Let the bird-dogging continue

Don Bird says a sheriff’s office memo ordering against arresting Jim Nielsen is flat-out wrong

Don Bird puts the pressure on Tehama County Sheriff Clay Parker for a memo circulating in his office regarding Bird’s planned citizen’s arrest of Assemblyman Jim Nielsen.

Don Bird puts the pressure on Tehama County Sheriff Clay Parker for a memo circulating in his office regarding Bird’s planned citizen’s arrest of Assemblyman Jim Nielsen.

Photo By Meredith J. Cooper

Jim Nielsen served as state senator from 1978 to 1990. In 1983 redistricting rendered his Woodland home outside his district. He bought a condo in Rohnert Park in 1986, sold it in 1989 and rented an apartment, claiming both were official residences. Journalists investigating his living arrangements could find no evidence he lived anywhere other than Woodland.

Don Bird has found himself in the spotlight lately. The Red Bluff activist has long been after Jim Nielsen, trying any means he can think of to expose what he believes is fraud on the part of the Republican state assemblyman.

Bird isn’t subtle, either, carrying signs and collecting signatures wherever he can.

Now he’s got the Tehama County Sheriff’s Office looking out for him. But he’s not backing down.

About a year ago, Bird vowed to make a citizen’s arrest on Nielsen based on allegations that he does not live in the district he serves and lied when he said he did when he registered to vote in Tehama County. Bird drafted a letter to law enforcement agencies throughout the 2nd District, which comprises much of the Central Valley, outlining his plans.

Earlier this week the CN&R got hold of a memo dated Jan. 26, 2010, sent by Tehama County Sheriff’s Capt. Danny Rabalais. It reads: “If you run into any situation involving Jim Nielson [sic] (Running for Assembly) and Don Bird trying to arrest Jim Nielson [sic] under a citizen’s arrest, you will refuse to do so and refer Mr. Bird to Sheriff Parker.”

The e-mail memo went out to sergeants, lieutenants and a dispatch supervisor, according to Tehama County Sheriff Clay Parker.

“Basically, for at least a year now, Mr. Bird had been threatening to make a citizen’s arrest of Mr. Nielsen. [Allegations of his living outside District 2] have been investigated by the grand jury and sent to the California attorney general,” Parker said. “These charges have already been looked at by the attorney general. There is not probable cause.”

Bird contends that just because the attorney general didn’t prosecute it doesn’t mean Nielsen is innocent. His goal: To get Nielsen in front of a judge and jury of his peers, for them to decide whether he’s guilty of election fraud and perjury.

“This is not just about me. Everyone wants some justice,” Bird said.

This issue goes back to early 2008, when Nielsen announced his candidacy for the District 2 seat, to succeed Doug LaMalfa, who endorsed Nielsen. At the time, Nielsen lived in a gated community in Woodland, which lies in District 8, but he’d bought some rural property in the Gerber area, some 120 miles from Woodland, in Tehama County.

The California Constitution clearly states that, “A person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for 3 years, immediately preceding the election.”

A seeming loophole in the state Election Code, however, makes the year-of-residency point moot, saying it violates the U.S. Constitution and therefore is not necessary. Nielsen used this to stay in his Woodland home during the election, saying he “planned” to move to the doublewide in Gerber as soon as the current residents—his brother-in-law and sister-in-law—constructed a new home on the site. They never built the home and moved out of the doublewide soon after the election. Nielsen never moved in.

“Until somebody can tell me why that’s still in the book [the California Constitution], there’s no proof that Mr. Nielsen has been exonerated,” Bird said.

So where does Nielsen live? A group of concerned citizens, including Bird, Charlie Schauppp—who lost to Nielsen in the 2008 Republican primary—and Barry Clausen, who broke the story in the Pioneer Press, want that question officially answered, and nobody seems willing.

“I want to get him arrested, get him up against a district attorney and charge him,” Bird said. “If he can prove he’s been wrongly accused, then fine. But nobody wants to take it to that next step.”

Back before the 2008 election, Clausen brought the question of residency to the California secretary of state, Debra Bowen, who responded, “Our office has concluded its investigation against the subject referenced above [Jim Nielsen] and referred the case for prosecution to the office of the California Attorney General.”

The problem is, the attorney general decided not to prosecute, instead forwarding the issue back to Tehama County.

Tehama County is the only entity besides the attorney general that can criminally prosecute Nielsen. Schaupp considered suing him, but that approach could take years and would be only a civil matter—not enough to boot Nielsen from office.

Now the Tehama County Sheriff’s Office has said it will not arrest Nielsen. Incidentally, both Parker and Tehama County District Attorney Gregg Cohen endorsed Nielsen in the last election. Parker contends he’s not playing favorites.

“I don’t give anyone special favors. I treat everyone exactly the same,” he said.

“The sheriff will argue that he has discretion to ascertain probable cause,” Bird said. “The seven or eight penal codes that I sent all the law-enforcement agencies clearly states that I’m right and they’re wrong. I have the probable cause.”

Chico Police Sgt. Rob Merrifield described citizen’s arrests thusly: “[Law enforcement is] actually required to arrest the person unless it’s clear that it would be a false arrest. If a citizen walked up to Gov. Schwarzenegger and said, ‘I’m arresting you for burglarizing my house last night,’ we’d have an obligation not to arrest him.”

Does that scenario apply to Nielsen? The Sheriff’s Office insists it does.

“Everything here has been glossed over,” Bird said. “Mr. Parker is defending Mr. Nielsen.”

He’s not the only one raising a stink, either. Schaupp may not be able to sue the guy to get him out of office, but he can certainly try to take his seat the old-fashioned way when election time comes around again this year.

“We can’t get a response from [Attorney General] Jerry Brown, so we’re taking it to the voters,” Schaupp said. “I’m going to go forward and run against Nielsen.” Bird has announced his intention to run, as well.