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Move Along -- It's the law

Move Along -- It's the law

by Robert Norse and Becky Johnson
January 19, 2003

Santa Cruz, CA. --- On January 14th, the Santa Cruz City Council passed 7-0 on a 2nd reading an ordinance which greatly limits free expression in Santa Cruz. Although it is technically a softening of an even more oppressive and limiting ordinance passed on July 23rd, 2002--- the
truth is, this too is a law too far. On a motion from Councilmember Cynthia Matthews, the council also added a "move along" provision which ostensibly forces street musicians, jugglers, and artists as well as political tablers to “move along” if an officer or host approaches them and tells them they have been there for over an hour.
The penalty for not obeying: a $162 citation for the first offense and up to $1000 fine and a year in jail for the second. "What idiot wouldn't move along when told to do so by an officer?" Councilmember Mike Rotkin asked.
The Council also thoughtfully authorized the low-budget merchant-security force alternative to the police--the “Downtown Hosts”--to give the official “move-along” warning to loitering performers and political activists.
Santa Cruz City Council began this latest round of Official Hassling last summer in response to a merchant outcry for “stricter enforcement” downtown. Councilmember Emily Reilly (now Mayor), the owner of a local bakery, abandoned her earlier liberal support of homeless civil liberties in the middle of her 2000 election campaign. She and Councilmember Porter, a high school disciplinarian, seemingly intent on prescribing rules of conduct for the entire community, rammed through a tightening of the screws on homeless and poor people. The new laws expanded “forbidden zones” for sitters and sparechangers from 10’ to 14’, made it a crime to leave “unattended property” on the sidewalk.

The laws criminalized hackeysacking, frisbee-throwing, and play ball in all business districts. They outlawed amateur (but not professional) bubble blowing and (as the ordinance puts it) “causing any object or substance to be thrown, discharged, launched, spilled or to become airborne.” Whether this last applied to soup-serving, spitting, vomiting, or crying--was never made clear at Council meetings.
Instead of restoring civil rights to homeless people in Santa Cruz (like the right to sleep or cover up with blankets--still forbidden under MC 6.36 from 11 PM to 8:30 AM under identical fines, the Porter-Reilly laws were rushed through (4 council meetings in 15 day) while students were out of town. The laws criminalized non-obstructive sitting and peaceful sparechanging on 95% of all sidewalks adjoining businesses in town. They also made holding up a sign silently
after dark, in a group of two, or from a seated position, a crime.
In order to make the law “content-neutral” to meet constitutional muster, however, City Council had to bar street performers and political tablers as well from the 14’ forbidden zones.
This raised a hue and cry--among civil libertarians, performers themselves, activists, community members, and even some merchants, who wondered if sterilizing the Santa Cruz sidewalks entirely might not be both spiritually and commercially toxic.
To limit this damage, Council sent the 14’ “no go zone” laws to their appointed Downtown Commission for “fixing up”. The Commission spent 6 or 7 meetings on the issue, then threw up its hands. It wouldn’t recommend “exemption zones” or establish “a permit for performers” or make the traditional Voluntary Street Performers Guidelines [VSPG] mandatory.
Instead, they asked for more time for street performers and political tablers to work out the (supposed--but undocumented) “problems” with (supposedly) complaining groups of merchants and residents. Public records from the Downtown Hosts noted less than 1% of the contacts they had even concerned street performers. The Council refused and went ahead to destroy the VSPG. The VSPG were a consensual code of worked out in 1980 by street performers in response to an earlier move to ban street performing. The VSPG advised that if a merchant, resident, or another performer wanted a performer to move on to another spot, they ask the performer respectfully to consider doing so. It was understood the performer could take at least another hour, and then would hopefully move along. Though not a law, this ‘friendly neighbors” understanding usually worked according to "professional bubble performer" Tom Noddy and avoided legal headaches on both sides.
Performers and political tablers invited merchants to “Stakeholder” meetings to discuss whatever problems they felt they had with the VSPGs.
The merchants, confidant that City Council would pass strict prohibitions, didn’t even bother to show up. The "back room" chat with Council members had won out over public process.
Ironically, impatient or apprehensive merchants already had other sufficient remedies. They often used laws such as “excessive and unreasonable noise”, “disturbing the peace”, “trespass” or even “terrorist threats,” to drive away performers. Neither police nor merchants, however used “forbidden zone” laws--though an earlier version of those laws was on the books, banning performers from a 6’ zone in front of buildings and completely in front of cafes.
For unclear reasons last spring, police began cracking down generally against street performers and poor people on the streets last spring. They ignored the VSPG and began a harsh campaign against musicians. Council backed up the police with the new laws mentioned above as well as a resolution for police to “rigorously enforce existing laws.”
Along with the “move along” law above, City Council also passed an expanded 10’ forbidden zone for performers and tablers, which reduced to less than 20% usable sidewalk space for what many had assumed were constitutionally protected activities. In so doing, they ignored their own Downtown Commission as well as the overwhelming majority of speakers and e-mail writers.
Their new ordinance changes limited "non-commercial displays" (i.e. tables and display stands) which have regulated street musicians as well as tablers in the past. The Council added a confusing array of small amendments which redefined street performers as “non-panhandlers”,
but continued to criminalize beggars and political tablers. Wry cynics suggested that every panhandler would pick up a kazoo to join the exempted “street performer” class. That, however, had already been tried. Police simply declared they “knew a performer when they saw one,” and disallowed former panhandlers from “posing” as performers. The question still remained, would a judge tolerate this kind of discrimination when faced with a real legal court outside the "good ole boy" courts of Santa Cruz on appeal?
The debate at the January 14th Council meeting was enlightening for the public, but changed no minds on the City Council. The fans of street musicians pointed out that forcing musicians to stand near the street would actually send the music directly into shops, creating more of a
potential problem for merchants. Under the VSPG, musicians played standing next to stores, usually along the wall between store windows, allowing those who stopped to listen, to look into the shop windows and pick up on tantalizing displays of merchandise. The Kuzanga marimba Band, a favorite along Pacific Ave., explained that with the hours it takes to set up and break down, a mere hour at a location would make the whole performance not worth while.
Keith Holtaway, the Executive Director of the Downtown Association representing the merchants, was the only merchant representative to show up, both at City Council and at the “Stakeholders” meeting to speak in favor of the restrictive ordinance. The other thirty-one speakers spoke against the ordinance, though a few favored the move-along as the best solution.
What was the problem the forbidden zones and move along were designed to “fix” ? No one could say. Bob Guzley, a citizen volunteer with the Downtown Commission, compiled 3 months of statistics kept by the Downtown Hosts in which a problem concerning a street musician was claimed. "I found that only 0.05% of the complaints were against musicians."
Gerry Mandel, representing a merchant minority on the Downtown Commission, took a different view. "What if a musician stands there for hours and hours singing the same song over and over?" She then favored "solving" this hypothetical problem by passing the forbidden 10 foot restrictions from crosswalks, drinking fountains, benches, buildings, telephones, kiosks, and commercial fences as well as the one-hour, move along.
Councilmember Ed Porter vigorously denied that the council had any intent to limit political tables, but then failed to propose a friendly amendment to the motion made by Councilmember Scott Kennedy to protect them. The law passed without any mitigation.
Loitering laws were thrown out by the U.S. Supreme Court in the early '80's. But perhaps City Attorney John Barisone has correctly guessed that in these Ashcroftian times, the Supreme Court will now uphold unjustified restrictions on freedom of assembly. How ironic it will be when the City of Santa Cruz, home to progressives and liberals, goes on record as the City that undid protections of first amendment rights?
A "move along" provision is the same thing as a loitering law. Courts have ruled that you cannot arrest someone for doing nothing or for doing nothing illegal. If a street musician is playing music legally for 59 minutes, it does NOT suddenly become illegal in 60 minutes. This provision is not practical for political tables which usually set up for 2 or 3 hours at a time. But council insiders "wink and nod" to assure us that "the police know best" and it will "give them the tools they need" to "only" deal with the true problems.

Translation: Homeless people will be the primary people cited under this law. Homeless people will be required to pay the $162 fine if they do not move over 100 feet away from the first place they were at while playing music, setting up a political table, or what? The police will decide those details for us. "We trust our police," these
same knowing insiders say.
Even Mayor Reilly revealed a sub-conscious embarrassment about these anti-poor laws. At the first reading, she asked City Attorney Barisone what the penalties were; he said he’d find out, though
many thought he was simply avoiding an uncomfortable answer. When marimba player Kim XXXX asked the same question again a month later on January 14, Reilly assured her she’d let her know “later”, but never did. Like a prosecuting attorney keeping the length of the sentence
hidden from the jury to assure a conviction, Reilly and her new supporter Mike Rotkin never told the public about the fine for the first offense and potential jail sentence for the second.

There are plenty of remedies for those whose behavior is truly causing a problem. Dealing drugs is illegal. Blocking a sidewalk is illegal.
Trespassing in a doorway is illegal. Unreasonable noise is illegal.
Folksinger Utah Phillips recently said: "What good are these laws anyway? The good people don't need them and the bad people won't obey them." Street performers themselves offered the best remedy--continued work using the VSPG, which possibly could be expanded to create voluntary codes of conduct for other "barred" groups downtown like skateboarders, beggars, hackeysackers, etc.

Utah also assured the performers, now organizing as an informal guild that all of these laws are illegal. He promised to forward to performers a stack of court decisions protecting them, to dump on Barisone's desk. That will take legal counsel, fund-raising, and outreach.

Now criminal in Santa Cruz until a generous lawyer and a brave citizen risk a court challenge: Playing hacky-sack or frisbee on any sidewalk downtown, asking someone for a cigarette after dark, playing a flute in a doorway of a closed business, amateur bubble-blowing,
chalking a hopscotch pattern on the sidewalk, playing music at the curb directly in front of a street cafe, asking for a dime while seated on a bench--the list goes on and on.

Worst of all, the enforcement of these laws has become a matter of police discretion. The City Council has refused to act on a recent "no selective enforcement" resolution by the Citizens Police Review Board [CPRB]. Instead Reilly has recommended the CPRB be eliminated to save money. This fall the CPRB heard testimony that a major concern ignored by city council consumed with its crusade to regulate away street performers and panhandlers, was the question of omnipresent police harassment and selective enforcement.

Under the rule of law, people and their representatives make clear laws that criminalize bad behavior. In the police state, by contrast, it is the police officer who determines what is legal and who is the criminal. He can ignore one person’s innocent behavior and target another's. In Ashcroftian America, it's become the fashion. Many assumed in a progressive town, such things were unlikely. Welcome to Santa Cruz 2003.

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