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State finds Disco Trike owner Dan Kaufman "not guilty"

Posted by Jonathan Maus (Publisher/Editor) on October 10th, 2012 at 12:53 pm

Dan Kaufman on the stand last week.
(Photo © J. Maus/BikePortland)

The State of Oregon has issued a judgment of "not guilty" in the trial of the "Disco Trike" and its owner, local activist and filmmaker Dan Kaufman. The trial was heard by Multnomah County District Court Judge Cheryl Albrecht last Friday and she announced her decision today (PDF).

The Portland Police Bureau arrested Kaufman and seized his video equipment and his adult tricycle on SW Main Street near the Elk statue on the evening January 25th, 2012. Kaufman was participating in the J25 Occupy protests to commemorate the one-year anniversary of the Egyptian uprisings in Tahrir Square. According to court documents, Kaufman was in custody for 40 minutes and his personal property was impounded (it was released to him one month later). Ultimately, he received a violation for Unlawful Operation of Sound Producing Equipment. The police testified in court last Friday that the amplified music being played from his Disco Trike was agitating the crowd and that it could be heard beyond the legal distance of 100 feet.

Kate Stebbins represented Kaufman in the trial. She argued that the police impinged on her client's constitutional right of free expression and that the state could not prove beyond a reasonable doubt that the trike was 1) causing the crowd to become more aggressive and 2) that it could be heard beyond 100 feet. Stebbins also said that Kaufman was given conflicting instructions from the police about where he was allowed to ride and walk with his trike during the protest march.

In his testimony during the trial, Sgt. Craig Dobson of the PPB said he warned Kaufman repeatedly to turn down his music. Dobson said he was concerned with the noise because of nearby residential housing and Kaufman's lack of a permit. Dobson also testified that he believes the music "adds to the commotion" of the protest. "Any time we have loud rhythmic sounds it effects crowds," he told Stebbins during cross-examination, "and it makes it hard for us to be able to keep control of the situation."

Sgt. Dobson also told the court that it is his belief that loud, amplified music makes protestors more disruptive and violent. The lawyer representing the State of Oregon in the case, said that the music was so loud that "It was inciting incidents of violence and vandalism, or juicing up the crowd to act in a more aggressive manner."

Stebbins maintained that Dobson's intent in seizing the Disco Trike was not because it was too loud, but because of the effect the music had on the crowd. In that case she argued, the State over-stepped its authority.

During his testimony, Kaufman said he feels his music has more of a calming effect on the crowd (for what it's worth, he was playing Bob Marley when he was arrested). Kaufman testified that during prior protests, police officers actually requested that he played mellow reggae songs like Buffalo Soldier. "I felt I could use the power of the Disco Trike, as I have in the past," said Kaufman on the stand, "to redirect the crowd from focusing our energy into the wrong place. I turned up the Bob Markley specifically because I felt it would help relieve the tension... which I think it did."

(Photo courtesy Dan Kaufman)

In his closing argument, the lawyer for the State maintained that the police had the right to issue the violation because 1) the music was making the officer's jobs of controlling the crowd more difficult and 2) because it was "too loud for the neighborhood." Speaking about the police officers' actions, the lawyer said, "... They could have come in and cracked skulls if they wanted to quell speech... but they didn't do that."

In her closing argument, Stebbins said the state did not have any evidence that the music was too loud and that, in order to confiscate Kaufman's property, "It has to be specific harm the officers are trying to prevent." "Sgt. Dobson was very clear," she continued, "he had Dan Kaufman arrested specifically for the effect he was having on the crowd."

In her decision, Judge Albrecht said that, "An officer can have concurrent motives," but that, "the ordinance at issue addresses the harm of noise in the community, not safety issues."

Put another way, Stebbins felts like the police couldn't have it both ways. Either they charge Kaufman for a noise violation they couldn't prove, or they violated his right to free speech. In the end, the Judge agreed with her.

Here's more from Albrecht's conclusion:

"Moreover, restraining expression because of the expression’s effect on others goes directly to its content, and expression is protected even if it is provocative, creates a tense atmosphere with the potential for violence or is likely to provoke a disorderly response.

The issue then is, in light of all of the evidence, what is the greater motive. It is the state’s burden to establish beyond a reasonable doubt that the particular enforcement of the regulation was aimed at the harm targeted by the ordinance and did not have as its motive the restriction of expression. In this case, based on the video evidence and testimony outlined above, the court has a reasonable doubt that the motive to enforce Portland City Ordinance 14A.30.020 against Mr. Kaufman was for its stated purpose. As such the court enters a finding of not guilty and enters a judgment of acquittal as to Mr. Kaufman."

Kaufman is very happy about the ruling and says he's planning a victory ride tomorrow. Meet at the Vera Katz statue on the Eastbank Esplanade and roll out at 5:30. More details here.

Download a PDF of the judgment.

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Comments
  • CaptainKarma October 10, 2012 at 1:22 pm

    I totally agree wit curbing the police use of non-judicial punishment and other acts of violence. Especially in an attempt to squash free speech. I believe imposing one's music on any and everyone else is also an act of force. This isn't over; the cops will just take it out on bicyclists in other ways, as it appears they are keying on the mode of transportation here.

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    • Spiffy October 10, 2012 at 2:22 pm

      CaptainKarma
      I believe imposing one's music on any and everyone else is also an act of force.

      it looks like the law says that as long as people can move 100' away and not hear it anymore then it's not forcing them...

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      • rain bike October 10, 2012 at 2:37 pm

        Remind me not to hire you as my lawyer...

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  • 9watts October 10, 2012 at 1:27 pm

    Wonderful news.

    But quite troubling, given the issues of the day (that Occupy was raising), that our tax dollars are spent arresting & prosecuting Mr. Kaufman for frivolous reasons.
    Did the police think to arrest the bankers for inciting the crowds in the first place? Oh, right, the bankers always have a permit.

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    • Joe Adamski October 10, 2012 at 5:51 pm

      Same tactics as old Critical Mass days. Even if you aren't breaking a law, if a cop says you are, you are. Ticket them, harass them, make them lose confidence in the cause..
      As long as the cops job is to maintain the status quo, they will be the tools those in power will deploy. I don't see that changing anytime soon. That cop who wrote the ticket got paid ( possibly overtime at 1.5 time) and he goes home to Hillsboro every night, knowing that even if he screws up, he will face little consequence.
      A $100 fine ( or whatever it was) is of greater consequence to someone who doesn't have the money to pay, and if you can't pay, the consequences double. You then owe the fine, PLUS face consequences for not paying.
      And that cop goes home to Hillsboro.......

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  • Redhippie October 10, 2012 at 1:45 pm

    Thank you Dan!

    By seeing this through the system and getting your day in court you are helping to keep a viable democracy. Out of curiosity, what kind of plea deals were offered to make this go away?

    Thanks you again for you commitment and perseverance.

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    • Dan Kaufman October 10, 2012 at 2:32 pm

      Thank you, Red. They offered me a plea of eight hours of community service. All told, that would have been a good deal if you 'only' consider the total time the Kate Stebbins, Charley Gee and I spent our half-dozen or so court appearances (not to mention prep). I am glad we chose to fight but I doubt I could have prevailed without my pro-bono (free) council.

      I want to give a heart felt thank you to my (Kate and Charley) and their firms BerkshireGinsberg, LLC and Swanson, Thomas & Coon. Major appreciation to all the folks from the PDX Bike Swarm and others who attended the trials plus all the well-wishers and folks following the story.

      This matters to me and I am glad we prevailed because the City of Portland, Multnomah County, the State of Oregon and the Dept of Homeland Security has spent millions of dollars shutting down free expression (which by the way, is the #1 law of the land). They did this with brute force, by enforcing laws and ordinances at their discretion, and prosecuting activists/demonstrators.

      Many demonstrators who did little more than express themselves or passively resist were assaulted by fully-armored police, they were jailed, they were fined, and prosecuted. This was all part of a fully-coordinated effort by those in power. The worse part is that it has had a chilling effect on free expression and public assembly.

      I hope this message of this ruling is heard clearly by those in power and that the people get back to exercising their rights!

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      • Charley Gee October 10, 2012 at 2:36 pm

        Thank you too, Dan, for having the courage to go to trial on this and for standing up for your rights!

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  • Spiffy October 10, 2012 at 2:16 pm

    Jonathan Maus
    for what it's worth, he was playing Bob Marley when he was arrested

    Dan Kaufman
    My sound system was not playing at the time I was cited

    I'm confused...

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    • BellaBici October 10, 2012 at 8:06 pm

      Jonathan is incorrect in that statement. The Disco Trike was silent when it was surrounded by mounted police and Dan was arrested.

      The police had earlier determined, during the protest, that the Disco Trike had broken noise ordinances and the police waited for a more opportune time to arrest him.

      Recommended Thumb up 1

  • Spiffy October 10, 2012 at 2:18 pm

    will there be a lawsuit against the city for them stealing his camera out of his hands during this event? that seems like a pretty clear act of squelching freedoms...

    Recommended Thumb up 1

  • Erinne October 10, 2012 at 2:20 pm

    Great news! But "Bob Markley"?

    Recommended Thumb up 2

  • darka dusty October 10, 2012 at 2:28 pm

    Long live the Disco Trike! Way to go Dan!

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  • Astrid October 10, 2012 at 2:42 pm

    I watched this whole scene unfold on livestream and there was 1. no violence near the trike and 2. the Disco music actually did relieve tension and brought fun into the evening. It was the PPD that brought violence to the otherwise happy and fun march.

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  • Astrid October 10, 2012 at 2:42 pm

    Thank you, Dan for the Disco trike and your spirit!

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  • Dan Kaufman October 10, 2012 at 2:59 pm

    Just to clarify Disco Trike owns me not the other way around.

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  • michael downes October 10, 2012 at 3:45 pm

    hooray for the Disco Trike!

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  • Zed Bailey October 10, 2012 at 4:08 pm

    Good to see a victory for free speech. Now let's disco on down to the next chapter in the Disco Trike.

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  • Mike Fish October 10, 2012 at 4:11 pm

    When's the victory ride?

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  • dan October 10, 2012 at 6:00 pm

    Not guilty?! Not guilty?! But Your Honor, this man is guilty as sure as I'm standing in front of you. Guilty of criminal awesomeness and excellence in bike hacking! I demand that the punishment fit the crime!

    [cue music from Disco Trike, all in courtroom perform Bollywood dance number]
    /

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  • John Lascurettes October 10, 2012 at 7:13 pm

    Speaking about the police officers' actions, the [state's] lawyer said, "... They could have come in and cracked skulls if they wanted to quell speech... but they didn't do that."

    Granted it seems that using excessive force is too common amongst the PPD (tasers anyone?), it's not exactly copacetic either. That the lawyer would seem so cavalier and flippant about even suggesting this sounds like (s)he was desperate by that point.

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  • Ron Richings October 10, 2012 at 7:26 pm

    Excellent result, Dan. Are you planning a "Disco Trike Freedom Tour" that might wend its way up to Vancouver, BC?

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    • Dan Kaufman October 10, 2012 at 8:45 pm

      Well start tomorrow 5:30pm at Vera for a kid-friendly victory lap around the river and then who knows where will go from there, Ron. I love that idea!
      Ride details: http://shift2bikes.org/cal/view3week.php#11-3349 - By the way, tomorrow is forecast to be the last day of the dry season.

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  • BellaBici October 10, 2012 at 8:25 pm

    Fantastic news! Go Disco Trike! Go Dan Kaufman!

    Sgt. Stebbins testified that music also had a calming effect. When asked if he was familiar with Bob Marley he returned a blank response, indicating that he was not.

    Bob Marley is definitely sedating.

    The night of the protest the Disco Trike was in music love mode and had a calming effect on the crowd.

    Sgt. Stebbins testified that when the Disco Trike was involved in protests that they tended to last longer than shorter. It was their expressed intent to suppress/arrest/confiscate the Disco Trike in order to suppress the protesters freedom of expression.

    The same tactics they used when they ticketed protesters for pedantic legal infractions. They intentionally ticketed to dissuade further freedom of expression. Stultifying free speech by the onerous application of legal/financial threats and intimidation.

    Testimony that irked me was when Sgt. Stebbins commented that the loud traffic noise was abating and thus the Disco Trike could be heard more clearly. (it was near 7PM) The real noise culprit is the loud nature of automobiles. They get a noise "pass" every day by default.

    And, Jonathan, thank you for following this story (and of course MANY others) from beginning to end!

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  • Joe Rowe October 10, 2012 at 10:34 pm

    Win or lose, the city faced a loss, and Dan faced a win-win. This is a very liberal judge. If Dan was assigned a right wing judge, the appeal would have been even better for Dan.

    I lost a critical mass case in lower court to a rude and interupting judge who could not read the law. Judge Larson. He's a fake advocate for bikes. Then 3 judges ruled in my favor in the Oregon Court of appeals. The ruling stated that cops can't order peaceful people on a sidewalk to move along. Appeals court decisions have a much better chance at protecting freedom of speech and assembly.

    Dan, you rock, literally.

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  • Hart Noecker October 11, 2012 at 2:04 am

    While knowing only some of the details of this case, noise ordinance violations are obviously something the police enforce as a convenience. The PPB's own website even suggests that when the issue involves neighbors they would prefer people attempt to resolve the problem themselves before calling the police. While this seems ideal, it seems the police should have taken their own advice and could approached Mr. Kaufman in a more neighborly manner and requested he refrain from playing music at that time. Who knows, perhaps they one of them tried at some point, but it just doesn't seem like their style.

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  • Tyler w October 11, 2012 at 5:21 am

    Hooray!

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  • Jonathan Maus (Publisher/Editor) October 11, 2012 at 10:16 am

    Hey folks, I've updated the story with a PDF of the full judgment statement. Sorry didn't include it initially.

    PDF of judgement

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  • Ken Southerland October 11, 2012 at 3:33 pm

    Congrats Dan and music lovers everywhere!

    Recommended Thumb up 1

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