A federal judge in San Diego has blocked the city from enforcing a 1895 law that bans offensive and disorderly conduct in public places, ruling that a First Amendment legal challenge is likely to succeed in showing that the law is “unconstitutionally vague and overbroad.”
The ruling by U.S. District Judge Barry “Ted” Moskowitz came in a lawsuit filed by San Diego street artist and busker William Dorsett, who was convicted of violating the ordinance — San Diego Municipal Code 56.27 — for filming and criticizing a Balboa Park ranger during the ranger’s interaction with another artist. The ranger alleged that Dorsett had interfered and obstructed him from performing his law enforcement duties.
Dorsett’s conviction, which resulted in a $150 fine, was later reversed by three judges from San Diego Superior Court’s appellate division, who concluded that “(Dorsett’s) conduct was protected by the First Amendment.” In a concurring opinion, one judge wrote that given the law’s similarities to a Texas ordinance the U.S. Supreme Court held was unconstitutional, “it appears that (the San Diego law) should be declared unconstitutional on its face as well.”
San Diego City Attorney Mara Elliott’s office did not oppose Dorsett’s appeal, instead agreeing that he was improperly convicted and that his conduct was First Amendment protected. A senior deputy city attorney wrote in January that Dorsett, like the plaintiff in the Texas case, “was merely exercising his right to verbally protest and challenge law enforcement’s decision to detain his friend.”
But in a twist, the City Attorney’s Office changed course when it came time to defend Dorsett’s federal challenge of the law’s constitutionality, arguing that “words can constitute interference with the duties of a law enforcement officer” and that the First Amendment doesn’t apply to Dorsett’s actions the day he was cited in Balboa Park.
“The City will show that Plaintiff does not have a First Amendment right to obstruct a Park Ranger from carrying out his official duties,” the city argued in a motion to dismiss the case.
Moskowitz on Monday denied that motion and instead granted Dorsett’s motion for a preliminary injunction, meaning the city can’t enforce the ordinance while the case moves forward. He wrote that the law in question “prohibits a substantial amount of constitutionally protected speech and amounts to little more than a prohibition on ‘annoying’ or ‘inappropriate’ speech and conduct. The First Amendment precludes such a prohibition.”
Dorsett said Friday that he was “extremely grateful” for the judge’s decision. “It was extremely important to get that tool taken away from law enforcement,” Dorsett said.
William Dorsett, a street artist, is suing the city of San Diego over a disorderly conduct law that he says is outdated and unconstitutional. (Courtesy of William Dorsett)
It’s unclear how often the city issues citations for violations of Municipal Code 56.27. But Michele McKenzie, one of Dorsett’s attorneys, said her firm was “aware of a number of other buskers and visitors to San Diego’s public spaces” who have been cited, or threatened with citation, for violating the ordinance. She said others were cited or threatened by Balboa Park rangers the same day as Dorsett.
“First Amendment protections are at their strongest in ‘traditional public forums’ like public parks … such as Balboa Park,” McKenzie wrote in an email. “And the right of all people to speak their minds, especially in the face of law enforcement actions, is critical and was directly threatened by this ordinance.”
A spokesperson said the City Attorney’s Office can’t comment on active litigation. As to the office’s decision to defend Dorsett’s federal lawsuit after previously agreeing he’d been wrongfully convicted, the spokesperson said the “city is obligated to defend itself and its employees when a lawsuit is brought against it.”
The incident that led to Dorsett’s conviction, successful appeal and subsequent lawsuit occurred the afternoon of June 25, 2023, near the Bea Evenson Fountain in Balboa Park where Ranger Zadok Othniel was issuing a citation to Stephen Valenzuela, who had been performing a show for children and others by creating large bubbles with a mixture of water and Dawn dish soap. Othniel testified during Dorsett’s bench trial that he was citing Valenzuela for creating an environmental impact and putting children in danger by failing to use proper protective equipment.
Dorsett, who considers himself a First Amendment activist, recorded the interaction, at times narrating what he was seeing and at times criticizing Othniel and two other rangers. The video shows Othniel issuing warnings that he’s going to cite Dorsett. At one point, Valenzuela says the citation he’s receiving won’t stop him from performing the bubble show.
“Good. Don’t let them intimidate you,” Dorsett told Valenzuela. “They’re being bullies.”
That’s when Othniel turned to Dorsett and told him: “You’re being cited for … disorderly conduct. I already asked you not to interfere with what I’m doing.”
Superior Court Commissioner Peter Singer, an attorney elected by the county’s judges to oversee certain low-level judicial matters, ruled following the September bench trial that Dorsett violated the disorderly conduct ordinance by “intentionally … acting in a way to interfere with or disturb, taunt, and annoy the actions of the park rangers.”
That’s when Dorsett contacted the McKenzie Scott law firm to help him appeal.
The City Attorney’s Office waived its right to file an opposing brief. “Given the standards governing the punishment of otherwise free speech, (the ordinance) was overbroad as-applied to appellant’s speech,” Senior Deputy City Attorney Shelley Webb wrote. She went on to write that “It is clear that (Dorsett’s) conduct did not rise to the level of loud noise, disturbance or disorderly conduct required for a violation of SDMC 56.27.”
Judge Albert Harutunian, presiding judge of the San Diego Superior Court’s appellate division, cited the similar Texas law that was overturned. “The freedom to speak without risking arrest ‘is one of the principal characteristics by which we distinguish a free nation,’” Harutunian wrote in a May ruling on the appeal. “The judgement of conviction must therefore be reversed.”
Dorsett sued the city in federal court in July, arguing in part that city leaders have done nothing to fix the disorderly conduct ordinance and other similar laws that they know are outdated and unconstitutional. His lawsuit pointed out that such measures have been taken as recently as 2020, when the City Council voted to repeal a 1918 “seditious language” law amid complaints it was being unfairly used against racial justice protestors and disproportionately targeted Black people.
Although the City Attorney’s Office had previously declined to oppose Dorsett’s appeal in state court, it argued in his federal lawsuit that Dorsett could have been arrested on a state charge of obstructing a peace officer. “Conduct identical to Plaintiff’s has long been found to constitute obstruction of a peace officer’s duties,” Deputy City Attorney Manuel Arambula wrote in the motion to dismiss the case, citing a 1972 U.S. Supreme Court decision.
Moskowitz ruled that the 1972 Supreme Court case that the city heavily cited was “completely different” than Dorsett’s case.
Going forward, the city could appeal the preliminary injunction to the 9th U.S. Circuit Court of Appeals or await a final resolution of Dorsett’s case. McKenzie said her firm will now seek a permanent injunction to prevent the city from enforcing the ordinance.
