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Demo and Harassment Trial for Wes Modes

Friday, May 28, 2010
12:30 PM - 2:30 PM
Event Type:
Robert Norse
309 Cedar PMB #14B Santa Cruz 95060
Location Details:
701 Ocean St.

The rally will be at 12:30 PM on the steps of the Courthouse.

The hearing/trial will be at 1:30 PM in Dept. 2, the second courtroom you encounter after going through the metal detector in the main courthouse building.

I heard about this rally on second hand from Whitney Wilde. According to earlier e-mail she received the 12:30 PM was organized by Sherry Conable, then cancelled when Wes Modes thought the hearing was off, then rescheduled when Wes sent out an e-mail on 5-27 that the hearing/trial was on again.

As described below, Wes and others are being targeted.

The Guerrilla Theater was dispersed on Friday 5-21 from its customary viewing spot under the Soquel St. bridge.

The Drum Circle was relocated under police pressure from its traditional location on Cedar St. to the levy next to the Soquel Bridge area.

Street musicians downtown have reformed for mutual protection as the Street Performers Guild after being driven away with ticketing threats for false claims of "Unreasonably Disturbing Noise".

Homeless activist Becky Johnson is appealing her conviction in April for singing homeless lyrics to the Petula Clark song "Downtown" in the "Free Speech" zone in front of Bookshop Santa Cruz.

And three community activists have been ticketed for "participating" in the 2009 DIY Last Night parade, as described below.

In Dept 2 at 701 Ocean St. in the court of Judge Burdick, Free Skool, Last Night DIY, Trash Orchestra, and Sub Rosa activist Wes Modes goes on trial for 6 infractions, 5 of them nearly 2 years old, in what appears to be a joint action by D.A. Bob Lee and City Attorney John Barisone to attack community activists in town. I called the Municipal Court Clerk and was given details.

Apparently City Attorney John Barisone is prosecuting Wes for 5 infractions dating from mid-September of 2008 the week before police provoked a near riot in the parking lot next to the Farmer's Market where the Drum Circled has played traditionally for the last decade or more.

On September 17, 2008 when police showed up in force, Harms apparently had the 5 infraction charges waiting to be used to clamp down on Wes.

Clearing away the Drum Circle from its traditional spot seems to have been high on the city bureaucrat agenda for years. Using Vice-Mayor Coonerty's "Parking Lot Panic" law banning public assemblies in parking lots, Harms moved to disperse the Drum Circle in January of 2008.

The community rebuffed the police when various groups including the Raging Grannies, HUFF (Homeless United for Friendship & Freedom), Food Not Bombs, and the Trash Orchestra (of which Wes was a part), joined the Drum Circle in solidarity. This widespread resistance may have made Harms reluctant to engage in mass ticketing--particularly so near the Wednesday Farmer's Market, where so many people could see and protest the crushing of legal public assembly.

Later in September, the City took to putting up green mesh fencing around the three tree areas where people gathered to drum and/or socialize on Wednesday afternoon during the Farmer's Market.

On September 17, 2008, Sgt. Harms and his underlings attempted to handcuff Food Not Bombs worker Jack Russ for allegedly taking down the fence around the area where the Drum Circle had played. Russ was ultimately never charged with that--but rather "resisting arrest". Wes was brutalized, arrested, hospitalized, and jailed.

Massive police response nearly created a riot downtown--photos can be found at . I've written many reports on the Drum Circle which can be accessed by searching for my name at See .

After a year of what he described as fruitless legal struggle, Wes copped a plea to battery and resisting arrest on December 4 last year. He was given some sort of deferred sentencing, which the D.A. has tried to revoke using the new "parade walking" charge described below, which also comes up for trial at 1:30 PM Friday May 28th in Dept. 2.

Sentencing in the misdemeanor cases is slated for June 15th at 8:30 AM in Judge Burdick's Dept.

Wes reported that Harms had five other infraction charges stemming from his peaceful solidarity with the drummers on September 10th ready to spring on him on September 17th.

They weren't pressed at the time, but they're now being belatedly pursued in court by City Attorney John Barisone nearly two years later.

These include: 9.50.020 Conduct on public property, 9.50.030 Disturbing plant lawns or grassy areas, 9.64.010 Trespass in a public parking lot, 9.50.010 Obstruction of movement in a Public Place, and 9.50.030(8) Defacing or Removing Public Property.

It's not clear to me what these charges actually refer to--other than engaging in ordinary social use of the Drum Circle area. Dozens of people also were assembling in the lot, but only Wes is charged criminally for his presence there. Wes emphasized how he was being targeted through his attorney's discovery of documents showing Harms had these charges waiting for him on September 17th when he arrived, apparently intending to use them to deter his political activity.

Wes's current defense lawyer, Jonathan Gettleman, is moving on 5-28 to dismiss these charges as untimely (i.e. delayed too long).

Infraction charges don't allow for a jury trial or free public defender. Normally they wouldn't allow for jail either. However Wes's case is special.

As described above, Barisone has leveled a new infraction charge--for participating in a non-commercial event--the DIY Last Night New Year's Parade. As I understand it, the D.A. is attempting to use this new charge as proof of a violation of the sentencing agreement in the battery, resisting arrest cases, of last December. Something about "obeying all laws".

If Wes can be convicted of this absurd infraction violation (which would also apply to hundreds of other people walking in the parade), then perhaps he can be convicted of breaking the sentencing deal with a possible consequence of months in jail under the December agreement. The hearing on that issue comes up June 15 in Dept.2 at 8:30 AM.

As far as walking in the DIY December 31, 2009 parade, hundreds of others also walked in that parade (as did I) on December 31st, but none of them is being charged. Whitney Wilde, a street artist, and Curtis Reliford, the African-American activist who convoyed food down to New Orleans after Katrina are also charged with "participating".

Their cases have not been set for trial. Though the court records their citations having been issued, both Wilde and Reliford denied receiving them in the mail and said the city attorney had not contacted them.

In fact, in solidarity with Wes, Wilde has approached the city attorney repeatedly seeking to receive notice she's been charged. Others like India Joze restaurant owner Joe Schultz have also asked Barisone to charge them as well for "criminal parading". Fines on these tickets are $293; if unpaid, they go to $593.

Confronted on May 1 publicly to get the city attorney to drop all these ridiculous DIY charges, Rotkin claimed ignorance, but promised to bring it up at the next closed session of City Council--after initially claiming it couldn't be done.

I contacted him by phone several weeks ago to find out when it would appear on the May 11th City Council agenda; he responded it would be brought up on May 24th. City Council's closed session agenda for that date showed no mention of it, and Rotkin didn't return a phone call about the issue. He reportedly ducked the issue when attorney Gettleman raised the issue.

Call him at 423-4209 to speak to him directly--though you'll usually get a message machine.

Wes describes the situation in his own words at

Added to the calendar on Thu, May 27, 2010 5:35PM

Comments (Hide Comments)
by Dept 2
In a courtroom victory Friday, 4 out of 5 courts against Wes Modes were dismissed.

Modes was in court on two matters, arraignment for a recent infraction in which Modes was charged with participating in the DIY New Year's Parade, and a two year-old case in which Modes was charged with a series of minor infractions at the site of the Farmers Market Drum Circle.

The court room was packed with two dozen supporters, including a former mayor and the Raging Grannies. The Deputy District Attorney was there to argue that the recent New Year's parade participation infraction was a violation of an earlier misdemeanor plea deal agreement. "This has become a fiasco," said Judge Burdick during a sidebar, "It seems like everyone has an agenda here."

The older Farmers Market infractions included standing in a planter, mauling the grass, trespassing over 15 minutes in a parking lot, and delaying traffic at the site of the Farmers Market Drum Circle. This is a case that the city attorney had failed to prosecute for almost two years.

After extensive argument, a motion to dismiss on failure to provide a speedy trial was denied. However, after Judge Burdick's acknowledgment of the substantial judicial resources used by the city to prosecute these cases, four counts were dismissed over the objection of the city attorney. Modes pleaded "no contest" to one count (delaying traffic), with a sentence of 37 hours community service.

Modes pleaded "non guilty" to the charge of parading on New Year's. Asked by the judge why the DA doesn't just guarantee that the new year's infraction will not affect the earlier misdemeanor agreement, the Deputy DA shrugged, "They want to go all the way with this."

Modes returns to court on July 16th for the final phase of the recent series of high-profile infraction case, claimed by supporters as harassment of Modes, a well-known activist. In the July 16th trail for his alleged participation in the DIY New Year's parade, defense will attempt to show discriminatory prosecution for Modes political affiliation.
by solidarity
Good luck in court Wes, sorry you have to get harrassed like this, it's wrong. Hopefully you will be able to show that you are being wronged on your day in court. Good luck once again and in solidarity.
by quite the contrary
Getting sentenced to 37 hours isn't really a win. Should the argument have been made on grounds of statute of limitations, rather than speedy trial? It does seem odd to pull out those citations over a year later.

This doesn't bode well for the defense at the trial in July. But maybe someday in September a judge will finally decide that wasn't really a probation violation anyway.
by mainstream report
Four infractions from downtown drum circle dismissed against SubRosa founder
By Cathy Kelly, SC Sentinel

SANTA CRUZ - Four of five municipal code infractions were dismissed against local anarchist Wes Modes on Friday.

The citations were given to him at a drum circle near the Downtown Farmers Market in September 2008.

Modes, 43, of Felton, is a founder of the anarchist collective SubRosa, a downtown cafe, library and art space.
by Robert Norse
The same story appeared in the Sentinel today at . A number of generally hostile and uninformed comments follow attacking the Drum Circle. One anonymous heckler advises the public on how to use the police force as their private goon squad.

Today's Drum Circle was initially harassed by three cops on the levy at 2 PM (as a few drummers were just setting up) according to Drum Circle Dave. They were told they couldn't block the path, nor be on the triangular area, nor sit on the sides where they'd be "damaging the vegetation". Glad to hear that the drummers advised the three cops that they'd been drumming under the watchful eye of Sgt. Harms the Wednesday before last without being told to leave.

When I left the Drum Circle around 5:30 p.m., Ronee was serving the last of the doughnuts; the drummers were drumming, and about 100 happy people were enjoying a warm summer day.

I suggest drummers, musicians, and activists generally (a) get a small handheld audio recorder, and (b) be prepared to get names, e-mails, and phone numbers of nearby witnesses to the effect that their performance is not "unreasonably disturbing noise" under MC 9.36.020. See .

Those who get cited should also (a) file complaints with the Professional Standards unit of the SCPD--contact HUFF at 423-4833 for more info, and (b) document any expenses involved in going to court, missing work, feeling intimidated from playing, missing revenue because you had to shut down early, etc.

Then those successfully using SCPD as private bouncers may find themselves (a) defeated in court, and (b) successfully sued in Small Claims Court for the expense involved in responding to their misuse of the police and the law.

The SCPD, of course, are also accountable themselves, since they shouldn't be taking "private citizen arrests" unless there is "reasonable cause". Between the hours of 8 AM and 10 PM at night, there isn't, except in very rare circumstances, reasonable cause.

Sgt. Harms told me today that he can tell "unreasonable noise" by going around the block and seeing if he can hear the musician from a block away. He also said musicians aren't advised to play more softly, but told to leave or be cited--which is not what MC 9.36.020 requires. Why doesn't he follow the law and ask the performer to play more softly? Because, he says, "I've warned them hundreds of times", "most musicians will just move along", and "I only deal with the bad ones". Sorry, Sgt. Harms, the First Amendment (and the wording of MC 9.36.020) doesn't allow you to make those kind of subjective interpretations.

Since that seems to be policy at the present time, performers need to establish a clear record of every time they're harassed or told to move along--the name of the cop, his/her badge number, whether they are just advising quieter playing, or whether they are insisting on the illegal "move-along". Also the cop should be asked if s/he regards it as "unreasonable noise".

Cops can't claim to be neutral since they are acknowledging in writing the citation that they believe the complainer has "reasonable cause" or they have to refuse the citation. As they've done when I tried to get a complainer cited for making a false police report (though in that case, there was reasonable cause).

Harms and other officers have claimed in the past that they were prohibited from giving out citations on their own initiative but need a "private complaint" Today he admitted this wasn't true as a matter of law or written policy, just police practice.

Officer Schonfield--who gave our four false MC 9.36.020 tickets to myself and three others, after some of us had song homeless lyrics to "Downtown" on January 3rd--insisted she was also banned from "giving an opinion" whether the music was "unreasonably disturbing". Clearly, since she has a duty to enforce the law, if she regarded it as unreasonably disturbing on walking by, she'd have to cite. Harms, when presented with the same scenario, said while he might not regard music as "unreasonably disturbing" as he walked by--=someone else trying to sleep nearby and subject to the same song played over and over would get police cooperation in issuing a citation. This does not comport with the wording of the law or the broader protection of the First Amendment.

It also has nothing to do with what happens in practice downtown. Musicians are moved along at the whim of merchants and residents, regardless of how long or how loudly they've been playing---or such are the reports I've been receiving and have personally experienced.

When I asked Harms to estimate the number of times he had told musicians to move in the last week, he refused. I'd asked him in a formal Public Records Act request for stats in the past regarding whether he and his subordinates regularly threaten musicians with tickets automatically on the say-so of those who don't like what they hear. He, Records Manager Trisha Husome, and the SCPD as a department has declined to do so.

Mayor Mike Rotkin's stance was "let the court settle it". Of course, that means either getting a lawyer, or rounding up witnesses, and being ready to pay a costly fine, as well as remaining intimidated and deterrred from playing downtown until after the case is settled. You may also hit upon a judge, like Judge Almquist who felt that the First Amendment doesn't apply when someone is trying to sleep at 3 PM in the afternoon and claims he's "disturbed" by the sound.

Nobody said this wouldn't be a struggle, but if we build up a documented record of what the SCPD is doing--perhaps with the help of the new Street Performers Guild, or the rumored Street Performers Counsel--we might be able to interest an attorney in getting an injunction or device some fight-back strategy of our own.

I hope to be playing some tape of my recent chat with Sgt. Harms on Sunday at 10 AM on Free Radio Santa Cruz at 101.1 FM (
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