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Judge Returns Guilty Verdict In Metro Trespass Trial
Judge Ariadne Symons in a decision upholding arbitrary police power found me guilty of "refusing to leave a business when asked" after a security guard accosted me. The guard was offended by my demanding his name and badge number and recording his refusal to identify himself. He called the police to have me removed in a show of force last November. He told the police that I was blocking the 6' long "Metro Transit Center" lettering. imbedded on two sides of the large concrete block that faces Pacific Avenue. Rather than be bullied, I took a ticket which will now cost $246 or 31 hours of community service.
THE JUDGE'S RULING AND SENTENCE
First, Symons ruled, the security guard and supporting police officer were correct in citing me under the vaguer 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE rather than the more specific and protective 9.62.010 TRESPASS ON PUBLIC TRANSIT FACILITIES. This was because I had "not been given a written notice" as specified by 9.62.010 and because 9.62.010 "doesn't apply to the first instance of trespass."
Then, she ruled, no First Amendment rights applied because the public entrance to the bus station was not a full "public forum" even though owned by the public.
The security guard's exclusion of me,she further ruled, came from a "content-neutral" position that nothing to do with the content of the speech or expression involved.
Symons continued: I had been violating a rule, because a manager who showed up later, though she did not testify in court, said on tape that she objected to my tape recording herself (though she cited no Metro rule or public law prohibiting it).
Further, the judge noted, though the tape did not conclusively show I was "blocking" the 6' long sign by standing conversing there., I was "disingenuous" in claiming I "might be waiting for the bus" because after the security guard said he wouldn't want to prevent anyone from taking the bus, I was silent. (The inference, perhaps, being that (a) the guard showed his lawfulness by allowing me to stay if I were "waiting for a bus, and (b) that I had to have some justifiable reason to stay in the face of a guard's demand that I leave).
She fined me $248 and agreed to commute that to 31 hours of Community Service. She refused to stay the sentence pending possible appeal until my attorney objected that she was required to do so by law.
THE TWO LAWS IN QUESTION
9.62.010 TRESPASS ON PUBLIC TRANSIT FACILITIES. reads
"Every person who enters or remains on or in a public transit facility (including, without limitation,
a metro center, transfer center, or other passenger boarding or deboarding facility, or bus owned
or operated by Santa Cruz Metropolitan Transit District) after having been notified by the owner,
operator, or other person in charge thereof that consent for such person to enter or remain on or
in such facility has been withdrawn is guilty of a trespass and may be prosecuted for the commission
of a misdemeanor or infraction.
"Such notification that the owner, operator, or other person in charge has issued a withdrawal of consent
for a person to enter or remain on or in a public transit facility shall be given in writing. Such withdrawal
of consent shall specify the period of time (not to exceed fourteen consecutive days) and the particular
public transit facilities from which the person to whom the notice is given (recipient) shall keep away.
"Such notice shall also contain a statement informing the recipient that he or she may appeal the issuance
of the withdrawal of consent to the issuing person’s superior (hearing officer). The withdrawal of consent shall
be stayed pending the conduct of an informal due process hearing on the appeal unless the hearing officer
determines that the presence of the recipient will cause a substantial and material threat:
(a) To the orderly operation of the public transit facility; or
(b) Of significant injury to person or property. A withdrawal of consent may be issued only to a
person who has (within the issuing person’s present) violated duly adopted written rules or regulations applicable
to a public transit facility or otherwise disrupted the operation of a public transit facility in a manner proscribed by
statute or ordinance.
MC 9.60.010, the law under which I was cited, REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE reads:
(a) No person shall willfully remain upon any business premises, whether indoors
or outdoors, after being notified by the owner, lessee, or other person in charge thereof to leave.
(b) No person, without permission, express or implied, of the owner, lessee, or other
person in charge of business premises, shall enter upon such premises after having been notified
by the owner, lessee, or other person in charge thereof to keep off or to keep away therefrom.
(c) The notification referred to in subsections (a) and (b) of this section may be given
orally or in the form of a written notice, posted in any conspicuous place; in either case, the notice
shall identify the prohibited area and the time period, if limited, during which such prohibition
remains in effect.
Section 9.60.010 shall not apply in any of the following circumstances:
(a) Where its application results in or is coupled with an act prohibited by the Unruh
Civil Rights Act or any other provision of law relating to prohibited discrimination against any person;
(b) Where its application results in or is coupled with an act prohibited by Section 365 of
the California Penal Code or any other provision of law relating to duties of innkeepers and common
(c) Where its application would result in an interference with or an inhibition of any exercise
of a constitutionally protected right of freedom of speech or assembly.
RUBBERSTAMPING POLICE USE OF THE BROADER LAW
Judge Symon's conclusion about the more specific MC 9.62.010 not being usable is fallacious.
In the language of that law, I "remained" after being "notified by...the person in charge" [the security guard] that "consent to remain...has been withdrawn", informing me I "can appeal...to the issuing officer's superior [acting as an informal] hearing officer". He or she would then determine if I were causing "a substantial and material threat to the orderly operation of the facility or threatening significant injury to person or property." In which case I could not have been ordered off the property until a formal hearing within 14 days. None of that was provided.
Naturally--because I was being neither disruptive of business nor destructive of property. But I wonder if the security guards are even informed of the existence of this law. It protects members of the public more fully from arbitrary police action than the broader MC 9.60.010. It requires they call a superior, give written notice, etc. Why bother when you can just call a cop and write out a ticket under the other law?
Still state law and judicial precedent requires, particularly in a place like a public facility such as this, that there be due process and good cause before someone is denied access. That is specifically provided for in this statute. The very name of the statute makes it obvious which law should be used.
There is no language in the statute which suggests it can't be used on the "first trespass" as claimed by Symons.
FIRST AMENDMENT RIGHTS
Even the second broader law under which I was convicted, does not allow "interference with or an inhibition of any exercise of a constitutionally protected right of freedom of speech or assembly." The judge essentially upheld the security guard's right to order someone off the property on a pretext--for conduct that was neither illegal, disruptive, or proscribed by Metro rules. It simply upset him that I was demanding his name when he insisted on speaking with me and that I was tape recording his answers.
Another First Amendment issue involved here, not mentioned by the judge, was the broadcaster's right to investigate a problem (religious sermons being broadcast on public money, harassment of homeless and poor people at the Metro by security guards and police). I was not soapboxing, but talking in a normal tone of voice with two homeless people, gathering information.
And when the guard came up to do to me what may have been done to others simply wishing to be left alone, my attempt to document that behavior for public examination is indeed freedom of the press.
At one point I did comment on what appeared to be an an attempt to move along to Hispanic guys that were sitting nearby legally and inoffensively.
OTHER JUDICIAL ERRORS
I originally showed up at the Metro in response to complaints about "religious sermons" being broadcast over the loudspeakers. Symons mistakenly referred to "religious music", but the radio material being broadcast had no musical element at all--it was simply a straight religious sermon, which seemed to have a homophobic edge. An earlier guard had been hostile to two men who drew this illegality to their attention
The claim that the guard's behavior was "content-neutral" was both beside the point and false. It was beside the point because it was my investigative journalism and my right to speak to two people there without being harassed that was at issue, not any speech I was making. I was generally trying to have a low-key interview with two people.
It was false because it was my disrespect for the guard's behavior towards others there, the critical nature of my inquiry, my demand that he be publicly accountable, and my refusal to turn off a tape recorder that motivated his attempt to exclude me. This was certainly NOT content-neutral. The content was very much at issue.
INVISIBLE OR IMAGINARY RULES OF THE METRO
Symons claim that I was violating a Metro rule or policy regarding tape recording and/or blocking signs (it wasn't quite clear which). This was not supported by objective evidence. In fact, if you considered the rules we did present, her finding was contradicted by the evidence. We presented the Metro's set of procedures for its guards and its rules for the general public--as far as they were willing to release them through Public Records Act requests. No where in those rules or in the law is anything I did specified as illegal or a rules violation.
Symons' evidence came from a witness---the hostile Metro manager--that only appeared as a voice on a tape, without any documentation. She was not present to be cross-examined. She did not specify any specific policy regarding recording. She simply expressed her own desire not to be recorded and when I refused, retaliated by supporting my exclusion from the Metro Center. Symons should not have used her recorded voice as evidence of the policy--without requiring her to be present.
I testified under oath that there was no stated Metro policy. Symons disregarded my testimony, didn't demand or receive any documentation from the officer that there was any particular policy about recording, and finally hung her decision on hearsay testimony from a manager offended by my recording her against her wishes.
In fact, my repeated attempts to clarify just what were the limits of the Metro policy by Public Records Act request, phone call, and personal interview with Metro Board member Mike Rotkin resulted in previous little information. Certainly no set of rules was produced that either defined the powers of the guards or the rights of the public or even the rules of the Metro.
It apparently serves the authorities who run the Metro to keep such things vague to give officers the broadest possible "tools" to deal with "problems" as they arise. The difficulty is the next "problem" may be you. In accommodating this kind of police state process (leaving decisions and even on-the-spot lawmaking in the hands of the police and managers), Symons is betraying basic constitutionally protected rights for the public.
PUBLIC PROTEST AND EXPOSURE: A PRACTICAL REMEDY FOR SECURITY GUARD ABUSES AND MANAGEMENT COVERUP
Two weeks later, a group of about ten of us showed up at the Metro. Our objective was to clarify just what the rules were, what the powers of the guards were and what the public's rights were. We showed up with signs, leaflets, videocameras, and witnesses (see http://www.indybay.org/newsitems/2008/11/25/18552885.php?show_comments=1#18553048 ). We were ignored.
We weren't "waiting for a bus". We didn't justify our right to be there. We interviewed members of the general public. We didn't ask the Metro's permission. The guards (including the security guard who cited me two weeks before--Danny Delgadillo) looked on benignly. Our behavior was an amplified version of what I'd been doing and been cited for. But this time, because there were witnesses and cameras (and because the Metro had been warned we were coming), they held their fire.
I testified on the stand that we didn't ask permission, I testified that the same security guard observed us doing exactly what I'd done (assembling in front of the Metro near the large sign). He did nothing when a group of people stood in the same place I stood ("blocking" the sign far more than I had, though even with a group the sign is large enough that it's still visible).
RED HERRING AND STRAW MAN ISSUES
The whole issue of whether I was waiting for the bus (which I wasn't) or whether the guard generously would have allowed me to stay if I said I was a red herring. Symons put the onus on me to justify being there. In fact, this is police state mentality. People have the right to be at the bus terminal for all kinds of reasons. They shouldn't be required to justify them.
Symons, unable to find any rules or laws actually being broken that would justify denying me access to a public facility, fell back on a narrative that suggested she could find "nothing wrong" with the guard's behavior--and not finding any constitutional violations, felt I should obey police orders even when based on non-existent policies.
The straw man she set up was whether I'd actually heard the guard's ordered to move away from the 6' sign, whether I heard it and refused, and whether I was honest about that. The issue though is whether the demand is a reasonable basis for exclusion from the property and arrest if ignored.
In fact, I didn't hear it. The first mention of the "moving away from the sign" is on page 14 of the transcript where Security Guard Delgadillo says he's previously asked me to move--which is not on the tape (which had been running continuously). At that point I ask him for his name and he refuses, preferring to call the police since he "doesn't want to be recorded". After the police have arrived, he clarifies that he wanted me to move away from the large sign. Symons apparently finds that the security guard had a real desire to move me away from the large sign. Possibly so. But she doesn 't consider whether he has the right to make such a demand on threat of arrest.
It's the security guards and police that should have to have clear reasons they have to specify to make us leave. The rules should be posted. The guards powers should be clear and circumscribed. One would expect judges to understand this. My insistence on this principle is why I stayed and was cited for 'trespass".
The code under which I was convicted also provides exceptions for "common carriers" (i.e. places like bus stations) and mentions the Unruh Civil Rights Act (which forbids discrimination of a class of people). Symons never addressed these issues. In all honesty neither did my attorney. But their presence in the law requires the judge to determine that they don't apply in order to convict me.
Symons herself raised numerous arguments at trial arguing against the right to tape record, the acceptability of charging me with a broader less-applicable law when the specific Transit law was available. This would have been appropriate coming form a D.A. or city attorney, but neither were present.
Symons' responsibility was to be neutral and not advocate for the other side. She continued that advocacy out of court while taking the case under submission, demanding a lengthy transcript, demanding a second more detailed version, and finally demanding a rebriefing--all costing the defense time and money.
It almost seemed her intent was to root out some details on which to hang the guilty verdict and to punish the defense for bringing the case into her court to begin with (we had disqualified the Traffic Commissioner Kim Baskett).
THE AUDIO RECORDING ISSUE
Symons contacted my attorney a week before her verdict hearing to seek out further briefing on the right to tape record a police officer or security guard in a public place. My impression was she was fishing for some hook on which to hang a guilty verdict. She couldn't find one in the law regarding audio recording. There was no written Metro policy against it. There was no witness in court testifying to it. As mentioned before, she pulled from the transcript, the angry response of a manager who didn't want to be taped, making up a de facto policy on the spot. If "no recording" were the policy (which would almost certainly be unconstitutional), why was it ignored several weeks later when we gathered without "permission" and audio recorded while leafleting? Why was it not either written down in the Metro's policy manual or posted on its walls? Symons pulled from the 50+ page transcript a pretext to find me guilty.
AUDIO TAPE AND TRANSCRIPT AVAILABLE
My specific claims are documented by the audio tape (available for download at http://www.radiolibre.org/brb/brb081106.mp3 and http://www.radiolibre.org/brb/brb081109.mp3 --fast forward to the relevant sections) and transcript (http://www.indybay.org/newsitems/2009/05/18/18595792.php?show_comments=1#18600099).
The sad thing here is that Symons is supposed to be protecting the public from abuses like this, rather than defending cops and managers who misuse their authority. Symons job is to protect the rights of the defendant and judge him innocent unless guilty "beyond a reasonable doubt". In my case, there's clear and convincing evidence of my innocence and rather strong evidence of malfeasance by metro employees and police.
The real point here may have been Symons' conscious or unconscious desire to help the City and Metro avoid a lawsuit for false arrest. A newcomer from the prosecutor's office, she seemed to ignore the burden of proof required (beyond a reasonable doubt) and the need to have witnesses present if their testimony is to be taken seriously. She dismissed the written evidence of the Metro's lack of clear policies and divergent Metro policing activity when confronted with the same behavior several weeks later.
As prosecutor in judge's robes, she inappropriately acted as city attorney in presenting legal arguments both in and out of court in favor of conviction.
AFTERMATH AND SIGNIFICANCE
Due mainly the well-attended protest Return to the Metro in mid-November, and--Symons' decision notwithstanding--the clear evidence of false arrest in this case, I haven't been further hassled at the Metro. I've tape recorded people there since and stood about, no doubt "blocking signs" at different points (though not intentionally obstructing anyone's view--something never shown or asked about by the prosecution-partial judge).
Loud classical music, used to drive away youth gatherings, has replaced the religious sermons--a relatively positive development--though all these behavioral control devices suck.
Whether Symons' decision will embolden security guards and police to step up harassment is a good question. Please post any new information here and contact me at 423-4833 to report your experience.
In future if this happens again, it would have been good to subpoena high profile public figures like Mike Rotkin, who had the opportunity to quash this whole business and clarify rules of conduct, but chose not to do so.
ISSUES ON APPEAL
Attorney David Beauvais suggested there are various possible issues to appeal:
Symons inappropriate rulings allowing police to cite under the wrong law
The lack of evidence that Metro rules were violated other than ad hoc rules created by the security guards and manager
The judge's ignoring of investigator/whistle blower rights under the First Amendment
The lack of any real disturbance or disruption.
ADVICE TO FUTURE METRO SECURITY GUARD VICTIMS:
This case notwithstanding, a tape recorder is helpful. You DO have a right to record. Ask the guard specifically what Metro policy or rule you are violating if you are asked to leave. Ask to speak to the security guard's superior. Advise the supervisor that if s/he's going to exclude you, you'd like it in writing with the exclusion suspended until a due process hearing per MC 9.62.010.
Write down what you remember of what was said by the Guard. Get the names and numbers of witnesses. Call Free Radio or HUFF to let us know that the security guards are at it again.
I suspect the authorities have learned a lesson from this case---even though Symons did some judicial contortions to come up with a guilty verdict. But we'll see.
EARLIER STORIES ON THE METRO ISSUE:
"Metro Trial Verdict Hearing" at http://www.indybay.org/newsitems/2009/06/08/18600978.php
"Friday's Trespass at the Metro Trial--Notes from the Defendant" at http://www.indybay.org/newsitems/2009/05/18/18595792.php
"City Takes Broadcaster to Court for Chatting at the Metro" at http://www.indybay.org/newsitems/2009/05/14/18594788.php
"Metro Trespass Trial: Santa Cruz v. Robert Norse" at http://www.indybay.org/newsitems/2009/05/14/18594708.php
"Rotkin Claimed: No Flyering Allowed at the Metro Center" at http://www.indybay.org/newsitems/2008/11/25/18552885.php
"Ticketing for Standing and Talking at the Metro Bus Stop Sunday" at http://www.indybay.org/newsitems/2008/11/04/18548934.php
UPCOMING ON FREE RADIO: The Trial itself--once I master downloading the County's strange CD's!