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Video of the False Arrest at Santa Cruz City Council for Audio Recording on April 1
During a Special Session of the Santa Cruz City Council on April 1st, I was arrested for failing to leave when I twice replaced my recorder on the bannister between the public and City Council. I have regularly placed my ancient tape recorder there for more than two decades without incident. The railing is the best spot for an audible recording. Nonetheless Mayor Robinson termed my replacing the recorder there "a disruption" and insisted I leave the meeting or face arrest. I declined to do so, since attending (and recording) public meetings is an essential right (that needs to be exercised in order to be real)--particularly so for an alternate media person like myself. These rights are guaranteed on paper at least under the Brown (Public Meetings) Act. Video-journalist Brent Adams posted a video on you-tube which documents much of the action. I discuss it further below.
Brent's video can be found at https://www.youtube.com/watch?v=OUNz646cnoM .
FALSE ARREST BY THE MAYOR; POLICE SELECTIVELY REFUSE TO CITE
The Mayor's action was a false arrest in that my behavior not only didn't disrupt the meeting but was protected under constitutional rights supposedly guaranteed by the state and federal constitutions. Obviously by any reasonable standard, my recording activity was not disruptive. Having Lynn Robinson say so does not make it so. In fact, filing a report on that basis is a criminal act, since the report is a false one. Both Deputy-Chief Martinez and Sgt. Bush refused to accept my citizen's arrest of Mayor Robinson for making the false report.
Martinez said it was "her meeting". However the 9th Circuit Court has ruled (in the earlier mock-Nazi salute case) that such a disruption has to be real. Refusing to follow an unconstitutional restriction (actually created to impact me) is not "disruptive" unless it actually disrupts.
Both Deputy-Chief Martinez and Sgt. Bush, initially saw no disruption in the activity I engaged in until directed to remove the recorder by the Mayor.
BROWN ACT PROTECTS CITIZENS AND MEDIA
A legislative body may not prohibit any person attending an open meeting from video recording, audio recording or broadcasting the proceedings, absent a reasonable finding that such activity would constitute a disruption of the proceedings. (§§ 54953.5, 54953.6; Nevens v. City of Chino (1965) 233 Cal.App.2d 775, 779; see also § 6091.)
Under the Act, the public is guaranteed the right to provide testimony at any regular or special meeting on any subject which will be considered by the legislative body before or during its consideration of the item. (§ 54954.3(a).) In 80 Ops.Cal.Atty.Gen. 247, 248-252 (1997),
ABSURD AND PREVIOUSLY UNENFORCED DECORUM "RULE"
The rule cited by Robinson reads "Hand-held recording devices may not be left unattended at the speaker’s podium or elsewhere in the Council Chambers."
Under this rule, if taken literally one would have to sit next to one's recorder at all times wherever it was placed. If one left the room to use the bathroom or to interview someone else it would be a "disruption" to leave the machine "unattended" to record the meeting.
On April 1st, Robinson--under her own rules by excluding me--denied me the opportunity to record the proceedings since leaving the tape recorder anywhere in the room "unattended" would be a "disruption". I was also denied the chance to speak at the meeting and report on it for my twice-weekly Free Radio Santa Cruz show.
ONE COMPLAINT
AFterwards I asked Bren Lehr, the City Administrator/Clerk, for copies of any complaints on e-mail or hard copy as well as any discussion between Council members and staff regarding the presence of the offending tape recorder. Lehr reported that there was only one complaint she had heard of and nothing in writing from any members of the public.
The rule seems to have been activated either as part of the Mayor's confusion of repression with order or perhaps a particular disliking for having me visibly present at City Council meetings. Though video recordings are available days afterward and streaming happens during the meeting, I think it important if not essential that individuals and particularly reporters be able to make their own recordings with their own equipment without harassment. There's actually a provision of the Brown Act that provides that even during a real disruption where the chambers are cleared, reporters unconnected with the disruption must be allowed to remain. This is the first time in over the 27 years that I have faced this bizarre kind of arrest for "criminal recorder placement".
FURTHER BACKGROUND
I've described this incident in more detail at https://www.indybay.org/newsitems/2014/04/02/18753441.php ("Norse Incident Sounds Alarm").
I am slated to be arraigned Tuesday morning May 6th sometime after 8:30 AM in Santa Cruz Superior Court. I face a possible maximum penalty of $1000 fine and one year in jail. I'll be checking on Monday afternoon to see if D.A. Bob Lee intends to back up this blatant denial of basic rights.
I may be in good company because the morning of May 6th is also the date for the bogus arraignment of numerous UCSC students, activists, and union supporters arrested for striking up at UCSC around the same time.
FALSE ARREST BY THE MAYOR; POLICE SELECTIVELY REFUSE TO CITE
The Mayor's action was a false arrest in that my behavior not only didn't disrupt the meeting but was protected under constitutional rights supposedly guaranteed by the state and federal constitutions. Obviously by any reasonable standard, my recording activity was not disruptive. Having Lynn Robinson say so does not make it so. In fact, filing a report on that basis is a criminal act, since the report is a false one. Both Deputy-Chief Martinez and Sgt. Bush refused to accept my citizen's arrest of Mayor Robinson for making the false report.
Martinez said it was "her meeting". However the 9th Circuit Court has ruled (in the earlier mock-Nazi salute case) that such a disruption has to be real. Refusing to follow an unconstitutional restriction (actually created to impact me) is not "disruptive" unless it actually disrupts.
Both Deputy-Chief Martinez and Sgt. Bush, initially saw no disruption in the activity I engaged in until directed to remove the recorder by the Mayor.
BROWN ACT PROTECTS CITIZENS AND MEDIA
A legislative body may not prohibit any person attending an open meeting from video recording, audio recording or broadcasting the proceedings, absent a reasonable finding that such activity would constitute a disruption of the proceedings. (§§ 54953.5, 54953.6; Nevens v. City of Chino (1965) 233 Cal.App.2d 775, 779; see also § 6091.)
Under the Act, the public is guaranteed the right to provide testimony at any regular or special meeting on any subject which will be considered by the legislative body before or during its consideration of the item. (§ 54954.3(a).) In 80 Ops.Cal.Atty.Gen. 247, 248-252 (1997),
ABSURD AND PREVIOUSLY UNENFORCED DECORUM "RULE"
The rule cited by Robinson reads "Hand-held recording devices may not be left unattended at the speaker’s podium or elsewhere in the Council Chambers."
Under this rule, if taken literally one would have to sit next to one's recorder at all times wherever it was placed. If one left the room to use the bathroom or to interview someone else it would be a "disruption" to leave the machine "unattended" to record the meeting.
On April 1st, Robinson--under her own rules by excluding me--denied me the opportunity to record the proceedings since leaving the tape recorder anywhere in the room "unattended" would be a "disruption". I was also denied the chance to speak at the meeting and report on it for my twice-weekly Free Radio Santa Cruz show.
ONE COMPLAINT
AFterwards I asked Bren Lehr, the City Administrator/Clerk, for copies of any complaints on e-mail or hard copy as well as any discussion between Council members and staff regarding the presence of the offending tape recorder. Lehr reported that there was only one complaint she had heard of and nothing in writing from any members of the public.
The rule seems to have been activated either as part of the Mayor's confusion of repression with order or perhaps a particular disliking for having me visibly present at City Council meetings. Though video recordings are available days afterward and streaming happens during the meeting, I think it important if not essential that individuals and particularly reporters be able to make their own recordings with their own equipment without harassment. There's actually a provision of the Brown Act that provides that even during a real disruption where the chambers are cleared, reporters unconnected with the disruption must be allowed to remain. This is the first time in over the 27 years that I have faced this bizarre kind of arrest for "criminal recorder placement".
FURTHER BACKGROUND
I've described this incident in more detail at https://www.indybay.org/newsitems/2014/04/02/18753441.php ("Norse Incident Sounds Alarm").
I am slated to be arraigned Tuesday morning May 6th sometime after 8:30 AM in Santa Cruz Superior Court. I face a possible maximum penalty of $1000 fine and one year in jail. I'll be checking on Monday afternoon to see if D.A. Bob Lee intends to back up this blatant denial of basic rights.
I may be in good company because the morning of May 6th is also the date for the bogus arraignment of numerous UCSC students, activists, and union supporters arrested for striking up at UCSC around the same time.
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You knew it was a violation of the rules, you chose to break the rules. What's the problem? You didn't even bother showing up to put the recorder there before the meeting started (not that it would have been any less a violation of the rules.)
Previously you stated that the recorder HAS to be at that particular spot in order to properly record. Yet Brent's camera/recorder was at the back of the room and the audio was effectively recorded. Thus your purported reason doesn't stand up.
Previously you stated that the recorder HAS to be at that particular spot in order to properly record. Yet Brent's camera/recorder was at the back of the room and the audio was effectively recorded. Thus your purported reason doesn't stand up.
Doug E and the Observer commenting here really, really hate alternative journalists like Robert Norse... Why? These jerks would feel right at home in some Latin American dictatorship where there are no press freedoms.
Robert Norse, keep it up. You got support from real freedom-loving people.
Robert Norse, keep it up. You got support from real freedom-loving people.
I received a return call from assistant district attorney David Sherman that he'd be continuing to review the case and not arraigning me tomorrow. He wants to review the Brown Act and find out how other legislative bodies have addressed this issue. I encouraged him to review the video and audio on line.
The D.A.'s office still has a year to file charges, so the matter is definitely not resolved.
Nor is it clear what the Mayor will do when I attempt to record the next Council meeting.
I continue to believe that we must not kowtow to these politically-motivated, high-handed, and abusive actions by those in political power.
As for Observer's comments, a violation of "a rule" does not constitute a disruption--according to the 9th Circuit Court decision--unless the violation actually disrupts. I didn't disrupt--the Mayor did. Brent's video equipment wasn't trying to record people at the podium, nor is my equipment in any way equivalent to his.
When Robinson blames me for ignoring her unconstitutional (and illegal) demand from the Mayor is pretty cheeky. When she goes so far as to exclude me from the meeting, and then seeks to prosecute me with a false "citizen's arrest", it reaches new levels of bizarre farce. What's not funny is that these actions attack not just on me but anyone questioning her authority and "rules".
It particularly threatens alternative media. Shutting down recording at a public meeting seems to be a pretty obvious abuse of authority and a dangerous one.
The D.A.'s office still has a year to file charges, so the matter is definitely not resolved.
Nor is it clear what the Mayor will do when I attempt to record the next Council meeting.
I continue to believe that we must not kowtow to these politically-motivated, high-handed, and abusive actions by those in political power.
As for Observer's comments, a violation of "a rule" does not constitute a disruption--according to the 9th Circuit Court decision--unless the violation actually disrupts. I didn't disrupt--the Mayor did. Brent's video equipment wasn't trying to record people at the podium, nor is my equipment in any way equivalent to his.
When Robinson blames me for ignoring her unconstitutional (and illegal) demand from the Mayor is pretty cheeky. When she goes so far as to exclude me from the meeting, and then seeks to prosecute me with a false "citizen's arrest", it reaches new levels of bizarre farce. What's not funny is that these actions attack not just on me but anyone questioning her authority and "rules".
It particularly threatens alternative media. Shutting down recording at a public meeting seems to be a pretty obvious abuse of authority and a dangerous one.
Funny thing is, the jury gave the 9th Circuit the middle finger just like the Supreme Court does on a regular basis, in the "disruption" case. So the appellate court ruling ended having the value of used toilet paper. Or, in the alternative Robert Norse read way too much into the ruling. I'll leave it to the reader to decide which one it was.
Actually the jury had no idea what the opinion of the 9th Circuit's en banc panel was, nor of previous decisions. That panel and previousl panels affirmed that "disruption" means "disruption" not something Council members don't like or have decided "is against the rules". The fact that a jury did not award money in no way vitiates the standard that legislative bodies throughout the state need to follow. It simply means that in my case, they did not agree that damage was done.
In my view (and I believe this is the court's as well), something disrupts which actually stops the progress of the meeting.
Real disruptions might include continuing to talk off-topic or over-time, interfering with someone else's right to speak, making a loud sustained noise which interrupts the Council meeting, engaging in loud conversation in a sustained manner in the audience which interferes with the audience's ability to hear the proceeding.
Obviously placing an audio recorder doesn't meet this standard. The fact that it's been don for 25 years without incident or comment makes the arrest even more egregious. The fact that this particular location is the most obvious spot for a hand-held recorder to be placed to audibly record the proceeding suggests the Council may be more interested in targeting a particular person with a particular method of recording.
The City Clerk's office answered a renewed public records act request yesterday. It confirmed that the Council staff has no records indicating any complaints about the placement of the recorder. Even if they did, of course, the right to record a public meeting (particularly for a radio broadcaster) is a serous right to infringe or abridge.
Mayor Robinson is in error and cannot rely on "rules" voted by the Council.
In my view (and I believe this is the court's as well), something disrupts which actually stops the progress of the meeting.
Real disruptions might include continuing to talk off-topic or over-time, interfering with someone else's right to speak, making a loud sustained noise which interrupts the Council meeting, engaging in loud conversation in a sustained manner in the audience which interferes with the audience's ability to hear the proceeding.
Obviously placing an audio recorder doesn't meet this standard. The fact that it's been don for 25 years without incident or comment makes the arrest even more egregious. The fact that this particular location is the most obvious spot for a hand-held recorder to be placed to audibly record the proceeding suggests the Council may be more interested in targeting a particular person with a particular method of recording.
The City Clerk's office answered a renewed public records act request yesterday. It confirmed that the Council staff has no records indicating any complaints about the placement of the recorder. Even if they did, of course, the right to record a public meeting (particularly for a radio broadcaster) is a serous right to infringe or abridge.
Mayor Robinson is in error and cannot rely on "rules" voted by the Council.
When Robert tried to put his audio recorder out there again today, I hope they confiscate his recorder as evidence of his crime.
Mayor Robinson initially threatened me through the City Clerk/Administrator Bren Lehr with obstruction of my audio recording in mid-December. She then apparently thought better of it and left me unmolested from January through March. However, she had the Council pass the same irrational and repressive policy in February as part of a reaffirmed set of Council "decorum" rules. Specifically the sentence " No audio/visual recording devices may be left unattended at the speaker’s lectern or elsewhere in the Council Chambers." was retained.
A month later, I wrote her the following e-mail:
From: rnorse3 [at] hotmail.com
To: lrobinson [at] cityofsantacruz.com
Subject: Audio Recording
Date: Sat, 29 Mar 2014 04:34:23 -0700
Dear Lynn:
I appreciate your apparent de facto willingness to respect the rights of alternate media (and individual community members) to audio record in the traditional manner without harassment which we discussed in e-mails last winter. [by not carrying out her threat to block my audio recording via the rule]
Nonetheless the strange and counter-intuitive restrictions regarding "unattended recording devices" are still a part of the decorum rules. Let me know when you will be acting to correct this bizarre disconnect between stated and actual policy.
Since I was advised by the City Clerk in January that there was no assurance you or some future mayor might not unilaterally decide to use this provision to unconstitutionally halt audio recording in violation of the Constitution and the Brown Act, I'd appreciate your changing the rule to guard against this kind of abuse.
Until such time as a formal change is made, have I your assurance that you will engage in no such interference during your mayorship and will oppose it if anyone else tries it while you are on the Council?
Thanks, Robert
I received no reply to this letter. Three days later she had me arrested for "disrupting a public meeting" when I replaced my recorder in its traditional spot and walked back to my seat.
A month later, I wrote her the following e-mail:
From: rnorse3 [at] hotmail.com
To: lrobinson [at] cityofsantacruz.com
Subject: Audio Recording
Date: Sat, 29 Mar 2014 04:34:23 -0700
Dear Lynn:
I appreciate your apparent de facto willingness to respect the rights of alternate media (and individual community members) to audio record in the traditional manner without harassment which we discussed in e-mails last winter. [by not carrying out her threat to block my audio recording via the rule]
Nonetheless the strange and counter-intuitive restrictions regarding "unattended recording devices" are still a part of the decorum rules. Let me know when you will be acting to correct this bizarre disconnect between stated and actual policy.
Since I was advised by the City Clerk in January that there was no assurance you or some future mayor might not unilaterally decide to use this provision to unconstitutionally halt audio recording in violation of the Constitution and the Brown Act, I'd appreciate your changing the rule to guard against this kind of abuse.
Until such time as a formal change is made, have I your assurance that you will engage in no such interference during your mayorship and will oppose it if anyone else tries it while you are on the Council?
Thanks, Robert
I received no reply to this letter. Three days later she had me arrested for "disrupting a public meeting" when I replaced my recorder in its traditional spot and walked back to my seat.
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