Long-time homeless activist Becky Johnson is charged with "singing too loudly" in front of the Bookshop Santa Cruz, which many regard as a targeted attack on her by the City Attorney who traditionally does not get involved in "citizen arrests."
The SCPD is continuing to use a "stealth censorship" policy to silence musicians and activists against whom they've "received complaints." Under cover of "citizen arrests" the cops are giving Pacific Ave. residents and merchants an unconstitutional and illegal veto to shut down musical performance and/or protest on the public sidewalk under the terminally vague "unreasonably disturbing noises" ordinance (MC 9.36.020)
The process is not "neutral" as police claim because those who don't immediately silence themselves face time-consuming trips to court, possible $445 fines, and even immediate jail (for a second citation--which is a misdemeanor).
The actual law sets a very high volume of singing or music that's allowed during the day and does NOT give residents, even those trying to sleep during the day, the right to shut down singers.
The singing must be "unreasonably disturbing or physically annoying to people of ordinary sensitiveness or ...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) ...not necessary in connection with an activity which is otherwise lawfully conducted."
Police are refusing to accept "we'll sing quieter" offers and also refusing to say how loud is too loud and how quiet is okay. The only alternative is to move along and end the singing or protest.
On April 13 Judge Burdick turned down attorney Ed Frey's motion for a continuance, rubber stamping Judge Symons determination to force the case to quick trial.
This in spite of the need for time to get policy documentation from the SCPD, video tapes and other information from the complaining "sleepers" on the second floor of the St. George, and the massive documentation required to show a policy of selective enforcement. Asked attorney Ed Frey, "what's the hurry?".
Apparently the answer is "Symons says". At a prior hearing, three days after Johnson hired Frey, Symons wanted an immediate trial, and granted only a brief two-week continuance in spite of the fact that Frey goes into a full jury trial on the same day as Johnson's trial.
City Attorney Barisone's unusual appearance also complicates the case and requires more time for the defense. It also sets the resources of the City on the side of a heckler intent on closing down a homeless protest.
Barisone's only explanation for his unusual appearance was that he was 'requested' to be present by Commissioner Kim Baskett in cases where the other side has an attorney. Johnson, however, found it peculiar that Barisone had not been notified that she had an attorney--since she only got one three days before the scheduled court date.
The City Attorney in the past has rarely if ever appeared in infraction cases. In the recent case of People v. Norse, for instance, (http://www.indybay.org/newsitems/2009/05/18/18595792.php
), the City Attorney made no appearance as prosecutor.
Johnson brought two witnesses to the closed session of City Council on Tuesday (see "Sinister Street Singer Citation Hits Closed Session of City Council" at http://www.indybay.org/newsitems/2010/04/12/18644482.php
). They testified--among other things--that her singing was not unreasonable, that all singing stopped and never started again, that she was never warned previously, and that the police officer refused to say how loudly people could sing and whether the singing was too loud.
I provided a tape (rather difficult to hear) and a transcript to City Council documenting that Johnson agreed to sing more quietly but needed to know how quietly.
The citing officer either mistakenly or maliciously ignored Johnson's offer.. Instead the cop claimed that Johnson's repeated questions constituted a "hostile attitude" that indicated she'd "keep singing"--the exact opposite of what the tape showed, and told the complaining citizen he'd have to have her taken to court to stop her singing.
City Council ignored all this and proceeded to give City Attorney Barisone the power to proceed at his own discretion.
On the upside, Johnson and other activists returned to the same spot last Friday and sang the same "subversive" song ("Downtown" see http://beckyjohnsononewomantalking.blogspot.com/2010/01/downtown-music-by-petula-clark-lyrics.html
) without incident (see http://www.indybay.org/newsitems/2010/04/07/18644020.php?show_comments=1#18644146
For more details see "Sing a Song, Go to Jail?" at http://beckyjohnsononewomantalking.blogspot.com/2010/01/sing-song-go-to-jail.html