First Amendment Auditor Battered At Choquet’s In San Francisco, California
Human_Wildlife_Project, a YouTuber and civil rights activist, conducted what’s known as a First Amendment Audit on a public sidewalk at this San Francisco eatery. The video uploaded on August 21st, 2023 via YouTube. In the video, the YouTuber whose signature approach is simply to film from public property without speaking, was battered by employee (or possibly owner) Choquet’s. In order to prove battery in The Bear State, a prosecutor must prove the following elements. The defendant must (1) intentionally and unlawfully touch another person in a harmful or offensive manner. AND (2) the defendant did not act in self defense, in defense of someone else, or while reasonably disciplining a child. There is also a much lower standard for the intentional tort of battery. Both criminal battery and civil battery touch upon the harmful or offensive manner. These are determined using a reasonable person standard. This is a subjective analysis accomplished by the trier of fact (either a judge in a bench trial or a jury in a jury trial. The idea that an employee with spray a man on a public sidewalk, filming with cameras and/or a phone with an entire bottle of water, more than squarely satisfies the elements of a harmful or offensive touching. Although the employee did not physically touch Human_Wildlife_Project, he sent water his way. And that meets the elements.
Don’t think so? Well, what about spitting? Two bodies don’t touch when spitting is involved, but that is also a harmful or offensive touching for either criminal or civil battery. But in the Choquet’s exmaple, it goes beyond a harmful or offensive damage. In this case, there is also the high likelihood of property damage. Had Human_Wildlife_Project sough a PPA (or Private Person’s Arrest) in this case, the employee/owner that sprayed him with an entire bottle of water while standing on a public sidewalk could have been held liable for any damages to HWP’s equipment. Moreover, a judge could have ordered the payment of punitive damages as what the employee/owner of the establishment did amounted to egregious conduct. The employee/owner stated a desire to physically assault the YouTuber after the battery. Given his prior behavior, body language, and the close proximity he put himself in with the YouTuber and that of the female employee/owner that invaded the YouTuber’s personal space, it would have made a reasonable person fear another imminent battery. That’s both criminal and civil assault.
In addition the male employee making numerous threats, acting in a threatening manner, and attacking the YouTuber with water, the female employee/owner’s violating the YouTuber’s face and putting her hands over his camera lense(s), also amounts to an offensive touching. Her actions may have also put a reasonable person in an imminent fear of a battery, which amounts to assault. I have a real problem with businesses that use public sidewalks to set chairs and tables. The chairs, tables, and decks are private. The public sidewalk belongs to the public. This is something shopkeepers, restaurateurs, and the poorly-trained San Francisco police officers who arrived on scene need to understand.
According to OpenPayrolls.com, San Francisco Police Officer Steven J Orengo listed as “Police Officer 2,” earns an annual salary (per 2023) of $144,446.25. This police officer, the more vocal of the two, tried to run the YouTuber off. When the employee/owner of the establishment told this officer that he or someone would physically assault the YouTuber, all this officer could say was, “let’s not let it go there.” Officer Orengo seemed incedibly passive towards the restaurant staff and patrons. A peace officer should strive to maintain peace, not win popularity contests. A police officer is in the business of law enforcement, not sparing people’s feelings or catering to mob hysteria.
The other officer, who perhaps tried to cover her name with per pocket cover, was Officer Yuka Nagamine. Neither Orengo or Nagamine educated Choquet’s staff as to the fact that HWP was fully within the law. These officers were more concerned with being well-received by the restaurant staff and customers. Although they left without infringing on the YouTuber’s constitutional rights, they left him at as much risk as he was before they arrived. The San Francisco Police Department – clearly – lacks training when it comes to dealing with public photography. According to OpenGovPay.com, Yuka Nagamine is a Police Officer 3 and earns $269,265 annually as of 2023. Both of these officers should be reprimanded. Once they left, more customers and passerby traffic were emboldened to put the YouTuber in harm’s way. These police officers should not be permitted to deal with the public until they more training. There lack of professionalism is utterly outrageous.
San Francisco should do better. This is considered one of the most progressive cities in America. Its police officers are very well-paid, seem to have excellent equipment and resources, but seemingly lack training. Not only did they not protect a citizen exercising a constitutionally-protected activity, but they left him in a more vulnerable position than he was before they arrived. Moreover, they failed to educate the public and significantly deter the crowd from any physical aggression against the YouTuber. “Let’s not let it go there,” is hardly the kind admonishing the Choquet’s thug needed to hear. When the Choquet’s thug suggested the YouTuber might be dealt with physically, these officers should have threatened arrest and formal charges. They were too busy trying to be liked by the majority, that they failed to protect the rights of an individual. That’s poor policing.
San Francisco should do better.
