The Circus is in Town

The Circus is in Town
Catherine Campbell

I want Chief Jerry Dyer to know I’m not after the Fresno City Police Department. I hear he doesn’t like me, and I’m sorry he takes things personally. It’s true I think he’s an ardent supporter of his officers and sometimes forgets he’s here for the rest of us. The “Circus case,” as Bob and I call it, illustrates the point. I also think his officers shoot too many people and could come up with better ways of apprehending criminals than shooting them. I think he has the excess zeal of the reformed and I wish his own history of mischief (before he was “chief”) would make him more tolerant rather than less tolerant, and more like his mentor, Jesus. Otherwise, I like Dyer.

“Bob” is Bob Navarro, my earnest and committed co-counsel, who manned one oar as I woman-ed the other throughout the criminal proceedings against the Circus Four: Teresa Hele, Ruben Jimenez, Stephen Gamboa, and Shawn Putnam. Neither of us hesitated to represent these four young people – we were with it from the start when we met with them at my home to talk about what had happened to them at the Circus.

In mid-July of 2005 various protestors gathered at the Ringling Bros. Circus to protest against what they believe is animal abuse. I have to admit I have no idea what they are talking about having never really developed an interest in either the circus or animals, and having always thought human rights was a much more engaging preoccupation than the rights of fuzzy wuzzies. I’m baffled that animal-rights activists are called “terrorists” while human rights activists are not.

On July 14th, Teresa, Stephen, Ruben, and Shawn, all members of Fresno Voices for Animals, were arrested at the Convention Center for resisting arrest and assault on a police officer, both as misdemeanors. The possible long-term consequence of a conviction of the assault charges is hostile encounters with the police for the foreseeable future. It was not a happy prospect for four people who lived by the maxim to challenge authority.

Bob and I used the Public Records Act and our clients’ subpoena power to obtain copies of documents that told a behind-the-scenes story of these arrests. I sat in my office sending out letters while Bob ran all over town dropping off massive subpoenas for documents related to contracts and meetings between the police and corporate interests. What we learned was cause for concern. Who runs the Fresno Police Department?

Many years ago, long before the Circus came to town, the City negotiated a contract with SMG Corporation, the convention-house managing firm that runs the Selland Arena, where the Circus and the protests took place. SMG, as the authorized agent of the City, negotiated a contract with Ringling Bros. for the 2005 Circus. As part of the background gathering process of negotiating this contract, Ringling Bros. hired a CIA-like corporate group called Lower & Associates to provide information on the risks to be avoided at the upcoming Circus. The risks identified in 2005 were the activists, including Fresno Voices for Animals, who unabashedly come out every year to get their message to people when the Circus arrives in town. There were photos, background information, lists of contacts. If I didn’t know these people, I would have thought they were pretty scary.

No other risks were identified.

SMG Corporation negotiated with the Fresno City Police Department to have two “contract duty” officers on hand each day of the Circus. Ringling Bros. made it clear it did not want the officers who had been “on duty” in 2004; they had apparently not been sufficiently servile to the demands of the Circus. The FPD liaison promised fresh faces for 2005.

A few years back, the Legislature passed a law allowing contract police services, probably at the behest of police unions who love these kinds of perks for their members. The City of Fresno passed the necessary local regulations that allow FPD officers to do contract work. “Contract” officers are paid by the private enterprise, like SMG Corporation, that hires them. It’s a coveted gig. It’s usually easy, you get paid for four hours no matter how long you’re there, and the pay is at overtime. Officers sign up, meet certain criteria, and get assignments according to rotation. They stand around at venues from bad-land bars to the Save Mart Center looking like cops.

It’s not really a good idea, this rent-a-cop business. The flaw is in the money. People tend to work for people who pay them, and police officers are supposed to work for all of us, all the time, no matter whose payroll they’re on. It’s a pretty bald conflict of interest, frankly, but police officers undoubtedly love it and no one else knows about it.

Ipso, it exists.

In the weeks before the 2005 Circus, these guys, SMG, Ringling, Lower, and the FPD, got together to develop a plan for protestor damage control. In spite of specific recent case law to the contrary, and after being advised by the City’s lawyers, they decided to rope off a cage for the protestors in front of the entrance to the Circus. They called it a “free speech zone,” which was, of course, exactly what it was not. The protestors would be seen by the Circus audience as they arrived, and the protestors would be able to hand out flyers, but they couldn’t leave the cage and walk on the sidewalks without risking arrest for trespassing.

On the first day of the Circus, the protestors agreed to stay in the cage, but after that they began to wonder if their little cage was legal. They confronted the SMG representative when she showed up to defend the policy, and they argued with the FPD officers, often successfully.

The officers changed every day, and each new set had to be educated by the demonstrators about what SMG had said and what the law is and usually the officers allowed the protestors to walk the sidewalks, handing out flyers. On July 14th, Officers Rick Harrell and Richard Nadeau showed up, beefy cops both of them, and they had a different attitude. They had an attitude.

Nadeau and Harrell arrested a juvenile, for – it is believed – stepping outside of the protest zone. Apparently he had been poking into various offices at the Circus and while he didn’t commit a crime, he was summarily removed by rendition to juvenile hall. Our four clients verbally protested the arrest of the juvenile and were serially arrested, just like that, for doing nothing but pointing out to the officers that they had made a bit of a mistake. One by one, they were taken into custody.

One of the officers then wrote a report saying all four resisted arrest and assaulted an officer, each differently and in detail. The problem with the officer’s account of events is that Teresa Hele had been videotaping the arrest of Stephen Gamboa when she was summarily arrested and her tape stops. The tape casts doubt on everything the officer said, as do the many statements of witnesses.

Frankly, the cops’ version of events was unbelievable because of our clients, four young people at the opposite end of a human spectrum with criminals, official and otherwise, at the other end. Regardless of their politics, any jury was going to believe them. These are not young people who lie. They spend their evenings and weekends distributing food to the poor. They work to preserve the earth. They don’t use disposable goods. They are vegetarian. They live on next to nothing. They cause no harm.

I wanted to be their mother.

Bob and I filed lengthy motions. One day I was up at our family cabin in the mountains, and I wrote a supplemental brief 14 pages long without stopping. I was particularly mad that the police were working for SMG and Ringling Bros. because I’m opposed to the privatization of the police. Bob spent similar hours writing stinging briefs because he was mad about the sad fate of the Constitution in Fresno. We both thought the case should be thrown out and we made every legal argument we could think of in our effort to get two Fresno judges to do the right thing.

Finally, before we had a ruling, the City offered a compromise. All the charges against Teresa, Shawn, Ruben, and Stephen would be thrown out if we agreed not to sue the City and not to ask for attorney fees. The Police Department would develop, with our help, a written policy for handling demonstrations that was in line with the law. We jumped at it and for all of us, I think, it felt like a terrific victory, not a win, but a victory. We wanted to work with the police, and we were thrilled the FPD offered to articulate its policy. In the spirit of compromise and collaboration, we agreed, and the new policy document was quickly developed. It is one page long, and it simply allows that protestors can be on public spaces without restriction unless they interfere with pedestrian or vehicle traffic.

Pretty easy, huh?
One would think so. But in the three days before we went before the court to settle the entire matter, the whole deal went south. I urged the protestors to put out a press release and they did. It said the police lied. The television stations were each given copies of the press release, Teresa’s videotape, and the police reports. One television personality called me to ask “Where’s the rest of the tape?” because what he was seeing on video was not what was written in the report. He refused to believe me when I said the tape is the tape, there is no more.

Apparently one of the television people, deferential to Dyer (access is all), got to Dyer and I got a call from the City Attorney about the press release. “The chief is unhappy with this.” I said too bad, I had approved the press release and I thought it was honest, and my clients weren’t going to retract their press release under pressure from Dyer in a case that was about free speech. Two days later, the City pulled out of the deal because Teresa, Shawn, Stephen, and Ruben refused to pull the press release. When we went to court, the District Attorney surprised us all by dismissing the case, stating that after viewing the tape, they did not believe they could prove their case beyond a reasonable doubt.

There’s law that restrains us from hurting one another and it’s called the Penal Code, and it’s up to the police to make sure the Penal Code is enforced. There’s law that restrains the police from hurting people and it’s called the Constitution, and it’s up to the rest of us to make sure the Constitution is enforced. Because Police Chief Jerry Dyer doesn’t seem to understand this, in the end, the City got nothing except the civil rights lawsuit that we filed on September 7th.

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Catherine Campbell is an appellate and civil rights attorney in Fresno.