Arrests and prosecution of local Occupy protesters attempting to remain in Sacramento's Cesar Chavez Plaza have been as much the story as the activists' demands.

Earlier this month, protesters called the city attorney's decision to drop the charges against the nine people with multiple violations of the city's curfew ordinance a victory. That decision, coupled with the fact that Sacramento County District Attorney Jan Scully had earlier decided not to pursue state charges against demonstrators for failing to disperse from an unlawful assembly, has raised questions about the efficacy of the city's approach.

Lawyers working for the protesters contend that the city curfew is an unconstitutional violation of the First Amendment rights of free assembly and free speech. But the city – backed by preliminary court decisions – contend the ordinance is a legal limitation on the time, place and manner in which free speech is exercised.

Supervising Deputy City Attorney Gustavo Martinez discusses the city's position:

>Do you feel like justice has been served with respect to the Occupy protesters that have been arrested?

"Yes, (the protesters) were arrested, booked and spent a night in the Sacramento County jail. In addition, those arrested twice face a $200 administrative penalty and those arrested three times face a $300 fine for violating the city's park curfew. The combined sanctions of arrest, jail time and monetary fines imposed against each defendant achieved the people of the state of California's demand for substantial justice.

>How many of the arrested have paid a fine?

At this time, none of the dismissed defendants have paid administrative fines/penalties. However, administrative penalties have been imposed.

>How can a fine be imposed on someone who has not been convicted of a crime?

The process for seeking administrative penalties is separate from the legal process with a different legal burden. Those penalties are heard by a hearing examiner and can be appealed.

>Mark Merin, one of the attorneys for the defendants, suggested that you weren't prepared and didn't respond to their discovery requests, which led to the dismissals. Were you ready to take those cases to trial?

We sought a plea deal with the defendants. While we insist that there must be a punishment for violating the curfew ordinance, we didn't think a conviction for the maximum six months in jail and/or $1,000 fine was the appropriate justice, either. As for discovery, the defense attorneys asked for park surveillance video, five years of police work, everything under the moon. We produced what we had.

>If you felt from the beginning that something less than the maximum sentence was appropriate, why not tell people so it didn't seem like you lost?

We wanted people to know the law was being enforced to ensure the park occupation didn't grow. If protesters thought there are no consequences for violating the law then you have anarchy. The 30 people there after curfew are joined by another 30 and another 30, and the next thing you know you have Oakland.

Also, with the city's ordinance being challenged in court, we didn't want to send the false message that we didn't have faith in our statute.

>Does the fact that Occupy protesters are arrested but not prosecuted send a mixed message?

No. As stated earlier, they were arrested, spent a night in jail and for those arrested more than once we intend to collect the administrative penalty.

While executing our prosecutorial discretion in an even-handed, merciful manner, we want people to know that if they violate the code there will be punishment.

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