by John Glidden | March 8, 2021
VALLEJO – After making its way through the courts for nearly five years, a federal civil rights lawsuit brought by an animal-rights protester against the city of Vallejo and one of its police officers is coming to an end.
Vallejo has reached a tentative agreement with Joseph Cuviello, of San Manteo, for $120,000, Cuviello confirmed to JohnGlidden.com on Monday.
Cuviello filed the lawsuit in October 2016 alleging a Vallejo ordinance, which requires a permit from the city’s police department before sound-amplifying devices can be used, violated the man’s right to freedom of speech, assembly, and association, according to court records.
“I’m glad I won, but what a waste of taxpayer monies,” Cuviello told this news organization. “(The city) just didn’t want to admit that they are wrong. This could have been settled from the beginning, but now they ended up paying more.
“They need to be held accountable for wasting the public’s money,” he added.
The Vallejo City Council is scheduled to meet in closed session on Tuesday to discuss the tentative settlement which was reached in February, according to court records.
Vallejo City Attorney Veronica Nebb declined to speak about the case, stating that it “remains an ongoing matter as of the date of this writing,” when asked for comment by JohnGlidden.com on Monday.
“As you may be aware, this matter is scheduled for a closed session with the City Council tomorrow night. In keeping with the requirements of Section 54956.9(a) of the Brown Act, and the Attorney/Client privilege, I am not at this time at liberty to discuss or disclose what matters relating to this ongoing case will be discussed in closed session,” she added.
Cuviello’s lawsuit also names former Vallejo police officer Michael Koutnik, for allegedly threatening to confiscate Cuviello’s bullhorn during a demonstration outside Six Flags Discovery Kingdom in October 2015. According to the lawsuit, Koutnik was working for the park during his off-hours from the Vallejo Police Department.
Part of the delay is attributed to the Ninth U.S. Circuit Court of Appeals weighing in on the case in December 2019.
In 2-1 decision the federal appeals court ruled the city’s ordinance was a restraint on speech which cannot be legally enforced.
“In a crowded park or bustling intersection, where a single voice is easily drowned out, volume enables speech,” the court said.
Vallejo’s ordinance required a person to obtain a permit from the city’s police chief before any use of sound-amplifying equipment on either private or public property. Once obtained, the equipment can be used between 10 a.m. and sunset. It cannot be used within 100 yards of a library, school, hospital, or anywhere else where the peace and quiet of a neighborhood could be disturbed.
U.S. District Judge Kimberly Mueller declined to stop the ordinance’s enforcement, arguing Vallejo has a right to regulate amplified speech. Cuviello appealed that decision.
The Ninth circuit disagreed with Mueller, stating that “the permit requirement has chilled Cuviello’s free speech rights and will continue to do so absent preliminary injunctive relief.”
“The district court concluded that the City of Vallejo would be hampered in its ability to regulate the use of sound amplifying devices. But the court pointed to no evidence to
support this speculation, and indeed the City of Vallejo submitted no such evidence,” the appeals court added.
Months after the appeals court released its opinion, the Vallejo City Council officially repealed the ordinance.
The council amended the ordinance in 2018 to waive the $100 fee to obtain the permit and make the process “basically an administrative approval, (but) the Court found that it was still too restrictive,” according to a February 2020 staff report to the council about repealing the ordinance.
“Rather than continue with the appeal and continue to incur litigation costs, the city manager, the police chief and the city attorney recommend that the ordinance be repealed,” staff added.
Cuviello and his fellow animal-rights protesters also scored a legal win in June 2019 when the First District Court of Appeal in San Francisco struck down a ruling by Solano County judge which allowed Six Flags to prohibit all protest on the property outside the park.
“A small group of people peacefully handing out leaflets and displaying posters there is not likely to interfere with the property’s use,” wrote Justice Therese Stewart said in the 3-0 ruling. She added that the areas outside the park are “large and freely open to the public.”
Cuviello alleges that on June 20, 2015 he used an electric bullhorn during a demonstration at the park and was told by another activist that he was not allowed to use the device without first getting a permit from the city.
The man also alleges that for a future demonstration, he applied for a permit but never received a response from the Vallejo Police Department.
In September 2015, Cuviello emailed then-Vallejo City Attorney Claudia Quintana, then- Vallejo Mayor Osby Davis, and then-Police Chief Andrew Bidou informing them that the city’s ordinance was unconstitutional and that he would be using a bullhorn without obtaining a permit first.
According to the lawsuit, Quintana responded by arguing that the city’s ordinance establishes allowed time, place, and manner restrictions.
As Cuviello protested with a bullhorn in October 2015, Koutnik and then-Vallejo Police Officer Spencer Muniz-Bottmley approached with Koutnik telling Cuviello that he wouldn’t arrest the man but only confiscate the equipment as “evidence of a crime.”
Quintana, and Muniz-Bottmley were also named as defendants at one point in the case, but were removed when Cuviello filed a second amended complaint in April 2020.
Cuviello, a long-time animal rights activist, said the protests have stopped temporarily due to the park being closed because of COVID. He said that once COVID is over, he will be once again protesting outside the 130 plus acre park.
The Cuviello settlement is just the latest lawsuit to be settled by the city.
In November 2020, the city agreed to pay $750,000 to settle a federal excessive force lawsuit against four Vallejo police officers who allegedly assaulted a man as he worked on a fence outside his Tennessee Street workshop in July 2017.
Last September, Vallejo officials agreed to settle two separate federal lawsuits, including paying $5.7 million to the family of Ronell Foster after the 33-year-old man was shot and killed by Vallejo police Officer Ryan McMahon in February 2018.
Vallejo was on the hook for the first $500,000, while its insurance provider picked up the rest.
At the same time, city officials agreed to a $52,500 settlement with Robert Strong, who filed a federal excessive force lawsuit in May 2018 after a Vallejo police officer pulled the man out of his vehicle while filming an April 2017 traffic stop.
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