SLO County DA cannot prosecute Tianna Arata and BLM protesters, appeals court rules

The San Luis Obispo County District Attorney’s Office will not be allowed to prosecute Tianna Arata and six other Black Lives Matter protesters for crimes it charged them with during a July 2020 protest, the state appellate court ruled Wednesday.

San Luis Obispo Superior Court Judge Matthew Guerrero removed the office from the case in December 2020, citing a campaign email sent on San Luis Obispo County District Attorney Dan Dow’s behalf that said he was “leading the fight against the wacky defund police movement” as a clear conflict of interest.

California Court of Appeal Justices Arthur Gilbert, Kenneth Yeagan and now-retired Steven Perren reaffirmed the decision, agreeing with Guerrero’s finding that the “targeted fundraising” email created a conflict of interest in the case and was “a deliberate and logical application of the law.”

Arata, Robert Lastra, Samuel Grocott, Jerad Hill, Marcus Montgomery, Amman Asfaw and Joshua Powell were all charged with multiple crimes following a July 21, 2020, rally during which protesters marched onto Highway 101 and clashed with motorists.

Arata faces 13 misdemeanors related to the protest — including counts of false imprisonment, obstructing a public thoroughfare and resisting arrest.

San Luis Obispo County District Attorney Dan Dow disagrees with the decision and told The Tribune in an email he is considering appealing the ruling to the California Supreme Court.

“There are many disputed factual issues that the Court of Appeal failed to address or ignored,” Dow wrote in a statement. “I am proud of my and my office’s strong record of passionate and ethical advocacy for truth and justice in a fair and unbiased manner for the people of San Luis Obispo County.”

If Dow does decide to appeal to the California Supreme Court, he said he will state the District Attorney’s Office position at that time.

The California Attorney General’s Office, who argued on behalf of the San Luis Obispo County District Attorney’s Office in the appeal, will decide whether they also want to take the case to a higher court separately, Dow said.

Why did two courts take SLO County DA off the case?

The decision by both Guerrero and the appeals court largely hinged on one day: Sept. 4, 2020 — which happens to be Dow’s birthday.

That was the day Dow filed 13 misdemeanor charges against Arata.

It was also the day Dow posted on the page of the conservative Facebook group PRotect Paso about his decision to charge Arata, saying he recognized there was a “group of people who were upset” that he did not charge Arata with felonies.

And it was the day Dow’s wife, Wendy Dow, sent a campaign fundraising email asking her husband’s supporters to help him “Keep leading the fight against the wacky defund police movement.”

“When someone is running for office on the basis of going after somebody for doing something wrong, in all probability being elected on that, and then actually doing it — it just seems ... to taint the whole judicial system,” Justice Gilbert told California Deputy Attorney General Christopher Lee, who represents the DA, during oral arguments. “This taints the whole process, and it hurts you as a prosecutor, your office, everyone.”

During oral arguments, Deputy Attorney General Christopher Lee primarily focused on whether the perception of fairness outweighed the reality of fairness, describing the campaign email as “generic.” He argued even if the public perceives Dow is unfair, what matters is that Dow is actually fair, so he should stay on the case.

The appeals justices call this argument “unavailing” and are “confident” Guerrero properly considered all the complex facts when he decided to remove Dow from the case.

According to court documents obtained by The Tribune, the attorney general also believes removing Dow from the case infringes on his First Amendment right to free speech, and could “incentivize defendants to abuse” the law that disqualifies district attorneys from trying certain cases due to their political views.

The appellate justices wrote Dow did not give up his First Amendment rights when he was elected to public office, but “his exercising of these (free speech) rights, however, cannot deprive those he prosecutes of their own right to a fundamentally fair trial.”

They also wrote Guerrero was in the best position to assess whether Dow’s office should stay on the case, and ultimately denied the appeal.

“We decline to substitute our judgment for that of a trial court familiar with the social, legal and political dynamics of San Luis Obispo County,” the justices wrote in their opinion.

Attorneys representing protesters in the case did not immediately respond to request for comment.