Commissioner Kim Baskett Verdict in Facer-Norse Song Trial

Citizen complainant, Sean Reilly, on April 27, 2010 outside of the Santa Cruz County building, awaiting one of dozens of court appearances he made as a witness against Robert Norse, Robert "Blindbear" Facer, and blog editor, Becky Johnson. Photo by Becky Johnson.

Transcript of the Baskett Sentencing Hearing

Verdict by Commissioner Kim Baskett

Robert Facer, Robert Norse v. City of Santa Cruz

re: unreasonably disturbing noise citation January 6, 2010

Tuesday Sept 21 2010

(transcribed from audio by Robert Norse and Becky Johnson)

We are here today for the ruling in the Robert Facer, Robert Norse matter in which they've been cited under a municipal code of the city of Santa Cruz for violation of the noise ordinance. And 9.36.020 is the unreasonably disturbing noise ordinance.

The citation was signed by Mr. Reilly, who's present in court. Mr. Norse is present in court. Mr. Facer, represented by counsel, Ed Frey, is present in court. I wanted to assure all of you that I've given the case law as well as the facts a great deal of consideration. And I've spent a long time personally looking at these issues. I know that it's really important to all of you that these issues be resolved once and for all.

Present now in the courtroom is the city attorney as well, Mr. Arellano, and also Mr. Frey's assistant, Ray Glock-Grueneich.

All right. So, one of the most essential points being made by the defense for himself, Mr. Norse and Mr. Frey for his client Mr. Facer is that the ordinance is so vague that it defies an ordinary person's ability to understand what is required under the law.

I spent a long time looking at noise ordinances across the United States and in various communities,

and looking at the legal authorities. And I find that specifically this ordinance is not void for vagueness because of the terms that are being used unreasonably disturbing and using the ordinary sensitiveness or person with ordinary sensitiveness that I find that it is not void for vagueness

What I want to say specifically is that in my hearing of the testimony I find that there is an unwillingness, there was an unwillingness, I think, to accept anything but a decibel reading as a criteria-- something certain-- That there is no requirement anywhere that simply because there (?) to take a decibel reading that governmental entities have to default to a decibel reading.

They have the ability to decide whether they're going to use a descriptive ordinance or a combination of decibel readings, or all decibel readings. And they have it within their purview to decide how they will do their enforcement. So just because there is a physical means of measuring noise, it does not dictate--specifically according to case law—that they must use a decibel meter.

This is next thing that I want to say and point out to people that are present in the courtroom that have been so interested in the free speech rights of those who are singing and playing on the mall, and which has risen to an issue of Constitutional importance in this case because these particular singers were protesting the political environment in the City of Santa Cruz, especially the downtown area on Pacific Garden Mall. That their first amendment free speech rights were seemingly implicated or curtailed. What appeared to them to be erratic enforcement of this statute.

They mentioned that after this ticket was enforced against them, they felt that their free speech rights were chilled they didn't want to go down and engage in that activity on the mall—no singing behavior--they were afraid they were going to get a second citation.

I have to say to you straightforwardly that the evidence before me at trial was that before this trial was heard, that activity was engaged in again. So these particular defendants, it seemed to me when I heard the evidence, didn't have...it didn't have a chilling effect on their ability to go ahead and to perform the same activity on the mall.

I want to say and point out that the First Amendment to the Constitution, the United States constitution as well as the California Constitution does provide freedom of speech, but it's not curtailed. And the effort that I made to point out the Koekaa case which is already in our record with the case cites-- I won't belabor it here, because I have other cases that I need to hear--was that what I wanted to hear argument about was to what extent does a person wishing to engage in their free speech right get to dictate the manner of conveying their message.

And what I did find specifically is you don't get the best most ideal way of conveying your message as long as there are alternative channels left open to you. And I find specifically that day there were channels left open to still have the message with regard to the plight of the homeless left open to people who were willing to hear.

I also want to say that I'm convinced that in great part the effort to send that message that day was to reach someone inside Bookshop Santa Cruz. And thus necessarily it should have been clear in the minds of the protesters that they were going to be reaching residents. And frankly it's not disputed that the government has an interest in protecting the quiet repose of persons in their homes.

And so that's the juxtaposition of the tension here. To what extent does Mr. Reilly have the ability to say “enough is enough”? And I'm finding that the case is made here. And that both Mr. Facer and Mr. Norse, because they were engaged as members of HUFF in planning this demonstration are guilty of violating the quiet repose of this gentleman.

I was asked to consider that a day sleeper is not a person of ordinary sensitiveness, and I'm not deciding this case on the basis of the fact that he was trying to fall asleep. We must remember that I heard that he kept his windows closed; he turned on his air; he put on white noise. It is not a requirement, I find, in the case law that a person in their home has to be subject to free speech. In other words, there are a number of cases that regulate that protected activity, your ability to speak out on political issues. But the person in their home doesn't have to be subject to that.

So those--the proximity to the residents--is something that I took into consideration. And I did pay heed to the case which said that you couldn't keep peddlers--or whatever you want to term them. People who wanted to ring the doorbell—and convey their ideas about religion etc. to the individual homes. And the court in that particular case referred to by Mr. Norse, said no it is sufficient for the homeowner to put on the front of their residence a warning that they don't want to be disturbed.

We don't need to curtail the ability of the person who is going door to door to talk about the religious beliefs. We don't need to curtail their freedom.

But in this circumstance, you have in this building 124 single resident occupancies. This building has been here for decades— I myself have been here running a business since 1976 Pacific Ave. That building predated our building. It did get damaged during the earthquake and after the earthquake there was a huge homeless problem. And our homeless person has probably doubled and tripled since then.

But I find and -- said in during trial--that I find it highly ironic that people who are protecting the rights of those who cannot sleep at night because they are disturbed constantly by ordinances that basically require them to move along are thinking that it's okay to disturb people who are in low or very low income housing.

Only124 units, and it's one of the few handful of units in this county for people of low or very low-income housing.

So I'm deciding in this circumstance...those are some of the reasons that I'm taking to articulate to you that there was no vagueness, that these folks anticipated that they would likely get cited, and that was the testimony before me. There was no political speech going on because Mr. Kuspa had already decided “good grief, we're singing let it snow; I'm not even singing with the group and I'm going to start looking at the table”.

They were not asked...they were not told to stop all forms of educating the public. They could still pamphlet, interview, take signatures on a petition. Their tabling process was fine.

It was just that they couldn't continue to make noise which frankly, folks, included musical instruments and amplification, even though I heard testimony that it wasn't over-loud. I could not credit that testimony. The evidence revealed to me that that noise was heard from some distance away by various different accounts. And really this gentleman only lives about 20' up and over from where the singing was taking place.

So. Therefore I am finding both defendants guilty because they caused, permitted, suffered, allowed, that to occur by their organization, participation of their organization in the event.

I note that in this courtroom, the fine is $445. And I often listen to persons wishing to make an explanation

and allow volunteer service to be conducted...I don't want to necessarily curtail that opportunity if there's someone that wishes to speak about that.

Last time I offered volunteer service in a case such as this, it was declined because that couldn't be recouped if the decision of the bench officer—myself here—was overturned on appeal, which...I'm anticipating this definitely will be appealed. That's why I, we have the recording system.

Is there any expression from your client, Mr. Frey, or from you, Mr. Norse, about the fine amount?

Frey: No, your honor, we will pay the fine.

Baskett: And you, Mr. Norse?

Norse: In a previous case, which was also an infraction ... she understood that potentially required community service, not on a unreasonably disturbing noise charge, but on something else, She was willing to suspend that pending an appeal, which was eventually lost. And I did community service. I wonder if that's a possibility in this case.

Baskett: You're asking the court to render judgment and suspend imposition of the fine until the resolution of the appeal?

Norse: Right I want to do community service, cause that's what I eventually did. She sentenced me to community service and then said she suspended that pending appeal. That's what eventually happened.

Baskett: Okay, they might have a better way to keep track of that upstairs. They take notes and if you look at their minute orders, it's really clear. We don't What I would suggest is that I will go ahead and grant your request and consider that it's one for suspending imposition of the fine and then if indeed the appeal is lost, then you can just come in and ask for volunteer service. And then you'll have thirty days to go sign up. Is that...?

Norse: That's fine.

Baskett: All right. So that will be ordered. And I see Mr. Frey, I see you're asking your client something. Did you want me to waive..?

Frey: Yes, we want that same treatment, your honor.

Baskett: Okay. So what we'll do is we'll impose the fine of $445. And then we'll suspend the fine, imposition, until such time as the appeal is decided. And then that at that time, once the court gets the resolution on the appeal, the fine will be imposed. You'll have some time frame in which to come back and just ask for a conversion to volunteer service.

Norse: We'll also, ask your honor.if I had anything to say regarding the fine itself.

Baskett: Okay

Norse: Your honor may recall during the testimony that though you ruled that in fact you felt that we could anticipate that there might be concerns about the residents—and in fact, we'd never had such concerns before in terms of them being presented to us They weren't presented to us in this case. In other words, no one informed us until the moment when Officer Schoenfield arrived. So we didn't really have... The only advance warning we had was her arrival and then we stopped what we were doing. So given that as a consideration, we weren't intending to disturb anyone. And in fact, I think actually we tried to be relatively sensitive to that as I pointed out in my testimony You disagreed with that, perhaps. But that would be one of my reasons for asking that either the fine be reduced or waived, whatever you eel would be appropriate.

Baskett: Okay, well I understand what you're saying. I'm specifically finding, and I thought I made it clear that the testimony that I heard was testimony from Mr. Facer that there was discussion at HUFF, that you actually believed that you were going to be cited when you were out there.

I think that you intended that to occur by the activity that occurred when the officer approached. To wit, when the officer approached, what I heard was a cacophony of noise And I heard testimony from Free that it even occasioned someone to open up windows and shouting that ensued. In other words, my impression from your own witnesses' testimony was that the noise level increased dramatically upon the contact with the cop...officer. Nevertheless, be that as it may, I will reduce the fine amounts to $250 apiece, suspend their imposition until the conclusion of the appeal. Thirty days after the appeal is finalized, the fines will be due subject to either one of your or both coming into court asking for volunteer service, at which time, I guarantee you, I will allow.

Norse: Thanks

Baskett: So then this matter is completed, I appreciate all of your time.

Downtown--music by Petula Clark, lyrics by HUFF

DOWNTOWN

(music by Petula Clark, lyrics by HUFF)

1.When you're alone and rents are making you homeless, you can always go...Downtown.
When you're laid off, all the cops and their friends will move you to and fro...Downtown.
Just try and find musicians who will still play in the city.
Linger on the sidewalk and the police will say "no sitting"...How can you win?
The fines are much higher there; they have forgotten you live here, forgotten they care...
When you're Downtown--there's lot of hate for you; Downtown--it's not so great for you
Downtown--tickets are waiting for you.


2.Don't hang around and let the squad cars surround you, it's no movie show...Downtown.
Try to sit down and then the hosts will remind you that it's time to go...Downtown.
Just listen to the blaring of the motorcycles raging;
Salute and show your papers or it's you they'll be a cagin'....Spanging again...
The crowds are much whiter there; they just walk past all your troubles, step over your cares
When you're Downtown, with all the shops uptight; Downtown lit up and so rich and bright;
Downtown--uniforms watching for you


3. When you stand up for the wretched and homeless, cops will drag you down...Downtown.
They'll tell you shut up or face the weekend in lock-up, 'cause the merchants own..Downtown
Yet you may find somebody poor like you to understand you.
Someone who is getting screwed and needs a helping hand to stand and be strong.
So maybe we'll face them there, we'll stand up to the bullshit; let bullies beware!
When we're Downtown, things will be real when we're Downtown,
Don't let 'em steal our rights. Downtown let's stand together and fight..
Downtown...stand your ground...Downtown...stand your ground.


4. Stop and speak out when the cops use bad laws to drive the poor away...Downtown.
Ring out the alarm when the gunsels with badges turn the sunlight grey..Downtown.
Raise the price of tyranny for those who run the city.
Spark a new resistance to the petty and the shitty, What's there to lose?
It's better than hiding out; it's time to wake up and boogie, to stand up and shout...
That this Downtown--it's all for here tonight; Downtown--not just for rich and white;
Downtown let's find the strength to do right.


5. Remember what counts--that the sidewalks belong to everyone who goes...Downtown
The rich and their cops may have the lawbooks but we're right to go...Downtown
Don't run away from thugs today, whatever badge they're wearing
It's time to care and time to dare to make this life worth bearing--Take back the joy!
Yes, maybe we'll face them there. we can't forget all our troubles but we'll share all our cares
When we're Downtown--things will be real when you're...Downtown
Don't let them steal your rights; Downtown, drag the truth into the light.

6. Time to get down and shout out to the merchants till they hear our call--Downtown.
Stand up and stay strong; let your dollars speak louder, when you walk the mall--Downtown.
Picketing bad business shops is all that we are urgin'.
Raise the cry to those who lie and stop your friends fron splurgin', 'til there's a change...
If all of us stand as one, we'll beat back the bigots and still have some fun
When we're downtown...don't shop where bigots feed--Downtown
Say no to merchant greed; Downtown--People, let's find a new way.


7. Billions for war, and the homeless get blamed for everything that's wrong--Downtown.
Harass them some more to make them scurry along--that's the new merchant song--Downtown
Disappear the benches; make the laws a little meaner.
Add new nasty police patrols to make scared souls feel cleaner...Yo, what's that smell?
The stench of hypocrisy; the cheap Xmas lights can't disguise what you see..
That this Downtown--where poor folks are second class.
Downtown, with cops shoving homeless ass... Downtown---Time to say no and be free.

(note: these new lyrics were first sung on Jan 6, 2010 by HUFF members, just prior to ticketing)

8. Where are the songs on the sidewalk today?...the best have gone away— from Downtown
A single complaint will have the cops out to send the singers on their way—Downtown
Sing a song of protest just outside the local bookshop
Music with a message means a steep fine---makes the poor stop
Singing their tale.
So stop singing your doubt, you'll see bigots on phones
All calling cops out
To come downtown—
muz-zel-ing those they fear
Downtown—don't want your kind SO near,
Downtown---watch uniforms smother our dreams


9. They don't give their names, but the cops tell the singers—"You!--Be on your way!" Downtown
“We've had a complaint, so you must stop your singing at this spot today.” Downtown
Everyone around you may appreciate the groovin'
One heckler 's veto gives the cops excuse to get you movin'
In spite of the law
The police don't give a damn, which Constitution they're shredding
It's all quite a sham.
When you're downtown—shame on the fear that rules
Downtown—bad laws from frightened fools
Downtown— Sing Out and Recover Your Dreams
Downtown—Grinding Us Down;. Downtown—Silencing Sounds. Downtown.

Sing a Song, Go to Jail?

Photo: Officers Schoenfeld and Inouye interview a suspect accused of singing on Pacific Ave. January 6, 2010. The suspect was cited for "listening" to HUFF singers.


by Becky Johnson
January 08 2010


Santa Cruz, Ca. -- They say that "Let it Snow," one of the most popular Christmas songs in American history, was written by two Jews during a record heat wave in Hollywood and doesn't mention Christmas at all. Likewise when a few HUFF members decided to to sing a new song (to us, anyway)the sun was shining brightly and folks were walking along Pacific Ave. in tee-shirts. Yet in a town actually called the Leftmost City, two Santa Cruz police officers were chilling freedom of speech by issuing four $445 tickets to four people singing "Let it Snow".

SCPD Officer Schoenfeld #159 interrupted our first attempt at "Let it Snow" and told us she'd received a complaint of excessive noise.

"They're happy with you protesting, they just said you were a little loud. They were willing to sign a citation. I'd rather not do that." Since we were in one of the two "free speech" zones on Pacific Avenue, not playing amplified music which requires a permit, singing, and engaged in 1st amendment activities , and hadn't been very loud, the charge seemed odd. Of course in America, any citizen can sue anyone about anything, or so we're told.

"An elderly couple are in one of the apartments upstairs and they're trying to take a nap and they say you've been playing for about four hours. My obligation is to write a ticket if someone makes a complaint,"we were told. "I'm here to try to inform you that someone is complaining."

Photo: Ian, who heckled as four people were cited for "unreasonably disturbing noise" on January 6th, 2010 on Pacific Ave. in Santa Cruz, Ca. Photo by HUFF

"I couldn't even hear from across the street," said Valerie Promise, a local street singer associated with S.A.F.E. (Society for Artistic Freedom of Expression who had chanced by our event, and had joined us in singing "Let it Snow" when Officer Schoenfeld walked up. Valerie was not cited.

A somewhat lengthy discussion took place which resulted in Officer Schoenfeld revealing that she really expected us to pack up and go away based on the warning enforced by her threat of citation. We understood her warning to be about excessive noise and not our presence with the HUFF table, our petitioning effort ( 3 petitions, including one about police harassment were on the table), or our giving away a pot of hot, tasty soup to many hungry and grateful recipients. Our theme that day was "Unsafe to be Homeless in Santa Cruz" which was chosen after a record number of annual homeless deaths, 47, had been reported the previous month.

Vice-Mayor Ryan Coonerty formed a Downtown Task Force along with councilmembers Robinson and Mathews in the spring of 2007 which privately met with business owners, members of the Downtown Association, and agents from the Redevelopment Agency and the police department to teach citizens how to call police to enforce minor violations against people they didn't like. Ryan's committee completely bypassed the Downtown Commission, an indication of things to come.

Had Ryan Coonerty met with the complainant before he left the building? Did he speak to Schoenfeld before she came to "warn" us? Ryan was seen exiting Bookshop Santa Cruz less than 10 minutes before Officer Schoenfeld arrived.

HUFF members milled while Schoenfeld, now joined by Officer Inouye , questioned witnesses, only to be confronted by a man on a bicycle named Ian who stopped to jeer at us loudly. A woman leaned out of an upper window and yelled things at us, so people started to yell back at her and a noisy dialogue ensued, far louder than any noise our tabling event had produced earlier. She openly videotaped us as well. Meanwhile the complainant, Sean Riley, came down to fill out his complaint. As I took his photo, he gave me "the finger" right in front of Officer Schoenfeld. She ignored him.

"They've been here for three hours!" Riley told Schoenfeld. This was about 3PM and didn't sync with when our first HUFF member had arrived at 1:30PM to pick up the soup or the publicized time of our event. I myself arrived at 2:30PM and only sang one and a half songs. In all, I maybe sang for about 15 minutes. We had no amplification, and other than our singing, the only other sounds we made were with Blindbear's little drum and Coral's keyboard, an instrument she has played on Pacific Ave. for five years.

Yet despite that we had stopped singing when Schoenfeld had interrupted us. Despite that we had not started singing again, she inexplicably decided to write us citations anyway.

Robert "Blindbear" Facer, who was cited, did not sing a word but participated solely by keeping time on his small drum. He has been homeless on the streets of Santa Cruz for about 18 months now, and has been taken to court for sleeping out of doors twice. Now this man who sleeps in the dirt has been issued an expensive citation. He doesn't have the income to pay the $70 fee to register for the so-called "humanitarian option" of community service, much less pay the fine. And if he "doesn't take care of it" he will eventually wind up being jailed for it down the road.

"I was just making a joyful noise to the Lord," said Facer, "on the feast of the Epiphany." Facer is Amish.

Photo: Robert "Blindbear" Facer shows his identification to Officer Schoenfeld prior to being cited for "unreasonably disturbing noise Jan 5th, 2010." Photo by HUFF


After the last citation was issued, Robert Norse told Schoenfeld that he also wanted to make a citizen complaint. He wanted to cite the citizen complainant, Sean Riley, for filing a false police report---a misdemeanor. Schoenfeld suddenly did a 180. "I don't think his police report was false," she stated. Robert pressed her. "Why do you think his report is accurate when you said earlier that you didn't witness the excessive noise." "I didn't say that," she insisted. "You witnessed us singing and yet you didn't cite any of us Officer. I'm not telling you how to do your job, but if you witnessed a crime, you are somewhat obligated to either issue a warning or a citation, aren't you?

"I did warn you," she said. "But you refused to move..."

"I thought this was about excessive noise. If we played more softly would we be in violation if we didn't leave?" Norse continued. Schoenfeld finally and reluctantly admitted that "yes" that would have been legal. We asked to speak to her sergeant and were told he was "too busy" and would "call later."

I couldn't understand why Schoenfeld decided to cite us since we had stopped singing or playing any music and had not refused to stop playing or started to play again. I mean if a cop warns you to stop doing something, and you stop, is it really a warning if they give you a citation anyway?

Michelle who is a friend of Coral's, had heard us starting to sing, and came down to listen. She also lives in the same building as the complainant. We were all shocked to see that she was cited. She exclaimed her innocence and said "Robert, tell them!! I wasn't singing. " Robert told her "They don't care." He was right. They didn't.

I'm not much of a singer, but then this wasn't American Idol either. Since we had been warned about something we didn't do---violate the excessive noise ordinance---and then following the "warning" we had not continued our activity, why the citation? It was extremely chilling because now we had no idea what constitutes a violation of the law and Officer Schoenfeld was playing some kind of guessing game with us when we asked for clarity regarding what constitutes a violation of the code.

When Schoenfeld moved to cite Robert Norse, he protested. "What me?" said Robert. "I spent most of my time here talking to people who were signing petitions. I barely sang at all." "I heard you singing," replied Schoenfeld, who had suddenly decided she could determine whether our singing rose to the level of a code violation or not. Apparently for Schoenfeld, singing anything at all was sufficient cause for a citation.

Schoenfeld and Inouye left without taking Norse's cross-complaint of making a false police report.

Valerie Christy of HUFF had not been at our event due to her job, but had planned to play with Coral later that night. However, after the citations, both were too frightened to play. Later we heard that Schoenfeld intimidated two other musicians to stop playing music from the sidewalk in front of Borders Books, also with the threat of citation based on "citizen complaint" for "excessive noise".

Municipal Code 9.36.020 "unreasonably disturbing noise" states in part:

"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 thier 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."

Without some objective standard, even LISTENING to a political song can be dangerous. Does this mean that when Officer Schoenfeld gets out her ticket book, every person in the vicinity had better get up and leave because this is one SCPD officer who believes in guilt by association?

This is not an isolated incident. Police have been regularly going up to street performers and telling them to stop playing and move along or they'd get a ticket 'from a citizen'--a form of pressuring which chills free speech, misreads the law, and allows a “heckler's veto” to any street singer.

HUFF members met with Mayor Mike Rotkin on January 15th. He suggested the ordinance did not apply to singers on the street unless they were screaming at the top of their lungs over a long period of time and promised to “look into” the matter.”

Robert Norse contributed to this article last updated January 17, 2010.

HUFF Xmas Carols

The following lyrics were written by Robert Norse, Becky Johnson, Joseph Schultz, and Valerie Christy. Two of the songs were sung by HUFF members during the 2009 Holiday Parade amid some controversy. Enjoy! --- Becky Johnson, Editor




SGT HARMS IS COMING DOWNTOWN

You better not sit, you better not beg,
you better not chalk, or drink from a keg,
Sgt. Harms is coming downtown!

He's making a list, he's checking it twice
poor folks are naughty and rich folks are nice
Sgt Harms is coming downtown!

He knows if you have warrants
He knows who are the bums
He knows if you play hacky-sack
or feed the birds bread crumbs

You better just shop,'cause nothings for free.
You better be white and have an I.D.
Sgt Harms is coming Downtown!

You better not sleep, nor linger too long
nor dare to sit down while singing this song...
Sgt. Harms is coming downtown!

He knows if you're suspicious
Or hanging out while poor,
Don't beg a dime after dark downtown
You'll get tickets by the score!

The benches are gone
Get out of the parks
Don't sit in your car
Be gone after dark
Sgt. Harms is coming Downtown!


God Bless ye Merry Gentlemen

God Bless ye Merry Gentlemen
but not in Santa Cruz!
Mayor Rotkin has a Sleeping Ban
he'll cite you if you snooze
and if you're warm beneath your quilts
your blankets you shall lose
Bad tidings, not comfort or joy,
comfort or joy
Bad tidings NOT comfort or joy

The sidewalks are for business use, so don't delay or sit!
We've friendly cops with ticket books, three hundred bucks a hit.
They'll show up fast in squads of three as fast as you can spit.

Sad tidings, not comfort or joy, comfort or joy!
Sad tidings, not comfort of joy.

Yet this was made for all of us and not just for the rich
Watch out for "hosts" who prowl the street all smiling as they snitch.
And if you're mad, then just be glad, you know which way is which.

Mad tidings, not comfort or joy comfort or joy,
Mad tidings not comfort or joy.

In Santa Cruz we often fight for peace throughout the world
Discrimination isn't us, just keep your bedroll furl'd
Progressive politics with anti-poor laws here are swirled

Bad tidings, not comfort or joy, comfort or joy
Bad tidings, not comfort or joy



OH COME ALL YE SHOPPERS

Oh come all ye shoppers
with creditcards and checkbooks
and bank cards and bills and coins and
lay-away accounts
Come and buy new stuff
although you don't need it
Because you must have it
Because you must have it
Because you must have it and
right now!




AWAY ON VACATION

Away on Vacation no time for the poor
Says Mayor Mike Rotkin "No Sleep for the poor"
For thousands of homeless it's a crime just to sleep
the police will harass you in your car on the street

We love all our homeless
they even get mail
but sit, beg, or sleep and they'll wind up in jail
It's Christmas time now, time to buy lots of stuff
Your pain frightens shoppers, so the cops will get tough

SENTINEL accuses HUFF of "crashing" Holiday Parade

by Becky Johnson

December 6, 2009

Santa Cruz, Ca. -- Homeless United for Friendship & Freedom participated in the Human Rights Fair at Louden Nelson Community Center for the 2nd year in a row. This year, Robert Norse received an e-mail from the organizers of the event inviting HUFF to participate in the Holiday parade. We were told we would be marching with the United Nations Association of Santa Cruz County and were told where and when to gather.

Here is the text of the e-mail Robert Norse received after contacting the UN Association of Santa Cruz County stating HUFF's intention of participating in the Human Rights Fair.

From: parnold@bridgemysteries.com
Subject: second part of Instructions
Date: Sun, 22 Nov 2009 13:53:35 -0800

Instructions for Booths

Thank you for participating in our Second Annual Human Rights Fair. I am enclosing a copy of all the events that weekend. Also enclosed is the list of the booths in the three rooms.

Louden Nelson Center is open on Saturday Dec. 5 at 9 am. You can get a parking permit at the office if you need to leave your car more than two hours.

Please have your booth set up by 11 am and close up at 5.45 since we need to clean up.

There will be a Human Rights contingent in the Holiday Parade under the auspices of the United Nations

Association near the beginning of the parade. Please join us if you can. The Fair officially opens at 11:30 am.

There will be plenty of inexpensive delicious food made by Heavenly Nibbles in room 3.

If your organization is marked with an asterisk, it means we have not received your check. If there is a question mark , we have not had a confirmation from you and you may lose your table.

Please send your check to UNA % Pat Arnold 181 Branciforte Ridge Santa Cruz 950065. Call me at 425-7618 if these instructions are not clear.


On the morning of the parade, eight HUFF members assembled wearing winter clothing, scarves and earmuffs to have a carolers look. Our plan was to sing Christmas Carols which we had rewritten to have a local theme. HUFF has done this in the past, with such favorites as "Away on Vacation" "Joy to the World, its time to shop," but this year we added "Sgt. Harms is coming downtown." Robert Norse wore his dress bathrobe in solidarity with homeless people who must perform their toiletries in public places, and sporting a teddy bear, walked up and down the crowds passing out HUFF flyers.




As we entered the parade, Chip, the Executive Director of the Downtown Association approached us telling us that we weren't allowed in the parade. Robert explained that we had indeed been invited and that we were a paid participant later that day at the United Nations Association of Santa Cruz County's Human Rights Fair at Louden Nelson Center. Chip backed of and let us pass.

Shortly into the parade, a yellow "thing" pulled in line behind us. It was driven by a man dressed as Santa Claus and had the words "Caterpillar" in black on the passenger-side front end. The driver repeatedly gunned his engine causing excessive noise and car exhaust to fill the parade route. One HUFF members walked back and asked the driver to stop as the fumes he was generating were aggravating his asthma. The Santa-driver just smiled and waved and kept doing it.

We sang the same two songs over and over again while "Vision Song" Valerie Christy played guitar. The other song we sang was "God Rest Ye Merry Gentlemen, but not in Santa Cruz" which included these new lyrics by Joe Schultz:

"In Santa Cruz we often fight for peace throughout the world,
Discrimination isn't us, just keep your bedroll furl'd,
Progressive politics with anti-poor laws swirled,
---Bad tidings, not comfort or joy, comfort or joy...."


As we passed Soquel Ave., a woman in a tee-shirt with a "I (heart) the Santa Cruz Police" bumper sticker plastered across her belly, pulled along side of us. She had a megaphone in her hand and she matched her pace with us singing very loudly and very badly into her megaphone. Between stanzas of "Santa Claus is coming to town"she enthusiastically shouted "I love the Santa Cruz Police Department!! Oooowhh!" At first I kept pace with her and sang OUR song side by side, but she quickly outdistanced me (I was still getting over a flu, so my lungs weren't in the best of shape). So I hung back and sang two lines for every clump of parade watchers. I wasn't filming anymore, just letting the camera pick up the sound.

Since she had drowned out our voices, I just wanted them to hear a little bit of what had been singing. Words that apparently had to be censored, harassed, and drowned out.

"The sidewalks are for business use, so don't delay or sit!
We've friendly cops with ticket books, three hundred bucks a hit"




Video by Becky Johnson, edited by Rick.


Later, en route to the Louden Nelson Center where the HUFF table was set up, I sighted the new Penguin sculptures on Pacific Ave. I immediately understood why Ryan Coonerty had pushed to have a new ordinance forbidding sitting, begging, setting up a political table, or playing music for donations within 10 feet of a statue. At the time, I had shook my head at the idiocy of it. I mean a real, live musician playing in the downtown is forever silenced to acquiesce to the possible need of a passerby to gaze at a stony statue unobstructed? When I found out the entire downtown was being used as gallery space for a for-profit gallery, and that sculptures were being installed up and down the avenue, I realized that this was art being used as a tool of social cleansing, via our own Redevelopment Agency.

I resolved to organize a boycott of the artists whose work is displayed downtown.

Many different groups set up a booth as part of the Human Rights Fair. We gathered signatures on petitions, and shared Chai, hot chocolate, and 7-11 Cappuccino, and signed up people for our HUFF yahoogroups mailing list.



Ruth Hunter, longtime social justice activist and peace worker greeted most folks by the door. In 1997, Hunter supported HUFF's effort to put repeal of the Sleeping Ban onto the ballot for a citywide election. Despite endorsements by SCAN, WILPF, the UN Association of Santa Cruz County, the effort fell short of the necessary 10% of verified signatures needed to qualify for the ballot.





When American Civil Liberties Union member, Mayor Mike Rotkin spoke on behalf of the ACLU, HUFF members watched and listened. Later when Rotkin sat down in the audience to listen to the remaining speakers, Robert Norse and Curbhugger Chris joined him with signs about the Sleeping Ban. He didn't stay long.

We talked to many who came to the Human Rights Fair. Most of those who came and talked to us had nothing but positive things to say about the work HUFF does to affect the City's homeless policies. Around 5PM, Robert Norse spoke to the remaining audience members and 4 HUFF members joined him to sing our songs one more time, this time without being drowned out by megaphones or revving engines. The audience loved it!

On December 6th, I read in the SENTINEL the following passage in an article entitled "Holiday Parade brings cheer to downtown Santa Cruz" by Alia Wilson:

"Adding to the Santa Cruz flavor, members of the Homeless United for Friendship and Freedom group crashed the event to protest the downtown sleeping ban. The eight protesters passed out fliers as they strolled Pacific Avenue, but many families did not take note of the display as the sounds of the parade filled the air.

"At some point, they were complaining they couldn't sing, that they weren't allowed to and that it was against human rights," Krista Lazier of Santa Cruz said. "It seems like their message could have fit with the parade but it was odd."

HUFF did not "crash" the parade, per the e-mail posted above. And the "sounds of the parade" were the gunning of a motor and a woman with a megaphone trying to shout us down!" So that way, the SENTINEL makes us the culprits when they should have portrayed us as the victims. So much for the newspaper of record!!

WHO IS TO BLAME FOR HOMELESSNESS IN SANTA CRUZ?

originally published on Jan 1 2008 on the HUFF yahoo groups list

WHO IS TO BLAME FOR HOMELESSNESS IN SANTA CRUZ?

by Becky Johnson

Santa Cruz, Ca. -- The average age of death of a homeless person in Santa Cruz County is 48 yrs old. There is no doubt that exposure to the cold, the rain, the dark, and the added stress contributes to mortality rates. These numbers are disturbing and should be triggering bells and whistles at the SC County Dept. of Health. They are not.

But who is to blame?

-- City leaders for failing to provide sufficient shelter
-- Dept of Health for failure to house indigents who are conservable
-- greed in the real estate market, including the practice of evicting tenants in order to sell the house empty
-- low wages offered by employers
-- service providers for failing to raise the alarm due to fear of losing funding
-- local 'family-owned' businesses who urge a policy of police sweeps and criminalization of homelessness
-- landlords who raise their rents precipitously
-- media who ignore the problem or add to the problem by their unsympathetic attitudes towards those suffering from homelessness
-- the Federal govt. for cutting HUD funding
-- The State of California for failing to provide health care for all

-- Churches who have the means, the mission, and the tax advantage to help, but don't

In a way, all the citizenry of Santa Cruz are to blame for allowing homelessness to continue year after year without putting our resources towards solving it.

Becky Johnson is a member of HUFF, a not-for-profit, all-volunteer, peer-advocacy organization which advocates for the rights of poor and homeless people and works for social justice located in Santa Cruz, California. HUFF meetings are every WED. from 10:30AM to Noon at the Subrosa Café on Pacific Ave. Free coffee if you're homeless.

Snail-mail us at:

Homeless United for Friendship & Freedom

309 Cedar St. PMB 14B -- Santa Cruz, Ca. 95060

www.huffsantacruz.org

Sharon Paight Sleeping Ban trial ends in abrupt dismissal

Video of Ed Frey after winning a dismissal for his client, Sharon Paight.

"She's the Red Queen. She does whatever she wants."
--- Attorney Ed Frey Aug 21, 2009

by Becky Johnson
Aug 22 2009


Santa Cruz, Ca. -- About eight years ago, Sharon Paight was working as a CNC machine operator when the business ended its local operations and moved to Guadalajara, Mexico. Sharon was not offered a job in Mexico, and due to an economic downturn, could not find another job in her field.

She received severance pay and unemployment insurance for a year, but eventually that ran out. Around this time, her housing situation ended and she moved into her car. She considered this to be a highly temporary situation, to be rectified as soon as she was able to get another job. However, there was such a general economic downturn that no job was forthcoming. The only job she was able to get was through Labor Ready. She worked full time for Goodwill Industries at a rate slightly greater than half of her former wages. At this rate of pay, she remained unable to afford housing near her work.

In 2005, Sharon was found guilty of sleeping at night within the City of Santa Cruz.

"I could not use the National Guard Armory shelter program," Sharon explained. " In order for me to be up in time to get ready for work, I had to start my day at 4AM. You are not allowed to drive your car to the shelter, or to leave by using any other means than their bus. The earliest I could count on being free would be three hours after the time I need to be in order for me to keep my job."

"HELPING" NON-PROFITS PART OF THE PROBLEM

Sharon worked for Goodwill Industries. This non-profit was at the forefront of defeating an initiative which would have raised the minimum wage in Santa Cruz, in three steps to $9.25/hr. The CEO of Goodwill Industries threatened to move the non-profit outside of the City limits if the ordinance were to pass. It was defeated. But it's precisely because of the low wages, that Sharon could not afford housing. Then to make matters worse, Sharon's hours were cut down to part time, and then finally she was laid off completely. Today, her sole source of income is her unemployment insurance.

Sharon has been a member of the 24-HOUR Fitness on Soquel Ave. in Santa Cruz, Ca. since 1998. When she became vehicularly housed, she found the showers, bathrooms, and lockers at the facility to be a great help to her in order to stay functional and employed. At no time did anyone in charge ever express any concern about her parking her vehicle on the lot of the facility where she had a paid membership. However the neighbors complained.

On March 19th of 2009, SCPD Officer #139, Rodney Dugolow, cited Paight in the early morning hours in the parking lot of the spa. The private parking lot allows members to park there for up to three hours. Sharon, had in fact, been there for over three hours when the officer arrived. She knew she could be cited in the lot because she had been cited in 2005 in the same lot.

"That one I was found guilty. In 2005, the officer did catch me sleeping. But in 2009 I was wide awake. I watched as he circled the parking lot, before he parked and came over to my vehicle," Sharon said on a Free Radio Santa Cruz following the "trial."

"I was sitting up, wide awake in the back of my van with the light on sorting through my laundry looking for something to change into before going into the spa."

THE LEGAL CHALLENGE BEGINS

Ed Frey appeared in June before Judge Timothy Volkman (Symons was absent that day).

"I told Judge Volkman that we wanted to challenge the constitutionality of the law. We needed to determine if the law as applied to this defendant was constitutional. Does it violate the State or National Constitution?" The law in Santa Cruz Paight was cited under, MC 6.36.010 section a outlaws the ACT of sleeping out of doors or in a vehicle between the hours of 11PM and 8:30AM anywhere in the City Limits on both public and private property.

"If you can't sleep you can't live. You've got to have sleep. It's like you've got to breathe," Ed explained. And although years ago Judge Thomas Kelly ruled the Sleeping Ban is constitutional because "they can sleep in the daytime," Frey disagreed. "Sharon can't sleep in the daytime. Her only income is her unemployment benefits. If she doesn't go out and look for jobs she loses her unemployment benefits."

Volkman set a motion to dismiss for August 21st in Judge Ariadne Symons court.

"Late in June I set out to contact the city attorney so that we could voluntarily work out a set of facts. John Barisone was less then cooperative. He told me " We'll dismiss it if you go and get written statements from the owners of the property and the lessee."

Ed contacted the manager of the spa. She told Ed that they don't allow nighttime sleeping in their parking lot "because it's illegal in the City." They were not going to write a letter for Sharon. Furthermore, the owner of the property was completely unavailable living out of town and without contact information.

"Their reasoning was 'we only oppose it because it's illegal. So we don't allow it.' We were caught in a catch 22," Ed said.

SYMONS SPRINGS A "SURPRISE" TRIAL ON DEFENDANT

Yet when Sharon and Ed arrived in court, they were surprised to see that the officer was there and so was Kelly Walker of the City Attorney's office. Frey reminded Symons that they were there to hear a motion to dismiss.

Judge Ariadne Symons said "The City Attorney is here, the officer is here, so we are having a trial."

In Symon's court, on August 21, 2009, SCPD Officer Rodney Dugolow testified under oath that when he looked into the rear of Sharon's van, he witnessed Sharon sleeping underneath some blankets. Dugolow was the only witness for the prosecution. The only evidence presented was his testimony. When Ed asked him if Sharon had permission to be on the property, he testified that he didn't know.

After presenting the officer's testimony, the Prosecution rested.

PERJURY BY A SANTA CRUZ POLICE OFFICER?

Ed immediately moved to have the case dismissed since the officer didn't know if she had permission to sleep in her vehicle (the ordinance allows an exception for up to two vehicles per business if they have the written permission of the owner and the lessee.)

"I'm not going to grant that motion,"Symons said. “I'm persuaded she was sleeping.”

Ed Frey responded by telling her that his client's testimony differed from that of the officer and that he would then be forced to swear in Sharon Paight and put her on the stand in order to rebut Officer Dugolow's testimony.

"I don't think that's necessary," replied Judge Symons. "What else do you have?"

"I do have a statement from Karen Yen, a Harvard-educated psychiatrist with a practice in Scotts Valley. I have a statement here that to deprive someone of sleep cuts down the effectiveness of their immune system, it leads to depression, and is very bad for the health of the person"

Ed told the Judge that Sharon was prepared to testify that she was sitting up, wide awake with a light on at the time the officer knocked on her van. Sharon has said that she was in the back of the van sorting clothing at the time the officer contacted her. She was preparing to change her clothing prior to going into the Fitness center to take a shower. But she never got to testify to any of that.

“I'm persuaded she was sleeping,” Symons said. "And I believe the officer was being honest” she said. She recognized that police officers have a “difficult task.” But that “the way the windows were blocked off” and the question of whether she was legally parked there, in addition to the officer's testimony had convinced her that Paight had been sleeping and was properly cited. “I'm persuaded that she was sleeping.”

Sharon Paight shouted out “I wasn't. He's lying! I was wide awake.”

Symons did not admonish Paight for her outburst or cite her for contempt of court. Instead, she asked Sharon to be patient while she explained.

“She said she was a member of the 24 Fitness Spa but seeing the absence of a representative of 24-hour Fitness, we can't determine if she really was a member." Paight was NOT cited for trespassing and was never given the opportunity to show her membership card, yet Symons continued at some length about how difficult it was to determine if Sharon REALLY was a member of the spa.

Again Ed Frey tried to have his client testify on her own behalf but was incredulous when Symons again rebuffed him.

“I would never prevent you from allowing your defendant to testify. But the reason I stopped you, is that this case is going to be dismissed.”

She just told Sharon Paight “The reason I'm not going to have you testify is because I'm going to drop all charges against you.” Symons did not say she was dropping the case in the interest of justice. She didn't say it was because of insufficient evidence. In fact, she said the opposite. She SAID that there WAS sufficient evidence for a conviction, yet was dismissing the case. She announced "case dismissed" and the bailiff quickly urged the few supporters there to leave. Then Symons gratuitously thanked the City Attorney who was there to prosecute the case, but made no objection to her sudden and abrupt dismissal.

“And Mr. Walker, I thank you for appearing today. I know you don't normally do so in these instances.” Symons was referring to the odd practice in Santa Cruz County courts in which infraction cases charged by the City of Santa Cruz are not prosecuted by either a DA nor a City Attorney. Instead, only the officer testifies and the Judge (there is never a jury trial) serves as both the prosecutor and as the Judge. Despite the obvious conflict of interest between prosecuting a case AND being responsible for judging the merits of the case, this is the usual procedure in Santa Cruz for infraction crimes.

TRYING TO UNDERSTAND SYMONS

When asked why Symons had abruptly ruled to dismiss the case despite her declaration that she had been convinced that the City had proved its case against Paight, Ed Frey was direct.

"She did it in order to sweep it under the rug."

When interviewed outside of the courtroom after his victory, Ed Frey described Symons behavior as arbitrary and regal. "In the first part of the hearing I requested that we set up some sore of discovery procedure: some procedure by which you establish facts in order to create a record, and where you make an argument based on that record. But she wouldn't have it. She wouldn't hear it. She wanted to rush the thing through. Just shove it under the rug and dismiss it. When I attempted to establish facts on which we could make a foundational record, she wouldn't hear it, she wouldn't have it. She wanted no record of that."

"She's the Red Queen. She does whatever she wants," he concluded.

Sharon, however, couldn't believe that the police officer had lied under oath on the witness stand. She explained her outburst.

"I wanted to let her know that the officer was lying. That upset me more than getting the ticket, that an officer of the court was up there lying."

While Ed Frey and Sharon Paight cannot challenge the constitutionality of Santa Cruz' Sleeping Ban due to Symons unexplained dismissal of the case, they plan to file a complaint against the officer with the DA.

"Sharon and I are going to challenge this---we are going to ask the DA to prosecute the officer for perjury which is a felony," Ed promised.

Debunking of Past SENTINEL coverage of "Nazi Salute" case

by Becky Johnson
July 18, 2009

Santa Cruz, Ca. -- Since the Santa Cruz Sentinel is the paper of record in the City of Santa Cruz, it's particularly egregious when those reporters shoddily report events or outright misreport them. Since this tendency imbues all SENTINEL writers, I tend to suspect the editorial board is the party responsible rather than any individual reporter at any time. Shanna McCord is no exception. The bias from the editorial board is to present a Chamber-of-Commerce type view of Santa Cruz, which is pro-business, pro-police, and anti-homeless.

In this article, I post the April 4, 2007 SENTINEL article in its entirety titled "Judge rules Nazi salute too disruptive for public venue. " I have imbedded my comments to voice my concerns or to add in information which the reader might not know. I did attend this hearing and took notes.


This post is based on a previous post at http://groups.yahoo.com/group/huffsantacruz.

FROM 2007:

from: http://www.santacruzsentinel.com/archive/2007/April/04/local/stories/09local.htm (LINK APPARENTLY BROKEN NOW)



Judge rules Nazi salute too disruptive for public venue

By Shanna McCord

Sentinel staff writer
April 4, 2007

SANTA CRUZ - Free speech goes only so far inside City Hall.

A federal judge has ruled that city officials had the right to eject a homeless-rights advocate from a council meeting in 2002 for giving a Nazi salute. The judge said the action was too disruptive for the venue.

BECKY: False. The Judge did not rule that the Nazi Salute is a disruption. His ruling turned on the fact that Norse had been warned previously against using a Nazi Salute in council chambers and that the chair has "wide discretion." The 9th Circuit Court of Appeals had also examined the "Nazi Salute" previously, and saw no disruption. The Judge ruled that Mayor Krohn had "qualified immunity" and therefore could not be prosecuted.

SENTINEL: "You don't have the same First Amendment rights in a meeting as you do on the street," said attorney George Kovacevich, who represented the city in the five-year, $100,000 legal fray. "You have the right to attend, but you don't have the right to say whatever you want, whenever you want"

BECKY: Note that this $100,000 which John Barisone now bills the City for is not covered in the $500,000 for Barisone's contract. This case included writing a 70-page brief in response to an 8-page brief and other tactics to bill the City the maximum amount his office could possibly bill.

SENTINEL: Robert Norse sued the city for alleged violations of his civil rights under the First and Fourth amendments shortly after being arrested at a council meeting in March 2002.

BECKY: For his one and a half-second raising of his arm silently from the side of the room, Norse was handcuffed and carted off to jail. The alleged "disruption" was never prosecuted as the DA determined there was not enough evidence to press charges.

SENTINEL: Then-Mayor Christopher Krohn had called an end to the public-comment period of the meeting and instructed a woman to step away from the microphone. After twice being told to leave the microphone, the woman walked over to Norse, who raised his right arm toward council members in a Nazi salute, the way Nazi supporters saluted German dictator
Adolph Hitler during World War II.

BECKY: Krohn had earlier asked how many wanted to speak at oral communications. Activist, Susan Zeman was in the earlier group who had raised her hand. She believed she had been granted permission to speak and was shocked to walk up to the podium and have Krohn cut off oral communications right in front of her. Nor would he listen to her appeal to allow her to speak. When Krohn threatened to have her removed, Norse responded with the Nazi Salute. Note, the SENTINEL uses the word "Nazi" twice and the name "Adolph Hitler" once in the same paragraph. Norse has characterized his salute as meaning rote obedience to a fascist authority. And Norse raised his left arm.

SENTINEL: Then-Councilman Tim Fitzmaurice interrupted Krohn to ask Norse to leave the meeting, saying the salute was an insult to the "dignity of the body"

BECKY: This was content-based. No one can say that if Norse had given a "thumbs up" he would have been arrested. Offending the "dignity of the body" can happen when citizens are redressing government grievances. Norse contends that the "rules of decorum" forbid citizens from criticizing their government.

SENTINEL: Norse refused to leave and was subsequently arrested.

BECKY: The problem with Norse raising his arm to the council was not the meaning of the salute, but rather the disruption the salute caused, according to U.S. District Judge Ronald M. Whyte, who issued the decision last week.

SENTINEL: A City Council policy states that people who "interrupt and refuse to keep quiet or take a seat when ordered to do so by the presiding officer or otherwise disrupt the proceedings of the council" may be removed from a meeting.

BECKY: It's clear from the videotapes that it was Fitzmaurice who interrupted the council meeting with his delicate sensitivities, no doubt fueled by his dislike of Robert Norse (who he has walked out on twice while speaking) and his desire to have him removed from the meeting. Attorney Kate Wells, (who McCord declined to interview) said "The Council has a practice of interrupting their own meetings and then blaming individual citizens for the disruptions they themselves caused."

SENTINEL: Norse, a council gadfly who often launches bitter attacks on the city's homeless policies, said the salute was meant as a protest to the city's refusal to deal with homeless issues.

He plans to appeal Whyte's decision to the 9th District Court of Appeals.

BECKY: No doubt this case will move forward as the 9th Circuit Court of Appeals did not see the same "disruption" that Whyte did.

see: http://beckyjohnsononewomantalking.blogspot.com/2009/07/9th-circuit-court-hears-arguments-on.html

SENTINEL: "This is not about the Nazis and this is not about me," Norse said Tuesday. "This is about mayoral actions that involve oppression. What I'm fighting is not the Nazi salute. I'm fighting council oppression"

BECKY: Norse has been arrested four times, three times at City Council and once on the sidewalk in front of New Leaf Market. He was not prosecuted in any of these arrests, and won a settlement from the City for the New Leaf incident where he sued for false arrest. Unfortunately, The City was able to exclude any evidence of these arrests or subsequent lack of convictions from the trial.

SENTINEL: Rules limiting speech at council meetings are absolutely necessary to conduct city business, Kovacevich said.

BECKY: Norse doesn't dispute this. He contends his Nazi Salute was non-interruptive, and protected by his first amendment rights. Otherwise, it would be okay to agree with what council is doing but not to disagree. The salute happened in the time interval in which one item had ended and the next item had not yet started.

SENTINEL: Federal law also gives added protections to city officials in cases of alleged civil rights violations. City officials can mistakenly violate a person's rights and not be held liable.

"They have to make spontaneous calls and run a meeting and not be
afraid of getting sued every day," Kovacevich said.

BECKY: This was the actual ruling by Judge Ronald Whyte: that the councilmembers are immune from liability despite a pattern of false arrests. Despite rules that violate the 1st amendment and eliminate the right of the citizen to disapprove of what the council is doing.

SENTINEL: Former Mayor Scott Kennedy, serving on the council in 2002, said Norse's salute was disruptive because he was standing in the front of the room where the council and public audience could see him.

"In my view, it was not the content," Kennedy said. "It was the time and place, and it did disrupt the meeting"

BECKY: Kennedy himself was named in another incident on Jan 13, 2004 where he arbitrarily established a system of tallies for warnings, which included calling holding a sign a "disruption" or inaudible whispering in the audience a "disruption" . His "system" , under which he had Norse physically arrested, didn't even last to the next council meeting. Norse was never prosecuted for this arrest.

SENTINEL: Councilman Mike Rotkin, not on the council in March 2002, said Norse has a long history of arguing with council members and straying from the topic being discussed.

BECKY: Kovacevich did an exhaustive analysis of every time Norse has spoken at City Council since 1999. Norse was ruled "off-topic" in less than 5% of comments. Rotkin also had Norse arrested at a council meeting in June of 2005 for violating the "5-minute rule" in which Rotkin limited comments on all consent agenda items by members of the public to a total of 5 minutes, which means that members of the public have little or no time to speak on items on the agenda, despite the Brown Act assurance that they do. Norse faced charges for 16-months only to have all charges dropped a week before trial.

SENTINEL: "The entire council meeting is not a free speech forum," Rotkin said. "We go out of our way to make ourselves open and accessible to everybody. Robert needs to follow the process like everyone else, which is what the court told us"

BECKY: The court told the council they are immune from liability no matter what they do. Norse has offered to settle for his attorney fees and minor changes in the rules of decorum at City Council meetings.

Read Judge Ronald Whyte's decision at:

http://www.indybay.org/newsitems/2007/03/27/18383947.php

SENTINEL: Contact Shanna McCord at smccord@santacruzsentinel.com.