BART may drop protest charges

An arrested protester is lead by BART police through the closed station during a #Blackout Black Friday protest in at the West Oakland BART station Nov. 28, 2014 in Oakland, Calif. Protesters chained themselves together through a BART car, with the intention of keeping it from running during one of the biggest shopping days of the year to bring attention to the death of Michael Brown and many others at the hands of police in black communities across America. 14 people were arrested by BART Police. less An arrested protester is lead by BART police through the closed station during a #Blackout Black Friday protest in at the West Oakland BART station Nov. 28, 2014 in Oakland, Calif. Protesters chained themselves ... more Photo: Leah Millis, The Chronicle Buy photo Photo: Leah Millis, The Chronicle Image 1 of / 1 Caption Close BART may drop protest charges 1 / 1 Back to Gallery

When 14 protesters against police violence shut down most of BART for three hours on Nov. 28 — the shopping day known as Black Friday — transit system managers estimated the fare revenue loss at nearly $70,000 and asked Alameda County prosecutors to seek reimbursement as part of their criminal charges.

BART General Manager Grace Crunican has since backed off and said she wants repayment in the form of community service, not cash. Facing continued political opposition, the system’s governing board is considering going further and withdrawing any demand for restitution.

At Thursday night’s meeting of BART’s Board of Directors, which was packed with protesters, one member, Rebecca Saltzman, presented a motion to seek dismissal of criminal trespassing charges against the Nov. 28 demonstrators. The motion was seconded by another director, Tom Radulovich. The nine-member board may consider the issue at its next meeting on Feb. 12.

Regardless of the vote, Alameda County District Attorney Nancy O’Malley will decide whether to prosecute the demonstrators, who could still face jail sentences. But because California law allows crime victims to decide whether to seek reimbursement for their economic losses, a majority vote by the BART board would override Crunican’s decision to ask for any type of restitution.

“The board sets the policies,” BART spokesman Jim Allison said Friday.

The protesters, denouncing the decisions not to prosecute in the killings of black men by white police officers in Ferguson, Mo., and Staten Island, N.Y., chained themselves to BART trains and fixtures at the West Oakland BART Station, which links the East Bay with San Francisco. Traffic was halted on four of the system’s five lines.

One car needed repairs because of a chain that was attached to a handhold, but most of the initial $70,000 restitution figure was based on a comparison of last year’s Black Friday fare revenue with the previous year’s, said BART spokeswoman Alicia Trost.

The demand for monetary restitution quickly became the chief target of the protesters and their supporters, who circulated petitions and spoke out at Thursday night’s meeting, despite Crunican’s change of position.

It also raised an intriguing issue for legal commentators.

“If all they did was sit in, make it hard to get into the paid area, and inconvenienced people, there would be no (legitimate) call for damages. Inconvenience is not compensable,” said David Levine, a law professor at UC Hastings in San Francisco. “If BART had a lot of people on that platform, and tremendous overtime expenses as a result of that demonstration, I don’t think that’s compensable.”

On the other hand, he said, “If your conduct causes harm, you can’t use the First Amendment as a shield for damage to property.” BART’s call for compensation for the recent protest, Levine said, “falls in a bit of a gray area.”

Jonathan Simon, a law professor at UC Berkeley, was arrested at antinuclear demonstrations in the 1970s and antiapartheid protests in the 1980s and spent time in jail. He said that’s a more appropriate punishment for civil disobedience than restitution.

“A society that places a value on public demonstrations, of which civil disobedience will be a part, should be cautious about going down that road” of requiring protesters to pay financial costs, Simon said.

“Every demonstration will have very disruptive effects on business,” generally covered by insurance, Simon said. He said BART suffered far greater financial losses when management shut down train service during labor strikes in 2013.

On the other hand, he said, protesters who knowingly break the law anticipate going to jail — which, in his case, proved to be “a life-changing experience. ... I don’t think I would have been a lawyer or a civil rights professor had I not spent some time at Santa Rita.”

Bob Egelko is a San Francisco Chronicle staff writer. E-mail: begelko@sfchronicle.com Twitter: @egelko