A year after he provoked a storm of protest from the Vietnamese American community with his display of Communist icons, Truong Van Tran sued the city of Westminster and others Thursday for allegedly violating his free speech rights.
The lawsuit, filed in Orange County Superior Court in Santa Ana, accuses city officials, including Police Chief James Cook, of conspiring with the protesters and failing to enforce the law.
The suit also accuses protest leaders and Tran's landlord, owner of the Bolsa Avenue mini-mall where he operated Hi-Tek Video, of preventing him from displaying the flag of Vietnam and picture of Ho Chi Minh that inflamed public passions for weeks.
"When the Vietnamese community refused to honor freedom, I thought at least my landlord, police and the city of Westminster would," said Tran, who appeared Thursday with his lawyer to announce the suit wearing a small flag of Communist Vietnam pinned to his lapel. "After all, it is their legal duty to do so. Unfortunately, they also took the side of censorship. They not only failed to protect my free speech rights but actually helped to rob them from me."
Legal experts disagree over how strong Tran's case may be. Some point to a U.S. Supreme Court decision finding that government agencies can't be held liable for inaction in such cases. Others say police should have done more to keep protesters away.
Tran's display of the Vietnamese flag and poster of Ho inside his Little Saigon video store last year sparked 53 days of demonstrations by crowds of as many as 15,000. Police in riot gear made 52 arrests over seven weeks and wracked up more than $200,000 in overtime.
Protesters were mostly Vietnamese refugees angry over killings, imprisonment, torture and family separations caused by the Communist takeover of South Vietnam.
Shortly after the protest began, mini-mall owner Danh Nhut Quach won a judge's order forcing Tran to take down the flag and poster. But Tran, backed by the American Civil Liberties Union and represented by Santa Ana lawyer Ron Talmo, persuaded the judge to reverse herself, arguing that his right to political expression under the 1st Amendment was being infringed.
The protest reached a climax on March 1 when Tran showed up without police escort to rehang the flag and was attacked by the crowd. Though not seriously hurt, Tran was dragged away by officers for his safety.
In his lawsuit, Tran alleges that Cook notified protesters the shopkeeper was returning to his store but didn't warn Tran he was expected. Officers also falsely arrested him by removing him from the scene, the suit claims. Cook declined to comment on the lawsuit.
"[Cook] was leaking it," said Talmo, who is representing Tran in the suit without ACLU backing. "He has lots of explaining to do. He intentionally hurt Tran."
The suit further claims that Cook conspired with the protesters to allow picketers to plaster banners and barricade Tran's Bolsa Avenue store with literature and effigies. The suit also claims Cook told Quach, the landlord, that protesters would not be arrested for trespassing.
The saga ended in March when Westminster police entered Tran's shop to investigate theft of the Communist items and discovered 15,000 illegally duplicated videotapes and more than 100 videocassette recorders. Tran was later convicted of video piracy and sentenced to 90 days in jail and community service.
Legal Scholars Split Over Merits of Case
Tran lost his business and stayed home to care for his two children while his wife, Kim, worked. Three months ago, he got a job with an electrical contracting company, pouring asphalt on the streets mostly during the night.
The case divides experts on 1st Amendment law.
Carol Sobel, a former ACLU lawyer now in private practice in Santa Monica, said she wasn't surprised by the lawsuit and thinks it has a good chance of success.
"I had grave concerns about how the Police Department dealt with the whole thing," Sobel said. "They allowed the streets to be closed down. Had it been demonstrators with a different message, they'd have been dispersed. There were competing rights that needed balance here, and I didn't see that balance."
She said police were right to allow the protest, but should have better contained the crowd.
"They had a right to speak but they didn't have a right to physically shut him down," Sobel said.
Another expert on constitutional law disagreed. USC Law School professor Erwin Chemerinsky said the law does not give the government a duty to prevent individuals from infringing on others' rights.
"The question is, did the government take affirmative steps that infringe on Tran's constitutional rights," Chemerinsky said. Simply failing to act is not enough to make the government liable, he said.
The U.S. Supreme Court ruled in 1989, for example, that a Wisconsin county social services agency was not liable for failing to protect a child who was beaten by his father.
"The law is pretty clear and he has to prove to the courts that there was a conscious choice by the government," Chemerinsky said.
In addition to police and the city, landlord Quach and several protest leaders are named in Tran's suit. Quach could not be reached for comment, but activist Tuan Anh Ho said demonstrators did nothing wrong.
"He can express his view and so can we," said Ho, a protest leader. "We followed the law."