As some of you may know, San Francisco District Attorney George Gascon is pursuing misdemeanor charges against Mr. Michael Petrelis for allegedly violating Penal Code Sec. 647(j)(1) during an incident in a City Hall bathroom where Mr. Petrelis attempted to photograph Supervisor Scott Weiner.
One of the many variations of disorderly conduct barred under California law, the statute criminalizes the act of ”Any person who looks through a hole or opening, into or otherwise views, by means of any instrumentality, including but not limited to….a mobile phone…the interior of a bedroom, bathroom, changing room, fitting room, dressing room or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside.” (Emphasis added, for reasons which will be made clear below)
According to a statement issued by Supervisor Weiner, the imbroglio occurred on or about October 26, 2012, when Petrelis encountered him in a public restroom at City Hall near the urinal. Petrelis has criticized Weiner’s proposed ordinance, which is set for a vote later today before the San Francisco Board of Supervisors, that attempts to ban nudity in public spaces in San Francisco where it it is already not subject to regulation.
Petrelis was apparently trying to photograph Weiner using the urinal in order to point out that while the proposed ordinance would ban the display of certain body parts, those same body parts are routinely displayed in public spaces like urinals to fulfill biological functions.
Ultimately, all Petrelis succeeded in doing was recording a picture of Weiner attending to his dental health. Notwithstanding this, the District Attorney caused a warrant to be issued and Mr. Petrelis has a court date on or about Dec. 5
To be charitable to the District Attorney, this seems like a dubious screening decision on two levels. First, according to the FBI, in 2011 (the most recent year for which figures are available) San Franciscans suffered 5,374 incidents of violent crime which were reported to the police (including 50 murders, 131 rapes and 2,105 aggravated assaults) as well as over 32,000 incidents of property crimes like larceny and car theft. Granted, not every case is cleared by an arrest, but San Francisco isn’t Oakland by any stretch, so this seems an odd use of perpetually scarce criminal justice resources. (I’d love to see information from the D.A. on other P.C. 647(j)(1) prosecutions they’ve done which didn’t involve supervisors as alleged victims–somehow, I doubt it’s a long list).
Second, and more substantively, the charge requires the People to prove beyond a reasonable doubt that (a) Weiner had “a reasonable expectation of privacy” and (b) that Petrelis attempted to invade that privacy.
Based on what is publicly known about the case, the People’s argument fails to meet the first prong of the test. It is well settled in California that “Whatever individual sensibilities, there is no constitutional right to privacy in the restrooms of a place of public accommodation“, Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1, 81 Cal.Rptr.2d 6, 22 )(4th Dist. Ct. App. 1998). (emphasis added). With regard to the second prong, clearly Petrelis can’t invade Weiner’s “privacy” if he has no constitutional right to expect that he has any as a public official in the common public area of a public restroom at San Francisco’s City Hall. While Weiner may or may not have a civil case against Petrelis, the District Attorney appears to be naked–legally speaking, anyway–on this one.
In the interest of fair disclosure, I should point out that Petrelis has been a friend of this blog and a supporter of my clients in the Hightower, et al., v. City and County of San Francisco federal litigation challenging Weiner’s proposed nudity ordinance, which I and they deeply appreciate. However, I would say what I have said here even if the positions were reversed and it was Weiner who was accused of photographing Petrelis. The criminal case against Petrelis should be dismissed forthwith–ideally. by the District Attorney seeing reason or, less ideally, by the Court doing so.