The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Monica Garcia is a councilwoman and mayor pro tem of Baldwin Park, a Los Angeles suburb. Greg Tuttle is a local businessman, former candidate for mayor and current critic of various Baldwin Park officials.
Garcia has now asked for a civil harassment restraining order against Tuttle, which would order Tuttle to stay 100 yards away from her, her home, and her job (which includes City Hall), except that he would still be able to attend City Council meetings. As a matter of state law, the order would also require Tuttle to surrender any firearms that he might own, for the duration of the order.
This means Tuttle wouldn't be able to show up at any political events at which Garcia is speaking, or even present—which, of course, would greatly restrict his ability to see what an elected official was doing, what promises she was making and the like. He wouldn't be able to ask questions at such events or hear how she deals with others' questions. He'd have to watch which restaurants he goes to and even where he drives, within a pretty small town.
Judge Steven Blades denied Garcia's request for a temporary restraining order as well as Mayor Manuel Lozano's similar request; her colleague Ricardo Pacheco's similar request had been granted by a commissioner several days before, without a hearing, and Blades later declined to set it aside. Today, March 15, Blades will hear requests for longer-lasting restraining orders in all three cases. (If he denies Pacheco's request for the longer-lasting order, the temporary order will be dissolved.)
[UPDATE: March 15, 3:15 pm—Judge Bruce Marrs, to whom the case was transferred this morning, has denied the restraining orders, and dissolved the temporary restraining order that had been entered in favor of Pacheco. According to the San Gabriel Valley Tribune (Stephanie K. Baer), "Marrs said that due to an absence of violence or credible threats of violence, the public officials needed to prove Tuttle was stalking them and there was not enough evidence to substantiate that. 'People take things personally,' Marrs said, after dismissing the three cases."]
What is the basis for Garcia's request? Garcia claims that she was "emotionall[y] harmed" as a result of Tuttle's actions, and the list of actions starts with Tuttle's criticizing her "with his bizarre brand of ridicule and hostility," and referring to her as "honey" and a "political prostitute":
MR. TUTTLE DIRECTS HOSTILITY AND RIDICULE TOWARD ME
3. I am a lifelong resident of the City of Baldwin Park; and I have been a Councilwoman of the City of Baldwin Park since November 2007. Since 2011 to the present, Mr. Tuttle has spoken regularly at the Baldwin Park City Council meetings during which he has targeted me and Mayor Lozano with his bizarre brand of ridicule and hostility; and in December, he attacked the Council majority and Councilman Pacheco with great hostility.
4. During these years. Mr. Tuttle has made statements about me and to me that have caused me alarm and annoyance and that serve no legitimate purpose. Mr. Tuttle also has made sexual and gender based statements about me and to me at council meetings and other public hearings by referring to me as "honey" and calling me a "political prostitute." These statements greatly offend and alarm me, because they are hostile to me and they ridicule me as a person—wholly separate apart from any statements I have made about the affairs of the City of Baldwin Park. Furthermore, his statements about me and to me always have made me fearful about what he might actually do to me. His expressed hostility and ridicule about me demonstrates that he lacks the respect to keep his distance from me and restrain his actions toward me including those that may lead to harm.
5. I also am informed and believe that Mr. Tuttle has made similar statements about me on internet blogs, because the statements on the blogs are the same as those he has made in my presence. Those blogs state that the commenter has "staked out" my home, and claims to have knowledge that I have sex with my dog and a person I used to date, and states that I open my legs. The person posts these comments on the blog called "Topix" and he does so frequently. I attach a true and correct copy of a posting from the Topix.com website as "Exhibit A." I suspect that Mr. Tuttle is the person who posted these statements, because they repeat his public statements that I am a prostitute. During public hearings, he also frequently refers to me as "honey," which is another word frequently used on the Topix blog, as shown on Exhibit A.
Yet the speech that Garcia describes is fully protected by the First Amendment, which protects "ridicule and hostility" toward political officials—and even rudeness and vulgarity—as much as other speech. (Tuttle denies having written the comments that Garcia points to, and I don't think Garcia offers anything that shows, even by a preponderance of the evidence, that Tuttle wrote the comments; moreover, her Exhibit A doesn't seem to have any comments about staking out, sex with dogs or others, or opening legs. But even if Tuttle had said that, it would be constitutionally protected.)
Garcia does go on to make other charges as well. First, under the heading "Mr. Tuttle['s] Actions Toward Ricardo Pacheco Alarm Me":
6. Over the past few months, Mr. Tuttle's behavior has become more bizarre, frequent and threatening to me and to Councilman Pacheco. His behavior indicates that he respects no boundaries and I fear that his abuse will become physical. Mr. Tuttle's actions toward Councilman Pacheco and his statements against both of us cause me to feel and believe that he is obsessed with our political downfall and that his obsession may lead to conduct that is physically harmful. In particular, three recent circumstances have caused me great torment and greater alarm than before.
7. Prior to his election in November 2015, Councilman Pacheco informed me that Mr. Tuttle had been following him while he drove from his home on Saturday mornings. Councilman Pacheco also informed me that Mr. Tuttle had parked his truck near Councilman Pacheco's home and then followed behind Councilman Pacheco's car. Councilman Pacheco informed that Mr. Tuttle had followed him several times prior to the 2015 election. Councilman Pacheco advised me to be on the lookout for Mr. Tuttle as he may follow me, since I too was running for re-election and Mr. Tuttle was opposing our reelection to the Baldwin Park City Council. Mr. Tuttle's waiting for Councilman Pacheco near his home and then following him alarmed me. It also caused me to be on the lookout for Mr. Tuttle during the period prior to the 2015 election.
8. In the November 2015 general election, I was reelected to the Baldwin Park City Council as was Councilman Pacheco and Mayor Lozano. I attended the Baldwin Park City Council meeting on December 2, 2015. It was the City Council Meeting where the election results were certified and I was sworn into office for another four year term. There was little formal business on the agenda for that meeting, as the focus was the celebration of our reelection. Unfortunately, the festive atmosphere was punctuated by Mr. Tuttle's hostile remarks toward Councilman Pacheco. Mr. Tuttle accused Councilman Pacheco of bribing people and stated that he would "expose" Councilman Pacheco and make it his "mission" to send Councilman Pacheco to jail. The heightened hostility of Mr. Tuttle's accusation and threat to Councilman Pacheco caused me further alarm and lead me to believe that Mr. Tuttle would increase his hostility toward me.
But critics are entirely entitled to be "obsessed with [political figures'] political downfall," to say they will "expose" those figures, to have "hostility" to those figures and to make it their "mission" to get them sent to jail. The political figures' simple fear that this "may lead to conduct that is physically harmful" can't justify a restraining order.
Nor do the charges that Tuttle was following Councilman Pacheco change the analysis; but more on this shortly, because the claims of "following" also arise in Garcia's next set of charges:
MR. TUTTLE FOLLOWED ME TO SANTA BARBARA
9. During the weekend of January 29, 2016 through January 31, 2016, I attended the winter conference of the Independent Cities Association ("ICA") for elected city officials at Fess Parker's Doubletree Resort in Santa Barbara, California. The conference was attended by city officials from most of the cities of Los Angeles County. It also was attended by the following City of Baldwin Park officials: Mayor Manuel Lozano, Councilman Ricardo Pacheco, his wife, Lenet Pacheco, and Councilwoman Susan Rubio.
10. On Friday January 29, 2016, I went to Lucky's Steakhouse in Montecito for dinner with several friends and the Baldwin Park City Council members. The group was seated at two different tables. During the dinner, Councilman Pacheco walked to my table and told me that Mr. Tuttle had walked into the restaurant and that he was seated in an area behind me. I turned around and I saw Mr. Tuttle seated about ten feet behind me. He wore a baseball cap and bomber jacket. Councilman Pacheco said: "I wonder why he is intimidating us like this?" I also felt Mr. Tuttle was there to harass us. I told Councilman Pacheco that I was frightened and he told me to ask one of the men at my table to walk me out of the restaurant to deter Mr. Tuttle from approaching me.
11. Shortly after Councilman Pacheco left my table, I turned around and saw Mr. Tuttle. He was not eating anything. I was very anxious and uncomfortable by Mr. Tuttle's presence, because he sat by himself with no visible purpose for being at the restaurant. I was alarmed because he arrived at the same restaurant in Montecito, California where I was dining and which was over 120 miles from Baldwin Park.
12. Toward the end of the dinner, I went to the restroom. As I returned to my table, I passed by the table where Councilman Ricardo was seated and I stopped to speak to him. Then, Mr. Tuttle walked by me and nearly collided with me as he turned his back to me while he passed me and left the restaurant. It was very awkward and I felt he did it intentional with the purpose of intimidating me.
13. The next morning, Councilman Pacheco informed me and Mayor Lozano that Mr. Tuttle was in the lobby of our hotel: This fact alarmed me even more, and I felt that Mr. Tuttle was surely following us and intimidating us.
14. Councilman Pacheco and I approached him. Councilman Pacheco asked Mr. Tuttle what he was doing at our hotel. As we approached him, Councilman Pacheco took photos of him to have proof that he was stalking us. Councilman Pacheco asked why he was stalking us. Mr. Tuttle denied stalking us. He said he was there on business. Then, I asked him why he was following us. He answered me rudely—stating that it was none of my business and that I did not need to know why he was there.
15. Since that weekend in Santa Barbara, I have been very alarmed and annoyed by Mr. Tuttle's acts over the past several months. After seeing him in Santa Barbara, I do not know what to expect from Mr. Tuttle. I believe it is clear that he will continue his conduct toward me unless he is restrained. I believe he does not respect any boundaries with me. I want Mr. Tuttle stopped before he acts with further hostility toward me.
But politicians have to expect that where they go, especially to conferences of politicians, others may follow. In a bigger city, there may be journalists (including opinion journalists who have criticized the politician) who show up to intergovernmental conferences. There may be opposition researchers for opposing candidates. In a smaller town, those watchers of politicians may be rarer—so critics of the politicians fill the gap.
I talked to Tuttle, and he says he was up in Santa Barbara on business and just happened to be at the same hotel and restaurant. (The hotel and restaurants are pretty prominent places there, and hardly out of the way.) Then he learned that the Baldwin Park folks were there, and decided to hang around the hotel lobby and see what he could see. But even if he was there just to scope out what the local politicians were doing, and who was taking them out to dinner, that seems like an eminently legitimate thing to do.
And the weakness of this "followed us to Santa Barbara" allegation also shows the weakness of the "he was following Pacheco" argument. Pacheco's complaints were about Tuttle allegedly following Pacheco on several occasions during the election campaign. That, as I understand it, is what opposition researchers sometimes do, as they try to figure out (and record) what a candidate is doing. But beyond that, if politicians can get restraining orders against critics because they say that on some occasions the critic had followed them or their colleagues—an activity that leaves no record, and that a judge can easily find under a "preponderance of the evidence" standard just because the judge believes the political figure more than the critic—and the critic had said mean things about them in council meetings and online, politicians will get a powerful new tool for suppressing local dissenters.
Then Garcia turns back to speech about her, under the title "Internet Blogs About Me at Santa Barbara," which "alarmed [Garcia] greatly," "because the information … is all true!":
16. Recently, I logged onto the Topix.com website. To my shock, I saw a post that refers to the ICA Conference, the dinner at Lucky's Steakhouse that I attended and my attendance at an ICA seminar. By its content and the date of its posting, it appears to have been posted by Mr. Tuttle.
17. The post is entitled "Conferences your city BP officials go to are a Joke" and dated January 31, 2016. It is posted in the Baldwin Park forum on the Topix website. The post includes the following statements:
- Here's the scoop these conferences are sponsored by all the companies that pay campaign donations to your city council members in Baldwin Park.
- Then the companies take them out to dinner at very fancy steak houses.
- The council people like Monica Garcia signs in and then disappears.
18. The post was first posted on the blog on January 31, 2016, which is the Sunday of the same weekend I attended the ICA Conference. I attached as "Exhibit B" a true and correct copy of this Topix.com posting.
19. The post on the Topix website alarms me greatly, because the information about the ICA Conference, my dinner at the steak house and my attendance at a seminar is all true! I attended a dinner at Lucky's Steakhouse in Montecito on January 29, 2016 where Mr. Tuttle later entered and intimidated me.
20. It is true that I attended the ICA seminar at the Fess Parker Doubletree Resort in Santa Barbara, California. It was the same hotel where I stayed. It is also true that I checked into a seminar at the hotel and then left. I left early and returned to my hotel room to rest, because I was not feeling well. It is also true that Mr. Tuttle was at the same hotel because I saw him there. Furthermore, the person who posted the information that I had left the seminar early knew that I had done so; and only a person who was at the hotel could have seen me leave the seminar. I believe that person was Mr. Tuttle and that he wrote the post on January 31, 2016.
21. All of this behavior by Mr. Tuttle is outrageous and shocking. He is following me and invading my personal space. I truly fear for my safety. It is evident that Mr. Tuttle's behavior has increased and intensified. There is no reason for him to behave this way toward me.
22. I am a single woman who has suffered from frequent verbal attacks by Mr. Tuttle. I do not understand why he is conducting a vendetta against me. I have never done anything to him. I have not even socialized with him.
23. Based on other Topix.com postings I have read, Mr. Tuttle appears to have surveilled my home and my mother's home on different occasions.
24. To provide further context of Mr. Tuttle's abusive behavior, in November of 2011, staff members of mine told me they saw him drive by my campaign headquarters taunting them and that he had a sign on his truck referring to me as a "wetback."
25. These past instances of verbal abuse, his constant attacks against me at City Council meetings and his suspected activity on the internet all lead me to believe he has an unhealthy obsession or hatred toward me. l do not understand why he makes sexual and gender-based comments about me, such as calling me a "prostitute" and commenting about my sex life. Such comments have no connection to any type of political discourse or matter of public interest.
26. My personal space and private life have been violated by Mr. Tuttle through his decision to come in physical proximity to me with no apparent purpose other than to intimidate me. I am in great fear for my safety. For these reasons, I now seek judicial intervention in the form of a restraining order to prevent him from coming near me with the exception of City Council meetings. I am in fear of my safety as well as that of my family.
27. In recent months, Mr. Tuttle has increased his hostile conduct toward three Baldwin Park council members, namely Mayor Manny Lozano, Ricardo Pacheco and me. On February 23, 2016, Commissioner Martella granted Mr. Pacheco's and his wife's Petition for Temporary Resttaining Orders against Mr. Tuttle. I have read Mr. Pacheco's declaration in support of his and his wife's petition. In it, Mr. Pacheco provided a factual narrative of the harassment Mr. Tuttle has inflicted on him and his wife. Mr. Tuttle has subjected me to the same and similar harassment.
So because of all this, Garcia argues, Tuttle should be restrained from being within 100 yards of her (again, unless he's attending a city council meeting)—as I mentioned, a serious burden on someone who wants to know (and criticize) what Garcia is doing. And this would all be without any showing of violence on Tuttle's part, any vandalism, any trespass or any statements threatening violence.
As you might gather, I think the request for the order should be denied. The California restraining order statute is generally limited to situations where the defendant is shown to have acted with "no legitimate purpose"; but such criticism and monitoring of politicians should be treated, as a matter of law, as a legitimate purpose. And in any event, a restraining order based on such conduct should be denied on First Amendment grounds.
The bigger story, though, is how local politicians are starting to use restraining orders against their political opponents. This is especially true in Baldwin Park. I haven't discussed the Lozano and Pacheco restraining order applications in detail, but they are part of the same package and share many of the same flaws. In 2014, Baldwin Park City Attorney Robert Tafoya threatened Paul Cook (Greg Tuttle's lawyer) with a restraining order as well, and Mayor Lozano tried to get one against Cook as well.
I also chronicle some examples of this in other cities in my 2013 law review article on the subject; see also this post about the Georgia County Commission candidate who briefly got a restraining order against a journalist and city councilman. It's a trend worth watching.