Jurisprudence

Police Turn California’s Lynch Law Against Protests

San Diego cops treat a struggle against arrest as vigilante violence.

National Lawyers Guild observers and protesters look on as a police line stands in front of San Diego police headquarters.
National Lawyers Guild observers and protesters look on as a police line stands in front of San Diego police headquarters during a recent protest. James Stout

What happened in San Diego on Aug. 24 looked routine enough, by the brutish standards of this year. In a spontaneous protest outside San Diego Police Department headquarters, approximately 50 people attempted to block police cars from leaving. Police responded by beating protesters and legal observers with batons and fists. One young person apparently had a seizure while being dragged away by police, and other protesters responded by trying to pull their friend away, on which they too were beaten and arrested.

The surprising part came when the charges were announced. One of the people arrested—who a witness to the arrests said had not touched anyone before they were “grabbed by the handle on their backpack and pulled to the ground behind the line of police”—was charged with violating the California state law against lynching, which carries a prison sentence of two to four years. “That charge was a complete shock to us,” the witness said. “We assumed it was just going to be resisting arrest.”

The word lynching was removed from the law in 2015, but the statute, California Penal Code 405a, otherwise preserves its original 1872 language, making it a felony to participate “in the taking by means of a riot of another person from the lawful custody of a peace officer.” The text does not specify that the riot be planned or racially motivated, or that the person be taken away from police custody with murderous intent.

It seems perverse to arrest someone protesting police misconduct under a law meant to forbid extrajudicial killings. But even in its original form, the lynching law was built around the needs of law enforcement. The 19th-century statute did not explicitly criminalize the mob murder of people of color—an integral part of their removal from parts of California where white people wanted to live—but it made it illegal to embarrass the authorities while doing so.

California police have exploited the ambiguity of the lynching law against protesters before. The text was amended in 2015, after Sacramento police used the lynching law against Maile Hampton, a Black woman who had tried to pull the handle of a sign being held by a person being arrested in a Black Lives Matter demonstration. Later, after public outcry, her charges were reduced.

Now, freed from the embarrassing prospect of formally charging a nonwhite person with lynching, the San Diego police have revived the statute. It’s the latest escalation of a long-running pattern of overreach in the city, physically and legally. Since the protests began here in May, I’ve been out reporting on them as an independent journalist again and again, and again and again I’ve seen young people assaulted and subjected to summary arrest. I’ve seen sheriffs harass Indigenous people on their own land and target media with chemical weapons.

And throughout it all, the authorities have used law and procedure for cover. Since the uprising began, the SDPD has refused to issue press passes, claiming the desk that does so is closed; the same desk has still been answering its telephone seven days a week. While displaying my own credentials—issued by the IWW Freelance Journalists Union—I’ve been maced, beaten, and shot at with riot munitions by San Diego police officers. Some of these instances were part of indiscriminate firing into a crowd; others were targeted and deliberate assaults.

Four days after the lynching arrest, the police stopped a young woman who was driving behind marchers to carry medicine, food, and water. In the past, this woman has helped me render aid to others who’ve been hurt by police, and she has given me supplies to prevent my diabetes from causing serious medical issues during the protests. The police at first accused her of running a red light, as she maintained her innocence and several bystanders concurred. By the time police Capt. Dan Grubbs—captain of patrol operations for the Central Division of SDPD—arrived, she was being told she had driven the wrong way down a one-way street.

I began shooting photos. A crowd gathered and Grubbs called in the county sheriff’s SWAT team as well as a bike police squad. Immediately, bike police began swinging their bicycles at the crowd, and I was maced, clubbed, and pushed while identifying myself as a journalist. I approached Grubbs to ask why he was targeting media, and he turned his back and walked away. Records requests for the assaulting officer’s body camera were denied, and SDPD has confirmed that Grubbs was not wearing a camera.

Later that night, SDPD arrested a protester who had been using a bullhorn to read names of San Diego officers indicted for or under investigation for child abuse while on the force. They were charged with obstruction of justice, resisting arrest, and battery on an officer.

Since then, SDPD has repeatedly manipulated bail amounts to keep protesters in a jail that leads the state in prisoner mortality with one incarcerated person dying every month for more than a decade. In one case, bail was set at $750,000, reduced to $200,000, and when the bond was posted, the bail was raised again to $750,000. Even local bail bondsmen identified this as “the kind of systematic racism that we see every day” and asked for people to come to the jail to protest. When protesters arrived, SDPD quickly attempted to surround them. This week, a judge reduced the bail amount to $150,000 and noted the previously set amount had been exceptionally high.

The San Diego Police Department declined repeated requests for comment about any of the specifics of the arrests or charges they had made, including their use of the lynching law. Protests outside San Diego Police facilities continue.