SLO County DA won’t get to prosecute Tianna Arata as high court refuses to hear appeal

San Luis Obispo County District Attorney Dan Dow has lost his last bid to prosecute the Tianna Arata case.

The California Supreme Court decided Wednesday that it will not hear arguments regarding whether Dow’s office should be allowed to prosecute Arata and six other Black Lives Matter protesters, meaning Dow has no further avenues to stay on the case.

It marks the end of a more than two-year legal battle that began in December 2020 when Dow was first kicked off the case by San Luis Obispo Superior Court Judge Matthew Guerrero, who ruled a campaign email sent by Dow’s wife, Wendy Dow, on his behalf that said he was “leading the fight against the wacky defund police movement” was a “clear conflict of interest.”

The email was sent in September 2020, following local and nationwide protests against racism and police brutality sparked by George Floyd’s murder by former Minneapolis police officer Derek Chauvin in May 2020.

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.

Dow appealed the decision to the California Court of Appeal, alleging the email did not show bias against Black Lives Matter protesters. The office also argued the decision infringed on Dow’s First Amendment rights and opened doors for prosecutors to be taken off any case where a defendant disagreed with their political ideology.

Court of Appeal Justices Arthur Gilbert, Kenneth Yeagan and now-retired Steven Perren reaffirmed Guerrero’s decision on Aug. 31, agreeing with Guerrero’s finding that the “targeted fundraising” email created a conflict of interest in the case and him removing Dow from the case was “a deliberate and logical application of the law.”

The judges also published the opinion into citable case law, meaning it can be used as a legal basis for future similar cases, on Sept. 29.

“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,” Gilbert told California Deputy Attorney General Christopher Lee, who argued on behalf of the District Attorney’s Office, during oral arguments in June.

“This taints the whole process, and it hurts you as a prosecutor, your office, everyone,” he said.

Dow’s office appealed the decision to the state’s highest court in November, asking it to hear the case in order to establish a clear legal precedent.

“In a time of extreme political and social divisions, these questions about the parameters of disqualification are important ones that are likely to recur,” the petition said.

The DA’s Office filed a second petition with the California Supreme Court later that month, asking it to depublish the Court of Appeal’s opinion so that it could not be used in future cases.

The high court denied both petitions.

“I always felt that Dan Dow was fairly delusional to think that the (state) Supreme Court was going to hear this case anyways, and this just affirms that they (the court) wasn’t interested in his arguments,” Arata’s attorney, Curtis Briggs, told The Tribune.

Briggs said the high court’s decision shows that the appellate court had sound legal reasoning and “vindicates” Judge Guerrero, whose legal reasoning had been “politely attacked” by Dow’s office throughout the entire appeals process.

“Dan Dow was completely wrong. Dan Dow should have been disqualified,” Briggs said. “There is absolutely no justification for what Dan Dow did and Dan Dow now needs to take responsibility.”

The goal was to get the case to trial in front of a jury, and now that the decision to keep Dow off the case is final, that can finally happen, Briggs said.

The District Attorney’s Office did not respond immediately to request for comment via call, text and email as of 3 p.m. Wednesday.

The California Attorney’s General Office will prosecute the case as it moves to trial. A pretrial conference is scheduled to take place Feb. 2 at San Luis Obispo Superior Court.