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City Seeks Federal Trial in Ray Lutz Lawsuit Arising from Occupy San Diego

San Diego fights ex-Congress candidate’s complaint that he was wrongfully arrested for operating voter-registration table.

If Ray Lutz wanted to make a federal case out of his November 2011 arrest at Civic Center Plaza, he got his wish.

Lutz, a La Mesa native and 2010 candidate for Congress, could be headed for trial in an Occupy San Diego-related incident after the city of San Diego moved the case to federal court.

On Tuesday, court records show, federal Judge Jeffrey Miller gave Lutz and defendants including the city of San Diego until Jan. 22 to file a “first amended complaint.”  The original deadline had been Monday, but on Jan. 11 the city, Lutz and co-defendant CBRE Group. Inc. asked for a delay.

Lutz was adding attorney Gerald Singleton to his case, and was given time to bring Singleton’s office up to speed.

In his original suit, filed in September, Lutz said he was wrongfully arrested by private security while sitting at an outdoor table registering voters. The arrest—posted on YouTube—“was then accepted” by police Officer Tony Lessa, Lutz said.

His first legal action—targeting CB Richard Ellis Group as manager of the Civic Center property—was dismissed at Lutz’s request Jan. 27, 2012. One-time San Diego City Attorney Michael Aguirre represented Lutz, but Bryan Pease later became Lutz’s lawyer in the case.

No monetary figure was mentioned in the original complaint, but Lutz sought damages for the care and treatment of physical injuries and “emotional distress,” attorney fees, costs of suit and punitive and general damages.

The day after the November election, the city sought a jury trial in federal court, asking that Lutz get nothing and that the defendants be dismissed from the case and awarded attorney’s fees and costs of the suit.

Along with CBRE Group and Officer Lessa, the city said Oct. 29 that since Lutz was alleging a federal crime—being deprived of his rights under 42 U.S.C. section 1983, or the Civil Rights Act of 1871—the case belonged in federal court, not county Superior Court.

According to one site, the law is known as the Ku Klux Klan Act because “one of its primary purposes was to provide a civil remedy against the abuses that were being committed in the Southern states, especially by the Ku Klux Klan.”

City Attorney Jan Goldsmith and Deputy City Attorney John E. Riley answered Lutz’s claims Nov. 9 [see attached PDF], rejecting them point by point and arguing that the “city of San Diego, its agents and employees, and the defendant police officers acted in good faith and with a reasonable belief that their conduct was lawful and necessary.”

The city lawyers said San Diego is immune from liability “in that a public entity is not liable for an injury arising out of its acts or omissions or of a public employee.”

They also said defendants “acted reasonably and within the course and scope of their employment at all times, and are therefore entitled to qualified immunity.”

In fact, they blamed Lutz’s “carelessness” for what happened in the incident, and for “injuries and damages complained of, if any such exist.”

No trial date has been set, according to online records.

In September, Lutz said the San Diego Municipal Code limits trespassing on private property but explicitly allows “peaceful political activities” in areas that are normally open to the public.

“Certainly, registering voters must be considered peaceful political activity that is a sacred right in our democracy,” Lutz said at the time, when he began archiving documents in the case.

He says he came armed in late November with a copy of a 1980 Supreme Court decision known as the Pruneyard case, “which clearly states that the public has the right to use privately owned malls for peaceful political activity, such as gathering signatures or handing out political literature, with time, place, and manner restrictions.”

Lutz said he had registered five voters and was in the middle of registering a woman who had just turned 18 when managers from the office building interrupted him and asked police to arrest him for trespassing.

“The defendants in this case who forced me to shut down my voter registration table in the public square of the city violated every notion of propriety,” Lutz said. “This is just one ugly example of how the City of San Diego misused the power of arrest during the Occupy San Diego protests in the Civic Center Plaza.”

Lutz is a longtime liberal activist who first gained attention with his fight to keep the security company Blackwater from opening a training camp in Potrero. He started COPS, for Citizens Oversight Projects, and has been a leader of efforts to permanently shut the San Onofre nuclear plant.

In August 2010, while a Democratic candidate in the 52nd Congressional District, Lutz went on an 11-day hunger strike aimed at forcing a series of debates against Republican incumbent Duncan D. Hunter.

Hunter agreed to one debate in mid-October; his campaign said it had been planned it all along.

Terrie Best January 19, 2013 at 03:38 PM
Way to go Ray.San Diego citizens who tire over heavy-handed police interference in peaceful political protest actions will thank you!
joy cash January 22, 2013 at 05:22 AM
When we can no longer peacefully register voters in this city, we have reached a new bottom in our civic life. "Protect and Serve" are the duties of our tax-payer supported police dept., not "Harass and Intimidate"
David B Secor January 24, 2013 at 05:57 PM
The city's argument that it, it's employees and police officers "acted in good faith and a reasonable belief their conduct was lawful and necessary" will now not only be able to get local laughs but guffaws at the federal level. In fact, the city and police officers routinely and intentionally have used the color of authority to harass, intimidate and arrest citizens whose "crime" was to see that other citizens, all the employers of the same officers who were bullying and arresting them, were given the opportunity to register to vote. The rogue police and city officials knew full well they were outside the law, but they are comfortable pushing law-abiding citizens around with impunity, and thought no one would dare take them to court, or if they did, a local judge would violate his or her oath and either dismiss the case or find for the city. Police are not allowed to arrest simply because they don't like what's going on or where events are taking place. The law as imposed on civilians - Ignorance Is No Excuse- applies to police who violate citizens' rights as well. Most upsetting is that if our cops, sworn to serve and protect, actually believed that what they were doing was lawful we must have about the poorest police training in the nation. The people owe Ray Lutz great thanks for doing what must be done to rein in fascist tactics by police and their cover-up by city officials.
Margie Logue January 27, 2013 at 08:02 PM
I'm a long time admirer of Ray Lutz. We just need a million more like him. Please keep the public updated on court news like when and where trials are to be held. I hope them public can sit in on them.. I don't know where the city attornies are coming from, that public entities are not liable. Government can't have it both ways: that non-persons such as corporations and it seems like cities have the rights of people, but not the responsibilites of them. San Diego sent it's message out loud and clear, that it was OK to harass Occupy and Ray, it should be held responsible for it's actions.

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