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The city of San Ramon and top police officials are among the defendants in a lawsuit filed earlier this year by a Tri-Valley projection activist that alleges civil rights violations following an interaction with police officers outside city hall more than a year ago.
Alan Marling, a Livermore resident who is known for displaying messages via light projection critiquing Elon Musk on the outside of the Twitter building in San Francisco, filed a civil complaint on Feb. 28 demanding a jury trial to assess allegations of wrongdoing by city staff and police when he was detained and cited for projecting a message on the exterior of San Ramon City Hall in support of President Joe Biden’s Build Back Better Plan in November 2021.
The San Ramon City Council discussed the litigation in closed session during their April 11 meeting, with nothing to report out to the public at the end. City attorney Martin Lysons excused himself from the session, given that he is a named defendant in the complaint, with deputy city attorney Alicia Poon consulting with councilmembers in his place during the closed session meeting.
Along with the city and Lysons, defendants in the filing consist of recently retired city manager Joe Gorton, former police chief Craig Stevens, current Police Chief Denton Carlson, Sgt. Michael Pistello, Officer Rick Gonzalez, attorney Lance Bayer and Karen McHenry-Smith, executive assistant to the city manager.
San Ramon city officials have declined to comment publicly on the lawsuit. Marling’s Danville-based attorney, Donald Wagda, also declined a request for comment.
In his lawsuit, Marling alleges that on Nov. 17, 2021, McHenry, at Gorton’s direction, called the San Ramon Police Department to send “someone to come to City Hall” to confront him for projecting a message in support of the Build Back Better Plan, which was being considered in Congress at the time.
“As he had done earlier the same month at that location, Mr. Marling set up a tripod-mounted image (light) projector in a landscaping bed of a public park and projected a political message onto an exterior wall of City Hall,” Wagda wrote in the complaint.
Marling alleges that McHenry-Smith falsely reported to SRPD that his projection camera was propped up against a traffic light rather than in a landscaping bed.
According to the complaint, Pistello arrived at the scene to address Marling, showing him a screenshot of text describing portions of the city’s municipal code that he said Marling was violating with the projected message. Marling alleges that the screenshot in question was taken from an email that had been circulated between Lysons, Gorton, and Carlson and/or Stevens, originally dated Nov. 11, 2021.
Marling alleges that the email asked recipients to report any encounters with him in the future, and argues that it describes the subsection of municipal code on public nuisance related to glare from lights as “probably the biggest stretch” in terms of prohibiting the projection activity.
“The targeting email targeted Mr. Marling for harassment and unjustifiable code enforcement action, indicating that the three code sections could be shown to Mr. Marling should he be encountered in the future, to dissuade him from continuing his projection activity,” Wagda wrote in the complaint.
According to the lawsuit, Gonzalez then arrived at the scene and conferred with Pistello, who informed him about a request from Stevens, before the officer proceeded to issue a citation to Marling for alleged violations of public nuisance and prohibited locations, messages and sign types.
In a meeting with Lysons and Bayer last July, Wagda argued that the former subsection was “unconstitutionally vague” and that the latter was “facially unconstitutional” in addition to not applying to Marling, who had been using a projector rather than a sign, according to the lawsuit.
However, Lysons and Bayer declined to dismiss any charges against Marling following the meeting, and the city opposed Marling’s motion to dismiss the criminal case against him, with a trial commencing on Dec. 7.
Marling was acquitted of all charges on Jan. 12, in part due to Gonzalez and Pistello reportedly providing conflicting testimony during the proceedings, with the former saying that Marling’s projection equipment had been on the sidewalk rather than in the adjacent vegetation and the latter saying it hadn’t, according to the lawsuit.
After the acquittal, Marling filed the Feb. 28 complaint alleging numerous civil violations, including of the First, Fourth and 14th amendments and the Civil Rights Act, as well as false imprisonment for the 15 minutes he was detained by Pistello and Gonzalez outside San Ramon City Hall before being cited.
In addition to seeking general, punitive and statutory damages, injunctive relief and attorney’s fees, Marling’s complaint seeks a declaration from the city that the sign code he was cited for is “unconstitutional on its face”.
The case is proceeding through the U.S. District Court for the Northern District of California and has been assigned to Magistrate Judge Alex Tse. A case management conference is scheduled for June 2 at 2 p.m. at the Phillip Burton Federal Building and United States Courthouse at 450 Golden Gate Ave. in San Francisco.
