Examining the Legal Issues Behind the Arrest of a Pro-Hamas Public Speaker for Criminal Threats at the Bakersfield City Council
Why the Arrest of Siddhi Patel for Criminal Threats is Slightly Concerning
On April 10, 2024, a 28 year old pro-Hamas activist, Siddhi Patel, made international headlines after she was arrested for making threatening comments to Bakersfield City Council members during public comment, expressing her disgust with the Council for not supporting a Gaza Ceasefire resolution.1 With Ms. Patel’s preliminary hearing was pushed back from today to June 7, 2024, she now faces 21 separate felony counts.2
While I do not agree with anything that she said and find her remarks completely inappropriate, caustic, and disgusting, I am not sure she should have been arrested and charged with a crime, let alone 21 felony counts.
While her comments may not be protected by the First Amendment3 and may meet all the required prongs under California’s criminal threats statute, her words are arguably still protected from criminal prosecution by what is known as the legislative privilege under California Civil Code Section 47(b).4
This article will summarize what occurred, the criminal charges, and some of the basic legal doctrines involved.
I. Ms. Patel’s Remarks
Ms. Patel made two separate public comments to the Bakersfield City Council on the night of her arrest.
In her first comment, she stated:
Hi there. My name is Riddhi Patel. I'm here to speak in support of the city council introducing a ceasefire resolution, specifically the one United Liberation Front has drafted. I don't have faith that you'll do this. You guys are all horrible human beings and Jesus probably would've killed you himself. And the thing is though, it's very clear to me as in someone who's been an organizer for the past couple years, that none of you care because you, you guys don't care about anything happening in Palestine or any other country where oppression occurs because you don't care about the oppression occurring here. And I understand that you guys are all horrible people, but the thing is, 2300 people being evicted in the last year, those are votes.5
In her second comment, she stated:
And you guys, those are votes to win here in Bakersfield. And while you, you guys parade Gandhi around as a Hindu holiday called re nri, it starts off this week. I remind you that these holidays that we practice, that other people in the global south practice believe in violent revolution against their oppressors. And I hope one day somebody brings the guillotine and kills all of you mother fuckers. So regardless of whether you elect people into office, they'll back stab you. They'll let you die. And for that reason, you guys wanna criminalize us with metal detectors. We will see you at your house. We'll murder you6
The last sentence she uttered is the basis of what she is being criminally charged for under California’s criminal threats statutes.
II. California’s Criminal Threats Statutes
Criminal threats are one of the very few categories of speech that the First Amendment does not protect.7 However, even though threats can be criminally prosecuted under the First Amendment, the First Amendment still requires safeguards.8
In line with constitutional commands, California’s criminal threats statute does not simply make certain specific words or phrases illegal.9 Instead, a threat becomes criminal only if it meets all required elements of the criminal threats statute.10
California’s criminal threat statute provides:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.11
A person willfully threatens another when they are aware of the practical certainty that their words will be taken as a threats.12 The government must also prove that under the circumstances, the threat would have caused a reasonable person to be in sustained fear.13
The United States Supreme Court recently held that for criminal threats prosecutions, the First Amendment requires the government to prove a person recklessly had a subjective intent to threaten.14 Recklessness means that the person made the threats with the awareness that their comments could be perceived as threatening but delivered them anyway.15
Thus, California’s criminal threats statute actually requires a higher burden of proof than the First Amendment requires.16
Here, two Bakersfield City Councilmembers, Bob Smith and Eric Arias, stated that they did not feel threatened by Ms. Patel’s comments and therefore, felony charges for threats were not brought against her for threatening them.17 However, California recognizes the crime of attempted threats and the Kern County District Attorney is now bringing additional charges against Ms. Patel for attempting to threaten them.18
In addition to being charged under the criminal threats statute, Ms. Patel is also charged with terrorizing public officials.
The separate statute protecting governmental officials provides:
Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, or the staff, immediate family, or immediate family of the staff of any elected public official, county public defender, county clerk, exempt appointee of the Governor, judge, or Deputy Commissioner of the Board of Prison Terms, with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense” that constitutes a felony.19
The term “knowingly” is "normally associated with awareness, understanding, or consciousness.”20 “A person acts knowingly” threatens when that person “knows to a practical certainty that others will take his [or her] words as threats.”21
III. Potential First Amendment Protection
In 1966, an 18 year old black man at an anti-Vietnam War rally in Washington, DC held on the Ellipse behind the White House, announced to a crowd: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” and “They are not going to make me kill my black brothers.”22
He was convicted of the felony of knowingly and willfully threatening the life of the President Lyndon Baines Johnson and his conviction was affirmed by the D.C. Circuit Court of Appeals.23
The United States Supreme Court reversed his conviction and ordered the lower court to enter a verdict of acquittal.24 The Court held that his statement was clearly political hyperbole and could not actually be taken as a threat in any kind of context.25
Ms. Patel’s statement of “We will kill you” comes very close to the border of unprotected speech if it doesn’t outright cross the line. However, it’s not 100% certain that her statements would be unprotected.
Whether Ms. Patel’s comment hyperbolic political speech is protected by the First Amendment is honestly debatable.26
One could interpret her remarks not as a threat but instead as simply a policy argument for why installing metal detectors at the City Hall would be an ineffective security measure for City Councilmembers. While it might be described as an unpersuasive and rather asinine policy argument, the First Amendment protects even stupid speech that most find worthless.27
IV. The Constitutional Nature of Public Comment in California
When Ms. Patel addressed the Bakersfield City Council, she did so not at the sufferance of the City Council but in the exercise of a constitutional right.
In California, we have a right to have public comment at all our legislative and governmental hearings.28 This includes, among other bodies, local city councils like the Bakersfield City Council.29 This statutory public comment right is expressly codified into the California Constitution.30
While there are often imposed time limits in a specifically designated time period, citizens are free to come to the podium during public comment and say whatever is on their minds.
This often presents an opportunity for citizens to have a classic Festivus style airing-of-the-grievances with their elected officials. And if anyone has attended a local city council meeting in California, they will observe that public comment is often open-mic night for local lunatics looking to try out new material for their latest routine.
A former member of the West Hollywood Council, a retired psychologist, reportedly used to diagnose the mental illnesses of various public commenters while listening to their various rants and whisper her diagnoses to her colleagues.
Nevertheless, public comment is a constitutional right.31 And it serves an important function.
Because while it definitely attracts the crazies, public comment also frees up space for insightful public comments from the citizenry who might not otherwise be heard from. Public comment enables citizens to directly engage with their elected officials. And the protections afforded to it are designed to free citizens to share their concerns and their ideas without fear of reprisal.
V. Legal Protection for Speech Unprotected by the First Amendment
Although the issue of whether Ms. Patel should be charged for her inflammatory remarks is discussed as a First Amendment issue, statutory protections independent of the First Amendment arguably protect her remarks.32
California’s expansive Civil Code Section 47 (“Section 47”) creates protections for what are known as “privileged communications.”33 In certain cases, it creates absolute immunity for remarks, depending upon when and where they are made.34
Absolute immunity for privileged communications under Section 47 is not co-extensive with constitutional protection.35 That is, a statement that is not constitutionally protected under the First Amendment can still be protected under Section 47.36 Absolute immunity for a privileged communication applies even if comments are false or malicious.37 Even defamation that is not protected by the First Amendment38 is still protected when it is absolutely privileged under Section 47.39
VI. Legislative Privilege Under Civil Code Section 47(b)
California Civil Code Section 47(b) provides:
“A privileged publication or broadcast is one made . . . . In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . .”40
Under Section 47(b), a privileged communication has absolute immunity for its publication.41 The legislative privilege under Section 47(b) is effectively a codification of the Speech and Debate Clause of the United States Constitution and the English common law protections for statements made by legislators in official debates.42
The legislative privilege applies not just to comments made by elected officials in legislative proceedings but to those made and submitted by regular citizens.43 That includes comments made by members of the public during public comments at the legislative hearings.44
Section 47(b) does not automatically guarantee that Ms. Patel is immune from criminal prosecution for criminal threats. In 2004, the California Supreme Court held that people had an absolute immunity from suit for filing false police reports as police reports were privileged communications, subject to litigation privilege created under Section 47(b).45 The Court noted that under the litigation privilege, while one would not be civilly liable for perjury or knowingly filing false police reports, one could still be criminally prosecuted for such crimes.46
But does that mean that Section 47(b) doesn’t apply to criminal prosecutions?
No.
In a 2007 case invalidating a local ordinance creating a right of criminal prosecution for communications that fell under Section 47(b), the Court explained that those were exceptions and that indeed the litigation privilege could apply to bar potential criminal prosecutions.47 Instead, the Court explained that the privilege under Section 47(b) could be overridden when a more specific criminal law applied.48
Thus, Section 47(b) protects against criminal prosecutions as long as there are not more specific laws over-riding it.49
Public comment is notably different from situations in which one might perjure themselves. When one speaks at public comment, they’re not swearing under oath that they are telling the truth. Instead, they are telling their “truth’ as well as their traumas and triggers. One also does not contact the police through public comment.
Additionally, one does not have to identify themselves by name when making a public comment.50 In a sworn police report or when one gives sworn testimony before a Court, one is typically required to identify themselves. As well, lying under oath is criminal in order to protect the integrity and proper functioning of the judicial system. No similar concern exists with public comment.
VII. A Final Word
Many on social media cheered Ms. Patel’s arrest. To them, a woke, ultra left-wing, pro-Hamas, and insufferable activist who probably demanded “safe spaces”, actively participated in cancel culture, often found ways to be purposelessly offended, and has referred to herself as a “person with a uterus” or a “person with a cervix” rather than a “woman” got a taste of her own medicine for committing an actual crime.
I felt differently. I saw someone being dragged away from a City Council meeting in handcuffs to face multiple years in prison solely for something she said during what is supposed to be a specially protected time to say whatever one pleases without fear of reprisal. I saw a local elected City Council finally get an opportunity to remove a citizen who they already know, have a history with, and clearly dislike.
It is rather disturbing that local elected officials have the power to jail and potentially ruin the lives of constituents who they dislike solely because of what they say at the podium.
It is easy to justify Ms. Patel’s arrest on the basis of her making a criminal threat. And what she said is absolutely vile.
But what constitutes a threat?
Ask someone in Ms. Patel’s circle of woke social justice activists or any highly paid DEI administrator and they can assuredly tell you which everyday, commonplace, and otherwise innocuous words and expressions they have re-interpreted as hateful and deeply threatening to them. There is no shortage of words that might lead to a Generation Z or 90’s Millennial declaring “I am feeling very unsafe!”
As previously explained, there aren’t any magic words that make a remark a criminal threat. After all, if there were, it would be relatively easy for criminals to make threats. They would simply speak in code.
With that in mind, how many elected officials should be allowed to jail someone for remarks made during public comment because they personally find the remarks threatening?
As United States Supreme Court Justice Sonia Sotomayor recently wrote, “vigilance is especially important when speech is disturbing, frightening, or painful, because the undesirability of such speech will place a heavy thumb in favor of silencing it.”51
The chilling effects that applying the criminal threats statute to public comment need to be considered. People are less likely to say what is on their minds if they know they can be jailed for saying the wrong thing or jailed because their local elected official doesn’t like them.52 The ideas, the insights, and the criticisms from citizens could be greatly reduced.53
While it is easy to cheer on the arrest of someone unlikeable like Ms. Patel, the arrest solely for remarks made during public comment, even if the remarks are threatening, may set a very dangerous precedent and should be questioned.
https://www.latimes.com/california/story/2024-04-13/activist-faces-18-felonies-for-threats-to-city-council-during-meeting
https://www.kget.com/news/crime-watch/da-seeks-additional-charges-against-protester-patel/; https://www.kget.com/news/crime-watch/riddhi-patel-preliminary-hearing-postponed-new-charges-added/
See Virginia v. Black, 538 U.S. 343, 358 (2003)(“The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.”).
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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