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CounterPunch
February
22, 2003
The War on Sidewalk Art
The Hopscotch
Rebellion
By BECKY JOHNSON
I am accused of committing the crime of defacing
the sidewalk when I used chalk on the sidewalks of Pacific Ave.
in Santa Cruz on July 21, 2002. The ordinance in question, written
in 1964, is not clear regarding the issue of chalk writing and
the City cannot prove that the ordinance has ever been used against
chalkwriting prior to the year 2000. In fact, when I requested
34 years of records, the police only provided me with one month's
worth of records. The Santa Cruz Police Department claims they
have destroyed all records prior to January 2001, according to
a February 13th memo from the SCPD records department. Only two
months before, they told me they only had 10 years of records.
(Click here to
see photos of Becky's arrest and chalking.)
My activities were constitutionally protected
acts of free speech and the City had no compelling government
interest which overrode my first amendment activities which include
speech, written materials, and non-destructive temporary messages.
City Attorney John Barisone disagrees.
In a brief filed February 15, 2003, the City says "that
the City does have a significant governmental interest illustrating
the pervasive and deleterious nature of the graffiti problem
in the City's central business district." The City claims
it it is responsible for "preserving an aesthetically pleasing
and economically viable downtown." Citing the Broken Windows
Theory as a source, the City found that "unless graffiti,
applied by any medium, is immediately abated the problem will
increase exponentially in a very short period of time thereby
transforming a moderately damaged are into a substantially degraded
area with a higher crime rate and depressed economy," Lt.
Sapone was less subtle. "It's an eyesore," she said.
Chalk lines are the easiest, least expensive,
least damaging, and most reasonable method to communicate. Since
chalk is made of crushed seashells and vegetable dyes, its not
a hazard for the Monterey Bay, where it will eventually arrive.
Compared to tagging with a permanent marker, chalk is light years
milder. On July 21st, I chalked specific extremely time-sensitive
information which the entire community had the right to know
-- information which the public had been prevented from knowing
and which was to be voted into law 48 hours later.
I believe that I am being prosecuted
more for who I am and for the content of my speech. Hopscotch
is not some great harm to society leading to bedlam, the decline
in property values, and loss of revenue to the City. Indeed chalk
festivals are considered a boon to business generating crowds
at minimal expense. At my previous trial on September 13th, 2002,
SCPD Sgt. Jack McPhillips, Redevelopment Agency anaylst Julie
Hendee, and City Attorney John Barisone in his briefs revealed
that the City of Santa Cruz utilizes and emulates the model of
policing based on the Broken Windows Theory.
Broken Windows in not about crime. Even
the authors of the first 1982 version admitted five years later
that they had no evidence that utilizing police methods where
very minor "quality of life" citations are used selectively
against those who "don't belong" reduces crime. It
is only a way to create the appearance of order and has no statistically
relevant correlation to crimes against property or acts of violence.
In other words, if I piss on a sidewalk,
I'm not likely to rob a bank. None the less, Cities across the
nation including Santa Cruz have adopted this model. Both the
Santa Cruz Redevelopment Agency and the Santa Cruz Police Department
use the Broken Windows Theory in their pattern of enforcement.
Even Mayor Emily Reilly was unaware of this. And this is an unconstitutional
manner of police enforcement for it violates the 8th amendment
which offers equal protection under the law. For under Broken
Windows --- a police officer looks up and down his beat and looks
for people who belong, such as shop owners, residents, and shoppers
and he looks for those who don't belong. Those who don't belong
get cited for sitting, lying down, or for any one of dozens of
ordinances which are all victimless "crimes" for homeless
people but just ordinary behavior for the shoppers and the tourists.
Somehow people who "don't belong" tend to be people
of color in the wrong neighborhood, young people, people who
are living alternative lifestyles, poor people, homeless people,
and political activists.
I would put myself in that latter category.
But please, do not assume that because I am a homeless activist
that I was committing civil disobedience. For I know what civil
disobedience is, and this was not the case. I genuinely believed
that chalkwriting, due to its impermanent and non-destructive
nature and lack of environmental impact was a legal activity
if conducted on a public sidewalk. I had plenty of reason to
believe this. First, I have been chalking at various events for
years, often in front of police officers, and have never so much
as received a warning, much less a citation or an arrest. Second,
I have read the McKinney decision in Berkeley where not only
was the chalker found not guilty, but the City of Berkeley ended
up paying a large settlement to the person arrrested. In that
case as part of the written decision of the 9th circuit court
it states "No reasonable person could think that writing
with chalk would damage a sidewalk." Third: I knew that
political messages written with chalk do have constitutionally
protections of free speech, provided their is no significant
government health or safety interest.
Likewise in People vs. Johnson/People
vs. Rinker City Attorney John Barisone argued that in One World,
supra, 76 F. 3d at 1012 allows the city to ban giving away tee-shirts
for a donation on Beach St. because those activities are allowed
on Pacific Ave. But in my case, the ban on chalking is citywide
and does not provide a legal public place for chalking. Indeed,
if chalking on a sidewalk truly defaces the sidewalk, then this
is an activity which cannot be then allowed "on special
occasions" for defacement is damage to the public sidewalk
and cannot be "allowed" when the authorities feel like.
Not unless the law itself is meaningless--- to be enforced when
the suspect is a poor or homeless person, but completely ignored
or even celebrated if its First Night on Pacific Ave. or at any
number of chalk festivals which are gaining popularity nationwide
with the resulting increase and tourism associated with those
chalk festivals at almost no expense.
Barisone argues that "Cities have
a substantial interest in protecting the aesthetic appearance
of their communities by 'avoiding visual clutter'. He further
says that "it is well settled that the state may legitimately
exercise its police powers to advance aesthetic values.' This
language concerns me. Are we saying that we want our police to
look for evidence of visual disturbances which are aesthetically
displeasing for which to cite and arrest? Since a child's hopscotch
playing is ignored, it must be considered aesthetically undisturbing.
Where do we stop with these police powers? A car painted the
wrong color? Someones clothing not mended or stained? How about
the crime of wearing plaids and stripes together?
And even if Barisone is correct, and
the City has a substantial interest in protecting its aesthetic
values (demonstrated by installing Pet Smart, Ross Dress for
Less, and the River Street Sign?) how can any of this reasonably
apply to the chalked lines I drew to show where the safe zones
would be for music, political tables, sitting, or begging?
I was in Carmel a couple of months ago.
You can't find a pricyer neighborhood than Carmel by the Sea.
I was on Scenic Drive which is perched on the cliffs over the
ocean beaches near the mouth of the Carmel river. There was a
house there, and hung above it was bright, orange netting covering
an area 30 or 40 feet wide and about 15 feet high. I found its
bright color, and large shape to be at complete odds with the
aesthetic element of the very scenic environment. What I saw,
and what I am sure most of you have seen countless times was
that orange netting put up there so neighbors, store owners,
joggers, community members, and public authorities can all have
a little preview of the contruction that is to come. Its best
to give people a clue ahead of time of any permanent change that
is about to take place.
People need to know what it about to
happen to their community that will forever--or for a very long
time anyway-- change the very look of, the character, and the
shape of their neighborhood from then on. That is what I was
trying to do on July 21st. The City was about to ban, on a second
reading to be voted on on July 23rd and ordinance which would
prohibit sitting, playing music, street performers, political
tables, and beggars to very tiny zones on a few sidewalks and
eliminating those spaces and hence those activities completely
on many sidewalks thoughout our City.
That is what I was doing. I wasn't there
to flaunt Officer Phelps authority. In fact, I didn't even know
he was there observing me chalk. I wasn't there to prove that
chalking is a legal activity. Commissioner Irwin Jospeh and I
disagree on this point. I believe it is legal and constitutionally
protected free speech. And these days we need to fight to keep
every avenue of free speech left to us. For if we don't have
free speech, how can we address any other problem?
What I am saying, is that I had a compelling
interest to communicate to the citizens and visitors to Santa
Cruz. It was not trivial. It was quite serious. I did not "deface"
the sidewalk in any manner. My chalk writings were minimally
noticable. They were far away from businesses. They were informative.
They were, unlike the maps the Redevelopment Agency provided
to the public regarding the offensively labeled "opportunity
zones" accurate.
Since the maps provided to the City were
inaccurate, I had an even more compelling interest to demonstrate
to the City just how limiting these ordinances would be to life
in Santa Cruz as we have known it for decades. I just don't know
today how I could have more clearly informed the public of the
upcoming changes in store for Pacific Ave. Just as the owner
of that house in Carmel could not just hand out a flyer to his
neighbors showing a before and after picture that would clearly
communicate the size and the scale of the changes coming.
On July 21st, I chalked the minimum to
convey the information. I was performing a public service. I
could not convey this message on a flyer or poster. And I was
ready and willing to remove the chalkwriting if asked. I even
asked Officer Phelps if he wanted me to remove the chalk marks.
He told me "It is of no concern to me one way or another
if you remove the chalk."
If the City were truly concerned about
the diminishment of its aesthetic values by the minor amount
of chalking I did on July 21st, then the City would have wanted
me to clean up that chalkwriting--either by asking me to do it,
or at least encouraging me to clean it up when I offered to do
so. Does the City of Santa Cruz want to remove me instead?
And remove the content of what I wrote
and what I will write next?. Those little chalk lines delineating
those tiny little areas where all beggars, all street musicians,
all Clowns, all magicians, all political tables must now crowd
together. That is what I chalked. That is why I have been cited,
and even later arrested, jailed, thrown in the drunk tank, and
charged $1000 bail. Because the SCPD cannot stand for the information
that I write to stand the light of day.
Becky Johnson's Chalking trial is scheduled
for March 14, 2003 in Department 1 at 10:00 AM in the court of
Commissioner Irwin Joseph at the Santa Cruz County Courthouse,
701 Ocean St. Santa Cruz, Ca.
Becky Johnson
can be reached at: becky_johnson@sbcglobal.net
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February 15
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