S.D. Protester’s Conviction Upset by Appeal Court

Demonstrators have the right to protest on private property that generally is open to the public--even if that property is a defense manufacturing complex--a state appellate court ruled Wednesday.

The ruling by the 4th District Court of Appeal wiped away the conviction of a San Diego woman who was in a group of Catholic protesters arrested three years ago after hanging Christmas ornaments on a tree near the parking lot of the General Dynamics Convair Division plant in Kearny Mesa.

The decision appears to expand the turf rights of dissenters. Previous court rulings have given protesters limited rights to demonstrate in privately owned shopping malls, but attorneys said the San Diego case may be the first to extend such rights to other kinds of private property.

Joye Lundgren and 16 others, including a priest, were demonstrating against the nuclear arms race on Dec. 28, 1983, the Feast of the Holy Innocents on the Catholic liturgical calendar. Lundgren and two other protesters were arrested on trespassing charges when they did not respond to a security guard’s order to leave.

The other demonstrators pleaded no contest, but Lundgren fought the charges and was found guilty of a misdemeanor count of trespassing and placed on three years’ probation.

In a 2-1 decision, Justice Howard Wiener and Justice Don Work said state law protects individuals from being charged with trespassing when they enter private property that generally is made available to the public by its owner.

According to the court’s written opinion, the demonstration was conducted at a public bus stop at Kearny Villa Road and Convair Drive, a private road that runs through the Convair parking lot. No signs were posted at the time of the demonstration indicating that the bus stop was not open to the general public.

Under such circumstances, the court majority ruled, allowing property owners to press trespass charges would let them “arbitrarily choose which persons could be excluded from land otherwise open to the public.”

Justice Edward Butler dissented, saying the court ruling denied property owners the right to impose reasonable limits on the use of their property.

“Thus, to permit persons to cross my property to get to the seashore gives them the right to pick my peonies, tiptoe through my tulips or sup on my squash,” he said.

Without the power to limit visitors’ conduct, owners are likely to close their property to all users, Butler said. Otherwise, he said, “the camel with nose in the tent may now cavort in the caravansary.”

Dan Bacal, an El Cajon attorney who represented Lundgren on behalf of the American Civil Liberties Union, said the ruling would help further the cases of others who want to demonstrate on nominally private property.

“It gives us a little foothold,” he said. “It’s going to give some fuel to other arguments that other areas ought to apply, because there’s a lot of private property that’s open to the public . . . until all of a sudden you go to put up your picket sign.”

Deputy City Atty. Allisyn Thomas, who argued in favor of upholding Lundgren’s conviction, agreed that the majority decision broadens protesters’ rights. But she said the expansion appears to be “fairly narrow”--perhaps allowing a protest on a privately owned front lawn typically open to public use.

“It goes beyond shopping centers and areas clearly open to the public and extends it to areas that are open to public access, as opposed to public invitation,” she said.