Human Rights abuse in itty-bitty Santa Cruz [link]
"Video of the False Arrest at Santa Cruz City Council for Audio Recording on April 1"
2014-03-04 video by Brent Adams, text by Robert Norse [https://www.indybay.org/newsitems/2014/05/03/18755258.php]:
Robert Norse adds: "To clarify, Brent kindly made, uploaded, and provided the video of the incident. I wrote the entire article. The views above are mine and do not necessarily represent his. The audio for the incident can be heard at [http://www.radiolibre.org/brb/brb140403.mp3] (about 15 minutes into the audio file)".
During a Special Session of the Santa Cruz City Council on April 1st, I was arrested for failing to leave when I twice replaced my recorder on the bannister between the public and City Council. I have regularly placed my ancient tape recorder there for more than two decades without incident. The railing is the best spot for an audible recording. Nonetheless Mayor Robinson termed my replacing the recorder there "a disruption" and insisted I leave the meeting or face arrest. I declined to do so, since attending (and recording) public meetings is an essential right (that needs to be exercised in order to be real)--particularly so for an alternate media person like myself. These rights are guaranteed on paper at least under the Brown (Public Meetings) Act. Video-journalist Brent Adams posted a video on you-tube which documents much of the action. I discuss it further below.
Brent's video can be found at [http://www.youtube.com/watch?v=OUNz646cnoM].
FALSE ARREST BY THE MAYOR; POLICE SELECTIVELY REFUSE TO CITE -
The Mayor's action was a false arrest in that my behavior not only didn't disrupt the meeting but was protected under constitutional rights supposedly guaranteed by the state and federal constitutions. Obviously by any reasonable standard, my recording activity was not disruptive. Having Lynn Robinson say so does not make it so. In fact, filing a report on that basis is a criminal act, since the report is a false one. Both Deputy-Chief Martinez and Sgt. Bush refused to accept my citizen's arrest of Mayor Robinson for making the false report.
Martinez said it was "her meeting". However the 9th Circuit Court has ruled (in the earlier mock-Nazi salute case) that such a disruption has to be real. Refusing to follow an unconstitutional restriction (actually created to impact me) is not "disruptive" unless it actually disrupts.
Both Deputy-Chief Martinez and Sgt. Bush, initially saw no disruption in the activity I engaged in until directed to remove the recorder by the Mayor.
BROWN ACT PROTECTS CITIZENS AND MEDIA -
A legislative body may not prohibit any person attending an open meeting from video recording, audio recording or broadcasting the proceedings, absent a reasonable finding that such activity would constitute a disruption of the proceedings. (§§ 54953.5, 54953.6; Nevens v. City of Chino (1965) 233 Cal.App.2d 775, 779; see also § 6091.)
Under the Act, the public is guaranteed the right to provide testimony at any regular or special meeting on any subject which will be considered by the legislative body before or during its consideration of the item. (§ 54954.3(a).) In 80 Ops.Cal.Atty.Gen. 247, 248-252 (1997),
ABSURD AND PREVIOUSLY UNENFORCED DECORUM "RULE" -
The rule cited by Robinson reads "Hand-held recording devices may not be left unattended at the speaker’s podium or elsewhere in the Council Chambers."
Under this rule, if taken literally one would have to sit next to one's recorder at all times wherever it was placed. If one left the room to use the bathroom or to interview someone else it would be a "disruption" to leave the machine "unattended" to record the meeting.
On April 1st, Robinson--under her own rules by excluding me--denied me the opportunity to record the proceedings since leaving the tape recorder anywhere in the room "unattended" would be a "disruption". I was also denied the chance to speak at the meeting and report on it for my twice-weekly Free Radio Santa Cruz show.
ONE COMPLAINT -
AFterwards I asked Bren Lehr, the City Administrator/Clerk, for copies of any complaints on e-mail or hard copy as well as any discussion between Council members and staff regarding the presence of the offending tape recorder. Lehr reported that there was only one complaint she had heard of and nothing in writing from any members of the public.
The rule seems to have been activated either as part of the Mayor's confusion of repression with order or perhaps a particular disliking for having me visibly present at City Council meetings. Though video recordings are available days afterward and streaming happens during the meeting, I think it important if not essential that individuals and particularly reporters be able to make their own recordings with their own equipment without harassment. There's actually a provision of the Brown Act that provides that even during a real disruption where the chambers are cleared, reporters unconnected with the disruption must be allowed to remain. This is the first time in over the 27 years that I have faced this bizarre kind of arrest for "criminal recorder placement".
FURTHER BACKGROUND -
I've described this incident in more detail at "Norse Incident Sounds Alarm"[http://www.indybay.org/newsitems/2014/04/02/18753441.php].
I am slated to be arraigned Tuesday morning May 6th sometime after 8:30 AM in Santa Cruz Superior Court. I face a possible maximum penalty of $1000 fine and one year in jail. I'll be checking on Monday afternoon to see if D.A. Bob Lee intends to back up this blatant denial of basic rights.
I may be in good company because the morning of May 6th is also the date for the bogus arraignment of numerous UCSC students, activists, and union supporters arrested for striking up at UCSC around the same time.
(added 2014-05-05) D.A.'s office postponing decision on prosecution -
I received a return call from assistant district attorney David Sherman that he'd be continuing to review the case and not arraigning me tomorrow. He wants to review the Brown Act and find out how other legislative bodies have addressed this issue. I encouraged him to review the video and audio on line.
The D.A.'s office still has a year to file charges, so the matter is definitely not resolved.
Nor is it clear what the Mayor will do when I attempt to record the next Council meeting.
I continue to believe that we must not kowtow to these politically-motivated, high-handed, and abusive actions by those in political power.
A violation of "a rule" does not constitute a disruption--according to the 9th Circuit Court decision--unless the violation actually disrupts. I didn't disrupt--the Mayor did. Brent's video equipment wasn't trying to record people at the podium, nor is my equipment in any way equivalent to his.
When Robinson blames me for ignoring her unconstitutional (and illegal) demand from the Mayor is pretty cheeky. When she goes so far as to exclude me from the meeting, and then seeks to prosecute me with a false "citizen's arrest", it reaches new levels of bizarre farce. What's not funny is that these actions attack not just on me but anyone questioning her authority and "rules".
It particularly threatens alternative media. Shutting down recording at a public meeting seems to be a pretty obvious abuse of authority and a dangerous one.
(added 2014-05-06) Real Disruptions vs. Mayoral Presumptions: the Court's Protection Stands -
Actually the jury had no idea what the opinion of the 9th Circuit's en banc panel was, nor of previous decisions. That panel and previous panels affirmed that "disruption" means "disruption" not something Council members don't like or have decided "is against the rules". The fact that a jury did not award money in no way vitiates the standard that legislative bodies throughout the state need to follow. It simply means that in my case, they did not agree that damage was done.
In my view (and I believe this is the court's as well), something disrupts which actually stops the progress of the meeting.
Real disruptions might include continuing to talk off-topic or over-time, interfering with someone else's right to speak, making a loud sustained noise which interrupts the Council meeting, engaging in loud conversation in a sustained manner in the audience which interferes with the audience's ability to hear the proceeding.
Obviously placing an audio recorder doesn't meet this standard. The fact that it's been don for 25 years without incident or comment makes the arrest even more egregious. The fact that this particular location is the most obvious spot for a hand-held recorder to be placed to audibly record the proceeding suggests the Council may be more interested in targeting a particular person with a particular method of recording.
The City Clerk's office answered a renewed public records act request yesterday. It confirmed that the Council staff has no records indicating any complaints about the placement of the recorder. Even if they did, of course, the right to record a public meeting (particularly for a radio broadcaster) is a serous right to infringe or abridge.
Mayor Robinson is in error and cannot rely on "rules" voted by the Council.
"Norse Incident Sounds Alarm"
2014-04-02 by Steve Pleich [https://www.indybay.org/newsitems/2014/04/02/18753441.php]:
Civil Liberties Threatened by Council Action -
From a purely civil libertarian point of view, the arrest and citation of Robert Norse during Tuesday evening's council meeting was both alarming and disconcerting. In an age when government at all levels seems interested in exerting more power over the affairs of ordinary citizens while simultaneously restricting access to the decision making process, the right to simply be heard is more important than ever. Regardless of the animus some feel toward Mr. Norse, let us not further chill the medium in our haste to quiet the messenger.
Brent Adams Describes Norse Incident -
"Robert Norse was cited tonight at City Council for placing his tape recorder at the podium and walking to the back of the room. Just like he has done nearly every council meeting for no less than 15 years running. Tonight new mayor Robinson decided to have the police arrest him for disrupting the meeting. They issued him with a misdemeanor ticket and ordered him to leave the room or be arrested. I videotaped the whole thing. She definitely is changing things up in quite a creepy way. He is a journalist with a twice weekly radio show. I think this is a problem."
Robert Describes the Incident -
"I was excluded from the chamber for returning the tape recorder to its usual position near the speaker's podium. The acoustics in the room are such that there aren't other good alternatives. Robinson and I had this discussion several months ago by e-mail when I advised her of this situation after she threatened a similar action in December. She subsequently left the recorder unmolested until Tuesday evening when she unexpectedly without prior notice had Sgt. Bush remove it and hand it back to me. I simply replaced it. Twice. She then stopped her own meeting to make an issue of the matter and demanded I leave or be arrested. I asked to be allowed to explain but was wary of saying anything since I didn't want to enter into a dispute with her that could later be viewed as a disruption. Since she was the individual choosing to stop the entire meeting, I felt any "disruption" was something she created. The whole incident was simply a rather naked and arbitrary exercise of power which I felt obliged to respond to by doing quietly what I've always done and what I have to do in order to have audio for my Thursday night radio show".
"Documentation" (by Robert Norse) -
For those who want to view the incident, I would assume part of it is visible on the City's web site where Council meetings are stored. It's not there yet, and what you are likely to see and hear when it's posted is mostly the Mayor ordering me to not replace my tape recorder in its customary spot, to say nothing, and then to leave or be arrested. Assuming that the cameras were still running (I'm told Community TV has been advised not to film "disturbances").
Brent Adams generously agreed on the spot to film the incident and hopefully he'll be posting some video.
I'll be playing what audio I have tomorrow (April 3rd) at 6:15 p.m. on Free Radio (101.1 FM and http://www.freakradio.org). It will be archived at [http://www.radiolibre.org/brb/brb140403.mp3] (about 15 minutes into the audio file).
The Sentinel's coverage of the event is at [http://www.santacruzsentinel.com/santacruz/ci_25481030/santa-cruz-community-activist-arrested-alleged-disruption].
"Further Thoughts" (2014-04-03 by Robert Norse)
NO FAN OF COURT -
Actually I have zero interest in court. The issue is resisting abusive authority and simply retaining traditional rights--whether they be on the sidewalk, in the community, or in City Council. They are disappearing--along with privacy--nationally and locally.
It is Robinson and others in power who are deepening the repression and expecting us to respond like obedient serfs.
HISTORY OF THE "UNATTENDED AUDIO" RULE -
The "unattended audio" law was originally created in 2001 by former Mayor Fitzmaurice in a series of "decorum rules" in retaliation for peaceful protest against the City's Sleeping Ban in the winter of 2000-2001. It and other "decorum rules" were used in the City's expensive justification of its repression of silent protest in the mock-Nazi salute case. See the first story "You Can't Fight City Hall? Watch Me" at [http://hpn.asu.edu/archives/2002-April/005859.html].
Equally true is that this "rule" was concocted specifically to address what I do and is indeed politically motivated. Fitzmaurce was tired of the political criticism he was getting from me and others in the homeless community for ignoring the winter homeless death rate (which continues at an obscene level). Me particularly because I was one of the few recording in the manner that I do. So he unilaterally instituted a whole series of First Amendment-free "rules" that I and others have either challenged or ignored over the years.
NO HISTORY OF DISRUPTION -
I have never acted to disrupt Santa Cruz City Council nor have I been convicted of disruption. I've simply at points done what I could to hold the line against the City Council's persistent and ongoing concoction of rules and practices that punish peaceful but persistent activists--and the community generally as public comment (along with public space) shrinks.
NO SPECIAL MEDIA PRIVILEGE CLAIMED -
I do not claim the media has more right to record than the ordinary citizen (although reporters in some cases have protection that others do not--around sources, for example). However the significance of shutting down an alternate media person and designing rules to make recording more difficult is important to acknowledge.
Few reporters or advocates do what I do in terms of ad hoc recording at City Council, but it is a right that everyone has--and it should be respected. That's the point.
WHY MAKE THIS AN ISSUE?
It's also interesting to consider that if what I've done is so rare--why make a police issue out of it? What's the point--if not to assert a kind of stark authority? That incidentally entangles a persistent critic in court proceedings?
A RULE VIOLATION IS NOT A DISRUPTION -
The 9th Circuit Court has ruled that violating an order of the mayor or a rule is not a disruption unless it actually disrupts. Which means the Mayor can't stop her own meeting in response to non-disruptive behavior in the audience and then claim that person was being "disruptive". A mayor cannot issue an order and if it's not obeyed, have the culprit expelled or arrested.
However, unless the community acts to give life to its power to attend public meeting unmolested, however, the court's decision is meaningless and mayors at will can order people to do what they choose, create what rules they wish--all under the mystique of their authority with the force of an armed officer behind them.
I believe the community suffers if this is allowed to happen.
THE COURT'S RULING -
Judge Alex Kozinski wrote "We also decline the City's invitation to rewrite the rule announced in Norwalk. 900 F.2d at 1424-26. There, we held that a city's “Rules of Decorum” are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting. Id.
In this case, the City argues that cities may define “disturbance” in any way they choose. Specifically, the City argues that it has defined any violation of its decorum rules to be a “disturbance.” Therefore, it reasons, Norwalk permits the City to eject anyone for violation of the City's rules-rules that were only held to be facially valid to the extent that they require a person actually to disturb a meeting before being ejected. We must respectfully reject the City's attempt to engage us in doublespeak. Actual disruption means actual disruption. It does not mean constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption. The City cannot define disruption so as to include non-disruption to invoke the aid of Norwalk.
- See more at: [http://caselaw.findlaw.com/us-9th-circuit/1548256.html#sthash.JnwuMOmW.dpuf]
Suggestions (2014-04-05 by Robert Norse) -
I'd encourage those concerned to contact Mayor Robinson at lrobinson [at] cityofsantacruz.com and citycouncil [at] cityofsantacruz.com . A letter to the Sentinel might get published in their hard-copy and on-line editions. (Getting entangled with the troll network on Disquis is more questionable--though I do it at times.)
If you bother to go to City Council meetings, bringing audio and video devices is also a good idea. Other media like facebook and other blogs are probably even more important and go further. Expecting a healthy response from a repressive Council and a repression-friendly monopoly newspaper is unlikely, though at times the public does get a glimpse.
Equally important is bringing audio and video to public interactions with the Mayor (and Councilmembers) outside City Council where they don't have the threat of eviction and arrest to dumb-down the audience. Unfortunately, this can be hard to find, but posting the Mayor's schedule or likely schedule on indybay is another step in making her and her Council vulnerable to the public voice outside their managed echo chambers. She has so far declined to let us know (as Don Lane did when he was Mayor to his credit) what the proposed schedule is for the next few weeks. If anyone knows, let us know.
Also, Robinson has so far--unlike most prior mayors--declined to have a radio interview with me or reveal lobbyist contacts, Contacting her to urge her to do these things to assure transparency, accessibility, and credibility is another very good thing as well as pressing local and state civil liberties "watchdogs". Whether it be our timid local ACLU, the more militant regional chapters, organizations concerned with open government, or other groups.
Finally if any sympathetic attorneys or legal workers want to get involved, first direct your attentions to issues like the Sleeping Ban, seizure of homeless property, and the raft of unconstitutional ordinances used to empower thugs like CSO Barnett downtown, but then suggest they might also look into City Council repression.
The more public pressure on all of these issues, the better.
"Letter to Lynn: Brown Act Demand"
2014-04-02 by Robert Norse from "Homeless United for Friendship & Freedom (HUFF)" [http://www.huffsantacruz.org]:
After the exclusion and arrest yesterday when I got home, I found Mayor Robinson's acknowledgment that I make a 5 minute presentation regarding the repressive Public Assembly law changes.
She okayed HUFF, Homeless United for Friendship and Freedom, giving 5 minutes of public testimony, as is customary with organizations requesting in advance to have such time. She seemed to suggest that it was a matter of largess on her part and that if she hadn't read my e-mail the hour before the meeting, she would have not allowed the presentation.
However, of course, when the time came for me to speak, I had been barred from the chambers. Because of that, I wrote her the following:
BROWN ACT COMPLAINT -
Thanks, Lynn, for the offered time. It's ironic that you then shut me out of by having me arrested and excluded from the Council meeting for putting my tape recorder in the same spot it's been for the last two decades.
If you have a deadline for when you accept notification from organizations seeking the standard five minute presentation time, please advise the community, myself included. I would have preferred to notify you earlier, but only decided to come to the meeting and notified you shortly afterwards. I generally give more notice, but as a matter of principle, it seems to me that your responsibility is to make the time available, whenever it's requested. Otherwise some in the community might jump to the conclusion that you have a preference for less rather than more public comment.
I guess we'll meet in court if the D.A. actually thinks he can claim before a jury of twelve with a straight face that a tape recorder placed in its traditional place where it can actually capture the sound is an "actual" disruption.
In my view you disrupted your own meeting in an deliberate and unnecessary abuse of authority. In so doing, I believe you violated basic First Amendment rights, the Brown Act, and the "straight face" rule in a strange use of force to constrict the space at City Council the way you've supported constricting sidewalk space downtown.
Your action--unchallenged--jeopardizes the rights of community members and particularly members of the alternative media.
I request that you revisit the entire agenda item to provide the public that you excluded (me specifically, but also those who might have had something to say once I had spoken) with the chance to speak on the item as is required by law.
The Brown Act specifies that legislative bodies must allow audio recording devices. Your attempt to move me away from a position where speakers could be picked up on my machine and insistence that I "attend" the machine were essentially a veto on my ability as a reporter to (a) get a good recording, and (b) freely move about the meeting while that happened.
This is a formal Brown Act Complaint. Please respond to it in a timely manner.
"Arrest of journalist on April 1st unwarranted"
2014-04-02 letter from "Homeless United for Friendship & Freedom (HUFF)" [http://www.huffsantacruz.org] to Mayor Lynn Robinson, City of Santa Cruz, CA:
re: arrest of Robert Norse for recording the meeting
Dear Mayor Robinson,
On April 1, 2014, HUFF member & radio journalist, Robert Norse attended the Santa Cruz City Council. He had e-mailed you in advance informing you that he would be speaking on behalf of our organization, Homeless United for Friendship & Freedom (HUFF), & was seeking the customary 5-minutes traditionally afforded organizations on relevant agenda items.
As your follow-up e-mail confirmed, you were aware he intended to speak on the item re: new permits required for large events.
He placed his tape recorder upon the wooden banister to record portions of the meeting for his radio show as he has done hundreds of times since 1995, when the Sgt. of Arms interfered with his ability to record and informed him that it was upon your orders.
Robert Norse' use of a portable tape recorder in no way disrupts council meetings and is protected by the 1st amendments prohibitions on preventing the press from performing their work.
While I am aware you appear to have specifically tailored a policy to ban Mr. Norse and only Mr. Norse from recording upcoming meetings, it appears you also intended to shut down HUFF's timely concerns, intimidate our members, and pass a chill on the freedom of members of the press to cover council meetings under your rule.
In addition, since you had Mr. Norse arrested, charged with misdemeanor charge of disrupting a meeting, and excluded from the rest of the meeting, you prevented our organization's ability to weigh in on the item on which Mr. Norse was there to present. As such, this constitutes a Brown Act violation so that we seek the entire item be redone with appropriate public comment allowed and an unfettered press to cover the item as well.
You are the first Mayor in 18 years to go to the draconian extreme of arresting a member of the press for using a recording device at a City Council meeting.
At the very least, this is petty, personal, disturbing, and beneath you.
We urge that no charges be filed against Mr. Norse since no actual disruption of the meeting occurred, that the policy forbidding tape recorders placed on the banister be rescinded, and that an apology from yourself be forth-coming.
Please settle this small matter before it becomes a large matter.
Sincerely, [signed] Becky Johnson, on behalf of "Homeless United for Friendship & Freedom (HUFF)"
"Absentee Speech to Santa Cruz City Council from HUFF (prepared but never delivered)"
2014-04-09 by "Homeless United for Friendship & Freedom (HUFF)" [http://www.huffsantacruz.org]:
Last week a man was arrested in this room. His crime? Quietly exercising his right to attend a public meeting and to audio record it as he always had with a small machine placed on the railing here. Robert Norse disrupted nothing. You all did. Not just the Mayor but every Council member who silently let this recording be shut down without objection.
On February 11th, you passed a repressive set of decorum rules. One of these targeted any alternative media—indeed any individual—making their recordings from there—the best place to do so. It's strange. Norse is a long-time Free Radio Santa Cruz broadcaster. He has been placing his machine there regularly for his Thursday night radio show for two decades. He is a fierce critic of this Council's escalating attack on poor and homeless people. This so-called “decorum” rule was cooked up to target him.
You had him arrested when he quietly continued to record here. When he quietly sat in his seat waiting to speak on the Public Assembly law in this supposedly public meeting, you ordered him to leave.
You disrupted your own meeting. You unlawfully excluded him from the chambers. You unlawfully charged him with “disrupting a public meeting”. He faces a possible fine of $1000 and/or 1 year in jail (arraignment 8:15 a.m. May 6)
Last year,you tarred homeless people as criminals for simple survival behavior. Sleeping after 11 at night. Covering up with blankets after 11. Camping outside with protective gear in the rain. You made “not paying a $157 sleeping ticket” a jailing crime. The shelters have long been full for 90% of those outside. Council itself has repeatedly declared a shelter emergency exists here.
Police under Council direction has escalated its attacks on homeless sleepers at night and those present downtown. Your lynch-mob laws and policies have spread fear among the poor. Your laws shrinking the public sidewalk space has driven street performers, like the colorful accordion player, The Great Morgani, away.
We understand the Mayor has airily ignored a Brown Act demand that you correct the censorship you created last week. The law requires you to repeat the Special Session hearing and vote on the Public Assembly recommendations again. And to allow Norse (or anyone else) to speak and record (so it can be heard) . And allow those who wanted to hear him to hear what he had to say. The right to hear his audio and commentary. False decorum rules can't disguise your latest attacks on public space and the poor. Shutting down transparency in government violates the rights of all of us.
The Community needs to recognize Council's actions for what they are: an abusive and expanding exercise of power against those who criticize them.