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Local ACLU Considers Challenge to Median Ordinance
by Steve Pleich
Thursday Aug 1st, 2013 12:05 PM
Standing Up for the Right to Stand Up
At the most recent meeting of the Santa Cruz County Chapter of the American Civil Liberties Union held on July 22nd, the group discussed a proposal to challenge a newly adopted city ordinance prohibiting virtually all activities on median strips within the city limits. Designated as Section 10.36.040, the ordinance makes it unlawful to "remain on public medians ... for purposes other than assisting pedestrians to safely cross the street ...". This ordinance expressly prohibits "unlawful activity" including the "solicitation of money" but is entirely silent as to activities that may involve freedom of speech and freedom of expression. Putting aside for moment that solicitation of money, otherwise known as "panhandling;" has been held to be a constitutionally protected activity, the overbroad, ambiguous and vague nature of this ordinance make it ripe for constitutional challenge on civil liberties grounds.

Based upon a stated public policy that the prohibited activities pose a danger to "the safety of the community", this poorly crafted ordinance fails to specifically address the "lawful" and constitutionally protected activities that have historically been a part of our city's rich tradition of free speech. At a previous meeting of the ACLU, one of the public attendees informed the Board that the City Attorney had informed him that holding a sign expressing a point of view while standing on a median strip would be a violation of this ordinance. From both common sense and civil liberties perspectives, this is wholly unacceptable.

If taken up, a legal challenge to this ordinance would be made on the grounds that (1) the law as written is so ambiguous as to have no certainty of uniform enforcement: (2) is vague as to its material terms: (3) is overbroad as written and (4) is, therefore, unconstitutional on its face and as applied. An ACLU Santa Cruz Board member has offered to be a named litigant in the proposed court challenge and would be defended by a local ACLU member attorney.

Many local activists remember the constitutional claims that were brought on behalf of Occupy Santa Cruz by both Ed Frey and Steve Pleich. Those claims were removed to United States District Court based partly on the belief that constitutional claims, such as the ones raised by the new city ordinance, are more appropriately heard by a federal court rather than a our Superior Court. Any decision as to venue would be a determination made by ACLU Santa Cruz in consultation with the ACLU of Northern California. ACLU NorCal has been contacted concerning the civil liberties implications of similar ordinances in other cities and counties and would certainly contribute to the challenge.

As our community moves into the future, we must not leave our most cherished values behind. It was Benjamin Franklin who famously observed, “They who can give up essential liberty for safety deserve neither liberty nor safety”. ACLU Santa Cruz believes that our community deserves the civil liberties guaranteed by the Constitution of the United States and these rights cannot, will not, be sacrificed on the alter of public safety.

Comments  (Hide Comments)

by G
Thursday Aug 1st, 2013 3:35 PM
Is the local ACLU 'challenging' those any time soon?

Oops, did I step on yet more 'hip washing' campaigning? My bad.
by Seeg High School
Thursday Aug 1st, 2013 9:47 PM
You're in, you're out. Speaking for myself, and other winners, you can tell them by the sweaters they drape over their shoulders, I'm in with the in crowd, I go where the in crowd goes, I say what the in crowd says.
by Robert Norse
Thursday Aug 1st, 2013 10:32 PM
It's commendable to hear the ACLU "discussing" a possible challenge to the "push away the panhandlers" "no standing on the Median" law, which, of course, impacts the entire community, especially political activists.

Could this be the first step in the ACLU's finally paying some attention to local homeless civil rights abuses and taking at least a public stand on them (even if not pursuing lawsuits)? Or is it more internal lip service?

They don't seem to be interested in transparency around their own Board of Directors meetings. I recently wrote a story describing my experience at their last meeting ( Local ACLU Again! at ). The story is a little hard to find since it was sidelined by indybay into the less-travelled-to Breaking News/Other section (I've requested it be restored to the Local News section).

My story spotlighted the last ACLU meeting's decision to conduct all their meetings behind closed doors--violating a policy they'd been following opening their meetings to ACLU members and the public generally.

Steve Pleich, vice-chair of the ACLU) was disappointed that the Board members he'd groomed and encouraged to join voted along with the "no transparency" faction. Me too.

ACLU Chair Peter Geldblum made closed meetings an issue when, before the May meeting, I encouraged homeless people to attend the meeting and e-mailed the ACLU that some of us would be seeking local ACLU statements on local homeless repression (the Sleeping Ban, Officer Vasquez's facesmashing Richard Hardy recent anti-homeless legislation at City Council, and numerous other issues. Apparently uninterested in hearing the homeless community or having them hear the ACLU's homelessrights-free business, he unilaterally closed down the meeting. When Pleich chaired the meeting the next month, it was open, but Geldblum returned to lead a vote to close all future meetings.

ACLU meetings are held the 4th Monday each month in Louden Nelson Center at 7 PM. If you're foolish enough to go, come prepared to be excluded though you may be allowed to speak at the "Oral Communications" segment of 10 minutes--regularly scheduled at the end of the meeting. That's only a wait of an hour and fifty minutes.

It seems ironic that an organization explicitly devoted to civil liberties, is using opaque and exclusionary policies at its own meetings when faced with criticism about its own failure to deal with homeless civil rights. But that's been the case with the Santa Cruz ACLU for the last 25 years with a few minor exceptions.
by pro se
Friday Aug 2nd, 2013 1:34 AM
It looks like a legitimate government interest in public safety and how are you going to show that the alternative of holding a sign on the nearby sidewalk is not adequate?
A 'void for vagueness' challenge, if successful, would be met by simply tweaking the wording of the ordinance.

G is right, in other cities there have been successful challenges to sleeping ban laws like Penal Code 647(e), which on its face and as applied by the County and the feeble opinions of Judge John Gallagher would conceivably make it a misdemeanor for someone to lie down on a towel at the beach.

It looks like our local ACLU chapter is just a do nothing club of attorneys with little understanding of constitutional law. Good news for them though! Those are exactly the same qualifications to successfully win an election as a local judge!
by Steve Pleich
Friday Aug 2nd, 2013 12:22 PM
It is a maxim in both the legal and the physical world that nature abhorrs a vacuum. Yes, the ACLU should be advocating for homeless rights but there are many pro se lawyers who have the knowledge and the will to bring this fight to the courts as well. But we can't do it without good facts. If you read any of the cases where sleeping bans or confiscation of possessions were successfully litigated you would find those cases had good facts built upon the foundation of names of people whose rights were being violated and lists of possessions that had been illegally confiscated and declarations describing the impacts of being sleep deprived and/or having everything you own taken away. We have none of that. Both Robert and I have asked, requested, pleaded with and begged homeless folks to give us their names, provide lists of confiscated belongings, tell us their stories but we have received next to nothing in the way of response. I understand that the homeless face challenges everyday thay most of us cannot fully appreciate nor comprehend. I know they are fighting every day just to survive. But homeless advocates, be they the ACLU or HUFF or local pro se legal advocates cannot make any progress, get any substantial justice or change the practical dynamic of the real world without the help and engagement of the homeless community itself.

If we had 100 Gary Johnsons, we could really get somewhere. But, alas, today we don't even have one and the impact of that vacuum is perhaps the most profound of all.
by Trip Weir
Friday Aug 2nd, 2013 1:29 PM
Sounds oh so dramatic to get arrested so you can be defended, but if the ordinance is unconstitutional, why not sue for a writ of injunction and make the exact same point without grandstanding like a martyr?

P.S. You meant "altar."
by zouzou
Friday Aug 2nd, 2013 2:50 PM
The ACLU has always been selective in cases they take.

So why not use one of your existing organizations, or start one, with the explicit purpose of challenging SC ordinances against the poor.

I certainly like street protests, but how effective have they been when you consider the legal successes of other cities, particularly cities that are a lot less progressive than Santa Cruz.

I'm sure Robert is in contact with these activists. Talk to their attorneys and see what you need to make a case. See if they will refer an advocacy attorney willing to work on SC issues for free, or low cost.

Of course you'd have to be ready with websites and PR arguments already up vs what is up currently (which is a confusing hodpodge of complaints). Because once you start getting these issues in the courts, you will start to get a lot more media coverage (if you're doing things successfully).
by G
Friday Aug 2nd, 2013 4:56 PM
Steve, it is sad to see you blame the victims instead of helping them. Are you really that confused? The confiscation of my property WAS part of a trial. If anyone is to blame, other than legislators and lawyers (I BEGGED my lawyer to make viable arguments, but it was 'his show'), it is the citizens of Santa Cruz that are to blame, citizens that turn a knowing blind eye to the blatant bigotry and discrimination. I've been through jury selections, I've heard their bigotry, seen their hateful eyes, pitied their withered souls. And now I can't be ANYWHERE IN CALIFORNIA without the moment by moment threat of spending obscene amounts of time incarcerated, for TAKING A NAP.

The local ACLU is a campaign rubber stamp, zouzou. A 'kindness greenwash'. The suggestions you make have been done. There have even been protests AT THE SANTA CRUZ ACLU ITSELF, when they were giving one of the problems an award for 'justice', right before an election! And one of the other award recipients, during their acceptance speech (the Brown Berets stepped up!), pointed out the hypocrisy! Yet the ACLU club sat silent, the problem was elected, and made Mayor of Santa Cruz, and predictably people continued to suffer, but perhaps not enough of YOUR friends for it to matter.

When 'part of the problem' people cease blaming victims, there will be room for educating bigots, for putting an end to the discrimination. Until such time, everyone will continue to wallow in the oppression, some comfortably floating over the people struggling to surface. Until such time, comfortable Santa Cruz citizens will continue making a mockery of compassion.

My apologies if pointing out such inconvenient truths makes YOU uncomfortable. Fear the day when the bigotry ends and knee-jerk decrying becomes fashionable, and new generations look at y'all, disgusted, and wonder how y'all could have let it happen for so long.
by pro se
Saturday Aug 3rd, 2013 12:42 AM
First off Steve, a pro se needs standing, i am not homeless, therefore i have no no standing. i am not an attorney, so i can't represent Gary either. Secondly, Gary's one man protest actually has a very good set of facts, some provided by you personally. unfortunately the 'right to sleep' argument was not perfected on appeal. there are still good void for vagueness and 1st Amendment challenges, as G's case is distinguishable from Clark v CCNV, since his was not a 24 hour vigil and did not impede park maintenance or any other legitimate government interest.

If you want an easy case, this aspect of G's oppression:
should yield a quick Declaratory Judgment in G's favor in Federal Court on appeal out of San Jose. It would also actually save lives in the long term, and set precedent elsewhere, since i am sure Santa Cruz isn't the only County torturing the poor by withholding their sleeping bags.

just don't sell out and settle like they did in those other cities i mentioned earlier.

by RazerRay
Saturday Aug 3rd, 2013 10:10 AM
You probably know this man from TeeVee

ZouZou: "The ACLU has always been selective in cases they take."

Yup... They take high profile cases that get the maximum publicity and contributions from donors. That's why they left the Japanese to rot in internment camps during WWII. It wasn't popular to speak up for Americans of Japanese decent.

They come late to cases being handled by the CCR, NLG, and others... file an Amicus brief, then take full public credit if there's a win.

The strategy is similar to "Peace Action, "Earth Action" and all those other shady so-called activist groups who go around collecting donations for the activist work OTHERS do

You MIGHT want to wander down to SubRosa's bookshelf and pick up the copy of Keeper Of The Concentration Camps by Richard Drinnon (UC Prof) I left there.

It has the whole corrupt story about the ACLU and the internees

The ACLU has become even MORE useless over the years
by RazerRay
Saturday Aug 3rd, 2013 10:14 AM
Hanging out on median strips is stupid and dangerous, and median strips are part of the roadway so good luck with all that. What a waste of legal resources.
by CL CitiZEN
(ikia95062 [at] Saturday Aug 3rd, 2013 2:59 PM
"that holding a sign expressing a point of view while standing on a median strip would be a violation of this ordinance. From both common sense and civil liberties perspectives, this is wholly unacceptable."

THIS IS UNWINABLE in Barisone's "court"
I think it would be imprudent to waste time on this, when it is a danger(in their eyes-if not ours) and unwise.

I don't know what the point of doing this is? I think Santa Cruz has become worse than
San Jose because people drive dangerously- and there's so many other places to stand- like SIDEWALKS-The median ordinance sounds like a reasonable time, place, and manner restriction.

Additionally- I've put signs out in the median, and its fine, so just use strong adhesive tape and LEAVE IT OUT THERE- via human- and say what you want to say that way!! Its still free speech!!
by Razer Ray
Monday Aug 5th, 2013 8:25 AM
Medians are put in to allow for higher speed limits on a given roadway. THAT IS THEIR PURPOSE.

They are intended to keep cars from going into oncoming traffic in the event of a collision or loss of vehicular control, and as such THEY ARE PART OF THE ROAD. THEY ARE NOT PEDESTRIAN EGRESS except in emergencies.

Panhandling for lunch is NOT an emergency.

You can find that info in the basic Ca drivers manual where they spell out default speed limits for given roadways when no signage is present.

What an INCREDIBLE waste of legal resources on something that would ENDANGER people on the median (more people get run over on medians than sidewalks right?), and confuse car drivers, who I know, as a former truck driver, already confuse easily. Often just the simple act of standing on a street corner without crossing confuses 4-wheelers.

Further I'm SURE the ACLU KNOWS it's a waste of time.
by Razer Ray
Monday Aug 5th, 2013 8:33 AM
You'll once again have advertising all over roadways if the ACLU, as unlikely as it appears, has it's way.

I'll be SURE to thank the ACLU for THAT!

In MY estimation, that IS the reason why they'd bother with something so apparently stupid at face value.
I'd go with the Barisone cash flow angle first.


BTW, for anyone that thought I am/was on Facebook, I am not/wasn't (and have wondered how/why that rumor was started...)
by Robert Norse
Tuesday Aug 6th, 2013 8:54 PM
...that Santa Cruz is a liberal First Amendment-sensitive progressive community has benefits. Hence exposing the local' ACLU's collusion-through-silence, and collusion-through-lack-of-transparency with the criminal crackdown on homeless people, protesters, youth, etc. has value. "Progressive" groups that don't champion obvious cases of injustice--a simple public statement denouncing the policies and practices would be a cheap but useful first step--are essentially Obama Republicans on these issues--and it discredits the ACLU on other issues as well.

Nothing new here, not much to see or comment on. I've chided myself repeatedly for wasting words on the local ACLU.

When activists who take some good positions (like Steve did by strongly supporting Gary Johnson, Linda Lemaster, the SC-11) become part of collusive groups (like Steve is doing), gain positions of power (Vice-Chair ACLU, Board of Directors SCCCCR), but still won't call out publicly the abuses those groups tiptoe around (in spite of their charters), I see the power structure devouring an activist and replicating itself.

The Median Ordinance has nothing to do with public safety--although granted medians were primarily designed to regulate traffic. If folks have found other good uses for medians--and they have--like panhandling and placarding-- that's positive. Admittedly the law isn't of the same order as the Sleeping Ban, but it's one of a whole cluster of creeping crawlies that criminalize homeless people and those who publicly support them. That's it's intent. Even Don Lane and Micah Posner--politically gutless in most other regards, acknowledged this publicly.

In so far as people kowtow this law, it accomplishes its repressive purpose. Whether one should on any particular occasion ignore it or consciously violate it, is both a tactical and strategic decision depending on the issue, the extent of support, one's own personal situation, and one's intuition.