(Santa Clara County Super. Ct. Nos. 108CH001749, 108CH001753-108CH001763, 109CH002206, 109CH002207) Trial Judge: Hon. Sharon Chatman.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Appellant William Garbett seeks review of multiple injunctions granted to the City of San Jose (City) pursuant to Code of Civil Procedure section 527.8.*fn1 Appellant contends that the orders, which restricted his conduct toward the mayor and City Council, violated his constitutional rights to free speech, was not supported by sufficient evidence that he had made a credible threat, and was overbroad. We find no error and therefore will affirm the orders.
Appellant describes himself as a "civic-minded gentleman with a penchant for following city government." His civic-mindedness brought him to City Hall in San Jose numerous times over many years. He was well known there; he attended City Council meetings almost every week, election meetings, and "rules in open government committee" meetings. At City Hall meetings he regularly spoke during the "public comment" period, "always with reference to something negative impacting him or the City or that he's just not in agreement with."
1. Encounters with Pimentel
Nora Pimentel, a deputy city clerk, was familiar with appellant, as he not only had attended meetings at City Hall, but had come to the City Clerk's office with questions or requests for public records. Pimentel found appellant to be angry and resentful toward the City. At meetings he tended to clench his jaw, become very stiff, and speak in a "somewhat condescending way."
On February 11, 2008, Pimentel was "shadowing" the City Clerk as part of her training in the election process. Appellant came in to obtain nomination papers so that he could run for a seat on the City Council. He was angry that in the past he had encountered obstacles to his attempts to run for this position, but the City Clerk promised to help him.
Appellant returned on March 5, 2008 and asked to speak to Pimentel. Pimentel took appellant into a conference room, where he gave her his nomination paper. Pimentel noted that it had only one signature on it rather than the required 50-person minimum, which disqualified appellant from candidacy. Appellant explained that he did not want to "make a big deal" about it; this was "his way of bowing out gracefully." Pimentel expressed her appreciation for his restraint, thanked him for his interest in running for office, and wished him better luck next time.
Appellant then began telling Pimentel that the police were "in and out of his home," had "ransacked" it, and had landed a helicopter on his roof; that the director of Environmental Services had rummaged through his garbage on occasion; and that the City had caused his neighbor's house to burn down. While talking about these perceived events, appellant appeared irritated; he maintained an erect posture and a clenched jaw and kept his hands together. Appellant believed that the Environmental Services director and everybody connected with the City were "just against him and bullying him into not running for the [District 10] seat."
On May 28, 2008, appellant appeared at the front desk of the City Clerk's office and asked if his signature had qualified. Pimentel reminded him about their conversation in March, in which they had discussed the disqualification caused by the one signature and appellant had acknowledged his withdrawal. After a few times, Pimentel's explanation seemed to convince appellant and he did not persist with this topic. Then, however, he went on to complain that in the 40 years he had lived in San Jose the City had been against him. He stated that he was given only one minute to speak at City Council meetings. Pimentel corrected appellant, reminding him that he was always allowed two minutes, the time given to all those who wanted to speak during the public comment period of each meeting.
Pimentel suggested to appellant that if he had additional issues and concerns he could put them in writing and submit them through the public record. Appellant "got a little upset" and said that "[n]othing ever makes it to the public record" because it "gets blown up before it gets there." Pimentel again corrected appellant, insisting that every piece of correspondence addressed to the mayor, council, clerk, or city manager was entered in the public record.
At this point appellant was "getting a little agitated" with Pimentel. He was "very stiff, very rigid," and he raised his voice while speaking in an "arrogant, condescending way." He was "clearly upset." Three of Pimentel's co-workers came over to ask if everything was all right; one of them repeatedly reminded Pimentel that she had a meeting to attend. At one point appellant said, "What does somebody have to do to change policy around here? Do you have to be - take matters into your own hands like the Black man in Missouri?" He had stopped yelling and his voice was monotone and cold, his jaw clenched.
When he made that statement Pimentel felt angry, and she felt threatened. She "locked eyes" with appellant and said, "Are you threatening us, Mr. Garbett?" Appellant "just got all rigid and . . . clenched his jaw and said, No." Pimentel told him that the conversation was over; she would talk with him another time, but she needed to get to a meeting.
Pimentel understood that appellant was referring to events on February 8, 2008 when an angry man in a Missouri city shot several people at City Hall, killing five of them. While describing this incident at trial, Pimentel was crying and shaking, holding her hands together.
Pimentel reported the event to the Assistant City Clerk and to Officer Daniel Anderson, who was filling in for the mayor's bodyguard. She was concerned that appellant might go to the "rules in open government" committee meeting, and she wanted the committee members to know what he had said. Pimentel feared for the future safety of herself, the mayor, the City Council, the staff, and the City Clerk's office, even the City as a whole.
Pimentel saw appellant again on June 11, 2008, while she was alone in a conference room, setting up for a rules committee meeting. Appellant entered and said hi to her, and she felt uneasy and fearful. By the time of trial she believed she was even more afraid of appellant, because he might have added her "to his list of people against him." Pimentel began to cry as she related this fear, which she expressed for the City Council as well as herself.
Michelle Radcliffe, another deputy city clerk, was at the front desk when appellant came in to ask if his nomination papers had qualified him for candidacy. She was standing right behind appellant when he said to Pimentel, "What do I need . . . to do to get things done around here? Do I need to take matters into my own hands like that Black man did in Missouri?" Radcliffe supplied additional detail to this interaction. When Pimentel asked him if he was making a threat, appellant answered, "No, I'm not. But is that what I need to do to take matters into my own hands?" According to Radcliffe, appellant was visibly upset and angry. His jaw was clenched and tight and his tone was assertive and loud enough to be heard by anyone nearby. Pimentel, too, appeared very upset. Standing behind appellant, Radcliffe non-verbally offered to call security, and Pimentel nodded. Radcliffe was scared. She cried as she testified.
The mayor's usual bodyguard was Ted Trujillo. Over the two and a half years he had known appellant, he had seen him become angrier and more agitated with the mayor and the City Council. Trujillo was absent from work on May 28, 2008, but when he returned in early June he spoke to appellant. Appellant told Trujillo that he had not made a threat. He said that "he was familiar with the Black guy out of Kirkwood, Missouri." Trujillo explained the reference: Charles Thornton had killed six people and injured two others at a Kirkwood city council meeting on February 7, 2008, less than four months earlier. Thornton, too, had had longstanding grievances with the city. He had run for city council, had verbally assaulted different members of the city council, and had done things at the podium that brought "a great amount of attention to himself."
Appellant described Charles Thornton to Trujillo as "a good friend of his." Speaking in a calm and matter-of-fact manner, appellant claimed to have spoken to Thornton a month before that shooting. He said there was a conspiracy at City Hall and the Clerk's office to prevent him from being a City Council candidate. Listening to appellant, Trujillo was "extremely fearful" for the mayor and the council.
On June 10, 2008, Trujillo intercepted appellant as he was trying to enter the City Council chambers and told appellant he would need to be searched. Appellant became angry, upset, and uncooperative. Appellant left, but he returned 15 to 30 minutes later. He was calmer this time and agreed to be searched as long as it was in front of people entering the chambers. At trial Trujillo testified that he was "absolutely" fearful for the safety of the mayor, the members of the City Council, and Pimentel. Extra monitoring procedures were implemented when appellant was in the presence of the mayor and City ...