Free Speech

Interesting Official Privilege Case,

stemming from a dispute about picketing and open carry.


From Zeleny v. Newsom, decided Friday by Magistrate Judge Thomas S. Hixson (N.D. Cal.):

This case is about crusades. Plaintiff Michael Zeleny has been on a crusade to expose the wrongdoing of a prominent Silicon Valley executive, Min Zhu. From 2005 to 2012 Zeleny staged public protests of Zhu and his cohorts at New Enterprise Associates and WebEx. Zeleny's protests took the form of in-person demonstrations, musical performances, and multimedia posts on YouTube. His protests were intended to be provocative. They included flyers and posters with graphic content that called out individuals by name. Zeleny eventually combined the First Amendment with the Second and started openly carrying and displaying unloaded firearms during his protests.

But Zeleny says the City of Menlo Park has been on a crusade too. Fed up with his loud and unwelcome message, the City allegedly entered into a conspiracy with NEA to stifle Zeleny and stop his protests. The conspiracy began in 2009, and the City's part of it consisted of harassing Zeleny, with police constantly stopping and questioning him and his supporters without any reasonable suspicion of wrongdoing. Undercover officers in unmarked cars trailed him and his supporters, and followed him wherever he went. The police interfered with his protests, surveilled him, and falsely branded him a security risk.

In 2012 the City went so far as to frivolously refer Zeleny to the San Mateo County District Attorney's Office for a sham prosecution for carrying a concealed weapon, which ended in an acquittal. Following the state's adoption of new legislation regarding open carry, the City adopted a new municipal policy that requires Zeleny to obtain a permit if he is to carry an unloaded firearm during his protests. In furtherance of the conspiracy, the City has continuously denied Zeleny's applications, all to stifle his free speech and Second Amendment rights.

Or, at least, that's what he says. In an effort to obtain evidence to back up these accusations, Zeleny served document requests on the City for any documents relating to him or to any actual or contemplated arrest or criminal prosecution of him. The parties are now before the Court on a dispute concerning about 40 pages of responsive documents, over which the City claims the official information privilege.

Federal courts recognize a "qualified privilege" for official information. A governmental entity seeking to invoke the privilege must "make a substantial threshold showing." It must, "through competent declarations," "provide[ ] the court with specific information about how the disclosure of the subject material, in the situation presented by the case at hand, would harm significant law enforcement or privacy interests." {The law enforcement investigatory privilege is similar and does not require separate analysis.} If it does so, the court must "conduct a case by case balancing analysis, in which the interests of the party seeking discovery are weighed against the interests of the governmental entity asserting the privilege." The test is "moderately pre-weighted in favor of disclosure."

Because this is a qualified privilege, we have to start with relevance. If a document is core to the case, a qualified privilege is easier to overcome. But if it's collateral or unimportant, there's less need to compromise the legitimate interests law enforcement may have in confidentiality. Here, the documents are clearly relevant to Zeleny's conspiracy allegations. They are mostly dated 2012 and 2013 (with one in April 2011), during the most dangerous time in the conspiracy, when the police were harassing Zeleny and his supporters, and when the City was trying to have him imprisoned on a trumped up concealed-carry charge.

But a document has to be relevant to a "claim or defense," not just to an allegation. So, we need to analyze the role the conspiracy plays in Zeleny's claims against the City and its police chief.

Let's start with the first claim for relief. Zeleny alleges that the City threatened him with criminal prosecution by claiming that some of his protest materials are obscene as to children and he seeks a declaration that they're not obscene and, more generally, that his protests are protected First Amendment activity. The role of the conspiracy in this claim seems to depend on how the City responds to it. If the City says yes, it did make those threats and his posters are obscene as to children, the claim boils down to evaluating the obscenity status of some posters, which really has nothing to do with the City's conduct. But if the City denies making the threats, or says the threats were because of neutral time, place and manner restrictions, then the City's motives become important in deciding who to believe.

The conspiracy allegations function here mostly as evidence of motive and pretext. If they can be borne out by evidence, they would tend to show that the City's actions were driven by bias against Zeleny and his message and that the City's denials should be disbelieved.

In his second claim, Zeleny alleges that the City has wrongly interpreted the state open carry laws to create three problems (requirement for a permit, unfettered discretion, distinctions between forms of speech that are not meaningfully different) that give rise to a First Amendment violation. This claim raises factual questions about whether the City has done these things, but as pleaded, it doesn't seem to turn on bias against Zeleny and his message. Of course, an unfettered discretion claim looks better to the trier of fact if the plaintiff can also show that the unfettered discretion was exercised with bias against him, so atmospherically the conspiracy allegations help here, even if they are not the essence of the claim.

But things come into sharper focus in the third claim. Here, Zeleny alleges that the City's policy with respect to issuing permits for people to use unloaded firearms in various types of performances is unconstitutionally vague. But he also alleges in the alternative in paragraph 215 that the City singled him out to stifle his protests because of the content of his speech. Bias against Zeleny's message is the core of that contention. And whatever evidence he is able to assemble of a years-long conspiracy against him is presumably how he would prove that contention.

Finally, any doubt about the relevance of the conspiracy is wiped away by the fourth claim for relief. Paragraphs 221 and 223 allege that the City threatened Zeleny with criminal prosecution to silence him and his message. So, while the role of bias against Zeleny's message is not necessarily clear in the first and second claims for relief, it is an alternative liability theory in the third claim and the very essence of the fourth claim.

Accordingly, the documents at issue are relevant. And they are not just a little bit relevant. They date from the time Zeleny alleges the police were constantly harassing him and his supporters, so the police file is among the most important evidence necessary to evaluate the allegations at the heart of the fourth claim for relief. Thus, the qualified privilege starts out on shaky ground because these documents look like they're core.

The City's position is not helped by Police Chief Dave Bertini's boilerplate declaration that is the opposite of substantial and specific. The first two paragraphs state his job title and that the declaration is based on personal knowledge. The next paragraph says that the police investigate things, sometimes working with other law enforcement agencies, and keep what they find confidential. The fourth paragraph appears to be the entire justification for the official information privilege, and it is so generic the police could use it in any lawsuit about anything:

"To disclose this official information to the general public, or even in the instant litigation pursuant to a protective order, would irreparably harm the ability of the Menlo Park Police Department and other law enforcement agencies (local, state and federal) to conduct criminal and/or public safety investigations. It is in the interest of justice to maintain the confidentiality of this material because its production would necessarily disclose how the Menlo Park Police Department and other law enforcement agencies obtain information and conduct their investigations and thus complicate their ability to conduct future investigations and irreparably damage any ongoing investigations. The production of this confidential official information would also disclose private and confidential information about third persons."

The paragraph after that states that Zeleny's document requests seek, in part, confidential police documents. And then Bertini swears the declaration under penalty of perjury. Bertini's declaration is so lackluster, the Court could overrule the City's privilege claim on this ground alone. Indeed, Kelly holds that the Court should do exactly that and not even bother with an in camera review if the defendant's affidavit is insufficient.

But in an abundance of caution, the Court has conducted an in camera review of the documents at issue. They contain some information that was sensitive eight years ago, such as planned visits to the area by a presidential candidate and the Secretary of Defense. There are also law enforcement updates on then-recent events, suspicious activities, and assessments of security threats to the 2012 election. None of the documents are classified. These documents are so stale that their production will not in any way undermine legitimate law enforcement objectives. Because the documents have the names of specific people in them, including law enforcement officers and others, they should not be posted on the internet for the whole world to see, but there isn't anything in them that justifies not giving them to Zeleny … subject to an appropriate protective order.


NEXT: Today in Supreme Court History: March 2, 2016

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  1. There is urgent need of peaceable assembly laws, which stipulate that public protests are not peaceable when attendees carry arms, or wear body armor. The nation is edging ever-closer to normalizing armed intimidation as a political tactic. History shows that is a road which runs straight to disaster.

    1. I don’t think that you’re aware, but it was quite common in the 19th century for socialists or pro-union groups to have armed protests. Look up Presser v. Illinois for example.

      1. Lots of things were common in the 19th century.

        1. Yes, I know, but SL was acting like open carry political protests were a new phenomena, when they are not. They were quite regular and not much came of them. Thus, this even subverts his silly “history shows” conclusion.

          1. mad_kalak, you are mistaken, about what I am aware of. I dispute that, “Not much came of them.”

            In the U.S., in multiple instances, armed protesters were met with armed counter-force. The history of labor protest from that era is replete with armed conflict, and armed retaliation, with parties on both sides initiating and retaliating. A public perception that political protest was actually about armed conflict grew, spread, and reverberated for at least 30 years. Along the way there were numerous public bombings. As governments struggled to contain socially unacceptable violence, civil liberties were put in jeopardy, or worse.

            And of course, in an entirely different context, we ought to consider the history of Germany and Italy in the 1920s and 1930s.

            Let’s not start that again, shall we?

    2. How about just treating assemblies as not peaceable when they’re not peaceable,, instead? Rather than adopting a rule that deprives you of one civil liberty if you dare exercise another?

      1. I will believe that the left is serious about open carry protest laws when they are serious about doing something about Antifa that actually engages in violence and lawbreaking, rather than peaceful open carry protests.

        And personally, I think open carry protests are counterproductive as they scare aware the normies. They are the 2nd Amendment equivalent of “we’re queer and we’re here” protests which devolve into BDSM and furry shows. (At least there is no public nudity at open carry protests).

        1. Heck, I keep waiting for the nominally Republican DOJ to start enforcing the anti-Klan laws, which Antifa rather conspicuously violates. It’s pretty obvious that, while Trump has gotten some control at the top of the DOJ, the day to day operations are still under the control of hold-overs from the previous administration.

          Open carry, by the way, is consciously aimed at getting people used to the sight of people who aren’t police peacefully carrying. One of the biggest victories the gun control movement had was their success in making sure most people never see a gun peacefully carried by anybody but a government employee, in real life or on TV. That’s WHY the ‘normies’ panic at the sight.

          1. It’s also an illustration of their bad faith. You’ll often hear from libbies “If you’re so confident and proud of your right to keep and bear arms, why conceal it? Why not carry it openly?” Then when people do that, they demand that open carry be banned, as it is “intimidating.”

          2. >One of the biggest victories the gun control movement had was >their success in making sure most people never see a gun >peacefully carried by anybody but a government employee, in real >life or on TV. That’s WHY the ‘normies’ panic at the sight.

            Yes, I agree. It came from television, mostly. And that doesn’t mean that open carry can’t still be counterproductive. If you look at, for example, what happened in California where in response to open carry protests, they banned open carry explicitly due to open carry protests.

            And speaking as someone who was at one time pro-gun control, but who also has a CCW, open carry *is* intimidating. Unless open carry is necessitated by practicality due to occupation, I question the motivation of those who engage in it.

            1. its only intimidating because its unusual. If open carry was normal, no one would be intimidated.

              The way you make it normal is to, well, do it. A lot.

              1. No, it’s intimidating because a visual gun is an exercise in making the capacity for lethal violence explicit, not because it’s unusual. It’s the same as having a face tattoo, which says “I won’t ever fit into normal society”. An yes, context matters.

                Don’t get me wrong, I am quite fond of the idea that anyone of sound mind can and should carry a gun…bad guys should never know who can fight back, even the old or otherwise frail. It’s a deliberate subversion of the natural order.

                1. Here’s the thing: Open carry IS the sort of carry guaranteed by the 2nd amendment. At the time it was adopted, concealed carry was considered disreputable, the sort of thing only criminals did.

                  I realize this sort of reasoning doesn’t mean anything to non-originalists, but I am an originalist, and think the courts should be, too.

                  That gun ownership, and carrying guns around, is a civil right, means in part that you can’t be required to hide that you’re doing it. I agree that, tactically, concealed carry has its advantages. But open carry is the right.

                  1. Yes, open carry it is a right, but even an originalist analysis leaves you on the fence on the actual practice. Boston in colonial times had a law against open carry in buildings, I believe that this was pointed out in Stevens’ Heller dissent.

                    1. Throughout the Plains territories in the 19th century most settlements confiscated firearms from anybody who entered and returned them when they left. Since very few people really lived in the city it wasn’t a huge deal but it was certainly known by the territorial governments (and I assume the feds knew as well). Contemporary views were certainly split on the matter.

                    2. There is so much misinformation in the gun debate.
                      No, it was not throughout the plains territories, it was only is a few cities/towns, and it was customary to check your gun before going into the boomtown/cowtown “red light district”, where unattached young men would drink and gamble and whore about. It’s the same as today, if I am going out to the club, I leave my gun in the car or at home.

                    3. That was of course long before the imposition of the Incorporation Doctrine and, certainly, before the Second Amendment was incorporated onto the states in McDonald v. Chicago so I don’t see what relevance your observation has.

                      (Unless, of course, you’re calling for rolling back the incorporation onto the states of all of the rights enshrined in the Bill of Rights.)

          3. Which anti-Klan law could DoJ enforce against Antifa protesters who, so far as we know, do not act under color of law, given SCOTUS’s narrow treatment of 42 U.S.C. 1985(3) and its criminal code counterpart, 18 U.S.C. 241? All that arguably survives of Griffen v. Breckinridge re their application to private conspiracies are violent conspiracies to interfere with interstate travel and racially motivated violent conspiracies; doesn’t everything else requires state action per the 1985(3) cases?

    3. Only amputees need assemble?

      But really, that’s a dumb idea for a law. “Arms” can be construed to be pretty much anything: Dixon v. State of Florida (1992) reserved that bare hands may be deadly weapons if the armed has been trained in their use. That would make any assembly of non-amputee military veterans and martial artists unprotected by the 1A. MLK Jr. didn’t carry a weapon himself but was accompanied by people who did; your suggested law would make those assemblies unprotected. History shows that those rallies, assemblies, and marches were a damn good thing.

    4. Does it hurt being that ignorant Stephen?

      1. He really does believe 1A rights were intended only for newspapers and traditional publishers.

        1. He also claimed that the House of Representatives could imprison people without judicial recourse.

          1. Something something something SOVEREIGN something something SOVEREIGN something something means that liberal fascist values something something SOVEREIGN something conservatives bad something something SOVEREIGN something something SOVEREIGN something something elitism something I am a toff something SOVEREIGN something something elitism something SOVEREIGN

          2. Anderson v. Dunn answers the question as to whether the House can imprison people. Whether there’s judicial recourse is (I believe) an open question.

    5. How about we stick with the notion that the exercise of Constitutional rights are not mutually exclusive?

    6. Stephen, you may be right.

      He brought an American flag to protest fascism in Portland. Then antifa attacked him

      Paul Welch came to the downtown protest Aug. 4 to let his political leanings be known.

      With pride he clutched his U.S. flag as he moved among the crowd of like-thinking demonstrators.

      Soon a group of black-clad anti-fascist protesters, also known as antifa, demanded he lose the flag, calling it a fascist symbol. Welch refused, and a tug-of-war ensued.

      Video captured by Mike Bivins, a freelance journalist, shows what happened next.

      As Welch and the counter-protesters wrangle over the flag, another masked counter-protester begins to strike Welch’s body from behind using a weapon concealed in black fabric.

      That person then uses the weapon to club Welch on the back of the head, causing him to collapse instantly. The demonstrator with the weapon wanders off.

    7. Thanks for goysplaining, bubbeleh. Preach it to my fellow Jews.

      Considering the death toll in my family and my tribe, when I am made to feel like an endangered species, I arm and armor myself before speaking out. It’s still a free country, nanny statists’ efforts notwithstanding.

    8. Thankfully we do not (yet) live in police state that Stephen so obviously prefers.

      Nor are we compelled to believe your flagrant attempts to rewrite history. The historical circumstances that lead to disaster are not the result of citizens choosing to carry arms or wear armor but are the result of the government policies and loss of trust that make those citizens feel need to in the first place.

      Disarming the public in the face of protest is like treating anemia with leeches. First, you’re only addressing the symptoms, not the real problem. Second and more important, your proposed “fix” will only make things worse. It has zero chance of actually working.

      Well, I suppose if you defined “working” as ‘the patient stopped complaining’, leeches for anemia would eventually “work” if only because she died. By the same token, disarming the public will “work” to stop protests by making the police state a reality. But if you really want to live like that, why don’t you move to North Korea? Why do you keep insisting that the rest of us must join in your self-destructive fantasies?

    9. Why is wearing body armor not “peaceable”?

      Do you not support the right of black BLM supporters to protest where there certainly will be police. These protesters whole point is that they fear that the police will shoot and kill them without justification or provocation so to expose themselves to police w/o wearing some form of protection is dangerous.

      If a police officer approaches you and is wearing a bullet proof vest, does that give you cause to fear for your life and defend yourself against an unprovoked threat on your life by a police officer?

  2. There is urgent need of peaceable assembly laws, which stipulate that public protests are not peaceable when attendees carry arms, or wear body armor.

    No lathrop, there is not an urgent need. Every day in this Republic, there are protests for any number of causes. The overwhelming majority (99%+) are peaceful and nothing of note occurs. The data don’t support the urgency contention. Not even remotely.

  3. I am the plaintiff in the matter referenced above, styled Zeleny v Newsom, formerly Zeleny v. Brown (3:17-cv-07357), a 42 U.S.C. § 1983 federal public interest lawsuit pending in the California Northern District Court. My lawsuit is going to trial on 9/21/2020 at 09:00 AM at 450 Golden Gate Avenue in San Francisco, CA 94102, in Courtroom 03 on the 17th Floor, before Judge Richard Seeborg. In addition to asserting First and Second Amendment rights to publicly bear arms for expressive purposes in connection with a public issue or an issue of public interest, I assert a novel claim under the equal protection clause of the Fourteenth Amendment, for such political speech to be accorded the same right that California statutes currently restrict to authorized participants in motion picture, television or video productions, or entertainment events. The state of California has been infringing these rights under the Mulford Act of 1967, supported by the NRA and enacted by Ronald Reagan, after Black Panthers Bobby Seale and Huey Newton invoked their right protected by Second Amendment, to carry loaded guns in public to “police the police”. Largely in response to my protests, responding to documented lobbying by their subject, prominent venture capital firm New Enterprise Associates (NEA), California passed Assembly Bill (A.B.) 144 and A.B. 1527. A.B. 144, which took effect in January 2012, banning individuals from openly carrying unloaded handguns. Subsequently, A.B. 1527, which took effect in January 2013, banned individuals from openly carrying unloaded rifles and shotguns. All standing California open and concealed firearms carry bans carve out an exception for authorized participants in motion picture, television or video productions, or entertainment events, Thus California has created a classification of persons who are treated unequally through the denial of their First and Second Amendment rights to publicly bear arms for expressive purposes. My lawsuit is seeking to correct this injustice at the time when our government is increasingly relying on authoritarian techniques of subverting civic accountability.

    My lawyers David Affeld and Damion Robinson of Affeld Grivakes LLP have been graciously deferring their fees until the end of this case. According to the applicable statutes and case law, the defendants will pay all legal fees and costs if we prevail. If we fail, I will bear this responsibility personally. Meanwhile, as the principal caretaker for my autistic infant son Isaac, I have started a fundraiser for his professional care while I am away for depositions and trial. I would be very grateful for your donations and publicity in this matter.

    1. I support your 1st and 2nd Amendment rights. But I am curious, would you care to comment on the initial reason for your protests?

      1. My father Isaak died sixteen years ago. Eighteen days earlier, he had suffered burns over 47% of his body in an apartment fire that looked to have started in two places at once. At that time, my father and I were plaintiffs in related business lawsuits against WebEx Communications, its co-founder Min Zhu, and his daughter and my former business partner, Erin Zhu. In the course of our litigation, I received independently witnessed death threats against me and my family, made in the names and on the behalves of the defendants. The language of these threats echoed the terms with which Min Zhu had intimidated his fourteen-year-old daughter Erin into yielding to his sexual advances thirteen years earlier. After I filed my lawsuit, the Zhus’ lawyer, who had previously represented Min Zhu against his daughter’s claim for childhood sexual abuse, brazenly threatened me with the destruction of people’s lives.

        After my father’s death I went public with my story. As a result of my publicity, I learned of the continual transmission of WebEx customers’ confidential data to the People’s Republic of China. I collaborated with the ensuing FBI investigation of industrial espionage. My protests generated little traction until I armed myself. On May Day of 2005 I staged a protest at the WebEx User Conference in San Francisco. In response, WebEx shut down its conference, citing the rifle that S.F.P.D. found in the trunk of my car in the course of a warrantless search. All my subsequent public protests involved an increasingly conspicuous peaceful display of unloaded firearms.

        On 13 May 2005, WebEx announced Min Zhu’s “retirement” and departure for China. Several months later, Scott Sandell, General Partner of New Enterprise Associates (NEA), funded Min Zhu’s new venture capital firm in the People’s Republic of China. NEA made this deal in full awareness of Min Zhu’s incestuous child rape and breach of national security. Min Zhu continues to work for NEA under the table, exemplifying gross disregard of law and ethics by venture capitalists. I have been protesting this collusion with personal appearances and my website, I aim to consign high and mighty corporate sponsors of an incestuous child rapist moonlighting as a communist spy to the dustbin of business history alongside Miramax and other casualties of #MeToo.

        Tl;dr: to echo Professor Irwin Corey: “I have a simple philosophy which is poignant. Shoot a point, point blank, unsubtle, simple, poignant. My philosophy is you can get more with a kind word and a gun than with just a kind word.”

        More details can be found here:

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