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Notes on A Sinister Sidewalk Singing Trial
On the theory that a day sleeper in a residence above Pacific Avenue complaining about singers, performers, or political demonstrators can make them leave the public space in that block at 2:30 PM on a weekday, Judge Almquist found Becky Johnson guilty of unlawful singing downtown on January 6th. Johnson was involved in petitioning, flyering, and interviewing passersby on the rising homeless death rate. Her take on the trial and some of my notes follow.
CONFESSIONS OF A SONG CRIMINAL
by Becky Johnson April 19, 2010
[This story is reprinted from Becky's website where you can also find photographs and other homeless civil rights stories as well as two earlier posts on this arrest "Downtown--Music by Petula Clark, Lyrics by Robert Norse" at http://beckyjohnsononewomantalking.blogspot.com/2010/01/downtown-music-by-petula-clark-lyrics.html & "Sing a Song, Go to Jail? at "http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html ]
Santa Cruz, Ca. -- In my post-conviction haze, a few things are starting to gel. If I can be arrested, prosecuted, and convicted for singing two and a half songs between 2:30PM and 3:30PM on a busy downtown sidewalk, anyone can. In a flurry of post-conviction ecstasy blasted by those who want to drive homeless people out of sight/out of town, I am shrilly declared as some sort of attention-seeker and told that this case is only about me and my ego.
But this time, it's not about me. It's about all of our civil rights. It's about our personal freedom. It's about the "Broken Windows" Theory. And it's about that homeless guy with a backpack and a bedroll that can be told he can't be there simply because a citizen has complained. Well if he can't be there, then none of us can be there either. If you can't sing the blues, you probably can't say them either.
Officer Lauren Schonfield testified on the stand that she "could hear the noise from Cooper St." She knew it to be "Norse's group." But somehow that recollection never made it into her police report. There she simply states "I had walked by Norse's group five minutes earlier." When asked to testify which song she heard us singing, she said "I do not recall." This is what passes for "content neutral" in Jeff Almquist's court.
Under "Broken Windows" the police survey the neighborhood and determine who belongs and who doesn't belong. Then the officer targets those who "don't belong" with a myriad of petty citations, some real, and some made up on the spot. The Santa Cruz Police Department openly claims that they have fashioned their policies around this disputed and Constitutionally-questionable theory.
HERE are the lyrics which members of my group, HUFF, had just been singing and of which Officer Schonfield is well aware:
SUNG TO THE TUNE OF "DOWNTOWN" music by Petula Clark lyrics by Robert Norse
Where are the songs on the sidewalk today?...the best have gone away— from Downtown
A single complaint will have the cops out to send the singers on their way—Downtown Sing a song of protest just outside the local bookshop Music with a message means a steep fine---makes the poor stop Singing their tale. So stop singing your doubt, you'll see bigots on phones All calling cops out To come downtown— muz-zel-ing those they fear Downtown—don't want your kind SO near, Downtown---watch uniforms smother our dreams
They don't give their names, but the cops tell the singers—"You!--Be on your way!" Downtown “We've had a complaint, so you must stop your singing at this spot today.” Downtown Everyone around you may appreciate the groovin' One heckler 's veto gives the cops excuse to get you movin' In spite of the law The police don't give a damn, which Constitution they're shredding It's all quite a sham. When you're downtown—shame on the fear that rules Downtown—bad laws from frightened fools Downtown— Sing Out and Recover Your Dreams Downtown—Grinding Us Down;. Downtown—Silencing Sounds. Downtown.
The pendulum has swung too far to the right. The City Council is engaging in an orgy of civil rights violations which include banning sitting on the sidewalk, lying down, holding signs, drawing with chalk on the sidewalk, gathering together peaceably in groups, and now has taken a stand against singing. And in their own designated "free speech" zone too! It is time to turn that pendulum back.
Repeal CYNTHIA MATHEWS "move-along" law as the oppressive and unconstitutional fiasco it is.
Repeal RYAN COONERTY's parking lot/garage "trespass" law as Scroogian in its inception.
Repeal DON LANE's anti-smokers law which was built on junk science and is unenforcable.
And before we do anything else, repeal that God-damned, infernal abomination also known as the SLEEPING BAN before our collective souls get any blacker.
I've written about this case extensively on indybay (see "Sinister Street Singers Cited on Sidewalk" at http://www.indybay.org/newsitems/2010/01/20/18635743.php and "HUFF Activist Becky Johnson: Sidewalk Singing Trial" at http://www.indybay.org/newsitems/2010/04/15/18644778.php as well as numerous stories in between--follow the links back to read them).
The trial itself began with under in an unusually secretive manner. Judge Almquist denied without comment my requests to make an audio recording for private use in writing stories like this as well as for my own defense in my own upcoming trial on the same charges with the same witnesses.
He also denied my request that it be recorded for rebroadcast on Free Radio Santa Cruz (routinely granted by Commissioner Kim Baskett). He denied the request of Becky Johnson and her attorney Ed Frey--which had been made the day before--to have the court itself make an audio recording of the trial so that a transcript could be made were the case to go to appeal--as now seems certain.
TAINT OF THE CITY ATTORNEY
Since this case involved a citizen's arrest, it was, we had been repeatedly told, the citizen's responsibility to prosecute (i.e. subpoena witnesses, ask questions, etc.). But now the rules had changed. City Attorney John Barisone was there (and present at earler hearings) speaking up for complainant Sean Reilly and SCPD officer Schonfield. The day before, Barisone told local chef and restaurant owner Joe Schultz by telephone, "I won't be prosecuting this case; the City is not getting involved." He was, Schultz reported, only to be available for "Constitutional questions".
In fact Barisone appeared two weeks before at an earlier court appearance of Johnson on behalf of...it wasn't clear whether it was Reilly or the City, but Barisone did all the talking. So it was clear he was the prosecutor. He also appeared at a Tuesday April 13th appearance to successfully resist a continuance proposed by Johnson's attorney Ed Frey (pronounced "fry"), who was beginning a jury trial on the same day as Becky's trial.
Though Frey said he had many witnesses and needed a number of hours to make his case, Almquist abruptly declared he would only allow one hour for what he dismissed as an "infraction trial." The importance of the case, of course, is that it allows a heckler to shut down political protest and musical performance on Pacific Avenue at will. The fact that the "crime" is "only" an infraction, denies the defendant a public defender and a jury trial.
REILLY THE SENSITIVE SLEEPER
The complainant Sean Reilly's basic complaint was that he was unable to sleep because of the "noise" outside his window. He admitted he made no complaint to the people below, not even looking out until after 2 PM to see who was involved. He finally called the police apparently sometime around 3 PM. He gave no explanations for the long delay, his failure to directly complain, or why his expectation of a "bedroom-quiet" sidewalk was a "reasonable" expectation for sound outside his window.
Reilly claimed the HUFF political tablers had been singing and playing music continuously since 11:30 AM. Half a dozen witnesses (most of them HUFFsters) testified they arrived at 1:30 PM or later.
THE LAW ITSELF
The law itself reads:
"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."
The question is not whether someone is "disturbed" but whether s/he's "unreasonably disturbed"--a tricky question which requires preparation precluded by Judge Symons (the original judge who denied Frey the continuance he needed) nor Almquist (who set the 1 hour time limit--which he ultimately expanded by 25 minutes).
No other witnesses testified that they found it "unreasonably disturbing". Schonfield refused to do so. (Nor would she testify it was reasonable, though when she said she could hear it "half a block away", she gave backhanded support for the prosecution--this was also evidence that was not revealed to the defense during discovery). More than half a dozen witnesses testified the music was not unreasonably disturbing.
A MISSING ELEMENT
Alquist's decision leads to the preposterous conclusion that all of Pacific Avenue should walk "tippy toe" to avoid offending day sleepers. This is a patently ridiculous. It's likely a political decision.
Moreover though I didn't hear Frey bring it up, one element of the "crime" required the prosecution to prove beyond a reasonable doubt us that Johnson's mild singing wasn't "necessary in connection with an activity otherwise lawfully conducted".
Singing is First Amendment protected, particularly politically relevant human rights songs, so it is "an activity otherwise lawfully conducted"... To sing at an audible volume, which passersby can hear (and is also likely to be heard by someone sleeping in a window above the street) is "necessary" in connection with that activity.
The real point, which I have made in other posts, is that Reilly never made a direct complaint to the folks on the sidewalk. When he did, they were willing to sing more quietly, but Schonfield mistook their attempt to clarify how quietly that needed to be for an unwillingness to quiet down, and misinformed Reilly. I tried to make that point on the stand, but perhaps it wasn't clearly enough made.
Attorney (who improperly inserted himself into a citizen's arrest--made without "reasonable cause").
THE SILENCE OF THE SCHONFIELD
Schonfield made no attempt to cite or warn the performers themselves when she walked by the table and the singers five minutes before, though insisting she could "hear it from half a block away". When the singers agreed the law required them to sing more quietly (but not to move or stop entirely, as Schonfield said at several points), Schonfield repeatedly refused to answer their question "how softly should we sing to be legal?"
This is an important question since a second citation in 24 hours can result in a misdemeanor charge punishable by up to 6 months in jail and $1000 fine.
Swamped as he was by time constraints, Frey didn't pursue some of these questions (which will come up a gain in my trial, which Ed may take on, due in May.
Almquist for his part missed the main points:
1. Reilly (the complainant) gave no warning prior to the arrival of the officer. He also made no complaint for many hours during which someone (not Johnson) was disturbing him.
2. All witnesses but Reilly and the police officer testified Becky's singing was not continuous, or disturbing, and happened at different points over a period of 45 minutes not 4 hours as claimed by Reilly.
3. All singing stopped after the officer advised Becky there was a complaint. The discussion that ensued and the argument between Becky and one of Relly's witnesses (who never appeared in court), Ann Funk, wasn't the subject of the complaint, though apparently Schonfield it "demonstrated" the activists wouldn't 'quiet down'.
4. Once warmed, Becky offered to sing more quietly, but wanted to know how quietly would be legal. The officer refused to answer.
5. The officer took offense at Becky's repeated questions.
6. In apparent retaliation or perhaps misunderstanding, the officer informed Reilly that Becky would NOT stop singing, in spite of the fact she'd agreed to do so. She further advised Reilly to stop the singing he'd have to sign a complaint.
MC 9.36.020 does not require performers to stop singing on any complaint from someone nearby nor does it require the officer to take that complaint and issue a citation. It rather sets a high ceiling for singing from 8 AM to 10 PM (after 10 PM a stricter noise curfew goes into effect). Street performers
Almquist, Schonfield, Barisone, the Sentinel, and apparently the SCPD all ignored this basic fact.
It is a key one for future interactions between street performers and cops--whether they're using a citizen complaint as cover or not.
The officer's error is documented in the officer's own police report.(see http://www.indybay.org/newsitems/2010/04/12/1... paragraph 3)
The audio tape (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/brb100121.mp3 about one hour and three minutes into the audio file) documents Becky's repeated and ignored requests.
I and old-time performer Tom Noddy will be discussing the trial and the SCPD's misuse of the Unreasonably Disturbing Noises law (MC 9.36.020)--on Free Radio Sunday morning April 25 at 11:30 if anyone wants to listen or call in. Our previous discussion can be accessed at http://www.radiolibre.org/brb/brb100418.mp3 about four hours into the file.
My arraignment my arraignment is 8:30 AM Thursday April 29 in Dept. 10. I don't advise people to show up unless they have some other reason for being there. A date for discovery and/or trial will probably be set then.
Tamorack the drummer was also the subject of another Reilly pre-10 PM noise complaint apparently. The Relly-Schonfield duo appeared in Dept. 10 two days ago for Tamrack's trial, but apprently didn't have a third officer there. It was unclear why the case was dropped.
PLEASE POST OR CALL-IN (423-4833) any police attempts to shut down performers or activists on Pacific because of "unreasonable noise" This includes attempts to "move along" people--unless that involves "having a display device for more than 1 hour" (MC 5.43). Ask the officer if s/he thinks you are playing too loud. Immediately offer to play more softly and ask if that is adequate.
Even if you decide to move or stop (what folks usually do), please document\
The name of the officer involved
The time of the incident
The location and any witnesses handy
Most violations of the Constitution happen because people let them happen and go undocumented.
The police claim not to keep records of "noise complaints", according to Mayor Mike Rotkin. Besides, he assures us, that's all taken care of by the courts.