Drum Circle Back in Business; Daytime Copwatch/Chowdown Tomorrow

LAST WEEK'S HARASSMENT

Last Wednesday fence relocation experts reported that Sgt. Michael Harms was surveilling the scene both from his squad car and from the distant flower shop with binoculars. He reportedly moved in to threaten those removing the fence or trying to set up drums in the traditional drumming area with tickets---either for vandalizing city property or socializing in a public parking lot (not clear which). His armed and uniformed presence significantly discouraged and drove away the Drum Circle on December 3rd.

(See "Police Car Baby-sits a non-existant Farmer's Market Drum Circle" at http://www.indybay.org/newsitems/2008/12/03/18553519.php and "Threatened with a ticket, I continued playing at the drum circle." at http://www.indybay.org/newsitems/2008/12/05/18553732.php)

I spoke with Sgt. Harms at some length yesterday, as he was sergeant at arms at City Council in the last Council session of the year, and will be playing some audio of our chat either tomorrow night (6-8 PM 101.1 FM http://www.freakradio.org) or Sunday morning (9:30 AM - 1 PM).


WHAT A DIFFERENCE A WEEK MAKES

Today, the green mesh fencing was up around the three gathering spots under the trees in the parking lot at Cedar and Chestnut before noon today. I parked next to the fenced off area historically used by drummers, and wandered away. When I got back around 1 or so, two segments of the fence had been removed to allow passage through the fence. When I returned somewhat later, the entire fence had been taken down and only the support poles remained. Some minutes after that, even the poles (along with the fence, neatly rolled up) had been deposited in a bundle nearby.

The drummer threatened last week with tickets arrived with three drums, unwrapped them, and joined the burgeoning group. Nary a uniformed police officer nor squad car was in sight, though I had another lengthy conversation with Harms on Pacific Avenue about his enforcement practices.

The word on the streets: "Keep out of Harms' way". Apparently Harms was keeping out of the community's way this week. A good change.


COPWATCH TOMORROW

HUFF (Homeless United for Friendship & Freedom) heard some positive feedback from its Saturday night sleepoutcopwatch in front of Borders on the 60th Anniversary of the UN Declaration of Human Rights (see "Human Rights on the Street--Santa Cruz style" at http://www.indybay.org/newsitems/2008/12/08/18554038.php).

One regret we had was that there were so few police officers to accompany on their rounds to ensure they were not tempted to make unconstitutional, illegal, and discriminatory stops. At the weekly HUFF meeting, we decided to join the Xmas shoppers with videocameras and signs to provide documentation and commentary on the police stops downtown.

Jay, the musician, whose recent "sitting on the edge of a planter" ticket was dismissed in court because the harassing officer didn't show, received another one yesterday. Police have taken to illegally ticket musicians for "panhandling" when they play after dark.

However, the appropriate Municipal Code 9.10.010 clearly exempts musicians stating "A person is not soliciting for purposes of this chapter when he or she passively displays a sign or places a collection container on the sidewalk pursuant to which he or she receives monetary offerings in
appreciation for entertainment or a street performance he or she provides."

Likewise, weary folk, harassed for sitting within 14' of a building can take comfort from the exception section to the "No Sitting" ordinance (MC 9.50.014a) which exempts from the absurd and selectively enforced anti-homeless code "Persons standing or sitting on the curb or portion of any sidewalk or street while attending or viewing any parade, festival, performance or similar event permitted under the provisions of this code." A person playing music is engaging in a "permitted event"--hence musicians can help sitters in this regard.


EXPLODING THE "UNREASONABLE NOISE" LAW

Finally, the unreasonable noise ordinance used to silence musicians reads

" 9.36.020 UNREASONABLY DISTURBING NOISES.

No person shall make, cause, suffer or permit to be made any noises or sounds (a) which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted. As used in this section, “lawfully conducted activities” shall include, but not be limited to, any and all activities conducted by the city for public health, safety or welfare purposes."

Notice that the noises (e.g. music) must be "unreasonably disturbing [or] physically annoying [or] so harsh...prolonged...unnatural..or unusual...as to cause physical discomfort" AND (and this is key) not be "necessary in connection..." with a legal activity. Playing music is legal. Making noise is necessary.

Hence the entire law (which applies 8 AM to 10 PM) seems to mean that police really have NO basis for telling musicians to stop performing because a merchant, resident, or cop may find the noise not to their liking.

Admittedly this has not been tested in court, but the plain wording of the ordinance seems to indicate both the harshness of the noise and its lack of connection with a legal activity must be shown.


RUBBISH FROM ROTKIN

Cautionary note: Mike Rotkin--in an interview on Free Radio last Sunday [http://www.radiolibre.org/brb/brb0681207.mp3] --insisted that the noise law didn't require both conditions to be met. Since he was on the Council in 1980 when the law was passed, you might regard him as an authority.

Still, it seems to me that the clear straightforward meaning of the words of the ordinance would seem to me to take precedence over his opinions.

We also must remember this is the same Rotkin (now our vice-mayor again), who denounced me last night at City Council. I confronted the Council (again) with the fact that 1500-2000 homeless will be sleeping outside nightly with space for less than 200 in walk-in emergency shelter and a Sleeping Ban in force throughout the city after 11 PM. Rotkin's response was to call me a liar and say "Santa Cruz spends more per capita than any city its size."

Rotkin is wrong about the expenditures, but even if he were right, it would show how badly the money is being spent, considering the limited amount of shelter available as the winter deepens.

No wonder they're running around cutting everything but the salaries of the bigwigs and the cops.

JOIN THE COPWATCH TOMORROW 11:30 AM AT BADASS COFFEE. Look for us on the street nearby in the noon hour thereafter. Call HUFF at 423-HUFF to volunteer and report bad experiences.