Sacramento, CA

The Weight They Carried: How Sac PDs Use of a Non Existent Bail Hold Sets A Dangerous Legal Precedent

Olivia Monahan

This article will be the first in a series entitled “The Weight They Carried” -- stories that take a closer look at some of the moments that occurred as a result of the political unrest in America throughout 2020. This series will focus specifically on Sacramento, the Capital of the 5th largest economy in the world and moreover, how a moment here could cause ripple effects across the country that last lifetimes.

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An altar created by protesters after the murder of George FloydOlivia Monahan

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With hundreds of officers at the ready, Sacramento braced itself for a wave of autonomous demonstrations downtown beginning August 26, 2020. Three nights of actions ended with hundreds of officers from Sacramento, Citrus Heights and the CHP rounding up eight people in a sweep of arrests. It was a familiar scene. One that played out multiple times over the course of 2020.

While all that might seem par for the course during times of national unrest, two of the arrests that happened utilized a penal code to restrict the availability of bail to those arrested: California Penal Code 1275.

"WE'VE NEVER SEEN THIS BEFORE"

Understanding the California Penal Code can be a long and lengthy process. Many of the laws were first put into place in the 1800s, and nearly all of them require you to reference and cross reference different sections to get the full breadth of the laws restrictions. In order to ensure the proper breakdown, I reached out to Public Defenders across California, along with the National Bail Fund and various grass roots bail funds organizations, to get a clear understanding of exactly what it means to see what is commonly referred to as a “1275 hold” used.

California PC 1275 has two parts. The 1275PC isn't an actual bail hold, but rather the overarching body of the code. A basic synopsis of rules laid out to ensure that a judge assigning bail is utilizing the proper thought process when selecting bail amounts/no bail holds for defendants. It outlines that the judge must take into account the criminal history of a defendant, the seriousness of the crime accused, whether that person is an immediate and violent threat to public safety, and whether use of firearms or large amounts of controlled substances were involved. Directly connected to the 1275PC is the 1275.1, colloquially known as the “1275 hold.” The 1275.1 is the actual bail hold used when 1275PC is invoked.

1275.1 states that "bail pursuant to this chapter shall not be accepted unless a judge or magistrate finds that no portion of the consideration, pledge, security, deposit or indemnification paid, given, made, or promised for its execution was feloniously obtained." In layman's terms, that means a judge can only grant bail to the accused if they believe the funds were not illegally obtained. Furthermore, the regulations continue to state that a peace officer must file a declaration, under penalty of perjury, that they believe the bail funding source was illegally obtained.

This is where the situation gets murky.

The two defendants held on a NO BAIL hold after the protest, per information listed on Sacramento County Sheriff's booking information, were both held on a 1275PC, not a 1275.1. Which might not seem like an interesting precedent. Except for one thing.

"There is no such thing as a hold under penal code section 1275."

This quote came word-for-word from two separate public defenders: Kate Carlson, the PD on night duty in Sacramento during the protests, and Carson White, Santa Clara County Public Defender. The same sentiment was re-iterated by criminal defense attorney Claire White, who expounded further:

"A 1275 hold is usually applied to cases where releasing the person would pose an imminent danger to the public. Often this would apply to people with severely dangerous/violent criminal records. People who are stalking or threatening a specific person or persons. People who are violently unstable. It's used for serious violent alleged offenders."

In other words, the Sacramento PD and Judge Kristina Lindquist, who approved the initial 1275 hold against the demonstrators, believed that the charges that were being placed against them warranted a public safety, menace-to-society style hold. While Sac PD would have had to file the claim, it was Lindquist, a Gov. Jerry Brown-appointed judge who normally oversees cases related to mental health and state hospitals, who gave the final okay to go forward.

Neither of the demonstrators placed on the holds have a previous criminal record, let alone a "severely dangerous or violent one." Chris (last name withheld for safety), a street medic who provided volunteer aid to demonstrators, was allegedly found with a gas mask, smoke bomb (a non lethal firework that emits colorful smoke when deployed) and what police alleged was a bottle of urine. Andrea (last name withheld for safety) was arrested on suspicion of displaying a laser pointer in the direction of police. Per Sacramento PD's Twitter account, Chris was initially arrested for resisting arrest. It wasn't until later that evening, when the jail records were updated, that the final charges were revealed. From resisting officers to felony riot, both were charged with a mixture of felonies and misdemeanors -- and both were being held on no bail thanks to the nebulously non existent 1275PC.

THE WEIGHT IT CARRIES

On Sept.1 2020 both Chris and Andrea were arraigned. The riot charges were dropped for Chris along with the 1275 hold, leaving only a charge of resisting arrest. He was released on his own recognizance.

Andrea was released on a Level 1 Probation status; meaning she now has to report her employer and current address to a probation officer. As part of the punishment, Andrea is no longer allowed to carry "weapons, pepper spray, or a laser of any kind." Meaning that per CA law, Andrea will no longer be able to protect herself as she walks down the street.

Yet more than the personal restrictions, or the now increased scrutiny that may come from being arrested at a public demonstration, there is another precedent this set. .

With widespread demonstrations occurring across the nation in the 14 months since Derek Chauvin murdered George Floyd, there has been an increase in arrests attached to them. None of that is surprising; it's almost anticipated once protests reach a certain point. The surprise lies in the difference between the penal codes utilized in the arrests across CA, versus the arrests happening here in Sacramento.

"It's a practice of upcharging to meet these caveats in bail statues," says Pilar Weiss, Director of Community Justice Exchange and host of the National Bail fund, "which we see as a direct attempt to suppress protest. It's a practice used by sheriffs, district attorneys and judges across the country who are attempting to penalize protesters... and detain and incarcerate community leaders. Across California we've seen multiple holds under the zero bail statute used to punitively detain protesters."

The zero bail statute she refers to is PC1269c, "which allows the arresting officer to place a hold on a person for up to eight hours after they submit a declaration to a judge laying out the reasons to believe the person will not return to court if they are released." Yet this is still a vastly different statute than the 1275 hold that Sac PD attempted to utilize during these arrests.

In large part because the PC1269c hold actually exists.

THE CLEAR AND ‘PRECEDENT’ DANGER

From riot gear, to rubber bullets; from raiding community members' homes, to the use of violence, activists have seen Sacramento Police Department use a multitude of techniques against them over the course of 2020. With the upcharging and bail suppression added into the fold though, it creates a whole new set of circumstances to worry about. Ones that don’t disappear when the smoke clears, or the protest disperses.

"This puts us on a dangerous path," says Norcal Resist director Autumn Gonzalez, "where we'll continue to see overreach and misuse of code in order to stop bail funds from getting people out of detention."

For the last four years, Norcal Resist has been host to a local bail fund, in part to assist with arrests linked to demonstrations in our community. A collective of organizers that came together in 2016 to strategize after the election of President Trump, the group originally focused solely on immigration issues.

"We felt that immigrants and communities of color would be the first under attack by the Trump administration. Since then, we've expanded to address needs in the community as they become known to us," Gonzalez explains. The bail fund is a part of that expansion. It was Gonzalez who went down to the jail the night the demonstrators were arrested. It was there that she learned two of them would be held without bail.

"I hope that our city leaders see how chilling this is to our rights to assemble, and to free speech. Our communities are tired of the senseless killings by law enforcement, and they're tired of politicians not taking action on this issue."

While the utilization of 1275PC is meant to primarily, or at least initially harm the protesters held under it’s guise, there are additional ramifications that come along with it. The 1275 hold is also a way to attempt to question the validity of the source of the money the bail is coming from. In this instance a bail fund run by a non-profit whose only purpose is to serve the community.

From public defenders, to criminal defense attorneys, non profit leaders and national bail fund directors, the consensus seems to be a similar point.The utilization of 1275PC as a way to upcharge protesters during times of unrest could not only set a dangerous legal precedent, it also sends a very clear message. One that says if you exercise your rights to protest, and the Sacramento PD doesn’t agree with the reasoning for that protest, then you will have a likelihood of being labeled as a violent criminal. Regardless of whether any violence was involved.

You might not agree with the demonstrations.

Or their methods.

Yet one thing should be clear.

Circumspection of the law by Sacramento PD, or any agency of law enforcement, in order to persecute or prosecute a movement is not something that will only impact those currently involved. It will set in motion a chain reaction that could alter the very way we, as a city, state and nation, are able to utilize our power to demonstrate on behalf of our communities -- whatever communities that may be.

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Olivia Monahan is a Sacramento based Chicana journalist and editor whose work critically examines the dynamics of art, culture and politics with a focus on active participation over passive observation. As both a writer and editor, she values and activates instances of connection in the content and presents readers with equal parts truth and reflection.

Sacramento, CA
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