Bucking Bullying Bigots and Badboy Blueshirts Downtown

I love this quote "New travelers appear as ever in downtown Santa Cruz, but on experiencing the police harassment, move on."

It not only confirms that the new ordinances are working (HURRAY!), it also confirms that the previously overly-lenient environ of the mall was serving as an attractive magnet to vagrant bums (Oh, sorry Rob. "Travelers"..ahem.) and that that is history.


Keep up the good work SCPD, and keep citing the bums; Huff-bums included.

seriously it's disgusting.

yes, there are "vagrant bums" on pacific who are substance abusers and/or mentally ill, and they need help, not harassment. there are also regular ass folks who just want to use public space, seeing as it's, you know, public and all. well not anymore... it's more of a "mall" now then it was before the quake. shop, or risk going to jail.

a friend of mine was recently ticketed for leaning against a planter and watching people play music. when she went to court to contest the fine the judge lectured her condescendingly that the laws were meant to clear downtown of "people like you" (people not shopping i guess), regardless of the specifics of her "crime"! no i dont think there are any death camps in santa cruz, but fascist is the word for the attitude. it's really sad.

If the "travelers" would stop harassing people and actually use the change people give them to try to get food, shelter, and other help instead of booze, pot, and other various addictive substances I think a lot of these problems would go away.

But ya know what? It probably won't happen so we need the cops to help return downtown to some semblance of normalcy so that people feel safe to walk through it.

Was the first story written on this subject not enough?

Was no one noticing it any longer because of it's placement on the "Local News" second page?

Does Robert have anything new to add to this issue, or is he simply trying to keep it from going into the internet wastebasket?

Lord knows Sum Dim was trying at the Sentinel to get everyone to notice the last story. Yet another 6000 word essay on this, Robert? Really?

Robert writes "Her ultimatum was “leave or be cited”. "

This is outright untrue.

On the tape provided by Robert himself, the officer is clearly heard saying "The people making the complaint are fine with your protest, they just ask that you be more quiet OR move along."

She does not say "leave or be cited". She left it in Robert's court to decide the next step.

She is also clearly heard saying "I prefer not to cite you". Robert and Becky then get into an argument with the officer at which point she says she can contact the complainant and have him make the complaint official by signing it.

She gave them multiple outs, they refused to be open to the request, and she followed through.

For those interested in checking out the folks who are pushing these kind of unconstitutional clampdowns, check out the Santa Cruz Neighbors meeting tonight 7 PM at the SCPD Community Room at 155 Center St. It's open to the public.

The kind of bigot-based paranoid fantasies being spread can also be found at http://www.topix.net/forum/source/santa-cruz-sentinel/TUORT6R70COVVTVHP/p10 .

Interesting to watch how internet trolls and downtown trollbusters can twist things around. Armed police officers with ticket books and their vigilante friends "move along" homeless people for patently innocent (though "illegal" behavior) like sitting, singing, sleeping, peaceful sparechanging, and political tabling. Who's intimidating who?

Citizen: Thanks for your "leaning ticket" account. Please ask your friend to post specifics and ask others to do the same.

Willis: Sparechangers are an annoyance not a safety issue downtown. Do you know of any recent examples of panhandlers within 13' of a building or "criminal sitters" or those "on a bench for 61 minutes" (all "crimes" in Santa Cruz) actually engaging in real crime like assault, burglary, rape, etc.? City Council and the PD had no such stats when they created and worsened these laws; I haven't seen any since.

Shadow; Ay Vey: Hoping some of the tips prove helpful in beating back the latest attack on the constitution. That's the new element in the story.

If you look at Officer Shoenfeld's behavior, she initially insisted we leave, finally agreeing that if we were quiet, that would be adequate. There was no resumption of the singing. Nonetheless, she decided to take the citation from Sean Riley instead of referring it to the City Attorney, even after we'd clarified we'd be willing to play more quietly. It's not what Shoenfeld says, it's what she does.

The "argument" with Shoenfeld was mostly about what the standards were for the singing. Did she regard it as unreasonable? How quiet did it have to be? Would she be fair and take a countercitation from us for a false police report? She stonewalled, or reversed herself, on all of those issues and acted as a dutiful little automaton for hecklers who wanted to shut down a protest.

And that, in fact, seems to be the policy of the PD--to drive away street performers and activists, not to address the actual specifics of the "unreasoanbly disturbing noises" law. I haven't heard of a street performer yet who was told by a police officer "could you play more quietly?" The account is always "move along", "leave Pacific Avenue", or "stop playing". Obey the police officer, no matter how discriminatory her demand.

That's the problem. Hopefully the suggestions will encourage police to educate hecklers that everyone has rights downtown.
Of course, I'm not holding my breath.

That should be "who's intimidating whom?"

Robert wrote "Shadow; Ay Vey: Hoping some of the tips prove helpful in beating back the latest attack on the constitution. That's the new element in the story."

So why didn't you just comment at the end of the old story about the same thing?

Then it would all be in one place so people wouldn't have to jump back and forth.

It's the same old attack on the constitution from before.

Or was it not getting enough attention on the second page?

It's "Oy Vey", not "Ay Vey".

Go ask your great grandmother. She would tell you.

"If you look at Officer Shoenfeld's behavior, she initially insisted we leave, finally agreeing that if we were quiet, that would be adequate."

I'm not sure about everyone else, but that's not the way I heard it. I listened to the interaction at least 5 times and the officer is actually being rather fair and starts by saying she's acting on a noise complaint and could the singers tone it down or move along. Just like what was mentioned above. In reality she's going out of her way to not make it a confrontation. And she does say that she does not want to cite the group. She's also right when she says she's acting on the complain and did not hear it for herself. She can't comment on if they were too loud because she didn't hear it. But that does not mean that you guys were not singing too loud. It's like when Robert's car was stolen and he called the police to help him get it back. Robert called it in and made the complaint about his car. The officers came and assisted him. They didn't see the car get stolen or hear it get stolen. They took his word that it was, in fact, stolen. They worked with him and eventually got his car back for him. And it's not like it was one person in the building that was upset because there's that other lady too speaking from her window. So really two people were upset about the noise level. And then you've got Becky screaming like a madwoman at everyone standing around. I was floored when she told the woman living on public assistance that she should move if she does not like city noises. City noises don't often include people singing right below your window and then having arguments with the police. And since when is Becky in a position to be telling poor people where they can and cannot live? It was really rude and she should offer the woman an apology. It also does not help that the audio is highly edited. You can hear where there are parts that have been cut out. You have to wonder what was recorded on those parts that ended up in them being censored. The whole thing is fishy, and not on the part of the police. As with any Robert Norse/ Becky Johnson incident I'm sure that there is an entirely different situation lying in the information that was deleted. I want to hear the entire tape with no edited out parts.

The bottom line is: Robert and Becky *need* to have confrontations with the police to explain their own existence to themselves. If they were to be rational, reasonable people, they might have had some positive influence on local politics, but they aren't, so they haven't. Instead, they live their lives simply to have negative interactions with the local police/city council/business community so that they have something to "report" on, and keep themselves relevant (to themselves).

They are sad excuses for activists and advocates, no matter how much they crow about the cable shows they've produced or radio shows completed. How many homeless people have they saved again? Oh, right.

Zero.

Call in today at 427-3772 to discuss these matters and/or to report new incidents 6-8 PM on Free Radio Santa Cruz at 101.1 FM and http://www.freakradio.org . It's interesting that the critics who write here--never call. It's easy to throw mud from behind a psuedonym.

For a broader view, listen to the 13th Annual Homelessness Marathon next week starting at 4 PM on Tuesday February 23rd going to Wednesday February 24th at 6 AM. Past homelessness marathons and more information can be found at http://www.homelessnessmarathon.org/.

Nashur: Thanks for listening to the audio of the encounters.

The "free speech zone" in front of the Bookshop Santa Cruz is a regular place for musicians to play and sign and protests to happen (including calling out). Those who expect nighttime noise levels during the day and get police to shut down political protests (andt hat's what a $445 citation may do) are acting unreasonably. It seems to be a pattern on Pacific Avenue, as I wrote before, that musicians are being told not to "play more quietly", but to stop playing and move. That's just a simple fact and seems to be based on some kind of sympathetic repressive agreement between police and residents/merchants.

Schoenfeld's obvious bias is shown by her failure to answer the simple questions, "was the noise disturbing you?" & "how loud can it be?" She could have easily answered these questions. Not to do is to decline your responsibility as a law enforcement officer concerned with everyone's rights and instead act as an agent of those trying to shut down the protest.

Simply leaving the discretion in the hands of a heckler is to force those without money to go to court on the basis of a false police report. The musicisns and singers stopped singing when Shoenfeld interrupted (even though there was no cause for them to do so based on their volume). They did agree to be more quiet, yet Shoenfeld ticketed anyway.

She had no obligation to take the heckler's citation, having the power to do what she did when I asked to ticker Riley--leave it to the city attorney or D.A. She made no apparent attempt to get testimony from anyone else about the veracity of the report, nor to apply the very specific standards of the code section--which allow for a high threshold of song or speech (or noise generally) during the day.

She repeatedly refused to offer an opinion as to whether our playing was "unreasonable" giving us no standard to follow. She was clearly attempting to get us to move and only reluctantly agreed it was okay if we played more softly. One suspects this is a standard practice decided upon previously in such complaints: "either they move or they get ticketed". Then she reversed herself and gave the ticket anyway..

The fact that this upset Becky and prompted her loud objections was no basis for ticketing. If it were, Shoenfeld herself could have written and signed the ticket without a complaint, based on Becky's volume alone. The proper code section here would be "disturbing the peace"---but that would have been clearly false. As indeed the entire ticketing incident was.

Heckler Riley lied when he said he had informed us of his concern previously and lied about how long we were there among other things. This tends to impugn both his credibility and his motives. More important, why is the SCPD mechanically supporting one side of a dispute in a complaint that has significant free speech ramifications?

For those reading this thread, be aware that most critics writing in seem more interested discrediting particular activists than in discussing the real issues, much less furthering a true solution downtown that would further the interests of everyone. It's part of a shrill "Take Back Santa Cruz"-style chorus of shrill homeless-o-phobes trying to sanitize the sidewalks by driving away those making businesses and residents uncomfortable by raising issues they care to ignore (like the homeless death rate which was the main point of the protest).

The implicit merchant/police agreement to use jury-less downtown ordinances to scare away homeless people, political activists, and street performers downtown false blames poor people using public spaces for the deepening depression. It's a convenient excuse to enforce a social and economic crackdown downtown that is both counterproductive, unconstitutional, and seeks to gentrify traditonally diverse downtown spaces.

It's also absurd, when combined with other policies like the city-wide Sleeping Ban, park closures, and police sweeps elsewhere which literally drive homeless people down to Pacific Avenue since there is no sanctuary anywhere.

And it creates inevitable confrontation, since some people ultimately are not willing to surrender their rights when push comes to shove and it's a function of survival and dignity versus paranoia and privilege.

When the next round of commercial rental foreclosures hits, little doubt the intensified search for scapegoats will heighten. Please post your reports here of police repression when it happens.

Call in and listen in today on Free Radio and checkout the Homelessness Marathon on Tuesday.

Robert -

A previous poster asserted that the audio recording of the event appears to have been edited. Can you confirm or deny?

The address and phone number of one person, I believe, was removed at her/his request. Probably unnecessarily. Otherwise it was played straight through, as far as I know. Some video of the event remains to be released.

Robert says "The address and phone number of one person, I believe, was removed at her/his request. Probably unnecessarily. Otherwise it was played straight through, as far as I know."

There's a few problems with that statement.

You can obviously hear where the tape has been edited multiple times.

At the end of Robert's little radio show he cuts the tape off and says "Oh, we're out of time, can't play the rest."

And if Becky's address was the one being redacted, she already published it when she posted a copy of her citation. So why bother?

There's more on that tape the Robert does not want us to hear.

Further evidence that the tape was edited can be attributed to statements made by Becky.

She claims that she was singing "Let it snow" when the police walked up.

On the tape the singers are singing "Downtown" when the police walk up.

Robert says "Some video of the event remains to be released."

"Some video", or an edited video?

so all you people who are splitting hairs with robert's account, are you downtown business owners? scared yuppies in capitola? do you just never go downtown? do you just really hate and fear people who have less money than you? because it seems like you can't see a very large and obvious forest for the bark on one of the trees. we all know what's happening downtown, it is being "cleansed" on the basis of race and class. there is little public space, free speech or free assembly allowed anymore. it's just a big capitalist shopping mall.

and where do you think people go when the cops chase them off the ave? they just disappear? don't get me wrong, a lot of those people are not anyone i'd want to hang out with, but same goes for most of the "legitimate citizens" shopping and going their merry bourgeois way from store to store, sipping their acai lattes and yapping into their iphones. i'm not going to cry for them if they're all freaked out that some smelly hippie looked at them. anyway, this is a typical fascist tactic. hold up a sufficiently frightening and disguting bogeyman - terrorists, crack dealing gang members, child molestors, yes, pacific ave bums apparently fit on that list - and you can justify any extension of police power. this is where the thin-skinned gentility of santa cruz fits seamlessly with security cameras everywhere, police batons and mace, sanitized and sterilized "public" space where only commodities and consumers are permitted to circulate.

"Citizen" asked "are you downtown business owners? scared yuppies in capitola? do you just never go downtown? do you just really hate and fear people who have less money than you?"

My reply is that you have way too narrow a perspective, Citizen. There are a lot more categories of people than that who don't like whats going down on the mall. Me? I'm just an average worker bee. I'm not a yuppie, I don't own a business, I go downtown frequently, and I don't hate people who have less money than me.

But here's what I DO hate about the mall:

-Being spanged by tweaker twenty somethings who give me attitude if I don't contribute to their addiction.

-Trying to enjoy a walk on the levee but having that effort impeded by drunk bums, heroin dealers, and a homeless bum squatting to crap.

-Mall scrotes like Robert and Becky who lie about their run-ins with the cops. They intentionally instigate these confrontations, then play the victim. Robert did it with his bogus Metro case, he did it with his Nazi Salute, and he's doing it now with some fabricated victim with a psuedonym. And Becky is doing it in this instance by slicing and dicing the facts about what happened with their singalong; just like she did on the issues of teachers salaries, Donna Deiss, etc.

So don't kid yourself that it's a narrow spectrum who are sick of the condition on the mall or Robert/BJ's shenanigans. Both situations have grown old and tired, and both are getting a much deserved come-uppance.

The proper spelling is "Schonfield"--the incompetent or malicious officer who orchestrated the four $445 citations. I apologize for the repeated error.

While getting access to the police reports and a few other items through SCPD Records Manager Trish Husome (after repeated e-mails), I got no response from Sgt. Harms, Husome, or anyone else on the key questions of "how loud is too loud?" and "what are your standards for enforcing this law?"

After hearing from Sgt. Harms his understanding that the law can only be enforced by citizen complaint/arrest and not directly from the police, I resumed e-mail correspondence with Sgt. Harms, requesting the police general directives (which govern police policies--see http://www.indybay.org/newsitems/2010/03/21/18642408.php) and/or the city or state law that prohibits police officers from giving out noise complaints themselves.

So far I have gotten no response to this question.

It's important, because it's unclear what role the police are really playing in these noise complaints and what standards they apply. If a police officer witnesses a song and doesn't regard it as unreasonable, can s/he really in good faith take a citation from someone further away who does? If a police officer provokes an angry disturbance by interrupting a performance or protest, can s/he then legitimately claim the "noise" created is unreasonable or use that evidence in court via a third citizen? Are police regularly giving full credibility to any noise complaint whatsoever on Pacific Avenue and then giving "move along or else" ultimatums to street performers and protesters, even though the wording of the law itself actually allows for a very high level of noise during the day?

From: rnorse3 [at] hotmail.com
To: mharms [at] ci.santa-cruz.ca.us
Subject: Questions Around the Unreasonably Disturbing Noises Law
Date: Thu, 18 Mar 2010 06:40:12 -0700

Mike:

Stimulating talking with you last night.

Per our conversation and your offer of greater clarification by e-mail, here are some questions I have:

1.  What specific "crimes" are you not allowed to cite directly but actually require an intervening citizen complaint/arrest?  You suggested "unreasonably disturbing noises" (relevant sections reprinted below) is one of those codes. 

2.  Where either in the municipal code, the state code, your general orders, and any other written instructions from the higher-up's is this "third party" requirement made explicit?  Both in the "noise" statute and in any other ordinances that you understand do not allow you to cite directly.  I understand you said you needed to research this.  And thanks for doing it.

3.  Did Mayor Rotkin ever contact you directly to request specific information on your policies as we requested of him (see 1-20 e-mail below)?  Do you have any knowledge that he ever contacted anyone in the PD?  The point of this question is to determine whether he actually followed up on promises he made to us and if so, to what extent.

4.  Perhaps as or more important, what are your responses to the five questions I put to Rotkin in the 1-20 e-mail reprinted below?

5.  What are your responses to questions 5-8 in the original Public Records Act request I made of you on 1-28 also reprinted below?

Getting a clear understanding of these issues will save those of us charged on 1-6 as well as the city and the courts considerable time and money. 

I appreciate your willingness to address these issues and hope you follow up on them in as much detail as you can.

Thanks,

Robert Norse
(423-4833)


From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Tue, 23 Mar 2010 18:35:29 -0700
Subject: RE: Seeking Some Brief Responses to Some of the Questions

Officers are downtown 7 days a week and they all know how to get a hold of me.  When you’re down there ask for me and if I am available I’ll come speak with you.   
 

From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Tuesday, March 23, 2010 6:52 PM
To: Michael Harms
Subject: RE: Seeking Some Brief Responses to Some of the Questions
 
Sounds good.  I'll try and contact you tomorrow during the afternoon.  I don't want to surprise you so, know that I'll be audio recording our conversation to pass on to others.  Since we've done this before, I assume it won't be a problem for you.   Thanks for your speedy response.

Robert


From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Tue, 23 Mar 2010 18:52:34 -0700
Subject: RE: Seeking Some Brief Responses to Some of the Questions

I am available right now.  I’m heading back down as we write.



From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Tuesday, March 23, 2010 6:54 PM
To: Michael Harms
Subject: RE: Seeking Some Brief Responses to Some of the Questions

I'm not downtown and won't be back until tomorrow, but thanks for offering.  Is Wednesday a good day for you?



From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Wed, 24 Mar 2010 09:53:05 -0700
Subject: RE: Seeking Some Brief Responses to Some of the Questions

Sorry Wednesday is bad for me.  Other engagements require my attention.  Be back on Thursday.



From: rnorse3 [at] hotmail.com
To: mharms [at] cityofsantacruz.com
Subject: RE: Seeking Some Brief Responses to Some of the Questions
Date: Wed, 24 Mar 2010 09:54:59 -0700

How about making a specific time late Thursday afternoon?


From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Monday, March 22, 2010 8:24 PM
To: Michael Harms
Subject: Reply to Questions Around the Unreasoanbly Disturbing Noises Law?
 
Mike:   Just wondered if you've received the e-mail I sent you below.  Feel free to call me if you have any questions.    I'm hoping to get some response from you before meeting with activists on Wednesday.

Thanks,

Robert



From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Mon, 22 Mar 2010 21:15:57 -0700
Subject: RE: Reply to Questions Around the Unreasoanbly Disturbing Noises Law?

Robert, I’ll speak with you next time I see you. 
 


From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Tuesday, March 23, 2010 6:20 PM
To: Michael Harms
Subject: Seeking Some Brief Responses to Some of the Questions
 
Mike:  Thanks for your reply. 

But it would be better if you could briefly clarify your thoughts on the questions by e-mail, since I don't know when I'm going to see you again. 

Perhaps you can answer those you feel you can do so fairly easily, and research the others, as you suggested you'd do last week when we spoke.

There are street musicians who really need to know what the standards are so they can follow the law.

Thanks again,

Robert




From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Monday, March 29, 2010 12:44 PM
To: Michael Harms
Subject: Questions still unanswered
 
Sgt. Harms: 

                    Since you seem to have some problem rescheduling a time to meet, will you simply send me an e-mail clarifying your procedures around citizen arrest and the volume standards for "unreasonably disturbing noises" warnings and/or citations on Pacific Ave.?   This request, among others,  has been outstanding since late January.
                    For the community to follow the law, they have to clearly understand it and understand what law enforcement's requirements are.  Is it your policy to write out a citation on request under this ordinance, simply on the word of the complainant with no other documentation required?  What volume violates the law--and do you advise complainants that because simply being bothered by the noise is not probable cause enough to issue a citation?
                    As I wrote to Trisha Husome some time ago, I'd prefer not to have a full discovery hearing in court on this issue, but there are four pending cases at least that need to know this information.  Not to mention performers on Pacific Avenue who have no idea of what your standards are.

Thanks,

Robert Norse



From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Mon, 29 Mar 2010 16:45:53 -0700
Subject: RE: Questions still unanswered

Review SCPD policy #420 for our “cite and release” policy, there is a complete copy on–line.  Given that you have computer access it should be at your immediate disposal.  As far as noise goes, the “standard” is documented in the municipal code itself.  The muni code is also available on-line.  I took this from your postings "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."

We have no requirement to obtain or document any decibel levels or use any other sound measuring device for this offense.

See you downtown.
 



From: Robert Norse [mailto:rnorse3 [at] hotmail.com]
Sent: Monday, March 29, 2010 5:24 PM
To: Michael Harms
Subject: Clarification requested
 
Sgt. Harms:

Thanks for your response.

I was unable to find in SCPD Policy #420, to which you referred me, any reference to the standards for taking some citizen arrests and refusing others.  What exactly are your standards for taking citizen arrests, when both citizens are seeking to cite each other? 

Additionally I am still unclear on how I and others can both follow the law and express political views in song.  So, please bear with me, and try to be answer me, line by line, if you can, and perhaps you can clear up my confusion.

While I understand there is no specific decibel requirement under the statute, do you leave this entirely to the discretion of the person who doesn't like the volume or sound of someone performing on the street, regardless of how softly that person is singing or playing?  Is any noise complaint per se sufficient to cite and thus require the accused to come to court, even if the officer finds the noise not unreasonably disturbing?

Are there citizen arrest requests under this ordinance that you refuse to take and those you do?  If so, what are your standards?

Additionally do you advise those wishing to make such arrests (or drive away the performer alternately) that simply not liking the volume of the performing is not probable cause to find that a crime has been committed? 

You may remember also that you agreed to advise me which official policy disallows police officers from citing under the "unreasonably disturbing noises" code section (and certain other sections).  What has your research found?  Is "no citing for unreasonable noise by an officer" still department policy as you told me several weeks ago?  If so, which policy and where is it documented? 

Do officers themselves testify as to whether they regard the volume complained about as being "unreasonably disturbing" in court cases?  Do they make such statements in their police reports.

If one is to play music on the street, one has to know what volume is allowed and what is not.  I would hope that police policy is not to uncritically credit every complaint they receive and then order the person complained about to move along or face a mandatory "citizen's arrest" citation requiring a hefty bail or time away from work answering a charge.    What is the situation here?

Forgive me if I repeat myself, but I'd like to be as clear as possible on what police department policy is.  I'm sure you'll agree these are reasonable questions.  If you could clarify them one by one, it might reassure those playing how to follow the law.

To reiterate, as I wrote in you in the prior e-mail:
                  For the community to follow the law, they have to clearly understand it
                  and understand what law enforcement's requirements are.  Is it your
                  policy to write out a citation on request under this ordinance, simply on
                  the word of the complainant with no other documentation required? 
                  What volume violates the law--and do you advise complainants that
                  because simply being bothered by the noise is not probable cause enough
                  to issue a citation?

Please let us know.

Robert




From: mharms [at] cityofsantacruz.com
To: rnorse3 [at] hotmail.com
Date: Mon, 29 Mar 2010 20:37:28 -0700
Subject: RE: Clarification requested

Robert,  if someone is singing quietly we probably wouldn’t get a complaint in the first place.  When we do get a complaint we deal with it using our best discretion at the time.  Amplification devices will most likely never be acceptable.  My understanding is that they are not protected by free speech either, as they are not required to conduct a peaceful assembly or “protest”.  I can not debate hypothetical issues with you because there are too many variables.  You can always subpoena anyone you like, including officers, and they will testify for themselves as to what they saw and heard.  Aside from the noise curfew, these types of complaints are based entirely on citizen complaints.  It is then their burden to prove their case in court.
 
Anything further I will attempt to address in person.            
 
Best regards




And the latest request I've sent Sgt. Harms follows:


Public Records Act request (if answers aren't informally forthcoming)‏
From: Robert Norse (rnorse3 [at] hotmail.com)
Sent: Thu 4/08/10 12:38 AM
To: Michael Harms (mharms [at] cityofsantacruz.com)
Cc: Ed Frey (edwinfrey [at] hotmail.com); Jonathan (!) Gettleman (jonathangettleman [at] yahoo.com); David Beauvais (davebeau [at] pacbell.net); Mike Rotkin (mrotkin [at] ci.santa-cruz.ca.us); Beggerbacker Becky Johnson (becky_johnson222 [at] hotmail.com); Coral (!!!) Brune (coralbrune [at] hotmail.com); Thomas (!) Leavitt (thomleavitt [at] gmail.com); Robert Facer (shiner1964 [at] aol.com); lioness [at] got.net; J.M. Brown (jammbrow [at] gmail.com); Jake (Good Times) Chewy (chewyjake [at] gmail.com); Elsbeth Riley (elriley [at] ucsc.edu); Robert Scott Dreher (scott [at] dreherlawfirm.com)

Mike:

If you feel you can meet with me in the near future that might be helpful, but since that hasn't seemed convenient for us, please answer the following questions presented in bold.

If you feel unable to answer directly and informally, please provide access to any and all records, memos, e-mail, and other documents that would bear on this subject or help clarify these issues, as required by the Public Records Act.

The police policy manual states you either have "reasonable cause" to accept a citizen's arrest, or you don't (in which case you are required to mention it in your report) according to Private Person's Arrest Policy 364.4. Do you have any other guidelines than "officer discretion"? Do you require documentation of reasonable cause by the officer facilitating and issuing the citizen arrest citation?

My question to you, informally in terms of your experience and that of your subordinates with "unreasonably disturbing noises" complaints, is whether, as a matter of course, do you give credence to complaints without any corroborating testimony? I'm not saying you necessarily shouldn't, but simply trying to determine what your policy is.

If a police officer arrives after responding to a private person's complaint and finds a musician playing at a clearly reasonable volume, do officers advise the musician she or he is playing lawfully and also so inform the complainant?

Or do officers instead tell musicians (either as a matter of policy or practice) "I've gotten a complaint; you'll have to move"? Are officers directed to advise musicians that they have the alternative of staying where they are and playing more quietly? How regularly--if at all--do officers refer a complaining citizen instead to the city attorney or D.A. for follow-up, rather than issue a citation themselves? with no further action (as Officer Shoenfeld did my demand for a citizen's arrest for Sean Riley on 1-6)? Are they required to document their decisions and specifically clarify the "reasonable cause" or lack of it involved?

Are there any other standards other than "best discretion"? If so, what standard do you use? Do your officers receive any training? In MC 9.36.020 cases, are officers required or advised to seek other testimony of folks nearby? Are they allowed to exercise their own professional police judgment regarding what is "unreasonably disturbing noise"?

Are officers directed to advise

Taking a complaint that threatens a citation with a $445 bail is a pretty sure way of driving away the average street musician or even political activist, as you and your officers surely know. Hence it's a clear way of chilling musical speech, both punitively and preemptively.

How many such 9.36.020 cases have been referred to the city attorney and/or dismissed on Pacific Avenue since January 2009 rather than used to (a) move along the musician, (b) further quiet down the musician on threat of arrest, and/or (c) cite the musician? I'd appreciate your informal estimate. But if you're unwilling or unable to communicate this information by Friday 5 PM , consider this a formal Public Records Act request--as well as a probable subject for court discovery. I feel I've really made this question quite clear over the last two months and you've not responded to it.

Not only do people in pending court cases need to know this, as I've said to you before in prior e-mails, but folks on the street--in order to follow the law--need to know this as well.

The law is obviously unreasonably vague, and for your department to be enforcing it, as far as I can see, puts you in some constitutional jeopardy. Claiming you're just some kind of neutral agency "taking a complaint" simply isn't so, since you need to have "reasonable cause'. There's no such clarity in the text of the law that an ordinary person could understand that would enable him or her to behave lawfully. Unless we're talking about noise so loud as to be literally physically abusive (and at the same time not necessary in connection with a legally conducted activity), there are overwhelming problems--both in terms of vagueness and First Amendment compliance with enforcing this ordinance.

Your officers are pretty clearly acting as agents of one particular group--those that want to quiet, silence, or move along musicians, protesters, or others using nearby public space. In this case, merchants and residents who may not be particularly sympathetic to political music (or music generally) on the sidewalk and feel they have the "right" to veto what they don't want to hear.

As I understand it, to issue a citation, an officer must find reasonable cause (a) that the specific and strict wording of the ordinance has been violated (not merely that a complainant finds the music or speech too loud) and (b) that the ordinance itself is not unduly vague and/or unconstitutional either on its face or as applied (that an ordinary person could understand how to follow this law and also that an ordinary person could understand when it's being violated by another person). Do you instruct your officers to meet this standard?

While a lay person may reasonably not understand that the law's standard is either too vague or too high to apply in any particular case, it is a professional police officer's job to understand these issues and to act lawfully. To do otherwise would be both to force innocent people to go to court and unnecessarily subject those complaining (as well as the officers involved and the city) to subsequent lawsuits.

Your claim that it is the citizen's burden to prove the noise complaint in court is belied by the appearance of city attorney Barisone in Becky Johnson's case on 3-26. Do you still claim that the citizen and not the city attorney takes on the prosecution here? The city is clearly supportive of these complaints and is significantly involved in their prosecution.

Do you still claim that officers only issue citations based on citizen complaints? This is belied by the four citations issued by (David) Forbus which went to trial 4-6 in Baskett's court. He testified under oath that he issued them without a citizen's complaint at the instruction of his superior.

Please also clarify (as I've requested many times before) which sections of the law your department is not directly authorized to cite for, and where in the police policy manual these instructions are given.

Thanks,

Robert