you should

find for Defendant Lloyd.

APPENDIX "C" 8

JURY INSTRUCTION NO. 35

You must consider it established that

Officer Long attended the ACLU conference

in his official capacity as the Community

Programs Officer of the Newport Beach

Police Department.

APPENDIX "C" 9

FILED AUGUST 17, 1987

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE

RICHARD T. LONG, ) CASE NO. 35 98 28

Plaintiff, )

)

vs. )

) JUDGMENT

AMERICAN CIVIL )

LIBERTIES UNION, )

etc., et al., )

)

Defendants. )

)

This matter came on for trial on June

29, 1987, before the Honorable Henry T.

Moore, Jr. Plaintiff appeared by his

attorney, Jeffrey M. Epstein of Stevenson,

Epstein & DePasquale; defendants appeared

through their attorneys, Robin Meadow and

Meir J. Westreich. Following

deliberations, the jury returned special

verdicts as follows:

APPENDIX "D" 1

SPECIAL VERDICT: PLAINTIFF'S CLAIM NO. 1:

We the jury in this action, find the

following special verdict on the following

questions submitted to us:

Question No. l: Was Officer Long

ejected from the police practices seminar?

Answer: "“yes."

Question No. 2: Did Rees Lloyd eject,

or aid, incite or conspire in ejecting,

Officer Long from the police practices

seminar?

Answer: "yes."

Question No. 3: Was Rees Lloyd

motivated solely by the fact that Officer

Long was a police officer, and not by any

desire to exercise or protect rights of

free speech or association of himself or

other seminar participants?

Answer: "yes."

Question No. 4: Was Rees Lloyd acting

APPENDIX "D" 2

as an agent of the ACLU within the course

and scope of his authority?

Answer: "“yes."

Question No. 5: Did Linda Valentino

eject, or aid, incite or conspire in

ejecting, Officer Long from the police

practices seminar?

Answer: “yes."

Question No. 6: Was Linda Valentino

motivated solely by the fact that Officer

Long was a police officer, and not by any

desire to exercise or protect rights of

free speech or association of herself or

other seminar participants?

Answer: “yes."

Question NO. 7: Was Linda Valentino

acting as an agent of the ACLU within the

course and scope of her authority?

Answer: “yes."

APPENDIX "D" 3

ASSESSMENT OF DAMAGES

If you have found that any of the

defendants are liable to Officer Long on

Claim No. 1, you must now decide how much

to award Officer Long against those

defendants.

Defendant Lloyd is liable if you

answered Questions No. 1,2, and 3 "yes."

Defendant Linda Valentino is liable if

you answered Questions No. 1,5 and 6 "yes."

Defendant ACLU is liable (a) if you

answered questions 1,2,3, and 4 “yes" or

(b) if you answered Questions No. 1,5,6 and

7 “yes" or (c) if you answered all seven

questions "yes."

Question No. 8: State the amount of

actual damage sustained by Officer Long

APPENDIX "D" 4

(including the $250 minimum).

Answer: $20,000.

Question No. 9; You must now

apportion the amount stated in your answer

to Question No. 8 among the defendants you

have found liable. State how you wish to

apportion your damage award (enter "0" for

any defendant who you have found is not

liable). Lloyd: $10,000. Valentino: $1,000.

ACLU: $9,000. Total: $20,000.

your answer to Question NO. 8.

Question No. 10: Do you wish to award

Officer Long more than the amount stated as

to any of the defendants in your answer to

APPENDIX "D" 5

Question No. 9?

Answer: no.

DATED: July 22. 1987 EVE JACKSON

APPENDIX "D" 6

SPECIAL VERDICT: PLAINTIFF'S CLAIM NO. 2.

We the jury in this action, find the

following special verdict on the following

questions submitted to us:

Question No. 12: Did Rees Lloyd

intentionally inflict emotional distress on

Officer Long?

Answer: "yes."

Question No. 13: Do you find, on the

basis of clear and convincing evidence,

that Rees Lloyd acted with actual malice

toward Officer Long?

Answer: "no."

DATED: July 22, 1987 EVE JACKSON

APPENDIX "D" 7

On the basis of the jury's special

verdicts, IT IS ORDERED, ADJUDGED AND

DECREED AS FOLLOWS:

1. Plaintiff Richard T. Long shall

have and recover judgment against the

defendants severally as follows:

a. The sum of $10,000 as against Rees

Lloyd; and

b. The sum of $1,000 as against Linda

Valentino.

c. The sum of $9,000 as against the

American Civil Liberties Union;

2. Plaintiff Richard T. Long shall

have and recover his costs of suit,

including out-of-pocket disbursements as

provided by law in the sum of $___ and

reasonable attorneys fees in the sum of

$ _, for a total of $ , to be

apportioned among the defendants’ as

follows:

APPENDIX "D" 8

a. Rees Lloyd

b. Linda Valentino

C. American Civil Liberties Union

THE CLERK IS ORDERED TO ENTER’ THIS

JUDGMENT.

DATED: AUGUST 17, 1987

HENRY T. MOORE, JR.,

JUDGE OF THE SUPERIOR COURT

APPENDIX "D" 9

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE

(MINUTE ORDER)

Court convened at 3:30 p.m., October 7,

1987, in Dept. 31, Hon. Henry T. Moore,

Jr., Judge, presiding.

Proceedings were had in Case 35-98-28, LONG

VS. AMERICAN CIVIL LIBERTIES UNION, ET AL.

The Court having taken the matter

under submission on October 6, 1987, now

rules as follows:

In accordance with Civil Code Section

52(a) [Unruh Civil Rights Act], the Court

awards attorney's fees of $65,000.00 to

Plaintiff Richard T. Long. This amount

together with the costs of $7,033.02, for

a total of $72,033.02, shall be apportioned

among the defendants as follows:

To American Civil Liberties Union--

45% or $32,414.86.

APPENDIX "E" 1

To Linda Valentino--5% or $3,601.65.

To Rees Lloyd-- 50% or $36,016.51.

ENTERED 10/7/87.

(Mailing and execution of this certificate

occurred October 7, 1987, Santa Ana,

California. [By County Clerk]

APPENDIX "E" 2

TEXT OF RELEVANT STATUTORY PROVISIONS

"Section 51. Unruh Civil Rights

Act; Equal Rights; Business

Establishments.

"This section shall be known and may

be cited as the Unruh Civil Rights Act.

"All persons within the jurisdiction

of this State are free and equal, and no

matter what their sex, race, color,

religion, ancestry, national origin, or

blindness or other physical disability

are entitled to the full and equal

accommodations, advantages, facilities,

privileges, or services in all business

establishments of every kind whatsoever.

"This section shall not be construed

to confer any right or privilege on a

person which is conditioned or limited

by law or which is applicable alike to

persons of every sex, color, race,

religion, ancestry, national origin, or

blindness or other physical disability."

APPENDIX "F" 1

"Section 51.5. Discrimination,

Boycott, Blacklist, etc.; Business

Establishments; Equal Rights.

"No business establishment of any

kind whatsoever shall discriminate

against, boycott or blacklist, refuse to

by from, sell to, or trade with any

person in this state because of the

race, creed, religion, color, national

origin, sex, or blindness or other

physical disability of the person or of

the person's partners, members,

stockholders, directors, officers,

managers, superintendents, agents,

employees, business associates,

suppliers, or customers.

"As used in this section, 'person'

any person, $i association,

organization, partnership, business

trust, corporation or company."

APPENDIX "F" 2

"Section 51.7. Freedom from Violence

or Intimidation.

"(a) All persons within the

jurisdiction of this state have the right

to be free from any violence, or

intimidation by threat of violence,

committed against their persons or

property because of their race, color,

religion, ancestry, national origin,

political affiliation, sex, sexual

orientation, age, disability, or position

in a labor dispute. The identification

in this subdivision of particular bases

of discrimination is illustrative rather

than restrictive.

APPENDIX "F" 3

"Section 52. Denial of Civil Right;

Damages; Civil Action by People or Person

Aggrieved; Intervention; Unlawful

Practice Complaint.

"(a) Whoever denies, or who aids, or

incites such denial, or whoever makes

such discrimination, distinction or

restriction on account of sex, color,

race, religion, ancestry, national

origin, or blindness or other physical

disability contrary to the provisions of

section 51 or 51.5 is liable for each and

every such offense for the actual

damages, and such ammount as may be

determined by a jury, or a court sitting

without a jury, up to the maximum of

three times the amount of actual damages

but in no case less than $250., and such

attorney's fees as may be determined by

the court in addition thereto, suffered

by any person denied the rights provided

in section 51 or 51.5."

APPENDIX "F" 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.