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The Berkeley City Council is getting involved in the case of a Berkeley man who has been screaming at children playing in the Becky Temko Tot Lot on Roosevelt Street for the past six months. 

Councilmembers will meet in executive session at City Hall Monday to discuss the disturbance. A public comment session will precede the closed-door meeting. The meeting will be held at 5 p.m. in the Redwood Conference Room at 2180 Milvia St. 

The Berkeley Police Department forwarded a citizen’s complaint to District Attorney Tom Orloff to prosecute Art Maxwell, the man who has been seen frequenting the tot lot, repeatedly screaming at the children and making them cry, for disturbing the peace at the park. 

Councilmember Dona Spring, who represents the neighborhood, said Maxwell’s behavior was psychologically abusive to the children and called for his arrest. 

Sgt. Mary Kusmiss, spokesperson for the Berkeley Police Department, told the Planet Thursday that Marty Brown, the D.A. handling Berkeley cases, had reviewed the crime report and had decided not to charge Mr. Maxwell. 

“He felt that the actual elements of the complaint did not meet the threshold of the violation he was cited under,” she said. “However, he has not ruled out the possibility of a future charge that better fits Maxwell’s actions.” 

According to Kusmiss, Maxwell was placed under citizen’s arrest and issued a misdemeanor citation under Section 415 of the Penal Code—which stands for disturbing the peace and using offensive words—after he started calling a neighbor and another man words such as “motherfucker” and “turd.” 

The neighbor said that Maxwell started throwing items at a fence separating Maxwell’s house from the park and continued yelling at him. 

Roosevelt Street residents have complained about Maxwell for months through community meetings, e-mails and public forums. 

When the complaints first surfaced, Lt. Wes Hester, another spokesperson for the Berkeley Police Department, said that Maxwell was within his free speech rights to yell as much as he wanted to. 

Calls to Lt. Hester or the neighborhood area coordinator Officer Casimero Pierantoni for comment were not returned by press time Thursday. 

“Although it was inappropriate behavior, it did not meet the criteria for violating the law,” Kusmiss said. “We recognize that people were frustrated but we have to operate within a strict framework of law. Berkeley doesn’t have any anti-profanity laws ... It just turned out to be more of a conflict than we had hoped for.” 

Although the city’s mental health services met with Maxwell, who lives next to the tot lot, no action was taken. He also declined mediation services from the city. Sound recordings taken at the tot lot did not show any evidence of violation of the noise ordinance. 

In a letter to the D.A.’s office on Dec. 4, Spring has asked the courts to prosecute as well as to issue a restraining order against Maxwell. 

“The district attorney will decide whether to prosecute him,” Spring told the Planet Monday. “This has been going on for a long time now. The Berkeley police could not arrest him or find a violation against him because of free speech. But he has used his free speech in such a way that it has psychologically affected children and their parents. He says that the children make too much noise but it is no more noise than any other tot lot in the city. He has either to live with the noise or go away.” 

Dozens of parents have e-mailed or called Spring to protest about Maxwell’s threats of getting children arrested, photographing them and blaring obscene rap music while they play or use the swing at the tot lot. “My direct experience with Mr. Maxwell in the last six months is through angry messages he left on my home office answering machine,” Spring wrote in her letter to the D.A.  

“These messages were loud and angry harangues regarding a litany of impositions of the tot lot’s impact on his life. He said his anger was justified because of failure of the city or myself to shut the park down. The messages would end with threats such as, “I’m about to lose it,” “I am sick of it” or “I’ll step up the fever pitch.” 

Spring said that she declined to meet with Maxwell to sort out his grievances because of his abusive phone messages. 

According to neighbors, Maxwell’s latest attempts at terrorizing visitors to the tot lot included screaming profanities and hurling glass bottles against a plywood board on the fence of the tot lot. 

“He is being totally unrealistic,” Spring said. “He basically wants to shut the tot lot down. But the city has no intention of doing that.”