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

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.