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Broken Windows, Broken Theory

At the conclusion of the Hopscotch Trial of Tim Rinker and Becky Johnson, Commissioner Irwin Joseph rules that hopscotch is illegal on all public sidewalks in the City of Santa Cruz. Under her right of allocution prior to sentencing, Becky Johnson read half of the following statement before City Attorney John Barison and Commissioner Irwin Joseph shut her down.
Broken Windows, Broken Theory

by Becky Johnson

Sept 27, 2002

Santa Cruz Municipal Court, Santa Cruz, Ca.
case # 20196191
People of the City of Santa Cruz vs. Becky Johnson, Tim Rinker

Closing arguments during right of allocution:

Sgt. Jack McPhillips was on the witness stand on Friday the 13th at the Hopscotch Trial of the people vs. Becky Johnson and Tim Rinker, when he testified as to why he arrested Tim Rinker on August 28th even as Tim wrote "Vandals don't use chalk!" in front of O'Neills Surf Shop on Pacific Ave.

"We try to abate as soon as possible. Its the Broken Windows theory." the officer testified. McPhillips was referring to a study done by criminologists Kelling and Wilson and first published in the Atlantic Monthly in 1982. Since then, many cities including Santa Cruz have used the ideas portrayed in this study and treastise to put forth a policy of policing minor, quality of life behaviors to preserve the public order and to increase the feeling of comfort and safety experienced by the more fearful groups of citizens accessing public spaces.

But is it legal to argue that Tim Rinker and I, chalking a sidewalk with erasible chalk , is in any way equivalent to a broken window? Purposefully or recklessly breaking a window is unarguably a destructive act. Broken glass itself presents an immediate health and safety hazard. The lack of protection of the contents of the building from weather, animals, insects, and tresspassers is undoubtedly the concern of not just the property owner, but the larger community itself.

Unquestionably Tim and I were engaged in a first amendment activity. We wrote political messages on the public sidewalk. On that day, June 28th, we were alerting passersby that a public meeting was to be held at 1PM 2 doors down at the McPherson Art and History Center, that concerned decisions affecting all those who frequent the downtown area of Santa Cruz.

Since, many of the issues discussed at this meeting concerned homeless people, I chalked "Sleep is not a crime!" so that people coming into the meeting were aware that the rights of homeless people would be defended. Chalk is cheap, readily available, sold across the street at Palace Arts in buckets labeled "Sidewalk Chalk." It is a very effective means of communicating short messages to the general public.

Sgt. McPhillips testified that a person bending down to chalk a sidewalk blocks entranceways to shops, discourages shoppers from frequenting the stores, causes the stores to become unprofitable, erodes the tax base, reduces tax revenue for social services, and contributes to the overall decline of the community. He also cited the Broken Windows theory as his source of information and policy.

The question is whether the city has proved there is any connection between the chalked messages and any case of citing that person for obstructing the sidewalk, interferring with a business, vandalism, or graffiti. No charges were filed for obstructing the sidewalk. No evidence was presented to show a decline in sales for those stores who had chalk writing on the sidewalk in front. Nor would anyone reasonably expect business to suffer in any way from chalk writing. The city did not even prove that the chalk writing of Ms. Johnson and Mr. Rinker even incited more chalking.

Tim Rinker and I first used erasible chalk to create a hopscotch board. Then we played a few rounds of hopscotch, an innocent children's game that probably everyone in this courtroom has played at one time or another. How is this in any way equivalent to a broken window? I assert it is not.

Kelling and Wilson admit at the beginning of their treatise that the application of "Broken Windows"-style policing does not affect the true crime rate one way or another. The purpose of the use of police is to influence the look and the feel of a community based on economic and stranger profiling, and to make arrests based on economic status. In the article, Kelling cites numerous instances where persons who had no permanent address were arrested for vagrancy. Loitering laws, also were used to make arrests of "strangers." All of these practises have questionable constitutional basis. Simply being a "stranger" is not a crime, nor does the City of Santa Cruz which encourages tourist traffic, want the reputation of arresting "strangers" for not being known. Has the Broken Windows Theory ever gotten past the point of being a theory? Apparently not.

Kelling and Wilson were quoted in an interview 4 yrs later printed in the New York Times in which they stated that they still had no data to support their theory.

Chalk undoubtedly communicates messages to those who walk by. I testified to the affectiveness of my messages being seen by the pedestrian traffic on Pacific Ave. I also testified that chalking is "in part a performance art as well," as pedestrians stop to watch what is being written. It is different in character than that same message printed on a flyer and distributed. The court must consider the first amendment issues in a context of the burden of the city to produce greater evidence of proof as to the harm and the cost of allowing those messages to be written there in erasible chalk.

Chalk writing is cheap, doesn't kill trees, and doesn't require intruding on the privacy of an individual in the way passing out a flyer does.

In the case of Wallen vs. Port Athority, City of New York, the City tried to shut down a political table set up inside the Port Authority claiming that people who took the flyers inevitabley dropped them on the floor creating litter. The court ruled that it is not sufficient to ban or curtail first amendment rights for insignificant costs even though the city did have to pay for the litter removal.

Witness and complaintant Julie Hendee is an employee of the City's Redevelopment Agency. She has an undeniably personal interest in creating work for herself. It is called job security. If Ms. Hendee, whose entire agency was created to help our community recover from the 1989 earthquake, does not make a case for her continued existance, she may find herself without a taxpayer-funded living. The earthquake was 13 years ago and the recovery from that devastating event was achieved years ago.

Ms. Hendee, who testified that in 23 years as a merchant, across from the fabled "Hippie Corner" at Pacific Ave. and Cathcart, she does not recall if she ever saw someone writing with chalk on the sidewalk. Is she suggesting that Tim Rinker and I invented writing with chalk on the sidewalk? She testified that this was the first and only time she ever saw anyone writing with chalk on the sidewalk and it happened to be me, Becky Johnson. who had spoken critically of her work in removing the public seating area near Sushi Now! and Ali Baba's Cafe from public use and creating a privatized area. Certainly Ms. Hendee would have a greater motive to discredit me than her job description allows her.

The court cannot consider the testimony of Ms. Hendee to be unbiased, containing her own personal prejudices, her self-interest, and her unreasonable 23 year lapse in memory. Ms. Hendee repeatedly used the word graffiti to describe the erasible chalk messages on the public sidewalk written by Tim Rinker and myself. Yet neither Tim Rinker nor I were cited for graffiti. Graffiti has no 1st amendment protections. Graffiti undeniably damages property, and will not go away during the normal cycle of events unless a private property owner or a city worker intervenes. Graffiti occurs on public and private space. Tim Rinker and I only chalked on the sidewalk, curb, and the street, and not on buildings, planters, or private property. You heard both Mr. Rinker and I testify that we are opposed to vandalism. We testified we do not approve or promote vandalism, and that we do not consider our messages written in erasible, easily removed chalk to be graffiti. Indeed, we don't consider them to be illegal at all. When I chalked, I did so each time with the understanding that I was conducting a legal activity. MC 9.20.010 does not mention chalk writing as a forbidden activity. Since, all other items mentioned in MC 9.20.010 must be removed by some extraordinary effort, such as painting out an offending phrase, or using a powerwasher, they are of a distinctly different nature than erasible chalk which wears away, disappears in the rain, is removed with the weekly sidewalk cleaning, or can be hosed down between those regular cleanings if anyone desires to do so.

The court must differentiate between a real cost to society or personal property, and a trivial intrusion on private life and activity.

The court should also note that O'Neill's did not call Mr.Farmer to remove the chalkwriting of Tim Rinker, myself, and at least two other people who also wrote with chalk that day but were not cited. It was Jack McPhillips who, perhaps personally offended by our messages, took it on himself to call Mr. Farmer and pay him $100 to remove the chalk. I assert that he did so in order to concoct some "damages" in order to persuade this court that some damage had been committed. This is simply not the case. The chalkwriting presents no health or safety hazard requiring its immediate removal. It does not bear germs such as spilled food, gum, dirt, litter, or spit do. It is merely a matter of aesthetics. Some people think colorful and creative chalk-writing on a dirty, gray sidewalk makes the area more fun, pleasant, and inviting.

Sgt. McPhillips testified he had never cited anyone for chalking prior to Tim Rinker, saying "I don't get down there enough for enforcement." He testified he has been a member of the SCPD for 14 years.
If, in 14 years, Sgt. McPhillips had not cited anyone for writing with erasible chalk using an ordinance that has been unchanged since 1964, the court must ask why not. The reason is, chalk is not illegal under MC 9.20.010 and does not rise to the level of defacement. The court must consider that it has only been a recent policy of the police force to apply a creative interpretation of MC 9.20.010 in order to use it to cite homeless activists and homeless people. McPhillips testimony is highly indicative of this.

Indeed if it writing with erasible chalk on the sidewalk were illegal, this courtroom would be filled with girlscouts, 8 year olds, and more than half the moms in town. And although the ordinance applies citywide, it appears only to be enforced on Pacific Ave.

Hopscotch has been around for over a thousand years, invented by the Romans and copied by Roman children in the scratches in the dirt. It is a fun game, which children can play on the sidewalk in front of their homes. They can play it alone or with friends. It gets them out in the sunshine and fresh air and away from the television set and the video games. It develops motor dexterity, endurance, hand-eye co-ordination, and a good cardio-vascular workout.

If the court finds Mr. Rinker and I guilty of defacing the sidewalk, the court will be ready to take on the task of banning children's drawings, hopscotch, kids games, chalk festivals, First Night chalking, as well as the first amendment protected activities of myself and Mr. Rinker. For the court may not discriminate based on content.

When asked to name any other cases, Sgt. McPhillips remembered only three. Nathan Kennedy, a homeless man, Becky Johnson and Tim Rinker. Robert Norse testified that many other people chalked as well and were not cited. The court must consider that selective enforcement of existing laws based on politcal motivations are not legal, and should not be rewarded by the court. I testified that I knew of one other case of a person being arrested for writing with erasible chalk on Pacific Ave. That of James Nay. James Nay, a homeless activist, was also ticketed and then arrested for chalking. He was never convicted. The court has only heard evidence of homeless activists and homeless people being cited or arrested for the use of sidewalk chalk. The City has admitted than many who also wrote with erasible chalk on the sidewalk were not cited. The court must consider that the police and the RDA are using a selective prosecution of this ordinance in a way which apprears to be unlawful.

Mr. Robert Farmer, of Coyote Industrial, who was called by the SCPD to powerwash the chalkwritings of Mr. Rinker and myself cannot be considered an impartial witness. He derives his income from a contract with the Redevelopment Agency. He needs to justify the expenses he charges to the city.
He testified as to the labor involves of driving to the scene, setting up his equipment, and then storing it away once a job is completed. He testified he charged the City $100 for the job. Mr. Barisone, in his brief, testified it cost $150 to remove the chalk writing. Nice work if you can get it. When asked if chalk is easily removed he testified that it ".. required no special equipment. Yes, a hose would do it." The court must consider that the police acted to create a false cost in order to justify ticketing and arrest. Indeed, the City can't seem to be able to decide if it cost $100 or $150 to remove the writing. The City has admitted that chalk is easily removed.

"Yes, a hose will do it." $100 or $150 to do a job that can be done with in a few minutes with a garden hose?
I certainly hope the court is sophisticated enough to hear a snow job when one is presented. If there is any doubt on the part of the court, I will gladly take you out on the sidewalk in front of the court to demonstrate how easily chalk writing can be removed absent a powerwasher, without any special equipment, and for a negligible expense.

Angela Curtis the field supervisor with Parks and Rec in charge of cleaning the downtown area testified that the sidewalks are cleaned "about once a week." The City has not shown any harm caused by the sidewalk chalk messages other than Ms. Hendees claim that graffiti must be removed in 48 hours or it will lead to more graffiti. When asked what chalking might lead to she testified that it would lead to "more of it" and "more people chalking." Ms. Curtis testified she needed to come on special calls to clean up "Vomit, blood, urine and chalk." Vomit, Blood, and urine do not have any 1st amendment protected properties that I am aware of. But Mr. Rinker's and my messages most certainly do.

And the City has to the greater burden to prove that a compelling public interest overrides the right of citizens to their first amendment rights. And that these rights may not be curtailed by a minor cost or inconvenience experienced by the City.

Add to this, that if anyone ever wrote a message that was so intolerable, that a merchant or anyone else for that matter, could not stand for it to remain, anyone could, using a small amount of water and a brush or broom, remove the message in a matter of seconds.

The messages Tim and I wrote were not permanent. They wear away with foot traffic. The chalk dust blows away in the wind. A light rainshower removes it. A Parks and Rec worker watering the plants can remove it. Ms. Curtis and her team of workers will remove it once a week at the very longest. And anyone, merchant or offended citizen can remove the chalk without any special equipment.

Chalkwriting is not graffiti. The court should not consider the City's arguments against graffiti to apply to chalkwriting on the public sidewalk. Graffiti is truly a problem which the City has a legitimate responsibility to abate. The issue here is not graffiti. Tim Rinker and I were not cited for graffiti. We were cited for "defacing the sidewalk." Chalkwriting does no permanent damage, nor does it do any damage while it is on the sidewalk except in the minds of the "aesthetic police." It does not rise to defacement.

In citing Guadiya Vaishnava Society vs. the City of Monterey and the City of Santa Cruz, the City claims the ordinance did not prohibit freedom of speech because tee-shirts could be distributed in areas other than Beach Street. But in this case, the City is claiming sidewalk chalk must be totally banned citywide in order to "preserve the aesthetics and promote a viable economic climate." This is a total ban and hence, should not be upheld by the court. Guadiya Vaishnava banned sales on .08% of the City's area. The City has asked the court to ban chalkining on 100% of the public sidewalks.

The City compares sidewalk chalking with window etching and spray paint graffitti. This is an unfair comparison, the defendants have not been charged with window etching or spray paint graffiti. There is no evidence that sidewalk chalk causes windows to be etched or walls to be covered with spray paint. The court needs to differentiate from truly criminal behavior and non-destructive, non-criminal activity, which, by the way, has first amendment protections.

My messages in chalk do not "bombard the public" as the City has claimed. They do not constitute "an unavoidable visual assault" any more than a sign advertising Starbucks Coffee does. My chalked messages are simply there, for people to read or not read as they choose. And because I have other means of first amendment protection, does not mean that the City has the right to prohibit one means of expression. They must prove their is a compelling need to do so. They have not proven this compelling need. Such interpretation is substantially broader than necessary to achieve a subtantial government interest.

While it is not possible to go back and ask what was the legislative intent in 1964 when MC 9.20.010 was written, it is obvious, that no legislative change has occurred in 38 years regarding the ordinance while chalk-writing has been ubiquitous and practised, mostly by children, without interference by law enforcement. If it had been the legislative intent to make chalk writing illegal, they would have listed it in the ordinance. If it had been the legislative intent to make chalk writing illegal, people would have been cited and arrested between 1964 and 2000 when I testified to the first known case of using this ordinance to ticket and arrest citizens for using sidewalk chalk in the manner for which it has been designed.

Writing messages in erasible sidewalk chalk has been a legal activity since the formation of the City, does not rise to defacement, does not rise to a crime, does not deserve the allocation of the time of police, RDA honchos, the courts, or the jails, as being to mundane, ubiquitous, time-honored, and first amendment protected. It is a non-permanent form of communication, is not defacement, does not cause damage, is insignificant and trivial. The use of the ordinance in this way does not even regulate time, place, and manner of chalking. It is an outright ban, and not just on Pacific Ave., but citywide on all public property. I urge your honor to find Tim Rinker and me not guilty of defacing the sidewalk.


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