Bucking Bullying Bigots and Badboy Blueshirts Downtown

POLICE PALL OVER PACIFIC AVENUE

Recently the paranoia and bigotry brew downtown has begun to boil over. Police and “hosts”, at the behest of some downtown merchants and residents, have stepped up their low-intensity warfare against musicians and those hanging out on Pacific Avenue. Police harass (ID check, search, interrogate) and cite (for hundreds of dollars). No longer even cloaking their charges in “behavior concerns”, selected merchants and residents report in the Sentinel they openly blame homeless people for the business slump, conflating them with “drug dealers”, “panhandlers”, and “gangs”.

New travelers appear as ever in downtown Santa Cruz, but on experiencing the police harassment, move on. Only the most hard-core old timers continue to hang out regularly on Pacific Avenue. And many of these wonder when the next turn of the gentrification NIMBY screw will target them for removal.

The “crimes” include “sitting within 14' of a building”(MC 9.50.12), “sitting for more than an hour on a public bench”(MC 9.50.13), “spare-changing (silently non-obstructively with a sign) within 50' of a change making machine”--MC 9.10.030h), and singing or playing a musical instrument (“unreasonably disturbing noises”--MC 9.36.020). The targets are almost invariably the poor and homeless.


SOME PROTEST THE CRACKDOWN

HUFF (Homeless United for Friendship & Freedom) has frequently held peaceful protests outside Vice Mayor Coonerty's Bookshop Santa Cruz to emphasize his role in spearheading or supporting anti-homeless laws like the Sleeping Ban (MC 6.36.010a), the Parking Lot Panic law (MC 9.64.010), the Three Unattended Infractions=Jail law (MC 4.04.0150), as well as the other laws mentioned above.

These protests have focused on the anti-homeless laws, Coonerty's lack of accountability, accessibility, and meaningful dialogue. We've circulated petitions, provided food for poor folks helping out or just passing by, played music, and sung songs.

The lyrics critiquing how downtown merchants and the police treat the homeless community in Santa Cruz can be found at http://beckyjohnsononewomantalking.blogspot.com/2010/01/downtown-music-by-petula-clark-lyrics.html .

Though we've been challenged under the “Move Your Table Every Hour” law (MC 5.43.020[2]) in the past, but never cited, we've never been told our music was anywhere near “unreasonably disturbing noise”. That all changed on January 6 of this year.


THE JANUARY 6TH SIDEWALK SINGER SWEEP

On that Wednesday afternoon around 3 p.m. Officers Schoenfeld (Badge #150) and her companion issued false citations to three of us singing political songs (in front of Vice-Mayor Coonerty's Bookshop Santa Cruz. The crime charged was MC 9.36.020 (Unreasonably Disturbing Noises). She also issued a fourth to a woman uninvolved with the protest who arrived after the police officers did.

We may not have been the best singers on the block, but we were neither unusually loud, and we only sang for brief periods of time. No one complained until Officer Schoenfeld arrived The several singers who had been singing stopped to speak with her (and never began again). Her ultimatum was “leave or be cited”.

We suggested that we'd be happy to singing more quietly, if that was the concern. That was a concession on our part, since we were singing at a reasonable level, during the height of the day with noisy traffic behind us during a political protest. It was at the same volume level we'd done it at during the 20+ prior protests we'd done there and elsewhere on Pacific Ave. in the last 2-3 years. See, for example, “Holiday with the HUFFsters” at http://www.indybay.org/newsitems/2010/01/05/18634377.php .

See “Sinister Street Singers Cited on Sidewalk” at http://www.indybay.org/newsitems/2010/01/20/18635743.php
and “Sing a Song, Go to Jail” at http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html for more details of the January 6th songsuppression


OFFICER SHOENFELD COLLUDES WITH A HECKLER

The tickets were issued on behalf of Sean Riley, a complaining resident in the St. George. However, the threshold for “Unreasonably Disturbing Noises” is very high during the day, particularly when dealing with political activity in a public forum (which the sidewalk is). In spite of this, the cops wrote the tickets, claiming that he had “probable cause” even though some of his statements were palpably false (that we'd been there for hours, that he'd asked us to keep quiet).

Add to this the fact that when asked whether she'd found the singing as she arrived to be “unreasonable noise”, Schoenfeld refused to reply repeatedly. That is, she gave us no standards for what would be considered protected singing on Pacific Ave. It was simply “move or get cited” and “it's not my fault; someone else is making the complaint.”

Apparently this is the general M.O. of police—accepting citizen “arrests” from residents and merchants without question, demanding that musicians or activists leave, and if they don't, issuing them $445 citations. They then must appear in court, pay a bail of $445, or pay $745 if they choose to dismiss the whole activity as the simple harassment that it is when the ticket is sent south for collection. Naturally this fine deters all but the most determined people—who simply shut down and leave.

If you don't pay the $445 up front, you must to go back to court three times, lose work time, and face what may be a predetermined decision by Judge Symons (see “Judge Returns Guilty Verdict In Metro Trespass Trial” at http://www.indybay.org/newsitems/2009/06/09/18601194.php ). Of course, that's a pretty hefty penalty for singing a political song and is likely to discourage you. This clearly chills any future sidewalk singing and is a form of preemptive censorship.


POLICE REFUSE TO MAKE A COUNTER-ARREST

I attempted to counter this bald attempt at ridding Pacific Avenue of dissenting rabble by trying to make my own citizen's arrest of Riley. In other words, I asked the officers to issue him a ticket as they'd ticketed me for knowingly making a false police report. They refused, saying they'd “put it in their report” and “leave it to the D.A.”. When I asked why they didn't do the same with Riley instead of spending 15 minutes writing out tickets on his behalf, they were silent.

When I asked to speak to their sergeant, they said he was “busy” and would call me. I received a call about an hour later. My callback got no response for several weeks.


THE PUBLIC RECORDS ACT REQUEST

On January 28th, I made the following Public Records Act request of Sgt. Michael Harms (and Records Officer Trisha Husome):

Sgt. Harms:

Thanks for your callback if earlier this week in response to my phone calls of 1-13 and 1-20.

1.  Please provide me with access to the police reports, citizens complaint(s), and any related material written or recorded (audio or video) about my citation on 1-6 for "excessively disturbing noises" on Pacific Ave. around 3 PM in front of the Bookshop Santa Cruz.  This would include witness lists, photographs, and any other relevant material.  As I am an interested party in this case, I understand I have a legitimate right (and need) to access them.

2.  Please advise me of your criteria for writing a citation based on a citizen's arrest under this ordinance.  Do you require
there be probable cause or will any complaint do?  What is the standard for probable cause?   Do you advise some complainants to file their concerns with the City Attorney rather than write out citations?  As you probably know, Officer Shoenfeld refused to issue a citation to Sean Reilly based on my repeated statement that I was making a citizen's arrest.  Instead she advised me that she'd be "taking a report" and "filing it with the D.A."  What standards do you use to decide which citizens will you agree to issue citations through the police and which you don't?  If there are any written criteria, standards, or instructions, I'd like to see them and believe they are public records.

3.  More generally please provide access to any other citations written under this code section MC 9.36.020 in Santa Cruz from Jan 2007 through Jan 2009. 

4.  Please provide access to any complaints made regarding "excessive noise" on Pacific Ave. in terms of police reports filed, police contacts made with those complained about, or 911 or other calls received from complainants during the same period. 

5.  Do you have any special instructions you have been issued or you issue your officers regarding political protests on Pacific Avenue in terms of First Amendment protected speech, when a protest is being conducted during the day?

6.  What is your understanding of the physical limits and rule differences in the so-called  "free speech" or "exempt zones" in front of the Bookshop Santa Cruz and in front of O'Neill's Sports shop?

7.  Are there any similar "free speech" zones in any of the city's 25+ public parking lots and garages of which yo are aware where folks can assemble without fear of violating the Parking Lot Trespass Law?

8.  I'd also appreciate any informal understanding you have of the citizen arrest concerns raised above and the procedures you use as well as any of the other questions.  Since citizen complaint/arrests  seem to be a fairly frequent occurrence on Pacific Avenue, I think it's of interest not only to me, but to others who need to understand what the rules are.

9.  If you feel any of these requests are outside your purview, be advised they are being made to you as an officer of the SCPD for action.  I don't care which department you sent them to, but they are public record act requests that have been made to SCPD, as of today.   I am cc-ing them to  Trisha Husome per your suggestion, but I would appreciate your taking action yourself to ensure these requests are speedily acted upon in their entirety.

Thanks in advance for your help on this matter.
Feel free to talk with me informally on the street if you wish, as well as leave me a phone message.

Robert Norse
(831-423-4833)


THE POLICE DEPARTMENT'S RESPONSE

On February 10, I received the following response in the mail:

“Additional time is needed to search for and collect the requested records from field facilities or other establishments that are separate from the Santa Cruz Police Department. Additional time is also needed for consultation, which shall be conducted with all practicable speed, with another agency having substantial interested in the determination of this request. A response will be made within the next few days and no later than February 12, 2010. Regards, Trisha Husome, Records Manager”

THE NEW POLICE-MERCHANT/RESIDENT ATTACK ON STREET PERFORMERS AND PROTESTERS
We are witnessing a new SCPD/DTA (Downtown Association) strategy which goes something like this: if a merchant or resident complaints about a musician or a political protest, the officer tells the musician/protester to “move on”. When asked why, the police officer says that a complainant has found their music or speech “too loud”. “How loud can I be?” asks the musician? “That's not up to me,” says cop. “If you go away, the complainant won't press charges; if you stay, they will.”

“But aren't I allowed to play music/sing songs/protest on the public sidewalk?” asks the victim. “Yes, but if you don't leave, the complainant will insist I write you a ticket” replies the cop. “But isn't it a question of being unreasonably loud—which means, according to the wording of the law, you have to really really loud if you're playing or speaking between 8 AM and 10 PM.” “That's not up to me,” says the cop. “Either you leave or, they will have me write you a ticket.”

What's not being revealed here is that the cop doesn't have to write a ticket if there's no probable cause. They can tell the complainant to take the matter to the city attorney or the D.A. And ask them to file charges. When the cop writes the ticket, it requires you to go to court on pain of massive fine.



TENTATIVE STRATEGIES FOR FIGHTING BACK

I suggest the following series of actions for dealing with a “move on or get a ticket” threat from a police officer. There is no guarantee that any of these will work. But at the very least, you will get a record of the discriminatory behavior of the police officer.

1. Have a tape or audio recorder and keep a record of any dialogue between yourself and the host, cop, or civilian complainant. You can also record the volume of your performance or protest. You have a right to do this since there is no expectation of privacy in a public place. It is also the best record of what is happening in anticipation of a legal challenge.

2. Call over witnesses to observe both your conversation with any complaining folks as well as your behavior and the volume of your music or protest activity.

3. Note any police officers, hosts, merchants, or downtown regulars in the area for possible subpoena as witnesses to the fact that your behavior does not constitute “unreasonably disturbing noises”. Also note if police or hosts pass by without stopping but within hearing range. This can be used as evidence in court later that you weren't engaged in criminal conduct (if you were, why didn't the police stop, warn, or cite you?)>

4. Ask the police officer if they find your music or protest “too loud”. Whatever the answer, start performing or speaking at a softer level and ask, “is this all right?”. Offer to proceed more quietly. Ask them specifically what they want you to do and what law you are accused of violating.

5. Ask the police officer if they've read the “noise” law to the complainant and explained to them that the 8 AM -10 PM upper limit on noise is fairly high. That is, the law does not provide someone to insist they move or have them cited simply because they don't like the sound or volume of your music. It must meet the objective standard specifically cited in the law. Make clear you want the officer to explain that.

6. Ask the officer to advise the complainant to take the matter to the city attorney or the district attorney if they want to file charges if you believe there is no probable cause. If it is during normal court hours, state that if the officer decides to issue you a ticket, you will ask to be taken to a magistrate directly, with the complainant coming along, because you believe there is no probable cause for the arrest.

7. Further ask the officer to inform the complainant that if they proceed with the citation, you will demand that the police issue a citation to the complainant for making a false police report.

8. If the officer still wants to issue the citation, ask to speak to the sergeant in charge first to clarify exactly what the standard is for “unreasonably disturbing noises”. Do not refuse to sign the citation, state that you are simply seeking to clarify the situation, but state that you are waiting to speak to the sergeant. If the courts are open, you can ask to be taken directly to a magistrate for a probable cause hearing.

9. If officer refuses to take your attempt to make a citizen's arrest of the complainant for “false police report”, ask to speak to his sergeant. Contact HUFF to get a Professional Standards Unit Internal Affairs complaint form to formally complain about the officer's discriminatory behavior.

10. At any point, you can choose to leave, which will probably end the encounter, since the point of the police arrival is to drive you away, regardless of your legal rights, and discourage you from returning. You can still file a complaint about police behavior even if you haven't been issued a ticket.

Contact HUFF (Homeless United for Friendship & Freedom) at 423-4833 for more info and assistance. HUFF meets weekly 10:30 AM to 12:30 PM at the Sub Rosa Cafe at 703 Pacific Ave. You can also file written reports in the notebook at the cafe or on line at this website.