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One Law for the Police, Another for the Public
On Monday October 28, Officer Jim Howes and other officers violated the Downtown Ordinances by setting up a table closer to an entrance than 6'. They refused to accept citizen's arrests for their illegal behavior. Three days later, they attacked activists for setting up a table at an identical location and continued to dodge the citizen citation they were required to accept. Why bother to be law-abiding if you've got the badge and the gun?
This article is an addition to a series of articles posted on this website, most recently "Selective Enforcement Downtown" posted October 26th.
Another egregious example of selective enforcement happened on Monday October 28th about 4 p.m. in front of Marini's Downtown, a candy and ice cream store with a fenced off extension that privatizes a segment of sidewalk for customer use only. Officer Jim Howes staffed a SCPD PR table that was less than 6' from the Marini's entrance on the public sidewalk (not the privatized area) Howes and other gave out candy and little badges to kids, apparently as part of their "Drug War" program.
Nothing wrong with giving out candy (though the self-serving and futile Drug War angle has always struck me as an absurdity), except the table was in violation of the Downtown Ordinances--the laws pushed by Chief Belcher and cooked up somewhere between Parks and Rec, Redevelopment, and the SCPD.
These Ordinances, bad enough when they were passed in 1994 by Kennedy, Rotkin, Mathews, and Connerty, were made much harsher by City Council this summer, when Reilly and Porter rushed them through in 15 days. They are due to get even worse on January 15th when the 14'-from-a building/crosswalk /bench/ kiosk/drinking fountain/telephone forbidden zones kick in for street performers and political activists.
They are fertile for selective enforcement, since police can choose to ignore violations or act on them as they wish.
Members of the public, however, can demand police take action by making citizen arrests of violators under PC 837. Such arrests are not a matter of officer discretion (though they can be dismissed after the citation is served and before the court date under PC 849b if the officer finds "He or she is satisfied that there are insufficient grounds for making a criminal complaint against the
person arrested...."
Homeless activist James Nay informed Howes and his fellows that the table was illegally placed, in violation of MC 5.43.020a ["no display device shall be placed...within six feet of any building entrance..."]. Howes and the other police officers there refused to move the table.
Nay then asked to fill out a citizen's arrest citation against Howes, other officers (eventually five or six gathered there) refused to fill it out, violating PC 142 which states in part: "Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest such person shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by
both such fine and imprisonment."
The confrontation went on for approximately half an hour, documented by an audio recording and a number of still photographs.
Nay's right to make a citizen's arrest is guaranteed under PC 837 which reads "A private person may arrest another... for a public offense committed or attempted in his
presence." This includes police officers. The "arrest" need not mean the officer is taken away in handcuffs, only that she or he is cited and given a court date where the matter can be resolved.
All the officers approached by Nay broke the law, those in charge of the table violated MC 5.43.020a. Those who refused to take his citizen's arrest against Howes and other officers violated PC 142.
The point of all this was that police somehow feel they are not only entitled to make laws that they can selectively enforce against "riffraff" that they don't like, but then when the same law is applied to them, they ignore it.
Several days later on Thursday October 31, Nay, I, and several others set up a HUFF table at exactly the same spot where the SCPD had their table. We too gave out literature, Halloween candy for kids, and little badges (Junior Benchguard badges that encouraged kids to protect the benches from being removed by prejudiced merchants and their bureaucrat friends).
Very shortly we were approached by three police officers CSO Hoy, Officer Albert, and Officer Terry who demanded we move the table. When we presented these officers with photographic evidence of the prior police table there and asked that Nay's citizens arrests be accepted and served on the suspect police officers, all three refused, saying they'd send over their sergeant (Jack MacPhillips) who never showed up.
These officers further showed who they felt their real bosses were. They immediately went into Marini's to see if Howes and the officers staffing the police table on Monday had "gotten permission" to violate MC 5.43.020a. Merchants, of course, can't give permission to anyone--police, customers, or relatives to violate municipal codes (even though merchants forced through these codes in hopes that police would selectively enforce them).
We informed the public of what was going on. Nay, not wanting to have to defend himself in court against a $162 ticket for doing exactly what the police were doing, moved the table. It's a stupid law, and police were violating it, but that wouldn't stop a judge from holding he was justified in violating it. Particularly the local commissioners who seem to show such routine deference to City Council wisdom and police practice.
That the police feel they are above the law in Santa Cruz
is nothing new. It's important for us to regain rights stolen under color of law by merchants. 95% of the sidewalk downtown (and in all business districts)has been stolen from the general public--but not the police or the merchants' friends apparently. We need to reclaim it.
It doesn't take many people to do that--peacefully and happily. With holiday shopping season coming up, these kinds of confrontations will soon have a larger audience. It may actually be during this key Thanksgiving to Xmas period that the Sleeping Ban and the Downtown Ordinances can be defeated as merchants realize that the price of these anti-homeless laws is just not worth the negative publicity and boycott activity that ensues.
If you're interested in being a part of this effort, call 831-423-HUFF or e-mail me at rnorse (at) hotmail.com. HUFF also meets Wednesday mornigns 8:30 a.m. at Baker's Square Restaurant 1107 Ocean St. While we're stopping the war on Iraq, we might also stop the war on the poor here in Santa Cruz.
Another egregious example of selective enforcement happened on Monday October 28th about 4 p.m. in front of Marini's Downtown, a candy and ice cream store with a fenced off extension that privatizes a segment of sidewalk for customer use only. Officer Jim Howes staffed a SCPD PR table that was less than 6' from the Marini's entrance on the public sidewalk (not the privatized area) Howes and other gave out candy and little badges to kids, apparently as part of their "Drug War" program.
Nothing wrong with giving out candy (though the self-serving and futile Drug War angle has always struck me as an absurdity), except the table was in violation of the Downtown Ordinances--the laws pushed by Chief Belcher and cooked up somewhere between Parks and Rec, Redevelopment, and the SCPD.
These Ordinances, bad enough when they were passed in 1994 by Kennedy, Rotkin, Mathews, and Connerty, were made much harsher by City Council this summer, when Reilly and Porter rushed them through in 15 days. They are due to get even worse on January 15th when the 14'-from-a building/crosswalk /bench/ kiosk/drinking fountain/telephone forbidden zones kick in for street performers and political activists.
They are fertile for selective enforcement, since police can choose to ignore violations or act on them as they wish.
Members of the public, however, can demand police take action by making citizen arrests of violators under PC 837. Such arrests are not a matter of officer discretion (though they can be dismissed after the citation is served and before the court date under PC 849b if the officer finds "He or she is satisfied that there are insufficient grounds for making a criminal complaint against the
person arrested...."
Homeless activist James Nay informed Howes and his fellows that the table was illegally placed, in violation of MC 5.43.020a ["no display device shall be placed...within six feet of any building entrance..."]. Howes and the other police officers there refused to move the table.
Nay then asked to fill out a citizen's arrest citation against Howes, other officers (eventually five or six gathered there) refused to fill it out, violating PC 142 which states in part: "Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest such person shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by
both such fine and imprisonment."
The confrontation went on for approximately half an hour, documented by an audio recording and a number of still photographs.
Nay's right to make a citizen's arrest is guaranteed under PC 837 which reads "A private person may arrest another... for a public offense committed or attempted in his
presence." This includes police officers. The "arrest" need not mean the officer is taken away in handcuffs, only that she or he is cited and given a court date where the matter can be resolved.
All the officers approached by Nay broke the law, those in charge of the table violated MC 5.43.020a. Those who refused to take his citizen's arrest against Howes and other officers violated PC 142.
The point of all this was that police somehow feel they are not only entitled to make laws that they can selectively enforce against "riffraff" that they don't like, but then when the same law is applied to them, they ignore it.
Several days later on Thursday October 31, Nay, I, and several others set up a HUFF table at exactly the same spot where the SCPD had their table. We too gave out literature, Halloween candy for kids, and little badges (Junior Benchguard badges that encouraged kids to protect the benches from being removed by prejudiced merchants and their bureaucrat friends).
Very shortly we were approached by three police officers CSO Hoy, Officer Albert, and Officer Terry who demanded we move the table. When we presented these officers with photographic evidence of the prior police table there and asked that Nay's citizens arrests be accepted and served on the suspect police officers, all three refused, saying they'd send over their sergeant (Jack MacPhillips) who never showed up.
These officers further showed who they felt their real bosses were. They immediately went into Marini's to see if Howes and the officers staffing the police table on Monday had "gotten permission" to violate MC 5.43.020a. Merchants, of course, can't give permission to anyone--police, customers, or relatives to violate municipal codes (even though merchants forced through these codes in hopes that police would selectively enforce them).
We informed the public of what was going on. Nay, not wanting to have to defend himself in court against a $162 ticket for doing exactly what the police were doing, moved the table. It's a stupid law, and police were violating it, but that wouldn't stop a judge from holding he was justified in violating it. Particularly the local commissioners who seem to show such routine deference to City Council wisdom and police practice.
That the police feel they are above the law in Santa Cruz
is nothing new. It's important for us to regain rights stolen under color of law by merchants. 95% of the sidewalk downtown (and in all business districts)has been stolen from the general public--but not the police or the merchants' friends apparently. We need to reclaim it.
It doesn't take many people to do that--peacefully and happily. With holiday shopping season coming up, these kinds of confrontations will soon have a larger audience. It may actually be during this key Thanksgiving to Xmas period that the Sleeping Ban and the Downtown Ordinances can be defeated as merchants realize that the price of these anti-homeless laws is just not worth the negative publicity and boycott activity that ensues.
If you're interested in being a part of this effort, call 831-423-HUFF or e-mail me at rnorse (at) hotmail.com. HUFF also meets Wednesday mornigns 8:30 a.m. at Baker's Square Restaurant 1107 Ocean St. While we're stopping the war on Iraq, we might also stop the war on the poor here in Santa Cruz.
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Comments
Response to Latest Norse Nonsense
I think it also pertinent to ask why in the world you and your associates would want to interfere with such a worthwhile and rewarding endeavor in the first place. How could anyone in their right mind interfere with an interaction involving children, their parents and some of our city police officers for the purposes described in your article? Oh yeah! You said that the table was "Less than 6 feet from the Marini's entrance on the public sidewalk". So, Robert, was it 2 feet, 4 feet, 70 inches away or what? Was it an inch, 3 inches too close? Did the table interfere with the public or just you and your crew's keen sense of fairness and legality? Ah, I forgot, in your original post you stated that this was apparently part of the "Drug War". Christ, Robert, are there no limits to your insanity?
I have a suggestion Robert. Get some help, maybe a group rate. If that doesn't appeal to you then spend a few bucks, get the brown shirt, tie, armband, etc. and declare yourself "Uber Fuhrer". Just imagine Robert, "One world, one way, one leader", and you already have the salute wired.
Unclear on the Concept?
When officers allow privileges for themselves (whether they are distributing candy to kids in a "drug war" PR effort or selling tickets to the policeman's ball) that others get cited for--that is an "attack" on the basic right of equal protection under the law. The demand that ordinary citizens follow (absurd) laws that police feel free to ignore is an attack First and Fourteenth Amendment rights. Selective enforcement is the application of laws to some and not to others, selectively. Get it?
In Santa Cruz, some poor people are getting $162 citations for sitting less than 14' from a building. Some political activists are getting similar citations for "blocking the sidewalk". The amount of allowable sidewalk space for ordinary people has dropped to less than 5% of the sidewalk.
Police, on the other hand, can apparently use whatever part of the sidewalk they want, whenever they want it, for whatever they want.
If those the merchants don't want show up, they are subject to legalized harassment at the whim of police or merchant.
The point of this example is that is a crystal clear case of police violating their own laws one day and three days enforcing them against activists that they or the merchants they serve don't like.
Do the words "equal treatment under the law" ring a bell? If not, "Fed Up" might do well to invest in a hearing aid.
It's sad when personal rancor can make one deaf to the click of police boots on the street.
Robert's Alternative Reality
Further, you continue to make references concerning who our city police serve. Really, Robert, in the world that most of the citizens of this city perceive, exist and function in, they work for all of us and do their best to serve all. You have made it abundantly clear that in the "World of Robert and his Wacky Friends" this type of relationship does not exist. Fine, you are entitled to your fantasies. However, Robert, do you honestly believe that "ordinary" people share you and your associates aberrations about a "war" being waged downtown by the city police against the poor at the direction of city merchants and others? Please.
Finally, in the third paragraph of your latest you state that "The amount of allowable sidewalk space for ordinary people has dropped to less than 5% of the sidewalk". I just took a little tour of the downtown this afternoon and came to the conclusion that the downtown I live, work and play in exists somewhere outside of you and your breathren's space time continuum. The downtown I interacted with was busy, vibrant and interesting. More importantly, I walked from one end of the mall to the other passing hundreds and hundreds of other presumably "ordinary persons" and never left the sidewalk! Now, Robert, according to your recent statement, less than 5% of the sidewalk is available to me and other "ordinary people". How in the name of the chalking gods could this be? Clearly, there is not enough physical space for all of us to occupy at the same time, let alone walk around on, with only 5% of the "allowable sidewalk" remaining for "ordinary people". I initially had a problem resolving this paradox but soon realized that one solution may be who is an "ordinary person". I believe that I'm an "ordinary person" and I believe that I live, work and play with folks who, for the most part, are "ordinary". That's when it occurred to me that you guys must live in some kind of wierd surreal parallel universe.
Finally, Robert, on my journey today I only saw two groups of young people wearing boots. The police I saw and spoke with were only wearing shoes. So much for the "click of police boots on the street". Also, I have no personal rancor toward you Robert. Rancor involves a degree of resentment. I don't resent you. I actually pity you. Take care, watch out for the "ordinaries" in your world and try to lighten up a little bit. I fear you might wake up some day and find yourself writing on the sidewalk with your own feces instead of chalk and I betcha that wouldn't be too popular, even in your world.
More Clarification on the Concept
Both the Downtown-for-All table and the Police table were in the same place, about 4' from the Marini's entrance way, though not blocking it. This is an "illegal" place under the 1994 Downtown Ordinances (see MC 5.43.020a above) In both cases, people asked that the tables be moved to a legal spot. Police refused. We complied. Had we been ticketed, we would have had to pay a $162 fine. Had they been ticketed, it would have been thrown out. Yes, this is selective enforcement. No, I don't think your discussion shows you know what it means.
Neither of us should have been obligated to move our display, since it wasn't blocking anyone or anything. Merchants, however, through the Redevelopment Agency, City Council, and Police have laid claim, as I mentioned before, to a privileged position over 95% of the sidewalk.
Yet even their restrictive rules are ignored when police chose to do so---claiming, of course, merchant permission. The rules, of course, are designed so police can enforce them at will--selectively. In cases where merchants give permission, as Borders gave permission to Cosmic Chris the Guitarist some months ago, police may bully the store into rescinding the permission when the musician is playing on their private property or inform the musician that stores can't overrule the law.
We were first asked, then told to move our table. And, candidly, I believe the activist who confronted the police first asked and then demanded the police move theirs. As mentioned before, both our table and the police table were about four feet away from the entrance way. It wasn't clear to me that you were asking the exact distance.
This is documented in photographs that will be on display at Merry Monday 4-6 PM at Cooper and Pacific today. Feel free to take a look. We're also planning to post the photos on the indymedia website.
I believe it is an "attack" on all our civil liberties when police claim the right to do what they ticket others for doing. This is particularly true when they use that law and similar laws at other times to selectively ticket based on lifestyle or merchant preference.
I doubtt the police "intentionally" set up the table in violation of the law. Officer Howes may have been ignorant or indifferent to the law (perhaps falsely believing that merchants could "give permission" to violate the law in front of their stores). However, once informed of and shown the law, it was important for them to respect it or explain why not. They did neither. This is documented on a (rather difficult to hear) audio tape recording.
Your constant references to me in condescending fashion "Robert"..."alternate reality"..."paranoia" ..."wacky" do, in fact, show a rather nasty attitude towards me personally. You certainly have a right to your feelings, but I think it compromises your objectivity.
I also note, as did Steve Argue above, that you decline to give your real name. I put myself out there for anyone to question. My phone number is accessible. You apparently don't feel secure in doing that. This too, I believe, weakens your credibility.
That you can walk from one end of the mall to the other does not alter the fact that 95% of the sidewalk is now illegal to sit on or peaceful sparechange from. On January 15, even more of it will be illegal to perform or table from. This is privatization of public space at the behest of special interest groups enforced by the police. It's not paranoia, it's unfortunately reality. You may be happy with it. Many are not.
As for the click of police boots, you should have watched while police moved on a peaceful graphic artist and a guitarist at the planter in front of Pacific Trading Company and Costa Brava around 2:30 p.m. yesterday (11-3).
They were driven away under threat of $162 citation by Sgt. Baker, CSO Gray, and Officer Rodreguez around 2:30 p.m. today. I understand they also drove off a masseur who has been regularly offering services for donation near the Bookshop Santa Cruz. Your "busy, vibrant, and interesting" mall was a little poorer by three, thanks to these encounters--which happen daily.
For those interested, the Downtown Commission/City Council Sub-Committee on Downtown Problems meets today (Monday) Nov. 4 at 1 PM--originally scheduled for the City Manager's Conference Room. Oral Communications at the Parks and REcreation Commission (City Council Chambers) is at 4 PM, where activist Sherry Conable may be bringing up the issue of the "disappearing benches" downtown again. Merry Mondays will be showing video of the Marini's tabling incident around 4:45 p.m.
Activist Steve Argue returns to court 9:30 AM Dept. 5 tomorrow (November 5th) when Judge Atack will hold another hearing on whether to retry Argue on the "assault on an officer" charge, which was thrown out by a higher court because Atack failed to turn over discovery to the defense. Argue has already served 7 months for the charge, and the matter will probably be continued and then eventually dropped. The officer involved, David Lafaver, has left the police force after an Independent Investigation upheld charges of excessive force against Lafaver for his pain compliance hold on a mother and her child at the 1999 Bombing of Yugoslavia protest.
Argue also goes back to court to defend himself against his 3rd or 4th jaywalking ("walking while Argue") ticket at 10 AM, Friday November 8th in Dept. 2.
In another of Sgt. Baker's raids (ticket by Officer Hilliard in August) Richard Parsons, a disabled man with 9 ruptured discs in his back, goes to trial on November 8th as well at (8:30 or 10 AM, it's not clear which) for "lying down on the sidewalk. This was one of Baker's busts of the highly surveilled "Merry Monday", from which Baker's officers have stolen signs, given out multiple citations for chalking with erasable chalk, and spent literally hundreds of taxpayer dollars "observing"...no doubt for terrorist activity.
Please join us at the next Merry Monday, which is also the site of anti-war tabling. This next week may be crucial in mounting opposition to Bush's war drive.