The Court of Appeal affirms the trial court's recusal of the entire District Attorney's office in San Luis Obispo from prosecuting some Black Lives Matter protesters, holding that the extrajudicial comments of the District Attorney might suggest that he might not prosecute the matter in a neutral fashion given his demonstrated antipathy to the BLM movement. Instead, the California Attorney General's office will be the ones prosecuting the cases.
At one level, the opinion is incredibly moderate. The opinion is unsigned. It repeatedly reminds the reader that public officials (including the DA) have the right to free speech. It expressly says that its holding is based in substantial part on the standard of review; that the trial court is in a better position than the Court of Appeal to determine the politics and factual circumstances in San Luis Obispo, so there's a great degree of deference that's required.
At the same time, however, the opinion does contain a couple of things that I found a little one-sided. For example, on page five of the opinion, the panel lists several statements about the BLM movement that facially might demonstrate a lack of impartiality; for example, describing "the Black Lives Matter movement as a ‘Marxist’ group who promote ‘cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.’” That seems fairly bad, right?
But you gotta read the opinion carefully to realize that those aren't statements by the District Attorney. They are instead statements made by someone else entirely. The statement above, for example, was made by a guy named Tony Perkins, and the only connection at all between the District Attorney and Perkins that's listed is that "“August 11, 2020 – Mr. Dow appeared on Washington Watch with Tony Perkins."
Look, sometimes, appearing in public with someone matters. If I appear in public with a guy in a Nazi uniform, for example, and hold his hand or shout "Right on!" or what have you, yeah, that's fairly decent evidence of my sympathies.
But taking the worst thing that Person X has ever said and attributing it to Person Y because the latter at one point in his life was at a meeting with the former? That seems to go a bit too far.
The second example the opinion mentions is in the same genre. It says: “September 4, 2020 – Mr. Dow explained his charging decision in the ‘PRotect Paso’ Facebook group. Documents attached showed animosity to the Black Lives Matter group – their Constitutional right. These claim that the BLM movement is ‘domestic terrorism;’ ‘down right evil, no brains or souls,’ and posted pictures of a BLM billboard burning in flames. Members of the group have discussed their skills as hunters and claim they will use these skills to protect Dan Dow, and ‘protect our own.’"
Now, if the District Attorney had said these things, that'd be incredibly meaningful. But that an elected official attempted to explain a political decision to a particular Facebook group (!) generally says very little about the speaker. Nor does the fact that members of that particular Facebook group have said particular things mean that those same statements should somehow be imputed to the person who spoke to that group.
To take something from my personal experience: On several occasions, I've spoken at Federalist Society events, including one at the Ronald Reagan library. Does that mean that I can legitimately be tarred with the most horrible things that the most horrible person in the Federalist Society has ever uttered? Or am similarly tarred with the worst events of the Reagan presidency?
I think -- or at least hope -- not.
There's at least one piece of evidence in the opinion that's a bit closer to accurate: “October 11, 2020 Mr. Dow appears alongside Candace Owens and spoke at a fundraiser for the ‘New California,’ a secessionist organization. At the event, Ms. Owens called BLM ‘one of the most racist movements that ever existed in this country.’ When questioned, Mr. Dow wrote a letter to the Tribune advising, ‘Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.’ Mr. Dow has been quoted as stating that ‘She speaks the truth.'"
You get why that seems qualitatively different, right? There's a lot closer tie to what the speaker (Ms. Owens) said there.
Anyway, the entire DA's office gets recused, and the Court of Appeal affirms.