People v. Uptgraft (1970)

Annotate this Case
[Crim. A. No. 8603. Appellate Department, Superior Court, Los Angeles. February 13, 1970.]

THE PEOPLE, Plaintiff and Respondent, v. GALENO UPTGRAFT et al., Defendants and Appellants.

[And 8 other cases.]*

* People v. Gandy (Crim. A. No. 8604); People v. Levine (Crim. A. No. 8605); People v. McCartney (Crim. A. No. 8606); People v. Emory (Crim. A. No. 8607); People v. Wright (Crim. A. No. 8608); People v. Gabehart (Crim. A. No. 8609); People v. Ginsburg (Crim. A. No. 8610); People v. Robinson (Crim. A. No. 8611).

(Opinion by Smith, J., with Vasey, Acting P. J., concurring. Separate dissenting opinion by Wong, J.)

COUNSEL

Slaff, Mosk & Rudman, Edwin Mosk and Leon Goldin for Defendants and Appellants.

Roger Arnebergh, City Attorney, and Michael T. Sauer, Deputy City Attorney, for Plaintiff and Respondent.

OPINION

SMITH, J.

Defendants were convicted of violating section 409, Penal Code. This section makes it a crime to remain present at the place of an unlawful assembly after being lawfully warned to disperse. The fact of remaining is not disputed. The fact that many warnings were given and heard is not disputed. The legality of such warnings is disputed. Defendants also deny that there was any unlawful assembly.

It is undisputed that on the morning of the arrests the assembled students were not violent and that all of them were waiting peacefully in the "forum" area (set aside for speeches) at the time of their arrests.

There were nevertheless two bases upon which it was contended by the People that the assembly was unlawful: 1) Dr. Oviatt, acting president of San Fernando Valley State College, made a determination as a school administrator that the campus would be closed to all public gatherings. Such determination was made between 6 a.m. and 7:30 a.m., before any [8 Cal. App. 3d Supp. 5] assembly had occurred. Such determination was based on violence of the preceding two months and particularly the preceding two days. Students were first warned that such gatherings were banned; then warned that they would be arrested if they remained; and then arrested. 2) Captain Lembke of the police department, assigned to this school, made a determination that morning at 9:30 and after the assembly was in progress, based upon what he saw that morning together with events of the prior two days and to a lesser extent the events of the prior two months, that the assembly constituted a danger to the safety of persons and property and was an unlawful assembly. Warnings were given and arrests followed.

Evidence supporting the first basis (but not the second) was presented in the trial of Lorretta Barrish and three other defendants. They were all acquitted on the same day and by the same judge who convicted the defendants now before us.

Two separate trials followed the Barrish trial. They were the Uptgraft trial and the Gandy trial. In both of the latter trials, Captain Lembke testified and the second basis was presented, in addition to the first basis. All defendants before us were tried either on the Uptgraft record or the Gandy record or, by stipulation, on the Uptgraft record plus the Barrish record or on all three records. Thus, evidence supporting both theories is present in all cases before us. However, since the four defendants in the Barrish case were acquitted at the same time that all of the present defendants were convicted, it is apparent that the convictions were not based upon the Oviatt determination and we will base our decision solely on the determination of Captain Lembke. Since other cases may come before us later where Dr. Oviatt's determination alone was presented, it should be understood that we are not deciding that question one way or the other at this time.

There was no showing that anything was said or would be said at the forum on the day of the arrests which would constitute a clear and present danger, and hence the inference that an unlawful assembly existed cannot be justified on such basis. See Terminiello v. Chicago (1949) 337 U.S. 1 [93 L. Ed. 1131, 69 S. Ct. 894], and the first count in Cox v. Louisiana (1965) 379 U.S. 536 [13 L. Ed. 2d 471, 85 S. Ct. 453]. [1] There are very few limitations that may be placed upon what is said, i.e., limitations on pure speech. However, acts and conduct incidental to speech may be regulated. [2] The fact that people assert First Amendment rights does not place them above the law and immunize them from obeying state laws, so long as such state laws are enforced fairly and without discrimination. Cameron v. Johnson (1968) 390 U.S. 611 [20 L. Ed. 2d 182, 88 S. Ct. 1335] (picketing may be stopped where it interferes with entrances to public buildings); Adderley v. Florida (1966) 385 U.S. 39 [17 L.Ed.2d [8 Cal. App. 3d Supp. 6] 149, 87 S. Ct. 242] (demonstrators may not block vehicular traffic and the entrance to a jail); Cox v. Louisiana (1965) supra, 13 L. Ed. 2d 471 and companion case at page 487 (upholding the constitutionality of two statutes prohibiting obstruction to public passageways and regulating picketing near public buildings; although the convictions were reversed because of arbitrary, selective and improper enforcement); Edwards v. South Carolina (1963) 372 U.S. 229 [9 L. Ed. 2d 697, 83 S. Ct. 680] (although convictions were reversed because there was no breach of the peace and that is all that defendants were charged with, the court stated that it would have been different if there had been obstruction of pedestrian or vehicular traffic); Milk Wagon Drivers Union v. Meadowmoor Dairies (1941) 312 U.S. 287 [85 L. Ed. 836, 61 S. Ct. 552, 132 A.L.R. 1200] (past violence justifies enjoining future picketing); Evers v. Birdsong (S.D.Miss. 1968) 287 F. Supp. 900 (demonstrating may be enjoined where it causes destruction of property and interference with education). Thus, in the present case we must determine whether the trial judge was justified in holding that the assembly had convened that morning, not just to talk and not just to provoke acts but to act, to act in violation of the law.

The intent of people is usually determined from the surrounding circumstances. (See § 21 of the Pen. Code.)

For two days, a definite pattern had been developing: First, students met in the forum. Second, they were there harangued by other students, teachers, and outsiders until they were worked up to the point of action. Third, they would march to the administration building and cause violence. This two-day pattern must be viewed in the light of a two-month pattern of violence on the campus, which we shall now review.

On November 4, 1968, a group of students occupied the fifth floor of the administration building. (B p. 150, G p. 198.) fn. 1 They forcibly held as hostages for four hours a number of faculty members, administrative staff members and clerical staff members. (B p. 150, G p. 195.) They intimidated the president of the college and forced him to sign a paper which they dictated to him. (G pp. 195-198.)

On December 8 the president's office was set afire. (B p. 150, G p. 199.)

During December, there were several bomb threats. (B p. 150, U p. 264.) There was at least one other fire and there were fights in the college recreational halls where students were injured. (B pp. 150-151.)

On December 20 (the last day of school), there were fights in the forum [8 Cal. App. 3d Supp. 7] (B p. 151, G p. 200, U p. 151), one student being injured enough to go to the hospital.

The Christmas holidays caused a gap between those events and the events immediately preceding the arrests.

On January 7, about 200 students met in the forum. Speakers said that if demands were not met, the school would be closed down and burned down. (B p. 92.) The 200 students marched from the forum to the administration building, where prior violence had occurred. They talked to and threatened Acting President Oviatt. (B pp. 93-94.) When a student tried to protect Dr. Oviatt, they hit the student, knocked his glasses off and knocked him to the ground. (B p. 95.) Other fights broke out between students. (B pp. 95-96.) The students left when the police arrived. The police heard students say they would be back tomorrow and if they did not get what they wanted, they would burn the place down. (B p. 96.) One officer heard 20 to 25 students make threats. (B p. 117.)

On January 8, the students again met at the forum, went to the administration building, and returned to the forum. (B pp. 163-165.) At the forum, speeches were made urging a confrontation and that if their demands were not met, there should be violence. (U p. 31.) Also, that if they did not get what they wanted, they should close the school and burn it down. (B pp. 97-98.) They again marched to the administration building. Students were overhead saying they would enter the administration building and occupy the fifth floor again. (B p. 229, U p. 32.) That is the floor where the November 4 violence occurred. Others told the girls to remove their earrings. The students were warned not to enter the building. Some did and were arrested. (U p. 32.) An urn and pieces of pottery were thrown through windows. (B p. 99.) A security guard was struck numerous times with both fists and feet. His glasses were deliberately broken. (B p. 230, U p. 33.) They attempted to take an officer's gun. (B p. 230, U p. 33.) After they were dispersed, three or four students said they were going to be "heavy" (i.e., armed) tomorrow. (B p. 100.) Students planned to make Molotov cocktails. (B p. 101, G pp. 103-104.) One said he was going to bring his .45 tomorrow, and a group discussed bringing their friends with weapons and fighting clothes. (U p. 36.) One officer heard as many as 25 to 30 threats regarding either being "heavy" or burning the school. (B p. 115.) Some students tried to remove iron bars from around the trees and others ran over the tops and hoods of parked cars, caving them in. (B p. 231.)

[3] On January 9, the morning of the arrests, there was no violence and no speeches which would constitute a clear and present danger. However, the pattern of the previous two days started to repeat. They started to assemble in the forum. Many who had made threats on the 8th were [8 Cal. App. 3d Supp. 8] present on the 9th. (B p. 109, U p. 37, G p. 65.) Several were wearing helmets or carrying helmets. (U p. 42, G p. 74.) Speakers advised girls to remove their earrings. (U p. 44.) One individual was seen removing a rock, wrapping it, and placing it in a trash can. (B p. 236, U p. 48, G p. 75.) Several were carrying walkie-talkies. They were not police officers although two were helmeted. (U p. 69.) A few students were carrying empty pop bottles. (B pp. 124-125.)

What had occurred thus far on January 9, taken alone, would not support an inference that the assemblage was unlawful. Even when you add what had previously occurred, it would not justify an inference that any speeches were about to be made which by themselves would constitute a clear and present danger. [4a] The arrests must be justified, if at all, upon the basis of whether, from all of the circumstances, reasonable men could draw an inference that history was about to repeat itself and that the ultimate objective of the assemblage was not merely to provoke violence, but to actually engage in violence.

In view of the pattern of the last two months and particularly the last two days (i.e., first going to the forum; second, speeches; third, violence), we cannot say as a matter of law that the trial judge erroneously drew that inference. We have no right to reweigh the evidence. Nor can we say as a matter of law that Captain Lembke erroneously drew the same inference. Thus his warning was lawful. If the police had been interested only in convictions and if they waited until the purpose of the assembly was manifested by acts instead of inferences, such timidity and delay might well have resulted in serious injury and property damage. The purpose of the legislation is to stop trouble before it occurs. On January 9, that purpose was realized. The escalating pattern of violence came to an abrupt stop. Just because the legislation was successful does not prove that it was not needed and not violated.

[5] We must also give full effect to the rule that where First Amendment rights are involved, the reviewing court should make an independent examination of the entire record. This does not mean that the appellate court usurps the function of the jury or other fact finder with respect to each and every issue of an offense. Such independent review relates to constitutional problems only. In a case such as this, the rule requires us to ascertain whether the state statute, even though valid and violated, is being used as a subterfuge to curtail constitutional rights. [4b] There is no doubt that the arrests here not only interfered with but completely stopped a scheduled meeting and series of speeches, and thus the constitutional problem is squarely presented. Compare Cox v. Louisiana (1965) 379 U.S. 536 [13 L. Ed. 2d 471, 85 S. Ct. 453], holding that although a state statute [8 Cal. App. 3d Supp. 9] prohibiting the obstruction of public passageways was valid and applicable, convictions thereunder for conducting a public meeting in such areas must be reversed because the state officials in enforcing the law did so on an arbitrary and selective basis. Also compare the second Cox case, 379 U.S. 559 [13 L. Ed. 2d 487, 85 S. Ct. 476] holding that although a state statute prohibiting picketing near a courthouse was valid, convictions thereunder must be reversed because of arbitrary and misleading administrative enforcement which was akin to entrapment. The facts here are entirely different. Instead of suppressing free speech, the school officials at public expense provided the forum as a free speech area. There was no showing that any speeches had ever been censored at any time. The record is overwhelmingly clear that in the present instance, school officials were not concerned with mere speeches. If that had been the sole history of events, there would have been no police and no arrests. The whole record shows overwhelmingly that both the school officials and the police were very seriously concerned with escalating violence. The whole record overwhelmingly shows that the stated basis for the arrests was the actual basis for the arrests and subsequent convictions and such bases were fully justified. There was no sham or subterfuge. This is an example of forthright law enforcement designed to anticipate and avoid violence.

Thus, the convictions must be affirmed unless other claimed legal errors require otherwise.

[6] Because in In re Bacon (1966) 240 Cal. App. 2d 34 [49 Cal. Rptr. 322] and in Coverstone v. Davies (1952) 38 Cal. 2d 315 [239 P.2d 876], the parties themselves were participating in an actual violation of the law which was presently occurring, appellants here argue that such present violation of the law is an essential ingredient of an unlawful assembly. However, section 407 of the Penal Code, in defining an unlawful assembly, speaks of persons assembled "to do" an unlawful act. It is not even made necessary by section 409 of the Penal Code that the defendants be participants in such unlawful assemblage if they are "present at the place" of such assemblage.

[7] Because the defendants in the Barrish case were acquitted (as were a number of other defendants tried in other courts by other judges), appellants argue that the convictions 1) violate equal protection of the laws, and 2) are barred by collateral estoppel. At oral argument, it was recognized that these two labels do not exactly fit the problem and two more suggestions were made: 3) lack of due process, and 4) lack of fair play. The reason for the differences in results in these cases is much less profound. We have already noted that the Barrish trial lacked Captain Lembke's testimony. The trial judge simply held that without that testimony, there was a [8 Cal. App. 3d Supp. 10] reasonable doubt regarding the guilt of the defendants. It was so argued by counsel in the Barrish case. Even present counsel made several additional arguments in their attack upon the Oviatt order. The trial judge may (or may not) have been wrong in acquitting them, but there was no arbitrary refusal to equally enforce the law. The collateral estoppel argument is based on Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal. 2d 601 [25 Cal. Rptr. 559, 375 P.2d 439], which involved a much different problem and is inapplicable to this case.

[8] Appellants rely upon Honore v. Superior Court (1969) 70 Cal. 2d 162 [74 Cal. Rptr. 233, 449 P.2d 169], which is the latest of a long line of cases holding that when the People withhold the name of an informant who might have material evidence which might exonerate the defendant, the trial court must order the People to either 1) disclose, or 2) dismiss. There are no other alternatives. It is necessary, however, that the defendant make a showing that the informer might have substantial material evidence. This was not done. All we know from the record is that they were present at a meeting held the night before the arrests. What they saw or heard or might have seen or heard is not disclosed either by the pretrial record or by the trial record. While the cases no longer require the defendant to show what the informer would actually testify to, they still require a showing as to what he might testify to and a showing that such matter would be of substantial value and might exonerate the defendant. None of this was shown. Defendants simply made an ordinary pretrial motion, seeking a protective order, and they obtained what they sought. Counsel at the time of trial recognized that this was the situation and that the pretrial ruling was proper. (U p. 127.)

[9] Appellants also contend that it was error to deny a new trial for failure to disclose evidence. The evidence referred to was not known to the prosecution until the People's case was completed. It was immediately disclosed and the suggestion was made that the case might be reopened. Counsel for defendants declined. They are not entitled now to a second bite. Appeals from orders imposing fines and granting probation affirmed. Appeals from non-appealable order denying motion for new trial dismissed.

Vasey, Acting P. J., concurred.

WONG, J.

I dissent.

Appellants, students of San Fernando Valley State College, were arrested on January 9, 1969, while attending an assembly in the Open Forum, an area set aside by the college for free speech and assemblies. The Open Forum was located in an area which permits such activities without interruption to the academic work of the college. [8 Cal. App. 3d Supp. 11]

Appellants were convicted of violation of Penal Code section 409, which reads: "Every person remaining present at the place of any riot, rout, or unlawful assembly, after the same has been lawfully warned to disperse ... is guilty of a misdemeanor." In the present case, in order to sustain the convictions, the evidence must show that at the time the warning to disperse was given, there in fact existed an unlawful assembly. It is not enough that an administrative officer declared that the assembly was unlawful, or that he reasonably believed that the assembly would become or was unlawful. The lawfulness or unlawfulness of the assembly is a question of fact for the trial judge or jury.

On appeal in cases such as the present one where First Amendment rights are concerned, the duty of the appellate court is to make "an independent examination of the whole record." fn. 1

In Cox v. Louisiana (1965) 379 U.S. 536, 545 [13 L. Ed. 2d 471, 478, 85 S. Ct. 453], the United States Supreme Court stated: "Because a claim of constitutionally protected right is involved, it 'remains our duty in a case such as this to make an independent examination of the whole record.' Edwards v. South Carolina, 372 U.S. 229, 235, 9 L. Ed. 2d 697, 701, 83 S. Ct. 680. ..." fn. 2

Similarly, our California Supreme Court has stated: "In addition, the reviewing court in free speech cases must make an independent examination of the whole record. (Zeitlin v. Arneberg, 59 Cal. 2d 901, 909 [31 Cal. Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707].)" (Los Angeles Teachers Union v. Los Angeles City Board of Education (1969) 71 Cal. 2d 551, 557 [78 Cal. Rptr. 723, 455 P.2d 827].) fn. 3

In Crosswhite v. Municipal Court (1968) 260 Cal. App. 2d 428, 431 [67 Cal. Rptr. 216], the Court of Appeal stated: "On review of a contempt judgment it is settled that the sole question before the reviewing court is one of jurisdiction of the trial court to render the judgment under review [citation]. Ordinarily in such a case a review of the evidence is limited to [8 Cal. App. 3d Supp. 12] determining whether there was any substantial evidence before the trial court to sustain its jurisdiction [citation]. However, where, as here, the case involves First Amendment constitutional issues, a reviewing court will make its own independent examination of the whole record. (Zeitlin v. Arnebergh, 59 Cal. 2d 901, 909 [31 Cal. Rptr. 800, 383 P.2d 152, 10 A.L.R.3d 707].)" fn. 4

In People v. Gould (1966) Cr. A. 6731, this court followed the mandate of Cox v. Louisiana, supra, and made an independent examination of the whole record in a picketing case. I believe we should do so in this case also.

The right of peaceable assembly is guaranteed by the First Amendment of the United States Constitution and by article I, section 10 of the California Constitution.

The United States Supreme Court in De Jonge v. Oregon (1937) 299 U.S. 353 [81 L. Ed. 278, 57 S. Ct. 255] stated that the rights of free speech and free assembly were cognate and equally fundamental; hence: "[P]eaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score." (299 U.S. 353, 365 [81 L. Ed. 278, 284].)

The constitutional mandate to protect free speech and free assembly is not left at the campus gate. "[C]olleges, like all other institutions, are subject to the Constitution." Hammond v. South Carolina State College (D.S.C. 1967) 272 F. Supp. 947, 949 (cited with approval in Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503 [21 L. Ed. 2d 731, 89 S.Ct. 733]). Restraints which are placed upon campus activities that are within the ambit of First Amendment freedoms must comport with the dictates of the Constitution. (Hammond v. South Carolina State College, supra.)

In First Amendment situations, there is a right to engage in the protected activity unless it presents a clear and present danger to public safety. (Crosswhite v. Municipal Court (1968) 260 Cal. App. 2d 428, 431 [67 Cal. Rptr. 216].) "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished." (Bridges v. California (1941) 314 U.S. 252, 263 [86 L. Ed. 192, 203, 62 S. Ct. 190, 159 A.L.R. 1346].) "[W]hatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, [8 Cal. App. 3d Supp. 13] must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. ... [The First Amendment rights] though not identical, are inseparable." (Thomas v. Collins (1945) 323 U.S. 516, 530 [89 L. Ed. 430, 440, 65 S. Ct. 315].)

In the present case, there obviously was no riot, nor rout, and the only issue is whether there was in fact an "unlawful assembly." Under Penal Code section 407, an "unlawful assembly" can occur whenever two or more persons assemble together,

(1) to do an unlawful act, and separate without doing or advancing toward it (See Coverstone v. Davies (1952) 38 Cal. 2d 315, 320 [239 P.2d 876], where a group assembled to view a "hot-rod" race; and In re Bacon (1966) 240 Cal. App. 2d 34 [49 Cal. Rptr. 322], where a group was found guilty of trespassing in violation of Penal Code, section 602, subdivision (o); or

(2) to do a lawful act in a violent, boisterous, or tumultuous manner (See People v. Gould (Barkley, appellant) (1969) Crim. A. Nos. 7831, 7832, where a group of anti-war demonstrators were peacefully picketing at the Century Plaza Hotel during a visit by the President of the United States. We reversed the conviction on the ground of insufficient evidence to support a finding of "violent, boisterous and tumultuous" conduct.)

In the majority opinion, the issue is framed as follows: "There was no showing that anything was said or would be said at the forum on the day of the arrests which would constitute a clear and present danger, and hence the inference that an unlawful assembly existed cannot be justified on such basis. ... Thus, in the present case we must determine whether the trial judge was justified in holding that the assembly had convened that morning, not just to talk and not just to provoke acts but to act, to act in violation of the law." (Ante, pp. Supp. 5, 6.)

Received into evidence were five reels of motion picture films in color (viewing time: 1 hour, 39 minutes), fn. 5 four of which were taken by police photographers and one by cameramen from KABC-TV, Channel 7. We have viewed the films. No one claims that the films do not accurately [8 Cal. App. 3d Supp. 14] portray the events of January 7, 8, and 9 at San Fernando Valley State College. Three reels which were taken on January 9 minutely depict the gathering of the students in the Open Forum, the giving of speeches, the giving of the order to disperse, and the arrests. The students were cooperative and submitted to arrest peacefully and without incident. Some of the women students were crying as they were being arrested, or waiting to be arrested. There were many tear-streaked faces and determined looks, but no resistance. After viewing the films, one can only conclude that the students were submitting to arrest because they believed that they had a right to assemble peacefully in the Open Forum area.

Two reels recorded the events of January 7 and 8. The films show an assembly of students in the Open Forum, speeches, and a march towards the administration building which to me appear to be orderly and peaceful. Upon the arrival of the marchers, two or three police officers opened the door, and some of the marchers entered the building. The police officers then arrested some of the marchers in the building and others outside of the building after a foot-race. At no time did it appear that the police did not have complete control of the situation. The confrontation between the students and the police was more symbolic than violent. At least the pictures did not portray any acts on the part of the students which would justify such a drastic measure as prohibiting future peaceful assemblies.

In the majority opinion, it is recognized that what was said and done by the students assembled in the Open Forum on January 9 would not support an inference that the assemblage was unlawful, nor that "any speeches were about to be made which by themselves would constitute a clear and present danger." (Ante, p. Supp. 8.) If nothing that was said and done by the students was unlawful, what made the assembly unlawful?

The majority opinion seeks to justify the administrative decision of Dr. Oviatt and Captain Lembke to disperse an assembly which everyone agrees was peaceful and to order the arrest of those who refused to obey upon the theory that "history was about to repeat itself." fn. 6 (Ante, p. Supp. 8.)

I disagree with this theory for three reasons:

(1) I believe that student assemblies, even on the same campus, can differ from day to day and that each student assembly is entitled to an individual determination of lawfulness. [8 Cal. App. 3d Supp. 15]

(2) The record in this very case demonstrates that the assembly of January 9 differed greatly from the events of January 7 and 8.

(3) This theory completely ignores the generally accepted rule that "any attempt to restrict freedom of assembly must be justified ... by clear and present danger, .... only the gravest abuses, endangering paramount interest, give occasion for permissible limitation of the right of free assembly." (16 C.J.S. Constitutional Law, § 214, p. 1167.)

In analyzing the assemblies of January 7 and 8, my colleagues have divided what occurred into three stages as follows: "For two days a definite pattern had been developing: First, students met in the forum. Second, they were there harangued by other students, teachers, and outsiders until they were worked up to the point of action. Third, they would march to the administration building and cause violence." (Ante, p. Supp. 6.)

In contrast with these assemblies, the January 9 assembly had not even passed the first stage when the students were arrested. No unlawful acts had been committed by anyone at the assembly, and as my colleagues state: "What had occurred thus far on January 9, taken alone, would not support an inference that the assemblage was unlawful. Even when you add what had previously occurred, it would not justify an inference that any speeches were about to be made which by themselves would constitute a clear and present danger. The arrests must be justified, if at all, upon the basis of whether, from all of the circumstances, reasonable men could draw an inference that history was about to repeat itself and that the ultimate objective of the assemblage was not merely to provoke violence, but to actually engage in violence." (Ante, p. Supp. 8.)

The inference "that history was about to repeat itself and that the ultimate objective of the assemblage was not merely to provoke violence but to actually engage in violence" was not based upon any facts, but upon speculation, surmise and conjecture.

I do not think that a college administrator, a police officer, or even a legislative body can ignore the "clear and present danger" test and prevent people (including students) from peacefully assembling, at a place where they have a right to be, merely because the person or persons who are charged with the responsibility for making the administrative or legislative decision suspects or fears that the assembly may at some future time become unlawful.

In Sellers v. Johnson (8th Cir. 1947) 163 F.2d 877, 881, the court stated: "Certainly the fundamental rights to assemble, to speak, and to worship cannot be abridged merely because persons threaten to stage a riot or [8 Cal. App. 3d Supp. 16] because peace officers believe or are afraid that breaches of the peace will occur if the rights are exercised."

In Whitney v. California fn. 7 (1927) 274 U.S. 357, 377 [71 L. Ed. 1095, 1106, 47 S. Ct. 632], Mr. Justice Brandeis, in his concurring opinion -- in which Mr. Justice Holmes joined -- said: "Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and asembly is a measure so stringent that it would be i appropriate as the means for averting a relatively trivial harm to society."

Mr. Justice Brandeis also said (274 U.S. 357 at p. 378 [71 L. Ed. 1095 at p. 1107]): "The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There must be the probability of serious injury to the state. Among freemen, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech and assembly."

When viewed in proper perspective, the refusal of the students to leave the peaceful assembly fn. 8 on January 9 was nothing more than a "sit-in" demonstration fn. 9 in the Open Forum and was about as innocuous as the wearing of black arm-bands by the students in Tinker v. Des Moines Independent Community School Dist. (1969) 393 U.S. 503 [21 L. Ed. 2d 731, 89 S. Ct. 733]. What possible substantive harm could flow from such innocuous activity? If at some future time the peaceful sit-in should present a clear and present dager of violence or unlawfulness, the administrative officials could terminate the assembly.

In the present case, the college administration and the police department were fully able to handle any foreseeable emergency. The motion picture films indicate that there were more than enough police officers present to handle the situation on January 7, 8, and 9. The ability of the police to control the crowd is a factor in determining whether a clear and present [8 Cal. App. 3d Supp. 17] danger exists. (Cox v. Louisiana (1965) 379 U.S. 536, 549 [13 L. Ed. 2d 471, 481, 85 S. Ct. 453].)

In dealing with First Amendment freedoms, college administrators, law enforcement officials, and judges must be able to differentiate between peaceful demonstrations and violent activities, between peaceful assemblies and unlawful assemblies, and must be ready, willing, and able to apply the clear and present danger test and to strike an impartial balance between conflicting interests.

"The rights of students and teachers to express their views on school policies and governmental actions relating to schools, and the power of school authorities to regulate political activities of students and faculty, are of peculiar concern to our state and nation today. Education is in a state of ferment, if not turmoil. When controversies arising from or contributing to this turbulence are brought before the courts, it is imperative that the courts carefully differentiate in treatment those who are violent and heedless of the right of others as they assert their cause and those whose concerns are no less burning but who seek to express themselves through peaceful, orderly means. In order to discourage persons from engaging in the former type of activity, the courts must take pains to assure that the channels of peaceful communication remain open and that peaceful activity is fully protected." (Los Angeles Teachers Union v. Los Angeles City Board of Education (1969) 71 Cal. 2d 551, 565 [78 Cal. Rptr. 723, 455 P.2d 827].)

The above words of the Supreme Court (in a unanimous opinion) are fully applicable to appellants and the other students who were arrested in the Open Forum while attending a peaceable assembly on January 9, 1969. The fact that other students on November 4, 1968, forcibly detained as hostages a number of faculty members, the fact that the president's office was set afire on December 8, 1968, the fact that there were bomb threats in December, and the fact that there were fights in the Open Forum on December 20, 1968, in no way changed the peaceable nature of the assembly of January 9, 1969.

Even the events of January 9 did not justify the banning of the peaceful assembly. If it was unlawful for certain individuals to wear helmets, carry walkie-talkies, remove earrings, or carry empty pop bottles, the guilty parties should have been arrested. If it was unlawful for an unidentified individual to remove a rock, wrap it, and place it in a trash can, he too should have been arrested. More than enough police officers were present to maintain order. There was no justification for impairing the right of peaceable assembly. [8 Cal. App. 3d Supp. 18]

The five reels of motion picture films taken by police photographers and television cameramen tell the whole story. The films of the events of January 7 and 8 clearly show that the police had the situation well under control at all times and that the conduct of the students did not justify the banning of future peaceable assemblies. The films of January 9 clearly show that the assembly was peaceful and orderly, and that there was an absence of clear and present danger of any violence or other unlawful acts.

I would reverse the decision of the trial court.

FN 1. B represents Barrish; G represents Gandy; U represents Uptgraft reporter's transcripts.

FN 1. While the majority opinion speaks in terms of "an independent examination of the entire record," it also states: "In view of the pattern of the last two months and particularly the last two days (i.e., first going to the forum; second, speeches; third, violence), we cannot say as a matter of law that the trial judge erroneously drew that inference. We have no right to reweigh the evidence. Nor can we say as a matter of law that Captain Lembke erroneously drew the same inference. Thus his warning was lawful." (Ante, p. Supp. 8.)

FN 2. In the Cox case, 1,500 to 2,000 students assembled at the site of the old state capitol building, two and one-half blocks from the courthouse, marched to the courthouse, and assembled across the street from the courthouse. In the Edwards case, the petitioners conducted a demonstration on the South Carolina State House grounds.

FN 3. The Los Angeles Teachers Union case concerned First Amendment rights of teachers; Zeitlin was an obscenity case.

FN 4. Crosswhite involved free speech and free press as opposed to the court's power to punish as contempt the placing of a newspaper advertisement relating to a pending criminal case to be tried by jury.

FN 5. Three reels including the KABC-TV news films (defendant's A in Uptgraft), P 5653 reel 2 (by reference to defendant's D in People v. Hairston (Crim A. No. 8952) post, p. Supp. 19 [87 Cal.Rptr. 470]), and defendant's C in Hairston cover the January 9 events and run 46 minutes. The remaining 53 minutes of film, P 5653 -- reel 1 (defendant's F in Hairston) and defendant's H in Hairston cover the events of January 7 and 8.

FN 6. As of 2 a.m. on the morning of January 9, even Dr. Oviatt did not believe that "history was about to repeat itself" and that all future assemblies should be banned. He himself had accepted an invitation the previous afternoon tendered by the President of the Associated Students to address a meeting at 12 o'clock on January 9 in the Open Forum. (People v. Barrish, reporter's transcript pp. 178-179.)

FN 7. While the holding in Whitney has been discredited (Brandenburg v. Ohio (1969) 395 U.S. 444, 449 [23 L. Ed. 2d 430, 434, 89 S.Ct. 1827]), the language quoted here remains viable.

FN 8. "It is undisputed that on the morning of the arrests, the assembled students were not violent and that all of them were waiting peacefully in the 'forum' area (set aside for speeches) at the time of their arrests." (Ante, p. Supp. 4.)

FN 9. "Yes, there were speakers all morning long that were urging the group, urging students to take seats in the Forum Area -- chairs had been placed there -- and to lock arms. The advice to the girls was to remove earrings. They told the individuals not to resist when they were arrested. They were given phone numbers of bail bondsmen to be called. ..." (Uptgraft Tr. p. 44, 11, or, 12-18; testimony of Officer William T. Whisenhunt, L.A.P.D.)