Over the holidays, news broke that the City of Los Angeles is contemplating a lawsuit against the Occupy L.A. protesters in an attempt to recover the costs of policing (and dispersing) the protests, as well as purported property damage caused by the protesters. (http://latimesblogs.latimes.com/lanow/2011/12/occupy-la-lawsuit-financial-damages.html.) If the City of L.A. decides to bring the suit, an interesting question will arise as to whether such suit (or suits) is subject to the anti-SLAPP law.
The Occupy protesters will obviously have a strong argument that the City’s lawsuit arises from communications and conduct in furtherance of their protected First Amendment free speech rights. This will satisfy the first requirement of the anti-SLAPP statute.
The second step of the analysis under the statute — whether the City will be able to show a probability of prevailing on its claims — will present a closer question. Normally, public entities cannot recover damages for the costs of law enforcement, unless a specific statute authorizes them to do so. Suits such as the one the City of L.A. proposes have not been successful in the past for this reason. As Mark Goldowitz here at CASP points out, such a suit would be remarkably similar to County of San Luis Obispo v. Abalone Alliance (178 Cal. App. 3d 848), in which a county government sued anti-nuclear activists to recover the costs incurred by law enforcement and other county services in responding to the activists’ protests. The appellate court upheld a dismissal of the suit, finding that no statute permitted a public entity to recover the costs of providing public services from the individuals allegedly responsible for the city having to deploy such services. The Court ruled such costs are borne by the taxpayer alone.
The Abalone Alliance court did not reach the question of whether such a lawsuit would be barred by the First Amendment as an unconstitutional chilling of free speech rights. However, we think such a result would be likely, insofar as the protests consisted of lawful demonstrations on public property. As Carlos Marrequin of Occupy L.A. pointed out: “This was a peaceful movement. . . . They’re [the City] the ones that decided to use that amount of police, that amount of force.”