Sidewalk chalk on trial: the Jeff Olson jury acquittal News & Analysis

Please note that this post is from 2013. Evaluate with care and in light of later events.

The key reason I think the jury’s acquittal of a San Diego man prosecuted for writing on sidewalks with chalk did not necessarily need to be “jury nullification”? After all, Jeff Olsen admitted he did write on city sidewalks. Why then? Because the prosecutor has to prove every element of a crime beyond a reasonable doubt — and if they don’t, then a jury is expected to acquit.

(Of course, there could be as many reasons for acquittal as there are jurors, so some of them could have decided all the elements were met, and still voted to acquit.)

The Elements of Vandalism

So what are the elements of California Penal Code Section 594(a), as defined by the instructions given to the jury (CALCRIM 2900)? The prosecutor must prove, beyond a reasonable doubt, that the defendant:

1. had malicious intent (vandalism is a specific-intent crime), meaning either
   1. intentionally did a wrongful act
   2. or acted with the unlawful intent to annoy or injure someone else
2. and damaged or destroyed or defaced
   1. with graffiti or
   2. with other inscribed material
3. and real or personal property
4. and of someone else.

Elements 3 and 4: a city-owned sidewalk

A city-owned sidewalk satisfies elements three and four (incidentally, the statute itself provides a specific explanation that publicly owned property — like a sidewalk — does not belong to the defendant).

Element 2: Defacement

Element two is more interesting. The sidewalk was neither damaged nor destroyed, so we must focus our analysis on “defaced with graffiti or other inscribed material.” Can water-soluble chalk “deface” a sidewalk? The statute says this phrase means the following:

(e) As used in this section, the term “graffiti or other inscribed
material” includes any unauthorized inscription, word, figure, mark,
or design, that is written, marked, etched, scratched, drawn, or
painted on real or personal property.

Case law is potentially relevant here, too, as a California appeals court (85 Cal.App.4th 941) held in 2000 that “it appears that a marring of the surface is no less a defacement because it is more easily removed.” However, the facts of that case can be distinguished from this one: that case involved a marker pen on a window inside a business; this one involves chalk on a public sidewalk. In other words, precedent says that impermanence is not dispositive of the issue. If we then go on to apply the “pragmatic” approach of the Court of Appeal — which they seem to suggest is another word for “common sense” — then a jury could easily (and supportably, under the law) see a difference between using a pen on the inside a window and using chalk outside on a sidewalk. One defaces; the other does not.

Element 1: Intent

Element one is perhaps the strongest area for the defense. (It is, I would say, one key reason why it isn’t a crime to use chalk to draw a hopscotch pattern on a San Diego sidewalk.) The statute says that, to violate the law, the perpetrator must have acted with “malice.” That is, he had to have a more specific mens rea than merely the intention to perform the act itself. The term “malice” under California law doesn’t quite mean what the dictionary indicates, but is instead defined in two specific ways. So, given California’s definitions, did Olsen act “maliciously”?

First, did he intend to commit an “wrongful act”? This, of course, is rather circular. If Olsen’s actions are not criminal — he’s not guilty of vandalism — then he couldn’t have intended a “wrongful act,” right? Perhaps, but legal interpretation is pragmatic, not philosophical, so this argument won’t work well in court (though it might confuse jurors).

Instead, consider whether Olsen believed in good faith that what he was doing was legal (not wrongful). This is a mistake of law defense, and in California, mistake of law can be used to negate intent for specific intent crimes like this one (see CALCRIM 3407 and People v. Flora (1991) 228 Cal.App.3d 662, 669–670).  Not knowing the law is no defense — except that, if believed in good faith, belief that one’s actions are not wrong can be used to attack the specific intent to commit a wrongful act. (One might introduce his belief that the First Amendment protected his actions here, too, as part of the negation of intent rather than as defense in itself.)

Second, did he act with the intent to “annoy or injure”? Olsen and his attorney insisted that his intent was to “inform” the public: “His purpose was not malicious. His purpose was to inform,” said Olsen’s attorney Tom Tosdal. Arguably, chalking anti-bank slogans in front of a bank does annoy them — but the prosecutor must prove this was Olsen’s intent beyond a reasonable doubt. The jury may well have found Olsen’s position credible.

The First Amendment

Finally, many have criticized the judge for disallowing a First Amendment defense. In general, it is indeed up to the judge whether the First Amendment applies, since it is in broad terms a question of law, not of fact (the latter is for the jury, the former for the judge). The judge ruled that the “State’s Vandalism Statute does not mention First Amendment rights.” With due respect to Judge Shore, this statement misrepresents the manner in which constitutional rights are protected by defense attorneys. Sure, the statute could explicitly mention the First Amendment — but it certainly doesn’t have to do so. The First Amendment applies to all state laws, all the time, not just when a state legislature specifically invokes it. To say otherwise is … odd. (I suspect this is a ruling that would have been overturned on appeal, but we’ll never know now.) 

If it had been allowed, how might it have looked?

It might (as I have noted) been applied to attack the intent required by the statute. But more generally and usually, courts evaluate constitutional challenges against laws either “as written” or “as applied.” In other words, rights can be violated not just by what a statute says, but also who prosecutors target and why.

The statute, as written, is (I feel safe to say) Constitutional. It is neutral on its face, rather than targeting particular kinds of opinions (flag burning, for example). But as it appears that San Diego prosecutors have never used it before to target chalk on a sidewalk. Anti-abortion protesters used chalk messages against a Planned Parenthood clinic without repercussions, for example. This kind of selective prosecution can support an “as applied” constitutional challenge, even if the statute is itself constitutional. See for example, the non-precedential federal ruling in Orlando: “U.S. District Magistrate Judge David A. Baker wrote that protester Timothy Osmar was clearly protected by the First Amendment when he scrawled the political messages — particularly in a public plaza,” reported the Orlando Sentinel.

But this is one case that will never reach a higher court for a decision on the constitutional questions. It would have been interesting for us if it had, but it’s better for Jeff Olsen that a jury simply acquitted him.