Judge won’t grant dismissal
A henna artist who was arrested last month for drawing on people’s skin will have to prove in front of a jury that it’s his First Amendment right to do so.
Santa Monica Superior Court acting judge Robert A. Kyman on Wednesday denied Luke Chanthadara’s motion to dismiss eight misdemeanor charges filed against him by the city for continuing to perform the art. City Hall banned the practice at the beginning of the year. Chanthadara was cited for operating without a business license.
Chanthadara’s attorney, Paul Mills, argued that not only should the charges be dropped, but that the $300 Chanthadara had in his wallet, along with his art supplies, should be returned to him. Police seized Chanthadara’s property when he was arrested July 20 on the Third Street Promenade as evidence to be used at trial. Between four and six plain-clothed police officers equipped with a video camera arrested Chanthadara while he drew non-permanent designs on the skin of tourists on the Promenade.
Even though she denied the motion for the return of property, Kyman agreed to give Chanthadara his money back — but not because police failed to have probable cause to seize it.
“Strictly in the interest of justice I am going to rule that the money be returned,” she said. “I think it’s the right thing to do... but I think the arrest was lawful and there was a basis to take the evidence.”
Mills argued that police had no basis for arresting Chanthadara, and city officials have refused to specifically cite where in the municipal code it says he cannot practice his art form.
Mills maintains that the city has set up a catch-22 scenario that leaves Henna artists in peril for practicing their art in Santa Monica. He said the city will issue business licenses to practice Henna from a cart or from a storefront location. But the artists can’t afford the $1,800 a month cart or the high storefront rents along the Promenade. He alleges the city is denying business licenses without just cause.
“I don’t know whether or not the cart requirement is why he was turned away at the (business license bureau) window and why he was standing here today,” she said. “Is it why he was not granted a business license? I don’t know... the fact is there is not enough information in front of the Court.”
Deputy City Attorney David Fairweather could not say why the city didn’t grant Chanthadara a business license, but did say Chanthadara could have appealed the decision.
However, Mills argued that the burden falls on the city to prove the arrest was warranted.
“The city has had more than a month to answer why he was turned down for a cart and Mr. Fairweather can’t answer that,” Mills said. “The people have the burden to justify their actions and they have not met that burden.”
He also argued that Chanthadara had nothing to appeal — he was flatly turned down. Citing U.S. Supreme Court rulings, Mills said it is Chanthadara’s First Amendment right to continue performing his art even though a city ordinance prohibits it.
“It is perfectly proper to violate and then challenge the license requirement,” he said. “This request for dismissal is for the interest of justice.”
But Kyman said because there were seven previous infractions against Chanthadara, the city had enough probable cause to arrest him.
A Sept. 6 meeting with Santa Monica Superior Court Judge Bernard Kamins has been scheduled to set a trial date. The jury trial could take up to seven days.
Chanthadara faces up to four years in prison and $8,000 in fines on the eight charges. He’s pleaded not guilty to all of them.
Chanthadara is also suing the city in Federal court, arguing his civil rights are being violated and his freedom of expression is being suppressed by the city.
Originally published in the Santa Monica Daily Press print edition on August 16, 2002. Read the original PDF.