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DESCRIPTION:BACKGROUND\n\nIn mid-May, Superior Court Judge Ariadne Symonds heard my 
 court trial for the crime of "refusing to leave a business when asked".  
 \n\nThe details of my adventures at the Metro Transit Center and the trial 
 are chronicled at http://www.indybay.org/newsitems/2009/05/18/18595792.php 
 ("Friday's Trespass at the Metro Trial--Notes from the Defendant"). 
 \n\nCheck out the above web address for a transcript of the audio tape of 
 the incident.\n\n\nCITY COUNCIL DELAYS CLAIM CONSIDERATION\n\nOn May 28th, 
 Santa Cruz City Council took the unusual step of continuing its hearing on 
 my claim against the City for false arrest. Usually such claims are 
 routinely denied.  It does not appear to be on the City Council agenda for 
 tomorrow.  Hence, there may be unusual pressure on Symonds to find me 
 guilty, since the threat of a lawsuit is real and 
 present.\n\n\nSYMONDS--PROSECUTOR OR JUDGE?\n\nSymonds, as I've written 
 before, seems to have taken on a dual role--that of judge and of 
 prosecuting attorney.   Since there was no prosecuting attorney, she should 
 simply have heard the police and security guard's testimony, my testimony, 
 and my attorney's arguments.  Instead, she engaged in fairly extended legal 
 debate with him, as though she were the prosecuting attorney.\n\nNormally 
 she would have heard the tape we made of the affair in court.  Instead she 
 asked to be able to hear it later privately.  We agreed (and, as it turned 
 out, probably shouldn't have).  \n\nSome days later she demanded a complete 
 transcript of the tape which cost over $300.   On receiving that, she sent 
 it back to us, insisting that the names of the speakers be filled in, 
 requiring another $120+ worth of work.  \n\nRequiring transcripts of audio 
 recordings sets a bad precedent for poor defendants who can't afford to 
 have such documents written up.   It discourages folks from introducing 
 audio (and video) as evidence, when that may be the best evidence of 
 official wrongdoing.\n\nFinally she demanded from my attorney by e-mail 
 final briefing on an issue fundamentally irrelevant to the arrest--whether 
 it is legal to tape record a security guard who is questioning you in a 
 public place.  I include his response below.\n\nThe audio recording issue 
 was not raised by the guard as his reason for demanding I leave the 
 property and arresting me for not doing so.  His only stated reason to the 
 police was the (preposterous) claim that I was blocking a 6' long "Metro 
 Center" sign.  \n\nNormally if an issue were raised and briefed (as Symonds 
 is demanding Beauvais do), one side would have access to the response from 
 the other side--the prosecutor's response. \n\nBut since Symonds is acting 
 as both prosecutor and judge, she has no need to outline what argument 
 she--the prosecutor--is making to herself--the judge, in response to 
 Beauvais's brief below.\n\n\nISSUES AT STAKE\n\nSeveral issues are at 
 stake:  \n    1.  The right of the homeless and the community generally to 
 be able to be at the Metro without abusive challenge from security 
 guards.\n    2.  The right to be free from government-funded religious 
 sermons at a publicly-funded facility.\n    3.  The right to record one's 
 transactions in public places with security guards and police officers 
 armed with similar equipment.\n    4.  The right of the media to 
 investigate charges of abuse without threats--and the actuality--of 
 arrest.\n    5.  The right of the community to be informed about these 
 issues.\n\n\nCome and watch the outcome in Courtroom 1. \n\n\n\nATTORNEY'S 
 FINAL BRIEFING TO THE JUDGE BY E-MAIL:\n\n\nAttorney David Beauvais 
 provided the following briefing: \n\nDear Judge Symonds,\n \nYou requested 
 briefing on the issue whether the defendant had the right to record over 
 the objection of the security guard at the time of the incident charged in 
 this case.\n \nThe answer depends on whether the the recording was a 
 confidential communication under Penal Code section 632. It was not.\n 
 \n“Application of the statutory definition of ‘confidential 
 communication’ turns on the reasonable expectations of the parties judged 
 by an objective standard and not by the subjective assumptions of the 
 parties.” ( O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 
 Cal.Rptr. 674.) \n\n“The test of confidentiality is objective.” ( 
 Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929, 33 Cal.Rptr.2d 
 766.)\n\nHere, the security guard had no reasonable expectation of privacy 
 where the communication between him and Mr. Norse consisted of nothing more 
 than a dialogue concerning the security guard's effort to force him to 
 leave the premises.  \n\nIt is hard to imagine how this communication would 
 be considered confidential under the objective test.  \n\nAlso the 
 communication occurred in a public place and the security guard made no 
 attempt to shift the location of the interaction to afford himself privacy 
 from being overheard by others who were present at the time of the 
 communication.  \n\nIn addition, the security guard called the police to 
 report the substance of the recorded communication to the police. This 
 further evidences his intent not to keep the communication private between 
 himself and Mr. Norse.  \n\nFinally, this was not a surreptitious 
 recording.  In fact, the security guard objected to being recorded.  Merely 
 objecting to being recorded did not turn an otherwise non confidential 
 communication into one that was.  \n \nThis passage from Taus v. Loftus 
 (2007)  40 Cal.4th 683, 747 makes clear that the communication between the 
 security guard and Norse did not occur under circumstances which make an 
 expectation of privacy reasonable:\n \nIn Shulman, for example, the court 
 could not have concluded that bringing the hidden recorder into an 
 ambulance breached a reasonable expectation***827 of privacy without first 
 concluding that the interior of an ambulance and conversations between a 
 paramedic and an injured person in need of the paramedic's services was 
 reasonably entitled to some degree of privacy or seclusion. \n\nIn Sanders, 
 we concluded that hidden cameras brought into the workplace may constitute 
 a breach of privacy ( Sanders, supra, 20 Cal.4th at p. 923, 85 Cal.Rptr.2d 
 909, 978 P.2d 67), but that the first prong of the intrusion tort is not 
 met “when the plaintiff has merely been observed, or even photographed or 
 recorded, in a public place.” ( Id. at p. 914, 85 Cal.Rptr.2d 909, 978 
 P.2d 67.)\n\nFinally, Mr. Norse made clear on the tape that he was a 
 broadcaster who was investigating arbitrary ejectments from public 
 property.  Mr. Norse had a right under the First Amendment and California 
 law to record for the purpose of broadcasting on an issue of public concern 
 where the recording took place on public property.\n \nA copy of this email 
 has been forwarded to the Santa Cruz City Attorney.\n \nDavid Beauvais, 
 Esq.\n https://www.indybay.org/newsitems/2009/06/08/18600978.php
SUMMARY:Metro Trial Verdict Hearing
LOCATION:701 Ocean St. in the Courthouse in Dept. 1, Judge Symonds' court--the first 
 courthouse on your left as you go through the metal detector
URL:https://www.indybay.org/newsitems/2009/06/08/18600978.php
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