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Indybay Feature
Drumbeat Still Out There
by Robert Norse
Wednesday Jun 9th, 2010 4:22 AM
The Drum Circle, even at its new location significantly distant from residences, businesses, and its former traditional location next to the Farmer's Market, is still facing police pressure, according to participants last week. Additionally Officer Winston is reportedly harassing and abusing folks on Pacific Avenue. Several meetings and protests are in the offing.
Last week's Wednesday Drum Circle featured increase police pressure with police arriving at dusk, several hours before the 10 PM “noise curfew” and dispersing people, according to participants reports. Supporters may want to keep an eye on today's Drum Circle as there seems seems to be a significant rise in both ticketing and violence against the homeless and street community downtown by police action.

Police also ticketed Eve—the legless woman— last week at the Drum Circle for “blocking the path”, as she described it. Eve also described a subsequent arrest and grim weekend in jail when I ran into her Monday, claiming she was beaten and raped in jail by female guards.

She and two other witnesses also described a subsequent bust by Officer Winston on Monday afternoon in front of New Leaf where he reportedly roughed up a guy for “resisting arrest” in a “sitting on the edge of a cement flower planter” ticket.

On Tuesday Baltimore, a hard-core street regular downtown, reported a second arrest and night in jail, by the same Officer Winston for the same “crime” at the same location.

“Big Drum” Brent reported being ticketed by...Winston...for “Unreasonably Disturbing Noise”[UDN] during the day on complaint from 4th floor law office of Atack and Penrose above Borders, even after he'd stopped playing Saturday May 29th] An interesting interchange between Brent and the woman who may be his nemesis can be found at
http://www.indybay.org/newsitems/2010/04/28/18646028.php?show_comments=1#18648709 .

Tamorac, the Pacific Avenue drummer, has reported getting another UDN ticket from a woman above Borders, even after agreeing to “move on”--playing well before 10 PM.

The Street Performers Guild meets Friday June 11th at 5 PM in Louden Nelson Center in Room #7. Performers and supporters welcome. Some plan to encourage regular documentation of police misuse of the Downtown Ordinances; others want to see a legal support brief for those already cited and perhaps an Injunction against the misuse of the laws—as well as other strategies for solidarity. There is talk of restoring the Open Mike inspired by the earlier Street Performers Guild organizing of the 1980's and 1990's.

I've made some suggestions on recent “police procedures” and how to respond to these MC 9.36 citations at http://www.indybay.org/newsitems/2010/05/27/18649032.php?show_comments=1#18649648

Robert Facer and I go to trial myself for singing “Downtown” with homeless lyrics on July 20th in Dept. 10.

HUFF (Homeless United for Friendship & Freedom) meets today at 10:30 AM at the Sub Rose Cafe. Some activists are planning a March of the Penguins at 11:30 AM—where they will be registered voters on the Pacific Avenue sidewalk. Some may venture into the “forbidden zones” (tabling within 10' of a Penguin statue) and risk citation or arrest for their presumption. The Penguinistas will also be continuing the poll began by HUFFsters the week before at http://www.indybay.org/newsitems/2010/05/31/18649403.php

If anyone has any news on Bob Noxious's sometime-Nightly Video Extravaganzas (street videos shown against buildings—such as the back of the Del Mar Theater from the New Leaf Parking Lot), please post.

Defending the rights of Drum Circle participants and their audience defends the rights of all of us. At their new location, claims of UDN are increasingly absurd. Please post reports or contact my Thursday night radio show at 831-427-3772 with reports. The Sub Rose Cafe at 703 Pacfic Ave. also has a notebook for recording police abuse incidents. Reports involving street performers will be of interest to those attending the Friday evening Street Performers Guild meeting.

Comments  (Hide Comments)

by ELMER FUDD PLUCKER
(trackintracks [at] yahoo.com) Thursday Jun 10th, 2010 11:24 PM
We Got Rights to Pluck Strings and Bang Skins ,Blow through pipes,Snap our fingers,Nose Flute,
A jingle jangle jingle, Do a Jig or a Doo Wah Ditty,
We Are Right to make and create music no matter what at no cost.

IF ANY JUDGE DEEMS ANY PUBLIC PERSON GUILTY OF THIS.

CHECK TO SEE IF HE IS DEAF DUMB AND BLIND.

I Know on The streets it's Hard and some Cops Have no Pity ....
They May try to Beat us down till we cant make a sound.

Make Me have to take A ticket as my civil right hits the ground.

I will Hit my Drum For this... And Pound and Pound and Pound.

STAND UP FOR YOUR RIGHT!

Peace... Drummer Dave




The flyers we were distributing in the June 1 demo (mistakenly noted as scheduled for June 2) can be found at http://www.indybay.org/newsitems/2010/05/31/18649403.php?show_comments=1#18650435 ,

The flyers are entitled: "Crack Down on Crime not Poor People" (#1)
"Give Us Your Opinion: Reconsidering the Downtown Ordinances (#2)
"Defend Street Performers" (#3)

They were also available for viewing at the June 9th Partying with the Penguins Voter Registration Drive that some HUFF members did downtown to reclaim public space around the 10' wide Forbidden Zones around the new penguin "art sculptures" on Pacific Avenue. (The forbidden zone expands to 14' for those who want to sit down on the sidewalk or hold up a sign peacefully looking for spare change).

The flyers will alsol be available this afternoon at the Street Performers Guild meeting 5-6:30 PM at Louden Nelson Center in Room#7.

For those who miss that meeting and can't download them for some reason, come to the next HUFF (Homeless United for Friendship & Freedom) meeting at its new time and location: Wednesday 5 PM at Soquel and S. River St. in the shade of the trees where the former Farmer's Market weekly Drum Circle has been driven to. Newcomers and oldtimers are welcome.

The "Defend Street Performers" sheet is useful for getting the names of witnesses when the police come to "convey" a "private person's" "complaint" and threaten to saddle you with a $450 ticket.

I should shortly be uploading the official Professional Standards SCPD complaint form---which I will encourage every street performer to use when threatened with a citation in a case where the music being played is not "unreasonably disturbing noise". The officer is supposed to have "reasonable cause" before taking a "private person's complaint".

Instead those complaints are being routinely translated into citations, so they act as a "heckler's veto" instead of being referred to the City Attorney's office for action. Hence the officer is violating the SCPD's "Private Person's Complaint" policy. Such complaints, even when dismissed, remain in an officer's file and may prompt police to begin following the law more faithfully.

You can also add to your complaint that the law itself says a performance is only a "crime" if it is "unreasonably disturbing or physically annoying to people of ordinary sensitivenesss" 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 "not necessary in connection with an activity which is otherwise lawfully conducted."

Street performing is a First Amendment-protected activity. Police are expected to know this. The First Amendment does not say "right to speak--if there are no complaints". Police are apparently ignoring the First Amendment when they write these citations simply on the say-so of a hostile complainant.

Such citations are not neutral, as police claim. They require performers (but not the complainers) to go to court or pay $445. The police intervention usually stops the performance. Since a second citation within 24 hours is a misdemeanor and carries a potential penalty of a year in jail and $1000 fine, performers may not return.

In addition, what reasonable person can understand and follow the wording of this vague law? It provides no clue other than the subjective feeling of someone who may not like the music, the political speech, or the presence of performers on Pacific Avenue.

Above and beyond that, the SCPD may be facilitating unconstitutional suppression of Free Speech if the cop tells you to "move along" or "stop" rather than "sing more softly", threatening you with a citizen citation if you don't.
WE CANNOT TAKE THIS SHIT ANY MORE!
The Drum Circle is a Showing of our liberty and freedom.
If The police continue to show Force against Those who practice these Rights,and other
Civil Rights.
In The End They will Lose The Positive Respect of The People.
Each and every one of us.

A message for the S.C.P.D from Frank Zappa:
YOU COULD MAKE MORE MONEY AS A BUTCHER...
SO DON'T YOU WASTE YOUR TIME ON,
DON'T WASTE YOUR TIME ON
PLEASE DON'T WASTE YOUR TIME ON MEEEEEEEEEEEEEEEEE.
SHANTI!

Have Drum will Travel...

Drummer Dave
by Hank Sirron
Friday Jun 11th, 2010 9:57 PM
Norse writes: "In addition, what reasonable person can understand and follow the wording of this vague law?"

Really Robert? Assuming 5 people out of 50,000 in the city were ticketed under this ordinance last week, that would suggest that 49,995 people understood and followed "the wording of this vague law". Are you suggesting that your 5 friends are the only reasonable persons in town? Do the rest of us not qualify as "reasonable pesron(s)" because we somehow miraculously escaped being ticketed for being high and banging immelodiously on trash cans?

I fail to follow you, my friend.
by Robert Norse
Saturday Jun 12th, 2010 8:30 AM
The ordinance 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 sensitivenesss 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."

Even the SCPD seems to acknowledge the ordinance is too vague for it to issue its own tickets since they repeatedly refuse to say whether any particular performance sounds "unreasonably disturbing" to them. If they don't have a standard for the law, how can anyone else? Either the complainant or the performer?

Instead police use this mechanical "move along" approach when ever they get a complaint, without judging of its validity. They are apparently facilitating the false notion that musicians must move on complaint or face a ticket at the discretion of the heckler. Cops apparently facilitate this falsehood that residents and merchants have the right to functionally shut down any performers as " disturbing noise" at their whim.

Not good. It looks like part of a broader cultural war to remove street people, homeless people, and other non-commercial "blight".

Last night the Street Performers Guild held its second meeting and clarified its purpose as helping performers to use the public spaces without fear of citation. A sympathetic attorney was present and people may actually be coming together to document and put an end to the misuse of this ordinance and other harassment laws and police policies.
by Seriously
Saturday Jun 12th, 2010 2:58 PM
A "heckler" is someone who is disturbed by loud noise, such as the banging of a hammer on a garbage can for an hour at 90 decibels?

That sounds like a more than "vague" description of a "heckler". That sounds like biased reporting.
by Robert Norse
Saturday Jun 12th, 2010 4:18 PM
Actually a "heckler" is anyone who wants a performer to stop performing, claims unreasonable noise, and gets her or his complaint turned into a citation with no "reasonable cause" provided to the officer. The point is that any complaint is apparently sufficient to get police officers threatening musicians to move them on (not even to play more quietly).

Or perhaps some posters have information to the contrary? Some cases of cops who suggested "play more quietly" or said they were unwilling to take a complaint because it was unreasonable.

The PD, when requested to provide public records, said they had no records of these cases.

Another example of a "heckler" would be someone who trollposts in order to disrupt or disparage a dialogue without addressing or furthering the discussion around basic issues. Sound familiar?
by Hank Sirron
Saturday Jun 12th, 2010 6:51 PM
No Robert, that doesn't sound familiar at all. Could you elaborate? And hey, speaking of blight, where's Becks these days? She seems to have just gone to earth. Have you spoken with her? How's she doing?
by Trebor
Saturday Jun 12th, 2010 8:29 PM
hahaha! hank sirron is a palindrome of norris khan, its spelled wrong, but still funny as hell!
by T. H. Sirron
Saturday Jun 12th, 2010 8:50 PM
Well, my full name is Trebor Hank Sirron, as I've noted elsewhere on Indymedia. I didn't know I had a brother here. Nice to meet you, bro!
by Hank Sirron
Monday Jun 14th, 2010 8:10 PM
Robert writes: "Another example of a "heckler" would be someone who trollposts in order to disrupt or disparage a dialogue without addressing or furthering the discussion around basic issues. Sound familiar?"

Robert, how is any exchange you have a "dialogue"? Everytime you put pen to paper it seems like a Richard II moment, with you wandering off into a meandering soliloquy. The moment anyone disagrees with you, you call him or her a troll and clam up. Seriously, how is that dialogue? Are you mentally ill?
by Annie
Tuesday Jun 15th, 2010 3:37 PM
"At their new location, claims of UDN are increasingly absurd."

I think not. I live at the corner of Dakota and Ocean streets, near the University Inn. A few weeks ago we started noticing a noise on Wednesday nights. Something we had never heard before. The week before last I finally realized what it was. I was driving home over the Soquel Bridge when I noticed the drum circle over on the southern part of the levee close to downtown. It dawned on me that this was the noise I was hearing over at my house. When I got home I stood there for a moment to see if I was correct. There it was, the unmistakable sound of drums. That's over three blocks away! Considering that the city's ordinances about loud noises state you are not supposed to hear things 30 feet away from their source, this definitely was breaking that code. If you can hear that racket 3 blocks away, the claims of UDN are not absurd.
by Robert Norse
Wednesday Jun 16th, 2010 1:57 PM
The Unreasonably Disturbing Noises ordinance is MC 9.36.030.

It makes “noise” between thehours of 8 AM and 10 PM illegal if it is...

“... (a)...unreasonably disturbing or physically annoying to people of ordinary sensitivenesss 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) ... not necessary in connection with an activity which is otherwise lawfully conducted."

Note particularly the words “physically annoying” and “physical discomfort”. It's not whether
someone is annoyed by or dislikes the music but whether the discomfort rises that that serious level and is "not necessary with an activity...otherwise lawfully conducted".

There's nothing about 30' or anything else mentioned by the prior poster. Reread the law.

Also artistic expression has an additional presumption of First Amendment protection, whereas "noise" is not. This issue hasn't been explored much by local courts.

Hecklers interested in harassing the Drum Circle should note that nuisance complaints can be considered "making a false police report". 911 calls are subject to Public Inspection, so while police generally decline to say who's making a complaint, they are required to provide that information when a formal written request is made.

Daytime drumming across the river doesn't fall under the ordinance. Those with luxury to have indoors accommodations might consider closing their windows and/or turning on some music if they are being distracted. Many of those at the drumcircle live outside and don't have that option.
by Robert Norse
Wednesday Jun 16th, 2010 2:01 PM
The ordinance in its entirety can be found at http://www.codepublishing.com/CA/SantaCruz/ under 9.36.020.
by Dan
Thursday Jun 17th, 2010 8:31 AM
Robert--the Santa Cruz ordinance mirrors those of many California cities. Most cities in the Central Valley, including Fresno, have identical rules. Along the coast, I know that San Luis Obispo and Santa Barbara County have similar laws. San Luis Obispo recently added more teeth to theirs. With all of them, the complainant essentially the last word--there is no minimum decibal level that defines what is or not is a violation of the ordinance. Bottom line--these ordinances have been challenged in California courts and have been upheld. You have no legal leg to stand on with your whine (or noise making). Being homeless does not constitute an examption from obeying the rules of society.
As noted above, the noise ordinance is pretty vague, has numerous First Amendment problems, and is clearly not applicable to the Drum Circle. It does make a nice tool fpr people trying to eliminate a certain class of people from downtown, of course, especially when it's misused.

Yesterday's Drum Circle (also the new site of the HUFF meeting--at its new time at 5 PM) seemed to be going well. There was an occasional police pass-through, but then police like everyone else have the right to use public spaces. Too bad they so frequently and regularly abuse them by trying to run off poor people.

Still, that wasn't happening yesterday during the times I was at the Drum Circle (5-7 PM or so).
Folks were having a great time dancing, sipping coffee, sitting around chatting, and, of course, drumming.

Eva, the woman without legs who moves around via skateboard, is apparently in custody. I saw her in court a few days ago briefly, but didn't have enough communication to hear her charges.

If anyone knows, please post them.

Also Anna Richardson/Miguel de Leon's outrageous Permanent Injunction trial resumes tomorrow (Friday 6-18) at 9 AM or shortly thereafter. The city is spending $50,000 to $100,000 to make sleeping at night in the downtown corridor an immediate jailing offense for the two homeless musicians. These two have never been convicted of any crimes involving violence, theft, drugs, or even panhandling. They have gotten multiple tickets for sleeping--though not in the last year.

Instead of trying them criminally on these charges, City Attorney Susan Barisone is again lumping a whole bunch of accusations and arrests into one Public Nuisance glob and throwing it at them. In this civil injunction procedure, they have no right to an attorney, to chance to appear before a jury, and the standard for conviction is significantly lower ("clear and convincing evidence") than for a criminal trial ("proof beyond a reasonable doubt").

The City is supposed to show that the damage to the City is greater than the damage to the defendants if a "forever" ban on the two from sleeping downtown at night, is issued. Barisone is also trying to expand the physical area of the injunction beyond the downtown and to expand the behavior covered beyond sleeping--though neither Anna nor Miguel have been convicted of any crime in the last year.

Now the City Attorney, perhaps with its eye on the upcoming election or fearful of the wrath of the Downtown Association, is ignoring the misdemeanor provision of the city ordinances (that make almost any two repeated infractions a jailing crime--IF YOU CONVICT THEM AFTER A FAIR TRIAL BEFORE A JURY), and using a slippery civil Injunction process which denies the defendants numerous rights.

Sort of taking a cue from how Bush and Obama have updated the Constitution to remove the rights of suspects being held in Bagram and Guantanamo.

City Attorney Susan Barisone reportedly planned to call 23 prosecution witnesses. So far their testimony has largely amounted to claiming the two defendants and their property are an "eyesore" and so should be subject to criminal penalties.

This is really about the right of homeless people to be present in publics spaces and engage in life-sustaining behavior like sleeping. The trial is likely to go over to Monday and continues in Dept. 4 (Judge Volkman's court).

Attorney Ed Frey's appeal of Robert Facer's case has been postponed until mid-August at the request of the prosecution. Facer was found guilty of sleeping on the beach in the summer of 2009 when there was no legal walk-in emergency shelter available. Santa Cruz's low-intensity war against the poor continues without pause. His case will be heard by a three-judge panel.
by John Thielking
Saturday Jun 19th, 2010 8:52 AM
Just its unreasonable and arbitrary enforcement.
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