First Amendment fight

The ACLU takes on Nipomo man's case



Michael Tocher thought he had an honorable way to publicly remember soldiers - his plan was to go to Santa Barbara on Veterans Day and read the names of those wounded and killed in Iraq. But as a result, the Nipomo resident and electrical engineer ended up in handcuffs.

On Nov. 10, the night before Veterans Day, Tocher was at home surfing the web. At the Department of Defense web site he found a list of soldiers who had been wounded and killed in Iraq.

"I was kind of caught off guard; the numbers were totally wrong in the news," said Tocher. "I was disappointed in the media not reporting anything, so I felt I had to do something."

Tocher, who said he is not associated with any political groups, planned to meet his brother the next day in Santa Barbara to honor the veterans. Tocher said they decided that reading the names of the wounded and killed would be a fitting memorial. At the time, the number of soldiers killed in Iraq was about 1,200.

The two brothers brought a bullhorn and two signs, one with the number of dead and one with the number of wounded, to an area outside the Borders bookstore in the 900 block of State Street.

According to Tocher, the response was positive. The brothers received a couple of thumbs-up, and few curious people inquired about their intent. Tocher said some even thanked the brothers.

"It was positive, we weren't looking to create controversy," said Tocher. "If anybody would have said anything, we would have moved."

Tocher had read the name, age, unit, and hometown of about a third of the soldiers before police approached the two brothers, saying they had received a complaint from a citizen who claimed someone was disturbing the peace, said Lt. Paul McCaffrey, Santa Barbara Police spokesman.

The SB Police asked the brothers who they were, and Tocher said they provided their names, Social Security numbers, and dates of birth. Then the police asked for identification from the two. Michael said he asked police if he was legally required to provide his ID, and it was then that he was handcuffed and brought to the police station.

According to Tocher, the police told his brother George to leave or he would be charged with inciting a riot. Michael Tocher said he was held at the station for 45 minutes and then given a citation with no fine. When he showed up at the Santa Barbara court to fight the citation, he said the district attorney had dropped the charges without informing him. This, Tocher explained, is common practice when charges are dropped.

Now Tocher has gained support from the American Civil Liberties Union of Southern California; the ACLU has filed a claim with the city. Criminal Justice Director for ACLU of Southern California Ricardo Garcia said filing a claim comes before a lawsuit. He said the intent is to settle the dispute with the city before the ACLU would be forced to file a complaint with the federal court.

Garcia said the settlement would include both an admission by the city of Santa Barbara that the brothers' First and Fourth Amendment rights were violated and a monetary sum over $10,000.

"Neither Michael nor George were doing anything that is not protected by the First Amendment," said Garcia in a press release.

Santa Barbara police disagree. Although Lt. McCaffrey could not give many details, he did say that the chief of police and the Santa Barbara city attorney were aware of the claim.

"This was not a situation where police arrested him out of their own volition," said Lt. McCaffrey. This was "technically a citizen's arrest." McCaffrey said Tocher was not booked and fingerprinted, and he was given the same citation used for speeding tickets.

Tocher said that he would have moved or stopped if police had asked him to before they arrested him.

"It would be easy for me to walk away and not do anything," said Tocher, "[But] the fact that I was arrested seemed strange, and I thought my rights were violated."

Even though Tocher has been cleared of any punishment, he said he's nervous that there could be a chilling effect on people speaking out, especially for those that saw him get arrested.

"People have to know that it's okay to speak out and that they have a right to do this," he said. "I believe if we don't have freedom of speech then we don't have a real democracy." ³


Staff Writer John Peabody can be reached at


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