Sinister Street Singers Cited on Sidewalk

FOUR TICKETS FOR SINISTER SIDEWALK SINGING

On Wednesday January 6th.Officers Shoenfeld and Inouye gave out four $200+ citations to activists for singing political songs in front of the Bookshop Santa Cruz on Pacific Avenue. These were citizen arrests based on the complaint of a nearby St. George resident who identified himself as Sean Riley.

The wording of the law under which we were cited is described below.

Some of the audio of this arrest can be found at http://www.radiolibre.org/brb/brb100117.mp3 near the end of the audio file.

The HUFF (Homeless United for Friendship & Freedom) activists circulated petitions, served hot vegan food, and sang the occasional song (http://www.indybay.org/newsitems/2009/12/19/18633181.php?show_comments=1#18633339 ).

Their tabling followed up on a prior demo dramatizing the near-tripling of the homeless death rate in 2009 (http://beckyjohnsononewomantalking.blogspot.com/2009/12/2009-annual-report-on-homeless-deaths.html ).

The issues are described at http://www.indybay.org/newsitems/2009/12/19/18633184.php .

Earlier protests had been threatened by merchants using police under the “move along every hour” law, which requires that “display devices' be moved every hour at least 100' and not come back for 24 hours. (http://www.indybay.org/newsitems/2009/07/31/18613467.php http://www.indybay.org/newsitems/2009/07/24/18612318.php )

This time police “responded” to Sean Riley's “noise complaint”. We don't know if Officer Schoenfeld told him the actual wording of the law--which seems to make his "citizen's citation" a false arrest. Nor why the officer's facilitated the ticket, doeing her own chilling of First Amendment-protected street singing.

Becky Johnson,who was ticketed, gives her own colorful take on the bust complete with photos and comment section at Before going further, I encourage readers to check out her account at http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html


BACKGROUND

A month before, DTA Executive Director Chip's attempted to exclude HUFF singers from the downtown Xmas parade on 12-5, though they were an invited and permitted part of the Human Rights Faire contingent. When HUFF tookits place in the parade, they were harassed by cop-aphilic vigilantes drowning out HUFF songs in that parade with revved motors and a bullhorn (http://beckyjohnsononewomantalking.blogspot.com/2009/12/sentinel-accuses-huff-of-crashing.html ).

HUFF has frequently sung downtown in front of the Bookshop, usually at the same time in the same place. Usually more loudly with more people for a longer period of time. as have other groups like the famed “Ragin' Grannies” and other less political (but louder) bands.

Two of us have an arraignment date on February 11 at 8:30 AM.

The issue is not us and our tickets, of course, but stopping the practice of giving performer-hostile locals a veto on who can play on Pacific Avenue.


POOR TIMES FOR PERFORMERS

“Big Drum” Brent, who plays a 50 gallon drum downtown with companion performer Wireless, reports regular “move along” harassment from police using this “excessive noise” tactic in the last few times he's played downtown.

Suzanne, who also drums with other strummers downtown, reports being moved along.

Visionsong Valerie and the SAFE group(Society for Artistic Freedom and Responsibility/Street Performers Against Foolish Enforcement) reports unusual police contact directing them to move along from their usual spot in front of New Leaf Market's closed kiosks where they preformed for six years, relatively unmolested..

Robert “Blindbear” Facer reported being told not only should he move, but that he couldn't play on the mall at all in a contact several months ago.

For more instances of this, go to http://www.huffsantacruz.org/brb-descriptions.html where some of my more recent Free Radio Santa Cruz shows are archived and scroll through the descriptions to read many accounts of harassment.


HISTORY

In 2003, the Rotkin-Matthews City Council finalized the law that threw out the Voluntary Street Performers Guidelines (http://www.buskersadvocates.org/saalegalSantaCruzGuide.html ). These had served the community for 22 years without any documented problems. In an attempt to drive away panhandlers and homeless folks, the City Council implemented a mandatory “Move your display device after an hour” which caught up performers (with their guitar cases), panhandlers (with their cups), political tablers (with their tables), and performers (with their open guitar cases seeking donations) in the same repressive law—nearly unique to Santa Cruz. (http://cohsf.org/streetsheet/2003/02/01/move-along-its-the-law/ ).

Police customarily ignore the time limit for political tablers, unless they receive a complaint (usually from a merchant), but use the hour-limit regularly against homeless folks panhandling for necessities with a sign in the limited time (daylight only) and space (less than 5% of the downtown sidewalk). Recently, however, the SCPD and/or the Downtown Association may have recommended a swifter approach to removing “unwanted” performers and singers.


THE LAW ITSELF

Municipal Code 9.36.020 "unreasonably disturbing noise" states in relevant part:

"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."

This ordinance is now being used to drive away musicians, regardless of how long or how softly they've been playing. The cop or “hospitality guide” helpfully explains, “we've gotten a complaint”.

Though the wording of the law seems to set a pretty high standard before turning a complaint into a citation/arrest (i.e. No probable cause) The words. “physically annoying” “so harsh...unnatural...unusual seem to allow for a relatively high level of volume at least from 8 AM to 10 PM when this law is in force. According to Mayor Rotkin himself in a recent interview (http://www.radiolibre.org/brb/brb100117.mp3 [halfway into the audio file]), this law wasn't meant apply to someone singing acoustically or with a quiet keyboard, but rather to people whose prolonged output actually produces physical discomfort.

Since singing is a “legal activity”, as described in section b of the law, how can you ticket someone for singing loudly when the act is legal, and hence outside the scope of the law as written? Not only is singing legal, but it's also First Amendment-protected. So unless you are actually “disturbing the peace” or committing some other illegal act so as to violate the “b” section of MC 9.36.020, even “physically annoying” songs aren't punishable under this law. Why then don't police tell those complaining there's no probable cause and hence no basis for a ticket? Why aren't police answering the question of a musician “how loud can I play?” Which brings up another issue—that the law and the standard is unconstitutionally vague, since there's no way to know if you're being “unreasonably loud” or not.


COP CAPERS

What do police say when asked, “is my music disturbing you?” (Presumably if he says it's not, then it's legal. He's the “expert” and he's closer to the music than the complainer).

However, here the police have a trump card. When the musician asks the cop if they find the level of music “unreasonably disturbing”, they may get a pokerface or refusal to answer. Even if there's a crowd around the performer appreciating the music at the height of the day alongside of additional street noise including loud motorcycles in the background. The cop may turn with an innocent look and say blankly, “it's a citizen complaint not mine”.

Even when the performer agrees to play more quietly (which, I suspect, is almost always the case), the cop is likely to say “you have to move along or the citizen will cite you; this is your warning.” And the cop may point out that the complainant was disturbed at some point prior to the cop's arrival, so the cop wasn't present when the “unreasonably disturbing noise” was made.

Is the cop telling the complaining party that he won't write a citation unless the noise they heard meets the very high standard the law requires? Does s/he tell the complainer what the law actually says? The threat of a “citizen's ticket” is likely to drive away most performers, no matter how softly they're playing and how much they're in the right. Who wants to be threatened with immediate jailing, be forced to go repeatedly to court, risk a $200+ fine, and possibly have one's instruments confiscated (though I've not seen that done in Santa Cruz)? Not something a person with little money wants to risk.

Knowing the law and hearing the music directly, the cop knows or should know that if he charged the performer himself and wrote a ticket, that would amount to “false arrest” without probable cause. Why then should the cop give greater credibility to the distant complainer than to his own ears? I have to conclude because the cop believes the resident has the right to shut down any music which they find bothersome, regardless of the wording of the law.

If the performer then trys to counter complain that the “noise” complaint is knowingly false--since the law doesn't apply to lawful street performers, the cop may refuse to take the countercomplaint. The officer who ticketed me for singing in front of the Bookshop said she'd “absolutely” take my complaint. However ten minutes later she refused, saying she'd put it in her report and “refer it to the D.A.” When asked why I was getting different treatment from the resident complaining, she looked at me impatiently, asked if there was anything else, and turned to go. s


THEN AND NOW

Remember the Good Ole Days when people talked to people? When merchants, residents, or other performers would approach a performer they had a problem with a speak to them? The Voluntary Street Performers Guidelines encouraged the musician to keep it quieter or move along after an hour. It was enforced by peer pressure and by its inherent fairness. No cops, courts, or lawyers were involved.

Not any more. To reiterate, police are now not asking musicians to play more quietly but demanding under threat of citizen arrest/citation that musicians “move along” regardless of how long they've been there, how loud they're playing with the officer arrives, and how quietly they agree to be. This amounts to a conspiracy to deny musicians their right to sing in public spaces, based on one person's complaint.


PUBLIC RECORDS REQUEST

I've requested Sgt. Harms to supply me with a record of the “noise” complaints and subsequent move-along advisories police and “hosts” have given in the last year on Pacific Avenue. The point is to see how frequently and under what circumstances this happens. And whether the police are issued any guidelines. So far, he has not called me back.

Rather than serve as a community resource to help communication between residents, merchants, and performers on the sidewalk, police are acting as a private goon squad to drive away performers at the whim of the complainant..

Because many of these performers are homeless, they have only public spaces to play in—adding another dimension of discrimination to the process.



WHAT CAN BE DONE?

It depends, of course, to some extent on how the courts treat this case, and whether Mayor Rotkin will attempt to rein in the police. My past experience with both does not make me optimistic.

My earlier suggestions on how to deal with this law can be found at (http://www.indybay.org/newsitems/2008/01/08/18471055.php?show_comments=1#18471663 )

The Street Performers Guild may be having a meeting soon. Please report your concerns either openly here on this blog, leave a written account at the Sub Rosa Cafe (703 Pacific Ave.) in the Police Abuse notebook, or give a call to me at HUFF (831-423-4833).

You can also discuss these issues on Free Radio at 101.1 FM or http://www.freakradio.org Thursdays 6-8 PM and Sundays 9:30 AM to 1 PM.

I shall be playing the rest of the January 6th Sidewalk Singer Slaughter at 6:15 PM on Thursday 1-21. The show will be archived at http://www.radiolibre.org/brb/brb100121.mp3 .