City's Big Guns Show Up in Court: Singing Ban Trials Rescheduled to April 6 and April 12

Several previous articles on this story have appeared and may be helpful to provide broader background before reading the following story:

Sinister Street Singers Cited on Sidewalk
http://www.indybay.org/newsitems/2010/01/20/18635743.php

Sinister Street Singer Citation Goes to Trial: Round One "
http://www.indybay.org/newsitems/2010/03/24/18642745.php?show_comments=1#18642755


COURT SCREW-UP COSTS INNOCENT VICTIM AND WITNESSES TIME AND MONEY

The day before the Becky Johnson hearing on Thursday, March 25th, Michelle Doyka appeared for trial with a witness to testify she wasn't present when the sinister singers had broken into song in front of the Bookshop. She had in fact, arrived after the the citing officer did, but the citing officer ignored all testimony from those present, taking the word of the resident hostile to the protest and demanded Michelle sign the citation, promising to lose time and money from her regular work to appear in court or face a $445 fine.

Showing up within two weeks after the citation was issued, Michelle's minute order told her to appear for trial on March 25tth. Yet when she, her attorney Ed Frey, and five sympathetic witnesses (including myself) filed into traffic court in the basement of the county building, they found no sign of Shawn Riley, the disgruntled complainant in the courtroom. Michelle's name had mysteriously disappeared from the court calendar.

Hopeful that Riley had backed off from this harassment action, we all trooped upstairs to the court clerk's office. There we were told Michelle had already been tried in absentia exactly a month before, found guilty, and fined. The record showed the citing officer had not shown up in court, and there was no indication Sean Riley—the complaining and arresting party--had been there either.

After twenty minutes haggling, the clerks agreed to reschedule Michelle for April 6 at 1:30 PM. The hearing will be held again in Dept. 10, the courtroom of Commissioner Kim Baskett—whose record on constitutional protections for homeless rights is thin to non-existent). It was unclear to me whether they had scheduled a full court trial for Michelle or only an attempt to set aside a phony verdict.

Michelle has not only lost work time, but suffered significant mental anguish as a result of Riley's misidentification of her as a “criminal singer.” She was not present, but did arrive after Officer Shoenfeld did in order to witness what was going on. When she tried to leave Officer Inouye grabbed her physically and prevented her departure, claiming she was a “suspect”. Shocked and frightened, Michelle, who used to sing frequently on the street with SAFE (Society for Artistic Freedom and Expression/Street Performers Against Foolish Enforcement), has not appeared since.


THE BROADER ATTACK ON STREET MUSICIANS AND SILVER-TONGUED ACTIVISTS

Cops have been going after street performers under MC 9.36.020 “Unreasonably Disturbing Noises.” They apparently have no volume standard but just let any complaint drive away a performer. This use of rote “move on or get cited” demand by police claiming to be neutral parties is more fully discussed at “Bucking Bullying Bigots and Badboy Blueshirts Downtown” at
http://www.indybay.org/newsitems/2010/02/14/18637802.php

Also detailed is the subsequent refusal of police (1) to provide clear “how loud is too loud?” guidelines: and (2) to clarify “why do we force musicians and protesters to come to court to face costly citations, but refuse to do the same to those filing false 'noise' complaints?”

Sgt. Michael Harms, Officer Shoenfeld's superior, has said that SCPD policy is not to give citations unless they receive a citizen complaint, with a citizen willing to come to court after signing a citation. It's nor clear how closely they've followed this policy considering the scores of MC 9.36.020 citations written in the last two years.

Subsequent attempts to get Harms, to give a loudness standard so that other street performers and subsequent protesters would know how loudly they could sing got nowhere. Harms has not answered a two month old Public Records Act request for such standards, nor given any verbal clarification. The text of the formal request can be found in the same story mentioned above.


SHOENFELD'S SHENANIGANS

The case against the SingSing Four was built by Officer Shoenfeld. Shoenfeld was apparently annoyed at the attempts of the protesters to determine (a) whether Shoenfeld herself found the singing illegal, and (b) how to conduct themselves lawfully other than abandon the protest and move on (which was Shoenfeld's repeated suggestion/demand). After some colloquy, Shoenfeld finally agreed that if the protesters agreed to “sing more quietly”, that would be fine.

Shoenfeld's police report reads “Given the group's antagonistic comments and constant interruptions of my explanations, I saw no behavior to indicate that they were going to stop singing. I advised dispatch to call Riley and advise him if he still wanted to sign a citation, he would need to come downstairs and sign.” Actually, once Shoenfeld interrupted the singing of “Let It Snow” on her arrival, the group stopped singing and didn't begin again, allowing Shoenfeld and Riley to intimidate them into stopping what was a standard part of homeless political protests, frequently done at that location at mid-day over the last three years.

Riley said he was trying to sleep in his room in the St George hotel. His room was located one floor above the Bookshop Santa Cruz, directly over where the protesters were tabling and occasionally singing. He did not clarify whether his window was open or not. Though he first claimed otherwise and later reversed himself, Riley made no move previously to ask the singers to sing more quietly that any of the protesters reported (myself included).

Nor did Riley He invoke the “Move Along Law” (MC 5.43.020). That would have required us to move our display device after an hour. He did not try to use the Voluntary Street Performers Guidelines—a simple direct request to sing more quietly or even to move along. He didn't contact a friendly “Hospitality” yellow jacket to speak with us. He just called the cops and dragged the activists into court. Apparently with the blessing and support of the City Attorney.

A final irony is that the sidewalk area in front of the Bookshop Santa Cruz is one of the two designated "Free Speech Zones" laid out by City Council as an area where the restrictive Downtown Ordinances (the other one is in front O'Neil's at Cooper and Pacific).


QUESTIONING SHOENFELD

The protesters repeatedly asked Shoenfeld (a) whether she felt the singing was “unreasonably disturbing noise” which the law prohibited, and (b) what level of singing would be legal. She refused to answer both questions. She refused, mechanically repeating that she was “simply responding to a citizen's complaint.” Shoenfeld's refusal to tell activists what level of singing is legal violates the due process clause of the Constitution. The Due Process clause requires that people must be given notice as to what a law is so that they can avoid breaking said law.

The activists agreed to sing more quietly, though not to move. Shoenfeld according to the audio tape I made at the time (and my memory as well) acknowledged that we'd agreed to “sing more quietly” (though we hadn't been singing loudly and Shoenfeld gave us no standard). According to her police report, she informed Riley that we refused to move or be quiet and that he needed to come down to sign a citation if he wanted further action. He did so.

The two (Shoenfeld and Riley) turned a run-of-the-mill peaceful demonstration involving tabling, fliering, and food distribution for the homeless into a bizarre witch hunt, citing people without probable cause, chilling future protests and street performances, and sweeping up completely innocent people in their net. Several songs sung at ordinary street volume were supposedly "unreasonably disturbing noises".


THE SONGS AND THE LAW

The songs included "Downtown" (http://beckyjohnsononewomantalking.blogspot.com/2010/01/downtown-music-by-petula-clark-lyrics.html) and "Let it Snow". (http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html).

The code section under which Michele, Becky, and two others are facing trial actually protects street singers. Municipal Code 9.36.020 "Unreasonably Disturbing Noises" 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 sensitivenesss or which are so harsh or so prolonged or unnatural or unusual in thier 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."

The code applies from 8 AM to 10 PM. During the late night-hours there's a more stringent noise curfew (MC 9.36.010), but the January 6th events took place Wednesday mid-day with significant foot and vehicular traffic on the street.

Section "a" states that the noise must be "unreasonably disturbing" or "physically annoying", with the words "harsh", "prolonged", "unnatural", "unusual", and "physical discomfort" setting a fairly high allowance for noise of any kind during the day and particularly singing--presumably protected by the First Amendment, particularly political singing.

Section "b" says that even if the high threshold for "unreasonably disturbing" is met, the singing or "noise" must not be "necessary in connection with a legal activity. Obviously political songs must be sung audibly somewhat higher than conversational volume to be heard by those listening. Such volume is clearly necessary in connection with that legal activity.


AUDIO EVIDENCE: THE RECORD OF WHAT HAPPENED

The audio evidence of Shoenfeld's behavior can be found at http://www.radiolibre.org/brb/brb100117.mp3 about five hours and twenty five minutes into the audio file. It continues at http://www.radiolibre.org/brb/brb100117.mp3 about one hour and three minutes into the audio file. These files contain most of the police contact. The volume of the singing can be heard earlier in the first file as well as interviews with folks on the street.


WHY NOT MOVE ALONG?

Moving would have defeated the purpose of the demonstration which was also an appeal and protest to Vice-Mayor Coonerty, closely assoiated the Bookshop Santa Cruz to reverse anti-homeless laws that impact the escalating homeless death rate (See "Holiday with the HUFFsters: Renewed Vigil Against Two Wars " at http://www.indybay.org/newsitems/2010/01/05/18634377.php and "Unsafe to be Homeless in Santa Cruz" at http://www.indybay.org/newsitems/2009/12/19/18633184.php) ).

It would also have been difficult considering we had a table, signs, petitions, literature, and a soup bucket and had announced the event there for a set time (1:30 PM to 3:30 PM). Complainant Reilly falsely claimed we'd been there for "four hours" and that he'd "warned us before'.

Finally, HUFF (Homeless United for Friendship & Freedom), the organization doing the protest is concerned with street performers being moved along without probable cause. It was important to show performers that they have the right to perform at a reasonable volume even if someone nearby takes exception—provided they are doing so legally. For police to write out tickets without a loudness standard puts all performers at risk.


FRIDAY'S FIASCO: BECKY FACES THE RED QUEEN

After the court foul-up in Michelle's case, activists wondered what long-time activist Becky Johnson would face in her trial the next day. She has her own website and has written extensively about homeless issues including homeless deaths (the main subject of this protest) at http://beckyjohnsononewomantalking.blogspot.com/2009/12/2009-annual-report-on-homeless-deaths.html and this particular protest http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html .

Becky disqualified Commissioner Baskett using a 170.6 CCP motion, as it's called (which allows you to strike on judicial officer for any reason). The case was forwarded to Judge Ariadne Symons of Dept. 1 who her refused a rather conventional request for a continuance. (Quick tip: ask for time to secure an attorney—a request almost any judge is reluctant to overrule). Becky was ultimately forced to go to trial the day after she had to move her all her belongings to a new residence.

I've found Symons to be both ignorant of the law, extraordinarily partial to the prosecuting side (she was a lead prosecutor in the D.A.'s office before becoming judge), and actually willing to construct cases for the prosecution when no prosecutor is present. See “Judge Returns Guilty Verdict In Metro Trespass Trial “ at http://www.indybay.org/newsitems/2009/06/09/18601194.php . One attorney wryly dubbed her “The Red Queen” after the Alice in Wonderland character who declared “Verdict first, then trial!”


BUCKS FOR BARISONE: THE CITY ATTORNEY'S BURGEONING BANK BALANCE

Supporters arrived around 9 AM to munch a vegan coffeecake 'n coffee breakfast outside the courtroom hastily whipped up by master chef JumboGumbo Joe Schultz. Schultz reported his soon-to-be-opened restaurant had already received boycott threats for his high-profile support of homeless civil rights activities. Early risers gave out literature to unfortunates wending their way to the judicial maze, urging them to attend the Symons Inquisition. A friendly deputy came out and informed us that we could not serve half and half with our coffee without a health permit from the county. Becky dutifully posted a label on the small container of half n' half that it was a dangerous illegal substance not to be touched.

Once in court, Becky and her recently-secured attorney Ed Frey faced—not just the complainant Sean Riley and his witnesses, but Riley, two witnesses, three cops, and City Attorney John Barisone. Wags speculated whether the Downtown Association, “Take Back Santa Cruz” bigots, the Sentinel, the SCPD, or simply Barisone's own bitterness at an earlier bad verdict in the Richardson/Deleon case was responsible for the big guns. (See “Homeless Frame-Up by Cops and City Attorney Defeated in Rare Court Victory “ at http://www.indybay.org/newsitems/2010/03/20/18642123.php .

The taxpayer cost of the hearing to defend the indefensible was, one attorney estimated, thousands of dollars. Barisone reportedly gets paid by the hour as well as a lump sum for the year. City Council regularly renewed his contract with no meaningful critical oversight. He has been responsible for concocting and approving the January 2009 antihomeless laws (“Fast Track for New Repressive Downtown Ordinances at http://www.indybay.org/newsitems/2009/01/26/18565877.php ) and cooking up the Injunction against Anna Richardson and Miguel de Leon (“Anti -Homeless Injunction Against Two Street Musicians” at http://www.indybay.org/newsitems/2009/05/29/18599000.php ).
He's also spent $100,000 to $200,000 over eight years on the City's absurd case defending bogus decorum rules and a false arrest in my mock-Nazi salute at City Council (“Court of Appeals panel Overturns Nazi Salute Ban Ruling--City Council May Face Trial Again” at http://www.indybay.org/newsitems/2010/03/12/18640683.php _.

An indication of Symons barely concealed prejudice in the case came bubbling up when Barisone volunteered to agree to a “short continuance” since Ed Frey had only been hired several days before, at which Symons tartly commented “I would not have been inclined to grant that, but since the City Attorney is so gracious...”

Still Becky's backers outnumbered Barisone's brigade—at least 8 people were present to testify on her behalf with several more willing to come in if needed. Whether that would carry any weight with Snake Oil Symons remained to be seen. Becky goes to trial 10 AM in Dept. 1 on Friday, April 16 unless the case is delayed by constitutional and discovery issues.


For updates on this case, tune in to Bathrobespierre's Broadsides on Free Radio Santa Cruz Thursdays 6-8 PM and Sundays 9:30 AM to 1 PM at 101.1 FM and http://www.freakradio.org .