NOTE BY NORSE: The Santa Cruz City Council’s slow but steady cutback of public comment time, public accessibility, and public accountability is something I’ve recently written about (and filed a formal Brown Act complaint against–see Mayor Cuts Off Comment in Consent Agenda Crackdown; Continue reading
|Title:||Two Years for Sleeping on a Courthouse Bench? The Appeal|
|START DATE:||Thursday March 21|
|TIME:||4:00 PM – 4:30 PM|
|701 Ocean St. Dept. Dept. 5|
|Event Type:||Court Date|
|Contact Name||Robert Norse|
|Email Address||rnorse3 [at] hotmail.com|
|Address||309 Cedar PMB #14B Santa Cruz, CA 95060|
|“Ground Zero” Gary Johnson, sentenced to two years by Judge GrimGavel Gallagher, last year, was “guilty” of four counts of sleeping on the bench in front of the courthouse with a sign “Sleep is Not a Crime”.
He was protesting the 6 PM to 6 AM curfew unilaterally imposed by Susan Mauriello to kill the Occupy Santa Cruz demonstrations.
Gary’s blog is http://peacecamp2010insider.
A three judge panel is expected to rubberstamp Gallagher’s decision, however members of the public are welcome to come and be witnesses to this travesty.
As a tangential but not entirely irrelevant sidenote, the incompetent and relentless prosecutor of the Santa Cruz Eleven, Rebekah Young has left the D.A.’s office as of last Friday and reportedly is going to work as a reporter in Texas.
Apparently exposing abuses may have an impact.
Regarding the trespass charge, it was selectively enforced and seemed to be done as a political sop to anti-Occupy authoritarians as well as a form of SCPD face-saving. Plus it seemed a pretty convenient opportunity to go after activists long-publicly critical of police misconduct and alternative media whistleblowers. If there was a real concern about “trespass”, it should have been a timely bust, done within 24 hours of the occupation and uniformly applied to everyone there. Clearly this was a combination of tokenism, scapegoating, and intimidation against other direct action critics of Wells Fargo and large corporate criminals.
Free speech and free assembly considerations also play a significant role–not to mention the community reality that the building was long-vacant (and has remained so). Prosecutions in a dozen other cities have led to acquittals or been dropped for similar occupations. First Amendment protections are an explicit part of the 602 trespass statute which were ignored (by both prosecution and defense).
In terms of harm-reduction, the vacant bank could have provided shelter for a population that has a far higher death rate than the terrified mob that shows up at City Council ranting about needles, drug addicts, the homeless, and “crime”.
Regarding the “felony vandalism” charge, prosecution witnesses agreed there was zero evidence of explicit documented vandalism by any of the four (not to mention the eleven originally charged). Nor were any vandals identified.
The discredited assistant D.A. pursuing this case (Rebekah Young) was already sanctioned $500 for repeatedly violating court orders and keeping evidence from the defense.
To justify this prosecution, Young presented a tenuous torturous “aiding and abetting theory” which suggested “aiding and abetting the trespass” meant that the “natural and probable” vandalism consequences made the defendants responsible for $23,000 in vandalism and subject to 4 years in prison.
Previous occupations in Santa Cruz (such as that of the Heiner House in 1992, or the Campbell St. House in 1996, have never led to felony charges (there were originally two felonies and two misdemeanors charged). The current form of judicial terrorism against activists does further damage to a First Amendment already diced and shredded by the Obama/Bush demolition team.
Judge Timothy Volkmann denies dismissal for ‘final four’
in River Street bank occupation
for stealing flowers from SCPD Baker/Butler memorial because he had money to ride in a taxi.
–Becky Johnson of HUFF
Man who allegedly stole flowers from fallen officers memorial appears in Santa Cruz courtroom
Wednesday Feb 6th, 2013 3:35 PM
On Monday January 7th and Tuesday January 8th, D.A. Bob Lee, through his underling Rebekah Young, dragged the Santa Cruz Eleven [SC-11] into yet another round in court. Actually only seven defendants were there for the Preliminary Hearing, the other four had already been cleared of all charge. This is a proceeding where the prosecution is supposed to present enough evidence to convince the judge there is probable cause to forward the cases to (a second) arraignment and thence to trial. The record is an important one–for it’s supposed to reveal a significant portion of the prosecution’s case.
Not to mention that the context of the case was a massive peaceful protest against Wells Fargo Bank, a criminal of a much taller order than any of those (unnamed and unknown) who left graffiti in the building and damaged some of the furniture.
I have written about this extensively. Most recently at “Laurendeau Arraigned Yet Again As D.A.’s Merry-Go-Round Twirls On” at http://www.indybay.org/newsitems/2013/01/31/18731105.php?show_comments=1#18731256 .
I posted Judge Burdick’s order fining the D.A.’s office Rebekah Young’s repeated failure to follow court orders to release evidence to the defense (and then lying about it–though Burdick far too charitably found she was “in good faith”) at http://www.indybay.org/newsitems/2013/01/23/18730704.php (“Another Ridiculous Round of Arraignments”).
Analyst, photographer, and (former) SC-11 defendant Alex Darocy has a good article on the Preliminary Hearing which had quite a supportive turnout (“Santa Cruz Eleven Down to Four and Conspiracy Charges Dismissed at Preliminary Hearing ” at http://www.indybay.org/newsitems/2013/01/10/18729819.php). My comments and those of others follows his visually rich story.
Posted here in all its 200+ page splendor is the transcript of the Preliminary Hearing for the 7th held in January.
Note from Norse: Santa Cruz police have not only given out citations for “selling artwork” on Pacific Avenue, but some cops have violated city laws by insisting that performing or displaying art work is “panhandling” and forbidden or highly restricted under the “hide the homeless” Downtown Ordinances. In point of fact, an artist named Robin tells me he brought this court decision (White v. City of Sparks) to City Attorney Barisone and secured an understanding that putting pricetags on one’s own artwork (written or painted) was constitutionally protected, could have prices attached, and did not require a permit.
SCPD, in their emboldened crackdown on counterculture street life and first amendment-protected survival activity on Pacific Avenue, is now ignoring that agreement as well as “reinterpreting” other laws. Authoritarian pressure from the Bryant City Council and right-wing pressure groups like the DTA (Downtown Association), Take Back Santa Cruz Santa Cruz Neighbors, and the City Manager Martin Bernal’s City Staff have distorted and expanded application of the Sitting Ban, the Sleeping Ban, and the Tabling Ban restrictions as a pretext to harass homeless or homeless-looking people at the whim of a passing bigot or an authority-happy cop.
However sidelined and ignored, the Constitution is still the Constitution. The actual wording of the Downtown Ordinances exempted artistic performances and displays from “panhandling” punishment and exempts from the Sitting Ban those watching such legal behavior. The assertion that “that musician is bothering me” does not constitute probable cause for the automatic imposition of Unreasonably Disturbing Noise citations.
And police tickets for “having a price tag” on one’s artwork violates the decision described below, which should provide a financial court settlement and legal fees for some worthy lawyer who wants to take a false arrest case if the SCPD, its “Hostile-pitality” Squad workers, or the First Alarm goons roaming the area choose to haul artists or performers (or those listening to them) off to jail.
In White v. City of Sparks, painter Steven White challenged the constitutionality of a Nevada city ordinance that ostensibly required him to obtain a permit before selling his paintings in public parks. The Ninth Circuit sided with the artist, finding: “So long as it is an artist’s self-expression, a painting will be protected under the First Amendment, because it expresses the artist’s perspective.” The court rejected the city’s argument that the sale of the paintings removes them from the ambit of protected expression. In so finding, the Ninth Circuit joined the Second and Sixth Circuits, which have reached similar conclusions.
This has significant trademark ramifications. In ETW Corp. v. Jireh Publishing, Inc., for example, the Sixth Circuit found the First Amendment entitled sports artist Rick Rush to sell paintings of Tiger Woods without Mr. Woods’ authorization. In that case, which the Ninth Circuit cited, the Sixth Circuit found the painter’s speech was entitled to full First Amendment protection and not the more limited protection afforded commercial speech “even though it is carried in a form that is sold for profit.”
The Sixth Circuit further found the Lanham Act should be applied to artistic works only where the public interest in avoiding confusion outweighs the public interest in free expression. Applied to Mr. Rush’s paintings, the court found the First Amendment trumped the Lanham Act. Even if some members of the public would draw the incorrect inference that Mr. Woods had some connection with Rush’s print, the court decided, the risk of misunderstanding “is so outweighed by the interest in artistic expression as to preclude application of the [Lanham] Act.”
The Sixth Circuit likewise resolved the tension between Mr. Woods’ right of publicity and the First Amendment in favor of free speech: “After balancing the societal and personal interests embodied in the First Amendment against Woods’s property rights, we conclude that the effect of limiting Woods’s right of publicity in this case is negligible and significantly outweighed by society’s interest in freedom of artistic expression.”
The White decision can only increase the likelihood that the Ninth Circuit will apply similar analysis when it gets the chance.
The case cite is White v. City of Sparks, __ F.3d __, No. 05-15585 (9th Cir. 2007).
Reader Comments (1
Steven C. White
Artist / Artist Advocate
winning rulings in;
White v Reno, Nv. 2002, U.S. District Court
White v Sparks, Nv. 2007, 9th Circuit Court
I would like to thank the Seattle Trade Mark Layer(s) and the Washington Lawyers for the Arts for posting this important information. If Citizens don’t know what their rights are, they have none.
Such is the case with the Arts and Artists in America today. I have traveled as an Artist for over 40 years all over this country, painting and selling my pictures along the way. Sadly, in those 40 years I have witnessed the commercialization of the Arts in America.
Many years ago if the public went to an Art show, chances are it was held by a community Art Guild or Society. The members of such a group would just go down to the parks a couple of times a year and have shows. They didn’t need a permit!
These shows helped our Art Societies gain new members as well as offered opportunities for local Artists to be showcased with their self created fine art in the public parks. It allowed them to also make a little money to buy art supplies to keep being Artists. The great thing was that ANYONE could join the art society and participate. It opened opportunities for artists of all ages and skill levels to come together and learn from each other and be showcased in their communities.
Sadly, take a good look at all of our public parks today. Filled with sports facilities but NOT ONE ARTIST to be found. NOT ONE! Why? I can tell you that I have a letter from a major City in AZ. that tells me that if I put up and easel in their parks, I must have a million dollar insurance policy. If I paint a painting and hand someone a business card, they tell me I have crossed some “commercial” line and become a “transient merchant”…which isn’t allowed in their City….so I could be arrested, fined, imprisoned and have my Art confiscated! Yep, and I’m the one that just won that ruling from the 9th. Don’t be too amazed because this kind of thing is going on all over America in the Arts today.
It is illegal to be an Artist in most public parks across America. You can play ball but not paint a picture! “Commercialization of Artists”!
I watched over the years as our Art Societies dropped by the way side as Special Interest Groups started getting permits from City Governments to hold “Art Festivals” on public property. In these festivals the promoters are interested in making money for their cause, what ever great cause it might be. So, the promoters of these “Art” festivals started letting anything and everything into the shows in order to sell the most amount of spaces for the most amount of money, to raise as much money as possible for their cause.
Now I don’t want you to think I’m against Art Festivals. I’m not! Well, kinda. As long as they operate without violating Artists Rights.
I just want to point out to everyone the obvious. These are not “Art” festivals at all!
They are market places where First Amendment protected Artistic Self Expression is being sold right along side of “Commercial Merchandise” which is lacking in full protection. As this has happened over these past 40 years people have lost the understanding of the important difference between fine Art and commercial merchandise.
As that has happened Artists have lost their First Amendment protections and have been turned into “commercial vendors” by Cities across America.
When Artists are labeled as “Commercial Vendors” they are placed under countless layers Governmental Red tape, Licensing requirements, fees, finger prints, sales taxes, police background checks and even out right denial of First and Fourteenth Amendment Rights. Who do these restrictions hurt the most? Kids who are under age and can’t get licenses, Senior Citizens who censor themselves rather than deal with all the red tape hurdles, and Minority people who are often reluctant to get involved with the countless piles of red tape involved with getting licenses. That is exactly what has happened to the Arts in America today.
So, what is the difference between “commercial” merchandise and “Art” which is protected?
Does anyone remember what fine art is? There sure are a lot of City Attorneys that don’t seem to know the dif.. Do you?
The High Courts have been defining these important points dealing with the Arts and the questions of “commercial” verses “non-commercial” merchandise offered for sale.
The question is; Where is the line drawn, between “Art” which is fully protected by the First Amendment and therefore limiting government control…..and “commercial merchandise” where government can exert a lot of control?
Key words, “Utilitarian” and or “Functional”
The courts held that my Art was fully protected by the First Amendment because of a couple of very important factors. One, it was MY SELF CREATION, my Self expression…not that of another, such as works RE-sold in galleries.
Second, my paintings have NO value beyond the message they convey. You can’t wear my paintings, eat them, ride on them or saddle a mule with them. All you can do is look at them and absorb their expression. They are purely expressive with no other value…utilitarian, functional or otherwise. As a matter of fact I have ruined the commercial value of the paint, the canvas, and even the stretcher have lost all commercial value. Paints dry, canvas cut up, and stretcher shot full of staples.
While that painting is in the original creating artists hands it has no value beyond the message it conveys. It is pure expression and entitled to the FULL protection of the First Amendment, just as much as your spoken or written words.
“Commercial merchandise” however does have a value beyond the message it conveys. So this is where the Courts have drawn the line that defines commercial merchandise from self expressive art with regards to full protection under the First Amendment. In a recent 2006 ruling by the 2nd Circuit Court of Appeals, Mastrovinzenso v City of New York, they clarified this important point that was touched on in the Bery v N.Y.C. ruling of 1996. In this ruling the New York City licensing scheme was upheld to be constitutional as applied to a couple of original artist. Why? Because though the Artist were indeed doing one of a kind works of art and offering them for sale…the works of art were being done on T-Shirts and Hats. The Second Circuit Held that because these items had a dual purpose, both Artistic and functional/utilitarian, the works were not “purely” expressive and therefore did not rise to the FULL Protection of the First Amendment. As functional merchandise that contained artistic self expression its sale required a N.Y.C. business license because it was not purely expressive.
Now in an interesting twist to this Second Circuit ruling, I believe it was the 7th Circuit that was cited in my 9th Circuit ruling, the high Court granted full protection of the First Amendment to a person(s) making stained glass windows. Obviously functional, right?
The high court ruled that because the Artist was not selling the stained glass as a functional window, but as “Art for Art’s sake”, the Artists was entitled to the full protection of the First Amendment.
So, now you know. This is all about education, education, education..if we will ever save the Arts from commercialization in America. This kind of education must take place in the Federal Courts. I encourage my fellow Artists to stand up for your Constitutional Rights and remember that men and women have given and are giving their lives for these freedoms every single day.
As a Veteran of 3 years of military service to our country, I now choose to stand up for Artists so that they can bring a little more understanding and beauty into this troubled world.
A lot of people think I got into this for personal reasons. I got into this business of challenging horrible governmental policies that are commercializing and exploiting artists because I was a witness to the terrible shooting at Columbine High School. I’m fighting not for myself but to deliver a gift to the Children of America. The gift of Art, from the Children of Columbine.
Thanks again for the space to respond,
|Title:||Last of Santa Cruz Eleven Goes to Arraignment|
|START DATE:||Friday February 01|
|TIME:||8:15 AM – 8:45 AM|
|701 Ocean St. County Courthouse Department 6 (though the calendar may then be moved to another courtroom).|
|Event Type:||Court Date|
|Contact Name||Robert Norse|
|Email Address||rnorse3 [at] hotmail.com|
|Cameron Laurendeau, one of four defendants against whom reckless and false prosecution is still proceeding, from the original Santa Cruz Eleven, goes to another arraignment in Judge Burdick’s court.
Seven of the Santa Cruz Eleven have already had all charges dismissed against them. Cameron and three others still face a possible four years in prison for a peaceful protest involving the occupation of a vacant bank building leased by Wells Fargo Bank, and owned by Barry Swenson.
Cameron’s lawyer, Alexis Briggs, has been the most active defense counsel of the group, pressing successful (if small) sanctions against prosecution D.A. Rebekah Young for violating court orders to turn over evidence.
For more background go to “Another Ridiculous Round of Arraignments” at http://www.indybay.org/newsitems/2013/01/23/18730704.php .
For further background see http://www.santacruzeleven.org .
Even though this is simply another in a series of unending and fruitless court dates, supporters are encouraged to attend in solidarity.
Added to the calendar on Thursday Jan 31st, 2013 5:31 PM
Comments (Hide Comments)
Saturday Feb 2nd, 2013 10:39 PM
Laurendeau’s attorney Alex Briggs advised the court they would be filing a 995 Motion (Motion to Dismiss) slated for a hearing March 11 1:30 PM in Department 6. A similar motion resulted in the dismissal of charges against Alex Darocy and Bradley Stuart last year. Charges were initially dismissed against Laurendeau and Angel Alcantara at a earlier Preliminary Hearing, but Young insisted on refiling them. I went into some of the details in “Another Ridiculous Round of Arraignments” at http://www.indybay.org/newsitems/2013/01/23/18730704.php/
I hope to post Brigg’s motion some days before the hearing. I’ll be playing an interview with Briggs on Sunday February 2 at 11 AM at 101.3 FM (or http://tunein.com/radio/FRSC-s47254/).
Young suggested the trial of Laurendeau and three others would take a week; Briggs suggested it would take several. Previously Young had suggested the Preliminary Hearing would take hours–when it ended up taking several days in all cases.
Trial readiness will be 9 AM on May 9th; jury trial to begin on May 13th for Laurendeau, Alcantara, Ripplyphipps, and Adams. Unless the D.A. responds to public pressure (or private wisdom) and drops the charges.
I have a copy of the last Preliminary Hearing–on the basis of which, Laurendeau and the three others were forwarded for further court and D.A. harassment if anyone wants to see it. Perhaps I’ll post a hard copy in the Public Library (it’s about 250 pages). The same Preliminary Hearing resulted in myself, Becky Johnson, and Desiree Foster having all charges dismissed.
It’s not clear if or to whom the D.A.’s office will appeal the unusual (and token) finding that Young violated court orders in denying 11 defendants important evidence. If they do appeal, as Lee has said he will in the Sentinel, then he and Judge Burdick may fight it out in some higher court (though we’re talking about the slightest slap on the wrist here).
We are all of course innocent of an violent or arguably any illegal behavior, as I’ve detailed in past posts. See http://www.santacruzeleven,org for the thoughts of others. For my analysis simply search on this website for “Norse”.
Sunday Feb 3rd, 2013 5:11 PM
It’s a rather crude way of stifling dissent. That’s why it is so important that the Santa Cruz Eleven fight back to hold DA Bob Lee and his prosecutor Rebekah Young accountable for abusing their positions of authority under color of law to deprive the Santa Cruz Eleven of rights guaranteed by the Constitution and U.S. law.
DA Bob Lee is practicing a crude kind of social control in case anyone in Santa Cruz considers organizing mass civil disobedience against entrenched authority.