When Spokane police are forced to act as judges of noise, things get ‘fuzzy’

William Cruz was ticketed after playing music in downtown Spokane. - YOUNG KWAK
Young Kwak
William Cruz was ticketed after playing music in downtown Spokane.

William Cruz has made money as a street musician for 10 years, and in that time he’s learned to abide by a de facto code of ethics. There are certain things you do, and other things that you definitely don’t.

Do: make people feel comfortable, offer to write them a song as they walk by, acknowledge smiles as graciously as dollars and give other street musicians space to play.

Don’t: be an annoyance, talk back to hecklers or, if someone throws change at your face, react.

And when a police officer wants to shut you down, invoke the First Amendment. It will usually protect you.

But that’s not what happened around 11 pm on Sun., July 22, as Cruz played his music — songs of romance and lost love — at the northeast corner of Sprague Avenue and Howard Street, in downtown Spokane.

Today, Cruz — with large black glasses and two wallet chains that clink as he walks — says he’s still not sure what caused a Spokane police officer to threaten him with arrest and ticket him that night. He thinks it has something to do with the new noise ordinance, passed by the Spokane City Council in May.

That ordinance made it illegal for anyone to make noise that is “plainly audible” from 100 feet away — leaving it up to an officer’s discretion. Though City Council President Ben Stuckart says that Cruz’s incident is the first complaint he’s heard since the ordinance passed, some critics of the law worry that it’s still unclear.

“We had concerns it was constitutionally vague,” says Julie Schaffer, an attorney with the Center for Justice. “It probably would pass constitutional muster — as written, if you’re just looking at it. But it could be unconstitutional as applied.

“What we were so concerned about is that this would lend itself to arbitrary enforcement.”

Cruz, who provided the following account, says Officer Erin Blessing — who did not return calls for this story — approached Cruz and told him to pack up or he would be arrested.

Cruz was shocked. “I have a constitutional right to play,” he told her.

Blessing said that didn’t matter. He was on private property — a 28-inch gravel strip surrounding the parking lot there — and was trespassing. She pointed to a sign mounted on the parking lots fence. It reads: “This is private property. Individuals may not remain in lot for purposes other than travel to and from lawfully parked vehicles.”

Blessing asked for his ID. Cruz obliged. And after running his ID in her vehicle, Blessing returned with new demands.

“She comes back and says, ‘If you don’t shut down, I’m going to have to ticket you,’” Cruz recalls.

To Cruz, the situation could be alleviated easily: he’d simply move his guitar and trumpet off the gravel and onto the sidewalk. Crisis averted.

Not so. Blessing, according to Cruz, said if he moved onto the sidewalk he would then be obstructing foot traffic and subject to arrest.

“So my choices became shut down, stay on private property and get a ticket, or move onto public property and get arrested,” Cruz says.

This wasn’t the first time he’d been shut down while performing his music — but after three years performing in this same location with nothing but friendly relationships with police and businesses, Cruz decided he’d take a stand.

“So I said, ‘Well, I guess you’d better give me the ticket then.’”

Blessing handed Cruz a ticket for second-degree trespassing, which carried a penalty of 90 days in jail and a $1,000 fine.

“I felt I had to take the ticket because my civil rights were being violated. At the point it became a stand on principles,” he says. “I asked her, ‘So where, then, can I play?’

“She said it’s not her concern.”

Measuring Freedom

On all sides of that parking lot — between Stevens and Howard on Sprague, down Howard to Riverside, across Riverside to the Fernwell Building and again up Stevens — is a white brick wall.

Outside the boundaries of that wall is a thin gravel strip. In some places it is full with decorative shrubs. In most places, though, the gravel is bare and littered with cigarette butts. Last week, bus riders stood — texting on cell phones and reading books — on the gravel, waiting for the 44 and 164 buses.

According to Tom Malone, area supervisor for Diamond Parking — which doesn’t own the lot, but manages it — that gravel is private property.

“Technically it would be the lot’s property,” Malone says. “So is the sidewalk … we have to maintain it. Just like your house with the sidewalk in front of it.”

Malone says that any vendor — from a hot dog cart to a street musician — must get permission to hold business operations on that gravel, and at this time, no one has permission to do so. He did not know of arrangements with Spokane Transit Authority for commuters to be standing on the gravel.

Rick Eichstaedt, attorney for the Center for Justice, says businesses do not have ownership of Spokane’s sidewalks. “Our Supreme Court has consistently stated that sidewalks are liberally construed as public forums,” he says in an email. “If it is a public forum, it is open to First Amendment activities like street musicians.”

While Cruz couldn’t block foot traffic on the sidewalk, threatening arrest for performing there seems extreme, according to Ben Stuckart, Spokane City Council President.

“It seemed me like very selective enforcement,” Stuckart says.

Crank Calls

Julie Schaffer, a staff attorney at the Center for Justice, says that when Spokane’s current noise ordinance was passed in mid-May of this year, she and other local attorneys expressed concern to the City Council that it was too vague.

The new ordinance, which passed with only Councilman Jon Snyder dissenting, made it illegal for anyone to make noise that is “plainly audible” from 100 feet away. That was a change from a more impartial ordinance that required police officers to use decibel meters — ones that would need to be purchased by the city — in order to enforce the law.

In a letter to City Attorney Nancy Isserlis, Schaffer and other local attorneys worried that the new ordinance “authorizes or even encourages discriminatory enforcement.”

“We thought it actually gave the police so much discretion that it would put the police in a really difficult situation because it was so fuzzy and confusing,” Schaffer says. “An officer can essentially cite someone under the ordinance for a lot of different behaviors.”

And that’s exactly what Cruz feels happened to him. “I feel kind of harassed,” he says.

The July incident wasn’t the first time Cruz was told to shut down by police. Earlier this summer, during Hoopfest, local police also told Cruz to shut down due to noise.

“[There are] 250,000 people downtown screaming and the speakers are up every half-a-block cranking rock music. And I’m making too much noise?” he says. “And that’s the problem with the noise ordinance, because it’s complaint driven. Anybody can complain, and so the crank is always going to be right.”

After the Hoopfest incident and the July ticket, Cruz says he intended to show that the noise ordinance was penalizing people like him. He made his concerns known to Schaffer and Stuckart, who both were familiar with Cruz’s calm, peaceful demeanor from his numerous appearances at City Council meetings.

“He’s great to work with because he’s very conciliatory. He wants to work together. He wants to work with City Council. ... He doesn’t want to be a nuisance, he doesn’t want to have confrontations with police,” Schaffer says.

Cruz’s ticket was dismissed in late August after he completed 24 hours of community service (he organized a food drive at his church). Cruz says that even the judge and city prosecutor saw that the ticket was not an act of criminality, but an act of protest.

“People want to protest without consequences, but that’s not civil disobedience. You know what I mean? There had to be some consequences,” Cruz says.

Though he beat the ticket, Cruz — who is disabled and makes anywhere from $3 to $30 each time he plays — says the incident definitely rattled him. He continues to perform on that same street corner at night, hoping to catch a few bucks here and there.

“I’m not in the business of pissing people off,” he says. “I just want to play music and make a few dollars.”