Jeff Olson, the Mad Chalker, prosecuted by city attorney for words in front of Bank Of America Graffiti or free speech?

In mid-February of 2012 Jeff Olson walked through the aisles at the CVS Pharmacy on University Avenue in North Park. He was there to pick up gifts for his nephews. The 40-year-old former staffer for a U.S. senator from Washington was off for the day, not from work, but from protesting against Bank of America.

While combing through the toy aisle, Olson spotted a blue box of Creatology sidewalk chalk. The back of the box read: “Decorate sidewalks, play hopscotch and other fun games; washes easily from skin and clothes; super easy for little hands to grip.”

A light bulb went on inside his mind. It was perfect, he thought, not as a gift for his nephews but as a way to protest against the big bank next door.

More than one year later, that decision led Olson here, sitting in a black desk chair at the defendants’ table facing superior court judge Jay M. Bloom, who is tasked with deciding whether the case should be dismissed.

Tall and lanky, Olson is perched on the edge of his seat. He stares at the judge as his lawyer, Tom Tosdal, addresses the court and nods his head at a rapid rate, more dedicated student than defendant in a criminal case. His erect posture and nodding head shows he’s either giddy with excitement for fighting the system or terrified by the system he is trying to fight. It is most likely a combination of the two.

He faces 13 counts of vandalism for writing anti-bank slogans with water-soluble chalk on a public sidewalk outside of three Bank of America branches, two in North Park, another in Hillcrest. The act could put him in jail for 13 years and be on the hook for more than $6000 in restitution if San Diego’s City Attorney’s Office gets its way.

According to the city attorney’s reasoning, the case is much bigger than some scribbles on a sidewalk.

“The People do not fear that this reading of section 594(A) will make criminals of every child using chalk,” reads a document filed in court by deputy city attorney Paige Hazard.

“Chalk festivals may still be permitted. Kids acting without malice may still engage in their art. Circumventing the rules, without permission, under the color of night, and now waiving a banner of the First Amendment, does not negate the fact that defacement occurred, a private business suffered real and substantial monetary damages, and Defendant is responsible.”

During the two-hour preliminary hearing on June 17, Olson’s lawyer argues against the merits of the case. “This is a case about a person’s constitutional rights, the right to free speech and to peaceful political protest,” Tosdal tells the judge.

Jeff Olson, announcing the gag order enacted that morning that prevents his having any interviews with media. Photo by Howie Rosen

Deputy city attorney Hazard fires back, “The people do feel chalk is defacement. Mr. Olson did not seek authorization from the Bank of America or the City of San Diego to write messages on the sidewalk. The goal of this case is to address blight. We prosecute cases to protect the quality of life for residents.”

Hazard, a woman in her late 30s, sounds as if she is trying to convince herself of the merits of the case as much as she is the judge. As she speaks, junior attorney William Tanoury scribbles on a yellow legal pad. Another law student working with the City Attorney’s Office sits and watches from the gallery.

As the two lawyers exchange arguments, Olson looks at the judge in an apparent attempt to make eye contact, hoping for some opportunity to show the judge that he is not some reckless vandal or irresponsible Occupier.

Olson was a latecomer to the world of vandalism — or political activism, for that matter. The Portland, Oregon, native was always political but never went further than a heated discussion. It took the bailout and the Occupy Wall Street movement for the agitation to turn to action.

He opposed the billions of dollars given to the big banks as part of the Troubled Asset Relief Program, more commonly called TARP. The banks, according to him, preyed on middle and lower classes. They handed out ill-advised loans, and when the bottom dropped out on the real estate market, responded by asking for billions in handouts from the taxpayers.

Olson focused his attention on one of the largest banking institutions, Bank of America. A branch is located two blocks from his North Park home.

At the time, fall of 2011, Occupy Wall Street was all the rage. Mobs of disenchanted citizens pitched tents in public squares across the country. They sang protest songs and banged on bongos to rally against social and economic inequality.

Here in San Diego, Occupiers commandeered the plaza at City Hall. In three months’ time, from October 2011 to December 2011, more than 60 protesters were carted off to jail for participating in non-violent sleep-ins.

Olson never protested at a council meeting, pitched a tent, or chanted slogans against the One Percent. Instead, he decided to go where he felt he’d make the most impact — the front doors of the bank.

It’s early June, 17 days until Olson is set to appear before Judge Bloom in a San Diego courtroom. He occupies a small black-leather loveseat inside Santos Coffee Shop in North Park. Olson is tall and thin. He is clean-shaven, his hair neatly combed. He wears a T-shirt that reads, “I am displeased with the entire situation,” in German. His look does not scream “activist!” It doesn’t scream anything at all. He looks like your run-of-the-mill North Park resident in shorts, T-shirt, and sneakers. Olson is unemployed but has been known to take the odd job every now and then, like getting paid to drive a car out to Chicago, for example. So, during the height of the Occupy movement, it’s safe to say he had plenty of time on his hands for politics.

“I didn’t think that going downtown to sleep in a park was a good use of my time,” he says.

“I thought it better to try and get these banks to be accountable for their actions. To me, the best way to do that was to inform the public and their customers of their part in the whole mess.”

Security camera footage shows Olson chalking anti–Bank of America messages on the sidewalk.

That’s just what he did. On October 3, 2011, Olson took residence on the sidewalk outside Bank of America’s North Park branch and began a crash course in activism.

He handed out leaflets and held signs urging customers and anyone within earshot to take their business elsewhere. He rallied against a proposal from the bank to charge customers fees to use their debit cards.

On October 11, Olson and his partner of seven years, Stephen Daniels, stood at the corner of University Avenue yelling slogans and sticking up signs informing customers of the bank’s desire to start charging fees for debit cards.

Daniels’s sign read, “$45,000,000,000.00 – Taxpayer Bailout only $300,000,000 paid in fines.”

Olson’s read, “Get you debit card here for only $60.00 a year.”

“The sign was meant as a joke, but at the same time making people aware that this huge bank, the third-biggest non-oil company in the world, wanted to add new fees just a few months after the federal government — the taxpayers, really — bailed them out from the brinks of insolvency.”

Safe to say bank employees didn’t consider it very funny. Vice president of global corporate security Darrell Freeman, visiting from his office in Laguna Hills, hopped from his spot inside the bank and approached the two protesters.

Freeman accused them of running a racket to collect finder’s fees paid by a local credit union for each new customer. He threatened to call Olson’s credit union and have them close his account.

David Batterson, a contributor to the San Diego Reader, happened to be at the scene to cover the protest.

“Freeman was very hostile,” remembers Batterson. “I’d say he was trying to bully Olson by threatening to call his credit union and demanding his identification. I have to say that at the same time, Freeman was unprofessional for not showing his credentials. I felt like he was there just to scare [Olson]. I’m fairly certain he did just that.”

According to a Costa Mesa gun store’s website, the security executive is a former member of the Costa Mesa SWAT team. He taught sniper courses for Orange County police cadets and currently volunteers as a firearms instructor for the Royal Rangers Scouts, an evangelical mentoring program tasked with the mission to “evangelize, equip, and empower the next generation of Christlike men and lifelong servant leaders.”

Bank of America’s corporate security VP Darrell Freeman testifies in court.

“At first I was scared shitless,” Olson says. “I really thought he could do that. So, after our little confrontation, I called California Coastal Credit Union to see if he could have my account closed. They laughed and basically said it was total nonsense.”

On October 17, five days after the altercation with Freeman, Olson again stationed himself on the corner of 31st and University Avenue. He and his friend JP Conly held signs and handed customers anti-bank leaflets.

Bank employees called 911. Police officers showed up a few minutes later. He posted the incident on YouTube.

He told the officers that he made sure not to yell at bank patrons and promised not to bother anyone using the ATM.

The officers left shortly after without issuing any citations.

While the police officers were willing to forget about the incident, Freeman was not so forgetful.

Olson continued protesting at the bank three days a week for a couple hours a day. He took weeks off during the holidays. His homemade signs and leaflets were not having the impact he desired.

Then one day in February 2012, Olson came across the box of sidewalk chalk.

The following day, Olson, an early riser, showed up to the bank just after dawn armed with a box of Creatology chalk and began to write the popular slogans at the time:

“Shame on BofA.”

“Banks got bailed out and we got sold.”

“No thanks, big banks”

On February 21, Olson became more creative with his message. He drew long octopus arms stretching from the walls of the bank. Stuck on its tentacles were wads of cash.

The chalking incidents became less frequent as Olson became more involved with the June elections.

What Olson did not know was activists around the country were using similar tactics. It was a temporary way to get their point across, far better than using spray paint, or for that matter lighting dumpsters on fire and pushing them into banks, like anti-war protesters had done in the ’60s.

On July 23, Los Angeles police officers arrested artist and Occupy activist Alex Schaeffer for writing “crooks” — using the Chase logo and colors — on the sidewalk outside of a branch bank in downtown Los Angeles. Schaeffer recorded his arrest and posted the video on YouTube.

“If you’re re going to get arrested, why not do it at the scene of the crime, where it all started, that being the banks,” Schaeffer said during a phone interview.



Jeff Olson chalks the sidewalk outside of a Bank of America

“I knew the city was going to be all arrest-y; that’s exactly why I did it. I wanted to show them put[ting] me in jail for writing something in chalk while at the same time these institutions bring the country to its knees and get paid billions of dollars.

“I spent 12 hours in jail that day, got the face and eye scan, the whole deal. It was all a show, to scare me.”

Just two days before Schaeffer’s arrest, Olson was at the Pride festival with his box of chalk. Olson, while focused on writing anti–Carl DeMaio slogans along the parade route, stopped by the Bank of America on University and Eighth Avenue with a stick of chalk.

“I wrote something about the banks and about DeMaio near the bank. It was funny because just after I finished, mayor — or, rather, then–congressman Bob Filner — walked by with [then-councilmembers] Toni Atkins and Donna Frye. I pointed to the message and he gave me thumbs up,” says Olson.

After the incident at the Hillcrest branch, Olson became more involved in the election. He traveled to see family in Portland. His protests against Bank of America gradually came to an end.

Unlike the chalk, city attorney Jan Goldsmith’s memory did not fade, and neither did Freeman’s.

On August 28, 2012, Bill Miles from San Diego’s Gang Unit knocked on Olson’s door to his apartment on Landis Street in North Park.

Photo by Howie Rosen

“I thought it was a joke at first. It was the last thing I thought would happen,” Olson says about the visit from the head of the Gang Unit. “The more I thought, the more I realized that these banks and their executives can throw tons of money at local politicians. That’s bound to have some impact.”

Olson’s partner, Stephen Daniels, was also home when Miles came for a chat.

“When they have to focus their energies on this type of trite, insignificant case, doesn’t that take away from the interest of the people?” Daniels asks. “I’d prefer if they focused on the real criminals. Don’t the cops from the gang task force have better things to do?”

On January 7, 2013, Freeman sent an email to officer Bill Miles from the San Diego Police Department’s Gang Unit and Nicole Kukas from the San Diego City Attorney’s Office.

“Any updates on this court filing?” Wrote Freeman in the email.

Freeman didn’t have to wait very long for a response from the City Attorney’s Office. Two minutes later, Kukas replied, “Thank you for checking in on this case. It is still under review. I will give you an update by the end of the week.”

Ten days later, on January 17, Freeman sent another email asking the same question.

Bill Miles from the San Diego Police Department’s Gang Unit responded, “I appreciate your patience. I will forward this to the City Attorney.”

On April 15, Paige Hazard from the City Attorney’s Office gave Freeman the good news: “I wanted to let you know that we will be filing 13 counts of vandalism as a result of the incidents you reported.”

Considering the time and the hours spent on the case, the city attorney must see some significance to the case. Not surprisingly, Mayor Filner is not on the same page with the city’s top lawyer.

On June 12, five days before the hearing to dismiss the case, Filner was asked about the case. The mayor hadn’t heard anything about it at the time. He did, however, have some concerns and didn’t rule out taking action to stop it.

“I’ve been known to defend the First Amendment,” Filner said during a June 12 interview. “I’ve been known to get arrested for the First Amendment from time to time in the past.”

Defend, Filner did, at least in part. Eight days later, on June 20, Filner issued a memo to council president Todd Gloria and City Attorney Goldsmith. It read in part:

“This young man is being persecuted for thirteen counts of vandalism stemming from an expression of political protest that involved washable children’s chalk on a City sidewalk. It is alleged that he has no previous criminal record. If these assertions are correct, I believe this is a misuse and waste of taxpayer money. It could also be characterized as an abuse of power that infringes on First Amendment particularly when it is arbitrarily applied to some, but not all, similar speech.”

Yet, despite opposition from the mayor or public support, the city attorney has moved forward.

“Vandalism is against the law in the state of California,” writes a city attorney spokesperson. “Graffiti is a form of vandalism. Various substances could be used, including chalk, to commit vandalism because defacement does not incorporate an element of permanence. Therefore a marring of the surface is no less a defacement because it is more easily removed. Case law stating that damage does not need to be permanent: In re Nicholas Y (2000) 85 CA 4th 941, 944.”

Does that mean any kid with a piece of chalk wanting to play a game of hopscotch is a vandal?

“As to the question of young children drawing on the sidewalk, it is unlikely that they would possess the requisite criminal intent of acting with malice.

“Though an act might seem harmless on its face, investigation and eradication costs can be substantial. All aspects of a case (e.g. the evidence, the type of charge, damage to a victim) will be considered and also balanced against our need to use resources effectively and efficiently.”

According to the City Attorney’s Office, in the past two years there was only one other case of a mad chalker temporarily tagging property. That case, however, was dismissed for lack of evidence.

Olson assumes there is some political motivation by the city attorney to forge ahead.

“I can’t believe they are actually going through with this,” says Olson outside the courtroom before the June 17 hearing. “It’s no mystery that Goldsmith has ties to big business. How do you think he was able to raise tens of thousands of dollars for his campaign for city attorney? He didn’t even have an opponent.”

The conspiracy theories stop and the anxiety takes charge. “It’s crazy; I’ve never been inside a courtroom before. I’m anxious but also still wanting to fight this. I just can’t believe this is happening,” he says with nervous laughter.

“This is a perfect form of civil disobedience, that is non-violent, non-destructive, and a way for people to exercise their right to free speech.”

Weeks before the trial was set to begin, Goldsmith offered Olson a plea deal. Goldsmith would drop the case if Olson agreed to give $6000 to Bank of America, give up his license, waive his Fourth Amendment right, and serve three years’ probation.

Using the city attorney’s math, each chalking incident, 19 in all, cost the bank anywhere from $225 to $400 to clean. That and all of the employee time spent on the matter.

Olson refused the deal.

His attorney Tom Tosdal, working pro-bono, says he is in for the long haul.

“As a lawyer, I took an oath to defend the Constitution. That’s what this case is for me. The city attorney is playing politics with [Olson’s] right to free speech. It’s another form of social control, and I won’t sit by and watch it happen. I was there in the ’60s when real protest happened. This, writing in water-soluble chalk, is so minor.”

It’s not the first time that Tosdal has stood up for free-speech rights.

He also advised Alex Schaeffer as the Los Angeles city attorney pondered whether to press charges.

“Each person in this country has the right to freely speak, write, or publish his or her sentiments on all subjects. A law may not restrain or abridge liberty of speech. That’s what the Constitution says and that’s what I believe is right and just.”

Despite his pleas, Judge Bloom denied Tosdal’s request to dismiss the case. The trial was set to begin on June 25.

After the judge’s decision, standing outside of the courtroom, Olson tried to grasp the positive aspects of the ordeal.

“It’s good and bad that City Attorney Goldsmith is going after me. In certain ways I feel like a martyr. It’s, like, here I am getting prosecuted for marking the sidewalk with chalk and the big banks and Wall Street fat cats haven’t answered to nothing. It’s not huge, but I feel like this might make a difference for others, for the future activists who don’t agree with the system and try to fight to be heard.”

It’s been up and down for Olson since that June 17 court hearing. On the positive side, Olson has seen support for his cause grow.

He’s also been forced to deal with the strong possibility that he may be convicted. That proved to be the case on June 25, when judge Howard Shore listened to preliminary motions filed by the attorneys.

During discussion, Shore granted deputy city attorney Hazard’s motion to prohibit Tosdal from even mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech to the jury during the trial.

“The state’s Vandalism Statute does not mention First Amendment rights,” stated Shore.

The judge felt the trial should focus on whether or not Olson was guilty of vandalism and not deliberate about his motivations.

As an example, Shore cited the case, Mackinney v. Nielsen 69 F.3d 1002 (9th Cir. 1995), in which a man was acquitted after a court ruled that use of chalk was not considered vandalism. The law was later changed to define vandalism as defacement “with graffiti or other inscribed material.”

Tosdal exited the courtroom after Shore’s ruling with a smirk on his face. “I’ve never heard that before, that a court can prohibit an argument of First Amendment rights”

The jury was selected on June 26. The trial began that same day.