Violation of Jeff Higley's Civil Rights by SMCPD

As previously indicated in our SAVE SMC blog article, "Des Manttari Defends Student Rights at SMC," Santa Monica College student Jeff Higley has been championing the rights of students at SMC, helping to document problematic events and public issues through his videotaping. He courageously videotaped me as I addressed a rather rude and inattentive Board of Trustees during public comments on April 10, 2006.

Rather than be embraced by the SMC community, Judith Penchansky (Assistant Dean of Judicial Affairs) has sent a "disciplinary" letter to Mr. Higley, proclaiming that he is "argumentative, disruptive, and rude" and has allegedly violated the SMC Student Code of Conduct for his alleged conversation with three SMCPD officers on or about May 18, 2006. His conversation entailed his legitimate concerns about being threatened with wrongful arrest by SMCPD Officers Michael Champagne, Steve Hearn, and Willie Malone.

Here's Mr. Higley's written commentary in his own words:

These officers filed an incident report with SMC alleging that I was being "argumentative, disruptive and rude." The school "Disciplinarian," Judith Penchansky, sent a letter requiring me to meet with her. She said she wasn't interested in seeing any videotape I might have to contradict the officer's allegations.



His alleged crime? Attempting to videotape a campus event near the SMC clocktower. Ironically, this area is designed as a "Free Speech Area" pursuant to SMC Administrative Regulation 4430. The school's AR 4430 code defines the Free Speech Area as follows:

The Free Speech Area is defined as the area at the Art Complex grass area, and the Main Stage grass area. Any person may speak in the Free Speech Area at any time. Speech in this area may not be amplified by use of any sound or voice enhancement equipment, unless an Application for Use of Campus Facilities is approved by the Dean of Student Life or designee. [emphasis added]

Now, Jeff Higley was politely seeking clarification and responding accordingly to the three officers in question. The Free Speech definition does not confine one's choice or manner of speech, only the use of any sound or voice enhancement equipment to amplify it, which Mr. Higley did not use. Mr. Higley's freedom of speech is also set forth in SMC AR 4450 in the Student Bill of Rights. AR 4450 makes clear the following in its Preamble:

Academic institutions exist for the transmission of knowledge, the pursuit of truth, the intellectual and social development of students, and the general well-being of society. Free inquiry and free expression are indispensable to the attainment of these goals. As members of the academic community, students should be encouraged to develop the capacity for critical judgment and to engage in a sustained and independent search for truth.

Not only does the Student Bill of Rights allow Mr. Higley to exercise "critical judgment," it "encourages" such. Surely one cannot fault Mr. Higley for seeking clarification if he would be arrested by the SMCPD for videotaping a campus event, given that he was in an established Free Speech zone.

Now, the Santa Monica College Police Department (hereinafter, "SMCPD") touts on its website in its animated banner: "Service to Students and Community." So, if that is so and not deceptive advertising, then why were these three officers so rude and aggressive against Mr. Higley? It was not only the tone of Officer Champagne's voice as he threatened Mr. Higley with arrest, but his in-your-face violation of Mr. Higley's personal space. In the video footage, Champagne seems to tower over this innocent student as he provides his verbal backlash. Clearly, this is not a community of mutual respect and goodwill, but one of intimidation, hostility, and silencing of student inquiry and freedom to participate peacefully in a campus event.

Officer Champagne threatens jail time for Mr. Higley if he violates the law, which he defines as the possible failure of Mr. Higley to follow a "lawful order" which was not to videotape the event. Ironically, the event Mr. Higley was attempting to videotape was a public event, open to all students free of charge, entitled "Celebrating Spoken Word Through Unity and Diversity." So, if Mr. Higley is a student at SMC (of which the event was intended), a public school, and he was in a Free Speech Area, quietly videotaping a public performance, and he did not amplify his speech or disrupt the performance in any manner with his words or video documentation, then what is the charge that Officer Champagne considers a "lawful order" instructing Mr. Higley not to tape this newsworthy event? I have found none at all that would justify the restrictions on Mr. Higley's words or right to videotape on that date.

I searched the monitoring law online regarding the use of videotape. In order to willfully violate the law, one would have to fail several Constitutional tests, of which California adheres to. The key issue revolves around the expectation of privacy a person would have at this event. SMC is a public school (funded by the public's tax dollars and student tuition) and the event took place in the most public of campus locations: in the central area where club row, free speech events, and public performances take place. Truly, there could be no expectation of privacy or guarantee of privacy at this event by Santa Monica College or the state of California.

Did Mr. Higley violate the illegal wiretapping law? His video camera was out in the open, for everyone present to see. It was not hidden or concealed in any way. Thus, Mr. Higley did not infringe on anyone's Fourteenth Amendment rights that protect unreasonable search and seizure. Any expectation of privacy would be unreasonable, given that any surveillance allegedly undertaken by Mr. Higley's videotaping was in an area open to public view.

Now that we've overcome that Constitutional hurdle of Mr. Higley's rights to videotape the event, let's examine his rights to videotape the SMCPD in question. Officer Champagne ordered: "Do not film us and do not try to interview us." Again, he threatened false arrest when he barked: "You'll go to jail and it's not a funny thing that's going to happen to you." Oh, what was Officer Champagne planning to do to Mr. Higley if he was taken wrongfully into custody by the SMCPD? I cringe at the thought of further violations of Mr. Higley's civil rights and due process.

Vega-Rodriguez v. Puerto Rico Telephone Co., [CA 1, No. 96-2061, 4/8/97] finds in favor of Mr. Higley's right to videotape the campus police under the Federal Circuit's Appeal decisions. The Vega-Rodriguez case focused on reasonable expectation of privacy, which it made clear could not exist for employees (of which category the SMCPD officers fall under) working in an "open and undifferentiated work area."

The "wiretap law" is set forth in The Electronic Communications Privacy Act of 1986 ("ECPA"), which is an amendment to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. A U.S. District Court case, Thompson v. Johnson City Community College, 11 IER Cases (BNA) 1610 (U.S.D.C. Kan. 1996), held that soundless video surveillance of security officers of a Kansas community college was not in violation of the ECPA's statutory law. In this case, the Fourteenth Amendment rights governing reasonable privacy were not violated even though the open and public area in question was a open dressing area/locker room/storage room and not the outdoor environment that is found in Mr. Higley's case. The Thompson case was upheld by the 10th Circuit.

Additionally, Mr. Higley was not videotaping the event for financial gain or commercial use, thus infringing on any copyrights the performers may have had. Rather, he was videotaping the event for general public awareness of the SMC community at large. Since Mr. Higley is a known advocate for disabled student rights at SMC as is evident in his support in videotaping my speech advocating such rights, it is feasable that his video footage, combined with his knowledge of technology, would have afforded a rare opportunity for those with auditory problems to have a closed caption visual record of this event. For this possible use of his video footage, and for standing up for student's civil rights, he should have been applauded, not sanctioned, by Judith Penchansky's less-than allegedly ethical disciplinary mill and the hostile demeanor of the SMCPD, especially Officer Mike Champagne.

Dean Penchansky, in her usual protocol of due process violations, has refused to provide Mr. Higley with a copy of the alleged police report filed by the SMCPD regarding this event. The SMCPD is insisting that it will take them 10 business days to produce the incident report and Mr. Higley will probably be required to pay a fee for it even though Penchansky obviously has a copy in Mr. Higley's newly created disciplinary file. This is a further violation of Mr. Higley's rights to access to his student records. Of course Penchansky was insisting that Mr. Higley attend one of her kangaroo disciplinary meetings this coming Tuesday until Mr. Higley objected and Penchansky backed down with an extension of time until Mr. Higley obtains the SMCPD report.

The burning question in my mind is as follows: If the SMCPD did not feel that Mr. Higley had committed a crime, and he was not charged with any crime under the California Penal Code that day, then why is Penchansky usurping the California laws with her overly vague one-size-fits-all "disruptive student" SMC Student Conduct Code? Even if Penchansky were allowed to discipline Mr. Higley for alleged student misconduct, her allegations that he was "argumentative, disruptive, and rude" does not fall into SMC's own definition of "disruptive" as set forth in the Santa Monica College Faculty Handbook, a resource designed to inform SMC faculty of the college's policies. On this SMC webpage, the following definition of student misconduct regarding disruptive behavior is defined as the following:

"Disruptive" refers to all behaviors that interfere with the legitimate instructional, administrative, or service functions of the college. This would include the behavior of students (or non-student intruders) who verbally threaten or abuse college staff or other students, physically threaten or assault others, willfully damage college property, use illegal drugs or alcohol on college grounds, interfere with the learning environment by disruptive verbal or behavioral expressions, or persistently make inordinate demands for time and attention from faculty and staff.

Wow! "Argumentative" and "rude" aren't mentioned here. Besides, Mr. Higley's video footage shows that he was being as compliant and polite as one could under such a hostile and threatening scenario as the one he was exposed to by the SMCPD. At no relevant time did Mr. Higley "threaten or abuse college staff or other students, physically threaten or assault others, willfully damage college property, use illegal drugs or alcohol on college grounds," or any of the other alleged violations listed warranting discipline by SMC's Office of Judicial Affairs, of which Penchansky's public servant job falls under.

And what precisely does "verbal and behavioral expressions" mean? There's not a single example that would explain this to a faculty, staff member, or student confronted with the challenge of interpreting this ambiguous code of misconduct. Perhaps Judith Penchansky prefers it that way, as it allegedly provides her job security in her role as campus disciplinarian as well as a perfect venue for her censorship of students who attempt to exercise their rights to free speech and academic inquiry.

Oh, and what about those due process rights of being presumed innocent until proven guilty? They completely flew out the door in Mr. Higley's case with the SMCPD and Judith Penchansky. On May 24, 2006, the very same day that Mr. Higley posted my disability advocacy speech to the SMC Board of Trustees online, not only did Penchansky whip up a discipline letter to Mr. Higley, but the SMC Corsair student newspaper staff took it upon themselves to publish a very libelous account of the whole civil rights fiasco, of course in the school administration's favor and not in Mr. Higley's defense.

In fact, SMC deliberately published this information knowing that Mr. Higley had not yet even been afforded an opportunity to present his side of the events for Penchansky's scrutiny, that no police incident report had been forthcoming, and that campus police had not found Mr. Higley in violation of the law as he immediately complied with each and every one of their unreasonable requests to the best of his ability. Yet, knowing this, the SMC Corsair provided a rather yellow journalism version of the event, for all of the SMC community to see, of the SMCPD springing into action defending the alleged rights of the college to protect it from Mr. Higley. Not only is Officer Malone in the photo with Mr. Higley, but the Vice-President of Academic Affairs, Jeff Shimizu. Interestingly, he appears nowhere on Mr. Higley's videotape, to the best of my knowledge, and Officer Hearn didn't even speak to Mr. Higley in the video clip I watched.

The Santa Monica College smear campaign against Mr. Higley, as set forth in the May 24th issue of the Corsair reads as follows under the photograph of Mr. Higley with her aggressors:

Student Jeff Higley (left) is confronted by campus police after attempting to videotape the Latino Student Union's presentation of the Spoken Word near the clocktower on Thursday, May 18. When asked not to videotape the performers, and when he choose (sic) not to comply with the performer's request the campus police and SMC Vice President Jeff Shimizu were called in to deal with the situation.

Here's a nice series of screenshots I made from the first of two video clips made by Mr. Higley, revealing clearly who was at fault:


CLOCKWISE FROM LEFT TOP: SMCPD Officers Steve Hearn and Willie Malone ignore SMC student Jeff Higley; SMCPD Officer Mike Champagne confronts Higley; Champagne moves closer; Champagne in now in Higley's face.

Enough talk, let's watch the video footage shot by Jeff Higley:



For those who are visually or auditorily impaired, I have provided a quick transcription of the relevant part of SMCPD Officer Michael Champagne's conversation with Jeff Higley.

---------------- AUDIO TRANSCRIPTION OF VIDEO FOOTAGE --------------

CHAMPAGNE: You know what? You're out of line and he gave you a lawful order.

HIGLEY: Which was that?

CHAMPAGNE: You're not to tape this event.

HIGLEY: I'm not taping the event.

CHAMPAGNE: Okay, do not play with us or we will take you to jail.

HIGLEY: On what charge? Here's an important thing to understand--

CHAMPAGNE: If you don't follow a lawful order, that is a charge. Do you understand? Do you understand me? I'm not playing with you. You're going to go to jail.

HIGLEY: For what charge?

CHAMPAGNE: You're going to go to jail for interfering with a police officers [sic] of not following a lawful order.

HIGLEY: I am following the order.

CHAMPAGNE: All right, You need to stop messing with us. Do you understand?

HIGLEY: How am I messing with you?

CHAMPAGNE: Do not film us and do not try to interview us--

UNKNOWN PERSON: He's taping you... [inaudible dialogue].

CHAMPAGNE: --to keep us from doing our duties. Okay? We're not here to play with you.

HIGLEY: I'm not playing. This isn't play.

CHAMPAGNE: Understand? You'll go to jail and it's not a funny thing that's going to happen to you.

HIGLEY: You're right; it's not funny.

CHAMPAGNE: All right.

HIGLEY: It's not funny at all.

CHAMPAGNE: You have to cut it out. Now do whatever you're gonna do. Film the people who want to be filmed. But do not film this event of you're going to jail.

HIGLEY: I'm not filming the event.

CHAMPAGNE: All right, now go away. Go away from me now.

[Officer Champagne waves Higley off dismissively].

You can read Mr. Higley's editorial entitled "Widespread Police Misconduct Reported at Santa Monica College" HERE.

-- Des Manttari,
Editor-in-Chief,
Phoenix Genesis

(c) 2006: Phoenix Genesis/MBS LP

Feel free to link or print this; just include the SAVE SMC URL: http://savesmc.blogspot.com/

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