“Our county has favored picnickers over protestors when it comes to applying health code restrictions on outdoor human activities and interactions. This violates the U.S. Constitution.”

By Dhruv Khanna

Dhruv Khanna

The U.S. Constitution is the foundation — and the highest authority — of all law in our country. The President of the United States, the Governor of California and the County of Santa Clara must comply with the Constitution.

The United States Supreme Court is the final arbiter of what the Constitution means and how it must be applied.  During the pandemic, government-imposed restrictions on civil liberties have been litigated all the way to the Supreme Court.  The Supreme Court has found during the past year that New York and California have frequently violated their residents’ constitutional rights.

On Nov. 25, 2020, the Supreme Court said flatly, “(E)ven in a pandemic, the Constitution cannot be put away and forgotten.” The court struck down a pandemic restriction in New York that subjected religious institution occupancy to 25 people while a “large store in Brooklyn that could ‘literally have hundreds of people shopping there on any given day.’”

Less than a month after the Supreme Court’s ruling, during the afternoon of Dec. 20, 2020, while the surrounding hills bathed in unseasonably warm sunshine, a bevy of uniformed Santa Clara County Sheriffs in multiple county Sheriff vehicles parked outside Kirigin Cellars on Day Road for almost two hours. The sheriff officers came to observe a peaceful “Solstice for Justice” political protest being held by me and about 70 others against the county’s excessive lockdown restrictions on the ten acres of Kirigin Cellars sports fields.

The protest featured several speakers who spoke out against the harmful effects of the lockdown restrictions on school-age children, gyms, sports activities and small businesses. The speeches were interspersed with songs by the Alison Sharino Band which sang songs such as “America the Beautiful,” and “I Will Survive.” Because the singers did not wear face coverings while singing and some protestors did not wear face coverings, the county of Santa Clara fined the band, the LLC which owns the winery property and me $3,750.

We appealed the fines and sought a hearing at the county. At the hearing on July 8, the county attorney did not submit one photograph or one video of anyone at the protest in fact causing a health hazard. Nevertheless, on July 16, the hearing officer refused to consider our defenses under the Constitution and upheld all of the fines.

On Aug. 5, we appealed the fines and petitioned the Superior Court of California in Santa Clara County to nullify the fines and conclude that our conduct at the protest was entirely protected by the Constitution because it was no different than other social and commercial conduct expressly permitted by the County of Santa Clara.

For example, on the same weekend of the Solstice for Justice protest, the Kirigin Cellars sports fields were lawfully open for picnics. At such picnics people of the same households are not required to keep any distance from each other or wear face coverings unless they come within six feet of members of other households. Such picnic goers are permitted to sing without face coverings.

However, the county has sought to impose more strict rules at our all-outdoors protest by requiring all protestors to wear face coverings and maintain a six-foot distance from persons from other households at all times.

According to the county, it was a health hazard to collect signatures for the Gavin Newsom Recall petition even if both individuals were outdoors and wore face coverings. But at picnics, and at retail grocery and other stores such as Costco persons from two different households could come within six feet of each other so long as they wore face coverings.

The county also required all singers at a protest to wear face coverings while singing regardless of how far others were located. But picnickers were permitted by the same regulations to sing without face coverings at the same location during the same weekend so long as they stayed six-feet away from members of other households. Thus, our county has favored picnickers over protestors when it comes to applying health code restrictions on outdoor human activities and interactions. This violates the U.S. Constitution.

The county has not issued a single fine for health violations at any Black Lives Matter protest. We were singled out, and have been subjected to unequal treatment. We have sued to nullify the fines, and we are seeking our legal fees and costs as well.

Meanwhile, our county uses our taxpayer funds to defend itself in court and to pay attorney fees and costs when it loses such public-interest litigation. The county of Santa Clara recently paid its own employees a “Hero Pay” bonus of $76 million or $2,500 per employee!

The county employees receiving such “Hero Pay’ include county sheriff officers, enforcement officers and county attorneys who have violated our constitutional rights. This is not simply ironic; it is wrong, and adds insult to injury.

Dhruv Khanna is the owner of Kirigin Cellars. He wrote this column for Morgan Hill Life.