Tet Dawns Peacefully

Protesters and residents of Little Saigon on Tuesday quietly marked the beginning of Tet, the Vietnamese New Year, but 1st Amendment questions surrounding a video store owner’s efforts to hoist the Communist Vietnamese flag continued to multiply.

In ordering Truong Van Tran on Monday to stay away from his store under threat of arrest, Westminster police may have crossed the line in trying to protect public safety at the cost of violating Tran’s constitutional rights, some legal scholars say.

In the meantime, Tran says he plans to fight his scheduled eviction Saturday from the shopping center, contending that his landlord is retaliating against him for exercising his free-speech rights.

Last Wednesday, a judge upheld Tran’s right to display political items over the objections of his landlord, shopping complex owner Terra-Buchard Inc. But the landlord stands on much firmer legal ground in throwing out a tenant who has no lease, experts say.

In the meantime, hundreds of protesters maintained their vigil Tuesday outside Tran’s Bolsa Avenue store, Hi Tek TV and VCR. Displaying signs declaring “Ho Chi Minh Mass Murderer” and chanting “Down with Communists!” they marched around the shopping center.

The protest remained peaceful, however, and more low-key than Monday. Far fewer protesters were outside the store and police--who turned out 200-strong in riot gear Monday--were not regularly in evidence.

Worried that Tran would show up Monday to put up the flag and photo of Ho Chi Minh that sparked the controversy, Westminster police had warned him to keep away from his store, saying they could not guarantee his safety amid the crowd of more than 500 protesters. When Tran said he wanted to go anyway, police threatened to put him under arrest.

“It was absolutely too dangerous to allow it to happen,” said Westminster Police Chief James Cook. “There was a large group of demonstrators screaming death threats at him. There was a risk of life and property. We have the responsibility to protect both Mr. Tran and the crowd.”

But Tuesday, the store owner angrily complained that police should be threatening to arrest the protesters who violated the law by attacking him, rather than threatening to arrest him for asserting his rights.

“I’m very upset with the police,” Tran said. “I know the law. The judge says I have a right to hang the picture.”

Some legal experts sided with the video store owner. Law enforcement is, in effect, unfairly penalizing Tran for the protesters’ actions, they said.

“If people can’t control themselves, that’s the job of the government,” said law professor Christopher Stone of the University of Southern California. “The police are supposed to protect him, not arrest him.”

And only a judge can determine that a situation poses a clear and present danger that justifies restraining a person from exercising his or her rights, said professor Robert Pugsley of Southwestern University School of Law.

“For the police to threaten arrest, I think it’s totally out of bounds,” he said. “They can’t just make an ad hoc determination that there’s a clear-and-present-danger situation. That has to be a judicial decision.”

However, even Tran’s attorney concedes that police have a point.

“It was a judgment call,” said lawyer Ron Talmo. “We’ll give this one to the police, but it can’t happen again. His right is clear, and they have to provide him access to the store next time.”

Tran may be on shakier ground in his second pending 1st Amendment dispute, over eviction, said legal experts.

Under California law, a tenant on a month-to-month tenancy can be evicted with a 30-day notice. Generally, landlords are not required to provide a reason if there is no lease, said Westminster attorney Van Thai Tran.

“This issue is very straightforward,” said Tran. “Did the landlord give proper notice for Mr. Tran to move out? Yes, he did. He can argue retaliation, but the bottom line is, he has no lease agreement.”

If the store owner decides to stay put past Saturday, when his 30-day notice takes effect, the landlord will continue eviction proceedings by filing an unlawful detainer action against Tran on Monday, said attorney Jonathan Slipp, who represents Terra-Buchard Inc. The store owner would have five days to file his response. If he doesn’t, he loses by default.

“This is not about 1st Amendment issues anymore; this is about a landlord-tenant dispute,” said Slipp. “We are absolutely on much firmer ground.”

Tran has breached his month-to-month tenancy agreement in several ways, said Slipp: He doesn’t have general liability insurance, as required by his agreement with the landlord; he owes more than $21,000 in back rent since 1997; and he created a public nuisance on his property that interfered with other businesses in the strip mall.

“No one’s trying to stifle his freedom of speech, but this is about not being a good tenant,” Slipp said. “This guy has not done what he was supposed to.”

Times correspondent Harrison Sheppard contributed to this story.