City’s case against activist is dismissed

Costa Mesa’s high-profile prosecution of an immigrant advocate ejected by police from a 2006 City Council meeting was dismissed by an Orange County judge Monday.

The ruling was a significant defeat for the city, which had thrust itself into the national debate over illegal immigration when it shut down a dayworker center and lobbied successfully to become one of the nation’s first cities to enforce federal immigration laws.

Orange County Superior Court Judge Kelly MacEachern threw out the case on a procedural issue after learning that Costa Mesa’s attorney, Dan Peelman, had never been sworn in as city prosecutor by the city clerk -- as required by state law. The case, she said, amounted to “a denial of due process.”

Failure to accept the oath to represent the people “is not a harmless mistake,” MacEachern said. “This is a constitutional issue.”

Benito Acosta, 26, an Orange Coast College student, also known as Coyotl Tezcalipoca, was arrested on suspicion of disturbing an assembly, interfering with a council meeting and resisting a police officer at a January 2006 Costa Mesa City Council meeting. Acosta spoke at the meeting, opposing a proposal promoted by Mayor Allan Mansoor to use city police to enforce immigration law.

When the Orange County district attorney’s office declined to prosecute, the city’s prosecutor took up the case, charging Acosta with two misdemeanors for allegedly violating municipal code sections that uphold certain standards of behavior at council meetings.

Susan Schroeder, spokeswoman for the district attorney, said most municipal criminal cases were handled by her office but that cities sometimes chose to pursue them on their own.

Peelman, who has worked as a city prosecutor in several cities over 15 years, said he had never been sworn in at any city hall. Peelman said that while in the judge’s chambers Friday, MacEachern asked “out of the blue” whether he had been sworn in.

On Monday, he was sworn in by the Costa Mesa city clerk’s office, but the action did not sway the judge. Peelman works for Jones and Mayer, a Fullerton law firm, which charges the city $165 an hour for its services. Just how much the Acosta case has cost was not known Monday.

The city filed the criminal charges after Acosta filed a federal lawsuit against the city of Costa Mesa in March 2006. The suit alleges the mayor and police chief violated Acosta’s 1st Amendment rights when he was ordered to stop speaking before the council and removed by police.

Acosta’s lawsuit also alleges that city police beat him.

Acosta’s attorney, Belinda Escobosa Helzer of the American Civil Liberties Union, said city officials pursued criminal prosecution after the district attorney chose not to because “the motivation was not to seek justice but to justify the police actions in throwing [Acosta] out and beating him up.”

Video footage of the meeting shows that Acosta criticized three council members who had approved the use of police to check the immigration status of felony suspects.

He accused them of trying to get rid of the city’s Latino population: “We know you want to change the demographics of Costa Mesa. We know your plot. . . . We will fight this to the end. If anyone agrees with me, stand up.”

According to Acosta’s lawsuit, Mansoor allowed Jim Gilchrist, co-founder of the Minuteman Project, a citizens border patrol campaign, to speak for more than the allotted three minutes and allowed people in the audience to stand in support of Gilchrist’s comments.

But Mansoor cut Acosta off before the three minutes that any speaker is allotted at council meetings and called a recess at 6:58 p.m. The council returned at 7:35 p.m. During the recess, Acosta was arrested.

His federal lawsuit is expected to be heard in April. Criminal charges cannot be filed again unless an appellate court overturns the dismissal, Peelman said.

Mansoor declined to comment Monday.

Councilman Eric Bever said, “I think we have to follow the legal process, and that’s what the judge’s decision is and we have to accept it.”

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jennifer.delson@latimes.com