A California state court of appeals upheld a lower court ruling that requires a city hall critic to stay 300 yards away from city officials. He is still allowed to attend public city council meetings. -db
November 29, 2010
By Kenneth Ofgang
The Sixth District Court of Appeal has rejected a First Amendment challenge to injunctions requiring a civic gadfly to stay 300 yards away from the mayor of San Jose, members of its City Council, the city clerk, and City Hall, while remaining free to attend the council’s public meetings.
Justice Franklin Elia, writing Wednesday for the court, said the injunctions issued under the Workplace Violence Safety Act were supported by substantial evidence that William Garbett had made credible threats against city officials, and that they were no broader than necessary to protect the specified individuals.
Garbett, a retired electronics technician, has been attending public meetings, often to complain about garbage service or appeal property tax assessments, for over 30 years, earning him the title of “San Jose’s most enduring gadfly” from a local weekly. He once ran for the city council, and is known for sometimes speaking on more than 10 items at a meeting.
His penchant for repeat appearances, the newspaper reported, led a former mayor to invoke an obscure rule allowing the chair to limit a persistent speaker to a single item at a meeting. That effort was later dropped as undemocratic, according to the report.
In seeking injunctive relief, however, the city complained of conduct by Garbett outside of meetings. A deputy city clerk, who, according to the trial judge, shook and cried as she recounted the episodes, testified that Garbett had complained about his treatment by the city and expressed sympathy for Charles Thornton, who killed six people at a council meeting in Kirkwood, Mo. months earlier.
A police officer said he spoke to Garbett about the incident, and that Garbett claimed Thornton was “a good friend of his” and that the two had spoken about a month before the shooting. The officer said that as a result of the conversation, he insisted on searching Garbett before the defendant entered chambers for the next council meeting, and that he was “absolutely” fearful for the safety of the mayor and council.
Other city employees testified to conversations and encounters with Garbett in which he would address them profanely; gesture wildly with his hands; and make references to multiple murderers like Jeffrey Dahmer and Timothy McVeigh. A police officer testified that that Garbett struck him in the chest with clenched fingers after a traffic stop.
Santa Clara Superior Court Judge Sharon Chatman ruled that the city presented sufficient evidence to justify relief. She ordered that Garbett remain 300 yards from the specified individuals and from City Hall other than while attending meetings, and that when attending meetings he enter through a specified entrance, submit to search before entering chambers, and sit in a specified row.
He was also enjoined from personally delivering documents to the City Clerk’s Office.
Elia, writing for the Court of Appeal, said the trial judge was well within her discretion in imposing the injunction.
“The First Amendment does not help appellant here,” the jurist wrote. “The right to free speech is not absolute or unlimited.”
While Garbett claimed he had no intent to threaten anyone, Elia explained, it is the reasonable perception of the person on the receiving end that determines whether the statutory requirement of a credible threat is met.
He distinguished In re George T (2004) 33 Cal.4th 620, in which the Supreme Court—reversing the Sixth District—said a student’s “dark poetry” could not be reasonably perceived as a threat.
The case differs greatly in its context from Garbett’s, the justice said. The student in that case, Elia noted, had no history of animosity toward those who read the poetry, did not display threatening mannerisms or gestures, and did not place anyone in fear that violence was imminent.
Garbett’s conduct, in contrast, was unambiguously threatening and made in the context of a long series of disputes with the city, Elia wrote.
The case is City of San Jose v. Garbett, H034424.
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