Ticketed Motorist Claims Rights Violation for Honking at Protest By MATTHEW ARTZ

Friday April 22, 2005

Driving home close to midnight after an 11-hour workday last August, Carol Harris never expected to become embroiled in a free speech fight.  

But when the 51-year-old Oakland resident saw union protesters outside the Claremont Hotel holding up signs urging motorists to honk in support, she said she gave three quick beeps. The next thing she knew a Berkeley police officer had pulled her over on Tunnel Road and given her a $143 ticket for “Unreasonable use of horn.” 

“It was my First Amendment right to honk,” said Harris, who lists her occupation as a freelance worker. “I can empathize with what the protesters were doing. I had just finished being paid $11 an hour standing on my feet all day as an usher. And they don’t give me health insurance either.” 

Harris filed a complaint with Berkeley’s Police Review Commission, and this Thursday, a three-member panel of the commission will decide if BPD Lieutenant Wesley Hester violated his discretion in ordering police to ticket passing motorists who honked in support of the protest. Police estimate they wrote between 30 and 40 tickets for “unreasonable use of horn” outside the Claremont Hotel late night Friday August 27. 

In a taped interview with the Police Review Commission, Lt. Hester defended his decision. “Every licensed driver is supposed to know the rules of the road and [the rules] strictly prohibit the use the horn unless it falls under certain parameters,” he said. “It was not appropriate in my opinion in this situation.” 

Hester said the BPD had received numerous calls from residents across the street from the Claremont’s entrance on Tunnel Road complaining that the protesters were keeping them awake. 

“It generated so many calls over the course of several hours that it was necessary to send people there just to minimize the discomfort that the neighbors were feeling,” Hester said. 

Police succeeded in stopping protesters from banging pots and using megaphones after 10 p.m., Hester said, but as the honks persisted, he ordered officers to enforce the vehicle code that states that a driver may use the horn only “to ensure safe operation” of the car. 

The Police Review Commission doesn’t have the power to overturn Harris’ ticket, but if it finds in her favor it can seek to initiate a new city policy against ticketing motorists who honk in support of demonstrators.  

“I want to make sure that no one else is extorted out of $143,” Harris said. 

The case is not cut and dried, said Jesse H. Choper, a constitutional law professor at Boalt Hall. “Does the interest in having privacy and quiet at 11:45 p.m. overcome her First Amendment interest? It’s a close call.” 

Choper added, “I don’t think the lieutenant abused his discretion. It was a reasonable action, but reasonable is not always good enough when first amendment rights are concerned.” 

Choper called on the city to draft a clearer policy on horn honking for future cases. As for the ticket: “If I were the traffic court judge, I’d rip it up. It was excusable.” 

Harris said she chose not to fight the ticket because a “courtesy notice” from Berkeley traffic court said she had been cited for “use of horn” rather than “unreasonable use of horn” as stated on her ticket. 

“I couldn’t dispute that I honked the horn,” she said. “If you argue with a judge, especially one of those mean ones in Berkeley, it’s futile.” 

The protest, organized by the Oakland-based Hotel and Restaurant Employees Union Local 2850, was meant to commemorate the three-year anniversary of their boycott against the Claremont, which has not come to terms with spa workers. 

In a previous interview with the Daily Planet, former union leader Claire Darby said demonstrators tried to make a sign warning protesters not to honk after police decided to start issuing tickets, but couldn’t find anything big enough to convey the message in the dark. She added that neighbors had complained about the 27-hour protest and asked them for warning before scheduling another. 

Harris had little sympathy for hotel neighbors. “They can complain all they want to,” she said. “If they don’t like it they should move to a strictly residential street where there isn’t a major hotel and thoroughfare.” 

She did empathize for the officer who ticketed her, Thomas Grove, who she said apologized for having to issue the ticket. “He wasn’t rude in any way,” she said. 

Asked how he handled the traffic stops in an interview with the PRC, Grove said, “It’s the first citation I’ve written for unreasonable use of the horn so I understand people having some issues with it. I just tried to explain it the best I could to people.”