By the First Amendment Coalition
Editor’s Note: On Nov. 12, 2024, the First Amendment Coalition sent a scathing four-page letter of protest to Shasta County Supervisors and the Shasta County Sheriff for committing Brown Act violations against members of the public and press during Thursday’s Board of Supervisors meeting. Click here for A News Cafe publisher Doni Chamberlain’s first-person account of the evening, including details regarding being grabbed and shoved from the Board chambers into the foyer.
Here is the letter:
FIRST AMENDMENT COALITION FIRST AMENDMENT COALITION
David Loy
Ginny LaRoe
Legal Director Advocacy Director
cc: Joseph Larmour, County Counsel
David J. Rickert, County Executive Officer
Stewart Buettell, Deputy County Executive
David Maung, Public Information Officer
Supervisor Kevin Crye (chair)
Supervisor Tim Garman
Supervisor Mary Rickert
Supervisor Patrick Henry Jones
Supervisor Chris Kelstrom
SHASTA COUNTY BOARD OF SUPERVISORS
Sheriff Michael L. Johnson
SHASTA COUNTY SHERIFF’S OFFICE
Re: Removal of press and public from Board of Supervisors meeting
Dear Supervisors and Sheriff Johnson:
We write to protest the removal of the press and public from the Board of Supervisors meeting
on Thursday, November 7, which violated the Brown Act’s open-meetings protections and
raises serious First Amendment concerns.
As we understand the facts, based on our review of recordings of the meeting, an attendee
approached the dais and the chair directed her to sit down, which she and a second member of
the public did, situating themselves on the floor in front of the dais as a protest. The chair then
announced, “People didn’t get attention as kids, so we’re going to recess for five minutes.” At this time, county counsel interjected to advise the chair to first give the protesters a warning,
after which the chair said, “Before we recess, will the two individuals, please, seated in front,
move. This is your warning before you will be removed.” After a pause, the chair continued,
“With that, they are not moving. We will be in 5-minute recess.” Several minutes later, the chair
ordered the press and public to leave the room as well. To our knowledge, there was no
evidence of any actual or imminent threat to order or safety sufficient to justify ordering
everyone to leave the room. While some individuals may have engaged in debate or dialogue
concerning the protest during the recess, they did not commit or threaten any disorder or
violence.
Unless there are other material facts of which we are unaware, the order to clear the room
unlawfully interfered with the right of the press and public to observe and document the events
unfolding during the recess, including the removal and arrest of a protester who remained after
the other left.
The California Constitution guarantees the people’s right of access to “the meetings of public
bodies.” Cal. Const. art. I, § 3(b)(1). The Brown Act codifies that right by guaranteeing the press
and public may attend meetings of the Board of Supervisors and prohibiting an order clearing
the meeting room in all but very limited circumstances.
Under the Brown Act, the meeting room can be cleared only upon a decision by “the members
of the legislative body conducting the meeting,” and only if the “meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible
and order cannot be restored by the removal of individuals who are willfully interrupting the
meeting.” Gov’t Code § 54957.9.
To our knowledge, none of those conditions were met. The full Board did not vote in open
session to clear the room. There is no indication that anyone was interrupting the meeting other
than the two people who sat down in front of the dais. Assuming that ordering the removal of
those individuals was justified, there is no reason to believe that their removal was insufficient to restore order and allow the meeting to continue without removing everyone else.
Even if clearing the room was somehow justified, the Brown Act mandates that the press must
be allowed to remain in the chamber. “Representatives of the press or other news media,
except those participating in the disturbance, shall be allowed to attend any session held
pursuant to this section,” according to Gov’t Code § 54957.9, which we brought to your attention
in July.1 There is no evidence that any member of the press was participating in any
disturbance that prevented the meeting from continuing, but even assuming otherwise, any such problem could have been addressed by an appropriate order to remove a disruptive individual without clearing the room.
Therefore, even if the conditions were met for the Board to take a public vote to clear the room,
members of the press should have been allowed to remain in the room to cover the unfolding
events. When journalist Annelise Pierce of Shasta Scout continued to report on the meeting
from inside chambers, County Counsel Joseph Larmour approached Pierce to say the press
would also need to leave, according to video of the encounter.2 Pierce questioned the reason,
and Larmour replied “because the sheriff has requested” it. Journalists with Shasta Scout, the
Record Searchlight and A News Cafe remained in chambers for some period until sheriff’s
deputies later arrived and gave commands to leave, Pierce reported.
The Brown Act’s requirements cannot be evaded merely by contending that the meeting was in
“recess.” If a recess is called but the meeting is not adjourned, the meeting remains in session
and subject to the requirement that board meetings “shall be open and public, and all persons
shall be permitted to attend any meeting,” Gov’t Code § 54953(a), unless the strict requirements
of Section 54957.9 are met.
If there is any doubt on that point, the California Constitution mandates that the Brown Act “shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access.” Cal. Const., art. I, § 3(b)(2). Under a broad construction of the Brown Act, the meeting remained in session and subject to the rule against clearing the room except in
strictly limited circumstances that were not met in this case.
The order to clear the room also presents significant First Amendment concerns. Under the First Amendment, persons may be removed from the Board’s public meetings only if they cause
actual and substantial disruption. “Actual disruption means actual disruption. It does not mean
constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or
imaginary disruption.” Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010). Assuming
the protesters who sat in front of the dais actually disrupted the meeting, there is no evidence
anyone else was doing so or threatening to do so and therefore no lawful reason to order
everyone removed from the meeting room.
We are also troubled by additional actions county officials took that degraded the press and
public’s ability to observe and document issues of clear public interest. The county conducted
law enforcement activities under the cover of darkness. Video shows the lights were turned off
in the meeting chamber during the recess, before sheriff’s deputies entered the room, ordered
press to leave under threat of arrest and then placed the protester under arrest. Additionally, we
question why members of the public were not only forced from the meeting chambers, but also
from the building lobby, further diminishing transparency. And we question why members of the press who had been given deputy consent to continue observing and recording activities in the meeting chamber from an open doorway, were later obstructed by deputies. 4
In a live broadcast of events, Pierce described seeing Supervisor Garman observing the arrest of the protester from inside the building with some proximity to the law enforcement activity, undermining the argument that the chamber was cleared for safety reasons.
Vague and unsupported assertions about “safety” cannot justify clearing the room. As courts
have confirmed, “mere speculation about danger” is insufficient to justify infringing First
Amendment rights. Bay Area Peace Navy v. United States, 914 F.2d 1224, 1228 (9th Cir. 1990).
Following the meeting, the Sheriff’s Office issued a news release, a copy of which is attached,
saying the room was cleared “for safety,” without providing further details to support that
justification, and stating that “other individuals who failed to obey lawful orders to exit the chambers may also face charges.” Given that the order to clear the room was unlawful and that,
even assuming it was not, members of the press had a statutory right to remain in the meeting
room, we urge the Sheriff to withdraw this threat.
After the meeting, Deputy County Executive Officer Stewart Buettell also issued a news release,
a copy of which is attached, that describes “the procedure that was followed” as a “protocol that
has been in place for more than a year” and asserts this “protocol was crafted in cooperation”
with the Board, County Counsel, Sheriff’s Office, District Attorney’s Office. Regardless of any
such protocol, it is still the responsibility of the Board to conduct its meetings in accordance with the Brown Act and the First Amendment.
For all of these reasons, the order to clear the room was unlawful and cannot support any
charges against members of the press and public observing the protest and related events. We
ask the Board and Sheriff to ensure that the rights of the press and public to observe and
document events at future Board meetings are fully respected.
Thank you for your attention to this issue. Please let us know if you have any questions.
FIRST AMENDMENT COALITION FIRST AMENDMENT COALITION
David Loy
Legal Director
Ginny LaRoe
Advocacy Director
1 FAC letter to Shasta County Board of Supervisors, July 20, 2024
2 https://www.youtube.com/watch?v=0fgiBEfKkvM&t=16s
3 https://shastascout.org/as-tensions-mount-in-shasta-county/
4 https://www.youtube.com/watch?v=YYX5r2kn1AQ
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The First Amendment Coalition protects and promotes a free press, freedom of expression, and the people’s right to know. Nonpartisan and nonprofit, FAC believes that the broadest range of engaged and informed communities is essential to the health of our democracy — that the values expressed by the First Amendment provide a blueprint for an inclusive, equitable society and a responsive, accountable government. To that end, FAC educates, advocates, and litigates to advance government transparency and First Amendment protections for all.
