Vera Sloan found herself tackled to the ground in the first wave of arrests.
The 37-year-old National Lawyers Guild-trained legal observer had been trailing demonstrators around downtown San Jose to keep an eye on police when they caught her up in a crackdown on curfew violators.
After restraining her face-down on the sidewalk by San Salvador and Fourth streets, an officer abruptly hoisted her up, zip-tied her wrists and loaded her into the back of a van.
Scott Largent, 43, an unhoused citizen watchdog, got whisked away under similar circumstances. As did 24-year-old state Assembly candidate Alex Lee, who’d been livestreaming the night’s events on social media when a cop pulled him up to the side of a patrol car and bound his wrists behind his back.
Police cited dozens more curfew-breakers that night and more than 70 before rescinding the order four days later detaining many at length before hauling them miles away and leaving them in the middle of the night at the Great Mall in Milpitas.
San Jose enacted the 8:30pm curfew just hours before it went into effect on May 31, the city’s third day of protests fueled by anger and heartbreak over George Floyd—the latest high-profile casualty of police brutality. By SJPD Chief Eddie Garcia’s own admission, hundreds of officers deployed on the swing shift began enforcing the citywide order without so much as a briefing about what it entailed and who it exempted.
So, when cops detained journalists, bystanders and demonstrators for the crime of violating a legally dubious and hastily imposed mandate, it came as an outrage but little surprise. The severity of San Jose’s curfew crackdown after days of widely documented police violence against protesters kept many more people inside for fear of arrest.
Not the mayor.
While cops used the blunt instrument of a time limit to disband protests, Sam Liccardo quietly flouted the curfew—if only briefly—to squeeze in an evening bike ride.
According to public data shared by a “social network for athletes” called Strava, Mayor Liccardo began cycling from his Northside-area home at 7:19pm on May 31.
His speed averaged 12.6 mph, his elevation reached 2,046 feet and he burned 1,036 calories. The 16.65-mile trip to the east hills and back clocked seconds under an hour and 20 minutes.
The final several of those minutes made him an outlaw. Technically speaking.
Despite cutting it so close, the mayor ventured on the same route over the course of two more nights while the whole city was still under curfew.
On May 31, based on “elapsed time” from start to finish, Liccardo seems to have arrived home 17 minutes after curfew. On June 1, he got there eight minutes after. On June 3, he was apparently in violation for five minutes.
One commenter on the app even remarked on the timing. “Narrowly made it back by curfew!,” Dan Luscher said on June 4. “Wouldn’t be good to miss your own curfew.”
To some of the people criminalized for the same offense—including 37-year-old automation engineer JT Stukes, the one who found Liccardo’s Strava routes—they also highlight a double standard. “At the very least, it’s terrible optics,” said Stukes, who’s suing the city after getting battered by police projectile while protesting the curfew.
Perception aside, Liccardo said if he did err, it was unintended and momentary.
“If somebody tracking my online cycling account now asserts that several months ago, I rode my bike for five minutes beyond the curfew, then—assuming that I actually remembered to turn off the tracker immediately upon stopping—they’re probably right,” he said. “I’ll own it, and I can only presume that I miscalculated the duration of my return trip, and I apologize for my five-minute transgression.”
Sarah Marinho—who represents Stukes and several other plaintiffs injured by San Jose police during the late-May-through-early-June protests—said the mayor should bike wherever and wherever he pleases. But only as long as everyone else can, too.
“Other residents should have the same right,” the civil rights lawyer argued. “It’s surprising that he would be that blind to what he was doing. He broke curfew in our city and nothing happened. Meanwhile, there were so many other people just a few miles away who were arrested for the very same conduct.”
The mayor’s violation goes to show that the city’s curfew was too far-reaching, Marinho said. Policies restricting civil liberties to the extent a curfew does shouldn’t be taken lightly, she adds. And what the city put forth as justification—to quell unruly crowds and prevent property damage—doesn’t, in her view, rise to the level of good cause.
“They shouldn’t have made it that broad to begin with,” Marinho said. “And the mayor breaking the curfew is a perfect example of why.”
A couple other attorneys interviewed by San Jose Inside likened the mayor’s violation, however minor, to House Speaker Nancy Pelosi shirking San Francisco’s public health rules with her indoor salon visit (aka “Salongate”).
“It reeks of privilege,” one lawyer and veteran legal observer remarked.
Like Liccardo, Pelosi responded to revelations about her rule-breaking by downplaying, rationalizing and deflecting instead of acknowledging the seriousness of a public figure falling short of a standard they tell others to meet.
While Sacramento and Alameda counties decided in July to drop all curfew violations, San Jose didn’t announce that it would follow suit until San Jose Inside asked about it on Wednesday night. In an email about Liccardo’s Strava-memorialized slip-up, mayoral spokeswoman Rachel Davis said Acting City Attorney Nora Frimann decided against prosecuting “any curfew violators.”
Frimann confirmed as much in an email today.
“We’ve been reviewing the citations to confirm the nature of the incidents underlying each of the citations,” she told San Jose Inside. “We have concluded that we will not be bringing forward the municipal code curfew violations, nor any ancillary charge relating to the curfew violation itself, such as a failure to disperse.”
Frimann added in a follow-up email that “there isn’t a particular date” when her office reached its decision and that it came after analyzing the all the citations and related police reports “over the past month or so.”
“We will be notifying those individuals for whom we have contact information that we will not be pursuing the curfew violation charges,” she assured.
Everyone who’s been asked to show up in court will get a letter about the change in plans, Frimann added when pressed for more details. “It hasn’t been sent out yet," she clarified. “We’re working on getting the letters out. They [defendants] will be told that if there was a court date on their citation, they will not be required to appear on that date.”
The last time San Jose Inside inquired about the issue was in late June, when then-City Attorney Rick Doyle (who died from cancer in August just a few weeks after retiring) said he had yet to decide how to handle the standalone municipal code violation, which are punishable by fines of up to $500 or jail time.
That San Jose opted to drop the citations came as news to many of the people cited—and to the ACLU team that spent the past several months waiting for word from the city.
“One frustrating thing about San Jose has been the lack of communication,” said ACLU NorCal investigator Dylan Verner-Crist. “That’s really made it an outlier.”
While Sacramento and Alameda County responded to the civil rights nonprofit’s requests to drop curfew prosecutions two months ago, the self-appointed Capital of Silicon Valley never so much as replied to an email. Save for one message from Councilman Johnny Khamis’ chief of staff about how each case will be individually evaluated, the only feedback Verner-Crist ever got were perfunctory and legally mandated responses to his California Public Records Act requests about the curfew violations.
Even then, the ACLU gleaned much less from San Jose’s records compared to, say, Alameda County’s online inmate locator, which offered enough data to suggest that the curfew disproportionately targeted people of color.
“The people who were cited and arrested instead of just cited and released were heavily Black and brown men,” Verner-Crist said. “That’s where we saw a very heavy disparity. And what we saw in particular is that many of them were just getting food, walking around or driving their car when they were picked up for violating curfew. We didn’t hear the same thing from people in suburban white neighborhoods.”
San Jose refused to disclose data for ACLU to conduct a similar analysis for the Bay Area’s largest city, Verner-Crist said.
What’s clear from jurisdictions that have been more forthcoming than San Jose, however, is that the curfews validated concerns that they’d be used selectively, giving rise to the same policing disparities that inspired the protests in the first place.
Meanwhile, though none of the other jurisdictions ACLU NorCal has been pushing on the curfew issue sent notices to violators, he said San Jose did, which had scores of defendants preparing for court appearances in the coming few weeks.
Even if the city drops the curfew cases, Sloan’s not quite in the clear yet.
Unlike most of San Jose’s curfew violators, she also got slapped with resisting arrest.
While the city said it won’t pursue standalone curfew violations and DA Jeff Rosen barred his office from prosecuting standalone resisting-arrest charges, neither agency has specified what that means for defendants accused of both.
“We’re still trying to figure that out,” Sloan said.
Meanwhile, since the city has yet to publicly announce its decision to drop curfew violations, it's unclear whether the people who got notices-to-appear will still have to show up to their arraignment dates. If they skip them and they’re not supposed to, they could end up with an arrest warrant.
Ultimately, for the ACLU, simply dropping the charges isn’t enough.
In a July 10 letter that the city never answered, ACLU staff attorney Annie Decker, Lawyers Committee for Civil Rights fellow Tifanei Ressl-Moyer and Silicon Valley De-Bug founder Raj Jayadev urge San Jose to publicize its intentions—as the first step.
After dropping all curfew charges, the authors say, the city should do the same for associated fines and bail obligations. “Further,” the letter concludes, “all records relevant to these arrests should be cleared.”
Decker applauded the city’s decision to live and let live when it comes to curfew violations. “This news is good, if belated,” she told San Jose Inside.
But some loose ends still need to be tied up.
“We will push San Jose to answer the outstanding questions about the arraignments,” she said, “and providing clean slates to those who were unlawfully cited.”