Saturday, January 22, 2011

City on a Hill attends Song-Crime Appeals Hearing


In the original version of this story published on January 20, a second part of Becky Johnson’s quote was erroneously left out of the published story. The paragraph should read “It was really hard for us to hear that singing for three hours continuously in one spot would be unreasonable,” Johnson said. “I sang less than half an hour and we had 7 witnesses.”

City on a Hill Press regrets this error. This post was updated on January 22 to reflect this change.

Homeless Activists Ruled ‘Unreasonably Disturbing’
Judges say citations justified under city ordinance for noise violation

Published January 20, 2011 at 2:37 am

Becky Johnson was ruled as “unreasonably disturbing” by Santa Cruz County Superior Court. Johnson’s challenge to the city ordinance was denied. A homeless activist, Johnson was cited for singing downtown. Photo by Sal Ingram.

The Santa Cruz County Superior Court recently ruled homeless rights activist Becky Johnson “unreasonably disturbing” and defended the language of the Santa Cruz noise ordinance against accusations of unconstitutionality.

The case involved tenant Sean Reilly, who complained to the police about noise from Johnson’s homeless activism group under his window on Pacific Avenue around 11 a.m. on a day in January last year. Reilly works the night shift at his job and sleeps during the day.

Local attorney Ed Frey represented Johnson in her appeal hearing on Jan. 6. A longtime friend of Johnson, Frey challenged the noise ordinance as being “too vague” as applied to her case.

The noise ordinance has been a highly contested issue among many groups in the Santa Cruz community, most notably the homeless population and the student population. The panel’s decision has far-reaching consequences in the social and political realms.

Controversy arose over a misplaced semicolon in the prosecution’s presentation. Frey argued that it changed the meaning of the ordinance by making it possible to receive a citation when only violating one part.

“If your noise [is] too harsh, it’s too prolonged, it’s at a high volume, it’s physically annoying … if all of those elements are together,” Johnson said, “then there’s reasonable cause to issue a citation. Ed was pointing out that if you take all of these things and put them together, that would be a reasonable ordinance.”

However, the bench saw the issue differently. Judge Ariadne Symons said the singing was too close to residential units to be considered reasonable.

“Were it a completely commercial street with no residences, I think this would be a different analysis,” Symons said.

Johnson said a police officer walked by her group standing outside of Bookshop Santa Cruz without approaching them. She said this showed that the police officer thought the singing was reasonable.

However, upon receiving a complaint from Reilly, who lives above Bookshop Santa Cruz, citations were issued to four individuals. Among the four was Johnson, who had been handing out pamphlets regarding homeless issues and singing songs with a small group on Pacific Avenue.

Frey saw the ruling as socially and politically motivated on the judges’ part.

“If they rule in favor of the likes of Becky Johnson or a homeless person, they are not likely to be welcome in their social circles,” Frey said. “What other explanation could there be? Certainly no valid constitutional one.”

Frey said that residents that live over Pacific Avenue and sleep during the day are not of “ordinary sensitivity,” but Judge Burdick, another judge on the panel, disagreed.

“We have rejected that argument,” Burdick said. “Someone who works the graveyard shift and sleeps during the day is a common occurrence.”

Local activist and radio host Robert Norse sees the ruling as part of a pattern that has arisen in Santa Cruz.

“Musicians are being driven away at the slightest pretext,” Norse said.”[The city is] using these local ordinances to go after them.”

Norse participated in the tabling for homeless rights the day Johnson was cited. Both Norse and Johnson said they noted inconsistencies between their experiences on Pacific Avenue and how the court weighed the evidence. Johnson claims the court got some basic facts wrong.

“It was really hard for us to hear that singing for three hours continuously in one spot would be unreasonable,” Johnson said. “I sang less than half an hour and we had 7 witnesses.”

Norse said the content of the songs and literature may have been the reason for the citation.

“The judge gave the appearance of fairness, but did not let some of the basic facts of the case come out,” he said. “Our case, of course, is the case of people in front of Mayor Coonerty’s bookstore, criticizing Mayor Coonerty’s anti-homeless laws.”

As the judges left the courthouse, Norse broke into song. He chose one of the songs Johnson had been cited for singing. Lyrics penned by Norse, the song is to the tune of Petula Clark’s classic “Downtown.”

“Don’t let them steal your rights, Downtown!” Norse sang. “Tickets are waiting for you.”

Judge Gallagher: "Sleeping is not a constitutionally-protected activity"

On August 29, 2010 two protest signs displayed as part of Peace Camp 2010's protest against the Sleeping Ban, at Sana Cruz City Hall. At the time, Gary Johnson was in jail in solitary confinement and on a hunger strike after having been arrested for illegal sleeping. Photo by Becky Johnson.

UPDATE JAN 27 2011--Ed Frey informs me that the Gallagher decision will be appealed. The trial for the Peace Camp Six has been rescheduled for April 25, 2011.---- ed

by Becky Johnson
January 22, 2011

Santa Cruz, Ca. -- As predicted, JUDGE JOHN GALLAGHER turned down local attorney, ED FREY's motion to dismiss charges against himself, and 5 other defendants arrested under the State's 'anti-lodging' law. The District Attorney's office opted to oppose the motion, represented by Assistant District Attorney, SARAH DABKOWSKI. Now, barring any new development, the Peace Camp Six defendants go to trial this January 31st with pre-trial motions and jury selection.

Not all defendants appeared in court. Unofficial spokesman for Peace Camp 2010, CHRIS DOYON was conspicuously absent from the proceedings. Attorney, ED FREY, admitted he had no idea why Chris wasn't in court, but, informed Judge Gallagher that "Mr. Doyon lives in a very rural area in north county and has no telephone." No warrant was issued,

July 10, 2010, Peace Camp 2010 has grown to 20, and no one has yet been ticketed. People are getting a good night's sleep while sleeping safely in numbers on the courthouse steps. Photo by Becky Johnson

but Gallagher ordered Doyon to physically be present at the next appearance.

At issue is the untested, misdemeanor 647 (e) State anti-lodging law which prohibits 'lodging' (which is undefined) anywhere within the entire State of California! If the DA is serious about making these charges, why are cities and counties all across the state not trumpeting how the Santa Cruz District Attorney has found the cure for homelessness? Arrest and jail them ALL! Now!

Therein lies the conundrum. If every homeless person, who lacked a deed to property, a home mortgage, a lease, a rental agreement, or at the very least, a motel room receipt, were arrested, our jails would explode. With a cost of about $65,000 per inmate per year to keep a person in jail, we could afford to house every homeless person in America in a 3 bedroom home instead.

Does the State of California really expect police and sheriffs to arrest every homeless person and traveler on the spot, jail them, provide a defense attorney if they are too poor (and they ALL are too poor), and jury trials for each charge. Is this the world DA Bob Lee wants to bring about? Arresting and jailing EVERY homeless person and out of state tourist minus a motel receipt?

Furthermore, Santa Cruz County Sheriffs appeared to only enforce "lodging" charges if a person was sleeping. Does "lodging" = "sleeping?" And how can sleeping be illegal?

PC 647 (e) Who lodges in any building, structure, vehicle, or place,
whether public or private, without the permission of the owner or
person entitled to the possession or in control of it.

ED FREY, several of the Peace Camp Six defendants, including COLLETTE CONNOLLY, ARTHUR BISHOFF, ELIOT ANDERSON, and GARY JOHNSON appeared in court at 1:30 PM as demanded. However, Judge JOHN GALLAGHER was nowhere near ready. He was still going thru his arraignment calendar and several people had been there all day and still were not done.

DAN COYRO, photographer for the SENTINEL asked Gallagher about his motion for permission to make recordings for broadcast. Gallagher said that he wouldn't deal with that matter "until about 4:30 or so. No. More like 4PM. " Coyro asked if he would be allowed to make a recording then. "I'll deal with that matter when I call the case." Coyro left and never returned.

"Shall we return at 4PM then?" asked ED FREY.
"You're welcome to leave and come back," Gallagher stated, "but you have to be here when I call the case." This meant all lawyers, defendants, reporters, supporters, and witnesses needed to hang around (or leave) until sometime indeterminate before or after 4PM. Gallagher then launched into his rote speech proclaiming how his role is " to serve the public."

Neither COLLETTE CONNOLLY nor ARTHUR BISHOFF would be sleeping in the shelter that night. Both had missed the 3:30PM line up at the Homeless Services Center for a bed that night. Both would be illegally "lodging" in order to comply with Gallagher's whimsies.


ED FREY asked GALLAGHER for permission to have an official recording made of the hearing.
"It IS being recorded by the court's recording system," Gallagher told Frey. He acted as if this was a regular or usual practice. Very different from JUDGE PAUL BURDICK's claim that "requests for permission to record must be made in writing 5 days in advance of the hearing." What IS the court policy on making recordings? Is it usual in GALLAGHER's court and forbidden in JEFF ALMQUIST's court? How can this be so arbitrary and capricious?

FREY asked GALLAGHER to take judicial notice for three items. The first was the statement that the courthouse steps and the City Hall grounds are "a place traditionally used for pubic protest."

At first GALLAGHER fought granting the notice. "I've lived in this county 32 years, and if I had to say for a fact, I'd have to say "no". FREY argued "MIKE ROTKIN spoke from the steps of the County building just a few weeks ago in a demonstration led by the SEIU. SAM FARR spoke here to hundreds. I've been through thirty at this location myself," Frey countered.

DA SARAH DABKOWSKI weighed in with "Judicial notices are irrelevant, and does not go to the argument."
"I'm granting your request for judicial notice number one," decreed Gallagher.

FREY: "The second request for judicial notice is "the defendants purpose was to protest the Sleeping Ban."
GALLAGHER: "I'm denying that request."
FREY: "The last request I have is this "It is safer to sleep in groups than by yourself."
GALLAGHER: "Denied."

Ed moved on to make his opening arguments. "The ninth amendment has hardly ever been used" but "the purpose of the 9th Amendment, according to the author of the Bill of Rights, is to make it clear that the rights of the people are not limited to those which have been enumerated."

FREY: "For instance, the right to breathe is not in the Constitution. In fact, if we were to try to list all these rights, we'd quickly find they are too numerous to mention. And the right to sleep has to be one of these unenumerated rights, as long as they don't impact anyone else' rights."

Gallagher put forth that the Constitution "protects political rights but not physical rights."
Frey contended that the 9th Amendment is meant to be "extremely broad, where the people retain the rights to do anything they want as long as they don't violate anyone else rights."

FREY: "Our second set of rights lie under due process of law. The law we're dealing with outlaws "lodging" any time or place, with no limitations whatsoever. "Lodging" is not defined. A person has no way of knowing what is prohibited."

FREY: " Lodging as it's always been interpreted has to do with some structure. Lodging in a house or trailer. A person sharing a room with the owner of a house can be called "a lodger." The other definition of "lodged" is such as when an object gets "lodged" between two rocks, but I don't think that is the meaning that was intended."

FREY: "How is a person to know what they can or can't do?" And under our lodging laws, involving tenants, you can't be ousted by police unless you've been given a 7-day notice."

FREY: "If I was just sleeping in front of the courthouse, I'm not a lodger. We have no contract. We just came and slept. We don't think we are lodgers and so the law doesn't apply to us. Sheriff's and police have no guidelines on how to enforce this ordinance so they don't know who is breaking the law and who isn't. This leads to arbitrary and selective enforcement."

"Why should any place be unprotected?" Gallagher asked.
"What we need are reasonable guidelines. The people have a right to be here, the right to remain here. If a person is homeless, he resides anywhere he is found until he leaves." Frey argued that the Ninth Amendment is "not just pretty sounding words."

Ed concluded with "The right to safety includes the right to sleep."

July 4th 2010, Ed Frey (in orange) totes a porto-pottie to the steps of the Santa Cruz County Courthouse to provide hygienic services and begins Peace Camp 2010, a protest against the Sleeping Ban. Photo by Becky Johnson


DS Sarah Dabkowski decried Frey's "unprecedented request" and that there is "no law which supports his untimely request." She argued that 647 (e) is not vague. "It does put people on notice. I does have sufficient definite guidelines for law enforcement. To 'lodge' somewhere, it's common knowledge. To lodge, live, stay the night, where they don't have permission."

"A person coming up the courthouse grounds at night should ask, what is it I can do here? I can't file a court case right now since the court isn't open. And I should know that no person gave me permission to sleep here."

"There is no ninth amendment right here. There is no "right to sleep." Sleep may be a need and we're not unsympathetic to the plight of the homeless. But there is no Ninth Amendment violation in this case. Nor in the California State Constitution either."

"Defendants were not cited for their speech. They were cited for their conduct. There are reasonable time, place, and manner restrictions. You can't reside in places where you don't have permission. These laws are reasonable and necessary to maintain the cleanliness of government facilities. It is reasonable that you can't lodge in a place where you don't have permission."


"When the DA says there is no law which enforces our notion that the 9th Amendment grants us a right to sleep, it is saying that if you are so poor you can't afford a motel room, you can't sleep. And that is legally and morally reprehensible."


"I'm going to deny the motion to dismiss," Gallagher ruled. "Sleeping is not a Constitutionally protected activity. I am not unmindful of plight of homeless people. But I don't think it was the intention of those who drafted the Bill of Rights to allow people to sleep on ANY public or private property without permission. They did not envision an ingrained "right" to sleep anywhere they wanted."

"The Constitution elucidates political rights, not activities meant to support human functions. The people who wrote the Constitution did not intend it to allow the right of the people to sleep anywhere they wanted."

So now the DA and the Peace Camp Six are slated to go to a jury trial beginning on January 31st. If found guilty, the sheriff's can begin arresting and jailing the estimated 2200 homeless people in Santa Cruz County immediately. Let the Gulag's begin.

See also "Judge denies dismissal of camping tickets from Peace Camp 2010" by Cathy Kelly Jan 22, 2011 found here.

Thursday, January 13, 2011

Maybe it's legal to sing in a park?

by Becky Johnson
January 13, 2011

People of the State of California vs. Becky Johnson
Cal Note: SCTo73906 infraction

Note to reader: This is my personal account of the hearing written shortly afterward from my notes. Much of it is my best attempt at a transcript of what I heard said intermingled with a few clarifying comments. ---Becky Johnson

Santa Cruz, Ca. -- In the appeal of my conviction for singing on Pacific Ave. last January 6th, I thought that singing a few songs in the Free Speech Zone in the middle of the afternoon in my normal, unamplified voice would be protected free speech. I was wrong.

This is a case where the City acted to prevent the disturbance of the sleep of a 31-yr-old man napping in the middle of the day inside his own apartment located on a busy, urban corridor. The City had to have concluded I was guilty in order to send in a City attorney to argue for my prosecution, since the charge was based solely on the complaint of one citizen. I went before a three-judge appeals panel consisting of Judge Paul Burdick, Judge Timothy Volkmann, and Judge Ariadne Symons. Symons had replaced Judge Jeff Almquist, because he could not be expected to rule impartially on his own verdict. Symons is considered impartial.

Representing the People of California was City Attorney Caio Arrellano, paid for by the City Attorney's office. My attorney was Ed Frey. In court, observing the proceedings were Robert Norse of Free Radio Santa Cruz, Steve Pleich, former and future city council candidate, Linda Lemaster, Ailene Smith, Free, and two reporters from City on a Hill Press.

Judge Paul Burdick announced that no recording would be allowed in court "because any such request must be made in writing five days prior to the hearing." I'm not aware of any such rule. I'd always understood that whether to make a recording or not depended on the discretion of the judge. Burdick then announced that they had no such equipment immediately available to make a recording. Robert Norse, jumped up from the audience, and offered to make a personal recording. Burdick quickly denied him.

This mirrored my original trial last April where I HAD gone through the process ahead of time and secured the agreement with the court that an official recording would be made of the proceedings. In that case, Almquist reversed that order and refused to allow any official recording to be made. Refused two motions to make a recording for broadcast purposes and a 2nd recording request to make a personal recording. Almquist made sure that NO recording of the proceedings would be made.

During our attempts to make a settled statement on my case (since a transcript was NOT an option thanks to Almquist!) , Almquist insisted that citizen complainant, Sean Reilly, had identified me as the person who he saw singing. He didn't. He testified that "she has pretty hair" and that "I saw her running around with a videocamera so I knew she was one of the group."

When Ed Frey asked Sean Reilly under oath whether he had been physically annoyed by my singing, he answered "No." Yet Almquist ruled that I was guilty "BECAUSE Reilly had been physically annoyed" when he couldn't take his nap. Almquist never ruled on whether I had been singing for a too prolonged period of time. No wonder.

Almquist had heard six eyewitnesses testify to impeach Reilly's testimony that "we had been playing since 11AM" a period of "about four hours." Ed Frey had introduced hard copy of a notice HUFF had placed on Indybay on January 5th stating that our demo would not begin until 1:30PM. Lloyd Ellis testified that he saw Joe Schultz hand a pot of soup to Robert Norse around 1:30PM and no one else in our group was there, and no one was singing. Tony Kuspa had testified that he arrived at 1:45PM and the only person there from our group at that time was Robert Norse. I arrived later. Coral Brune and Free (his legal name) testified that they arrived together at 2PM and I was not yet there. Robert "Blindbear" Facer testified that he arrived shortly after 2PM and I was not yet there. All of us testified that our music was not especially loud and certainly not unreasonable.

There is NO WAY that Almquist could not have had reasonable doubt about the statements that Reilly made in court that "the same people had been playing music since 11AM". Reilly also testified that he "heard a guitar". No one in our group played a guitar at any point. Yet Almquist had found me guilty, believing Reilly over 7 eyewitnesses, and fined me $250 for having made "an unreasonably disturbing noise."

Now I was appealing to a higher court.

Ariadne Symons led the panel by claiming that "the panel has carefully considered" all the briefs, cases cited, and "had done their own research." Frey asked for a tentative decision and Symons said "no."

Frey began by pointing out that in the City's brief, at one point Arrellano had quoted the ordinance with semicolons in the appropriate place, but that later on, when trying to make a different point, quoted it differently.

"The City Attorney can't have it both ways,"Frey argued. "A plain reading of the ordinance with proper placement of punctuation shows that unreasonable noises must be physically disturbing and physically annoying to persons of ordinary sensitivity."

"The point I'm making is that ordinance is so vague that the prosecutor varies from one version to another in the brief in front of you. We don't have any evidence a person of ordinary sensitiveness was disturbed."

Judge Paul Burdick was the first to respond. "Your notion that if someone sleeps during the day they are not a person of ordinary sensitiveness--well--we reject that. They ARE a person of ordinary sensitiveness. We had considerable pre-trial discussion on this."

Ed Frey continued. "The court must consider that Ms. Johnson had to understand the ordinance in order to follow it. The police officer walked by five minutes earlier and did nothing. When asked to say how loud is too loud, she refused to say."

Ariadne Symons then spoke. "Mr. Reilly testified that the other residents were disturbed. THEY were unreasonably disturbed. He was not the only one." Symons was willing to believe the imagined testimony of a neighbor who didn't testify over that of 7 witnesses who all testified that yes, we sang, but it wasn't three or four hours, it wasn't continuous, it wasn't prolonged, and it wasn't done in any attempt to disturb any tenant from napping."

Judge Timothy Volkmann spoke for the first time. "What is it you intend to argue? Reasonableness? Location? Time of day?"

"The entire context," Frey responded.

Volkmann: "The singers were in an area where they could potentially affect people where they live."
Frey: " I could argue a whole line of cases which support the concept that if you can't go to the marketplace in your own town and, to quote one of our forefathers, "make ourselves heard above the din" then, we don't have any freedom of speech at all." And I ask all three of you justices that if you can't sing on a public sidewalk on Pacific Ave., then where is it that you CAN go and sing songs that protest political injustice?"

Ariadne Symon was reassuring. "Of course singing hasn't been outlawed on Pacific Ave. Perhaps if they walked down the street and didn't sing in just one place, there wouldn't be a problem. Of course, the way Pacific Ave. is designed, there are offices and residences on the second floor up and down the avenue."

Frey: "A strong line of cases argue that a person sleeping in their own home can be protected from commercial intrusion into their privacy, but they are not protected against intrusion by political or religious contacts. Besides my client was making reasonable noise, not blaring over a microphone."

"Are there no cases which found that a restriction on singing is valid?" Symons asked, looking like the cat that ate the canary. "Magden vs. Womens Health Clinic ordered protesters outside an abortion clinic from "singing, whistling, shouting...."

Frey: "Your honor, we didn't have an operating room here. This was on a busy, shopping mall in the middle of the afternoon. I ask again, where else are they to go and express themselves except on the mall? Where is it that we are allowed to express our first amendment rights?"

"Certainly you have your first amendment rights to freedom of speech, peaceable assembly, and the right to redress government grievances. But we must also balance that versus the right of the residents to the quiet enjoyment of one's home," Burdick explained. "It's well understood that the entire 2nd story is occupied by people by people who live there; people like Ms. Johnson."

"In Ire vs Boon in PC 415, which is a misdemeanor for disturbing the peace, the court ruled that the noise section wasn't written to prohibit all loud noises. Only those that met one of two conditions. It must either be speech that causes a clear and present danger of imminent violence---such as shouting "fire" in a crowded theater and there is no fire. Clearly this was not the case with Ms. Johnson."

"The second condition is that the noise must be purported to be used as a guise to disturb and annoy a person. There is no evidence before the court to suggest that Ms. Johnson was singing in an attempt to annoy or harm Mr. Reilly."

"That is not the law we are considering here today," Symons coldly responded.
Frey: "So the State of California has to comply with this strict test of whether they get to say a noise is unreasonably disturbing or not and the City of Santa Cruz just gets to get away with it?"

Without prompting, Judge Timothy Volkmann addressed an issue not made. "We're not complaining about the CONTENT of her speech. But the right of an individual to speak has to be balanced against the right of an individual to the quiet enjoyment of their home."

I shook my head at this statement by Volkmann. How could Sean Reilly be disturbed for "Three and a half to four hours" by my singing and NOT hear any of the lyrics? Officer Lauren Schoenfield had had the same amnesia problem. Neither of them 'heard' any of the lyrics to our songs. How could that be reasonable? Either they heard us and were annoyed or didn't hear us loud enough to even distinguish any words. But in this court, neither Reilly nor Schoenfield hear any of our lyrics to this case was ONLY about how loud or long our NOISE was.

But Frey was prepared for this. "Brown clearly cover loud noise, even shouting. However, it requires proof of malice which is missing here. "

Ignoring this argument, Burdick insisted "We're obligated to construe the limitations of the applicant. In my view, this does not infringe on freedom of speech as long as it does not impinge..."

"It's a sad day if you can't go to marketplace in your town and speak because you can not be sure that you speech will not be physically annoying to anyone," Frey concluded, clearly angered.

City Attorney Caio Arrellano then took the podium. "About the Kovac case. In affirming the conviction for noise in the case of amplified sound, the court rejected that the appellant had no obligation to consider a citizens right to the quiet repose in his own home. Sorry about the semi-colon..."

"We don't need to hear anything more on that matter," Symons reassured him.

Arrellano continued. "There is some confusion in Inrie vs Brown and its use of 'loud and unreasonable noise.' A city can condemn noise that is "harsh" or "unreasonable" to persons of ordinary sensitiveness."

Symons: "Our panel has spent a great deal of discussion and independent research for this very important case. The issues involves are likewise very important, and involve our basic freedoms. Any limitation of 1st amendment rights to freedom of speech must be specific and narrowly tailored. If we were speaking of an area that was purely commercial that would be one thing. Certainly Pacific Ave. is one of those regular areas where we engage in commerce. But it is not purely commercial. Actually, it is residential as well."

"In Ferndale 2008, a federal case involving a completely commercial intersection, but where a longterm resident lived in that area as well. The court found we have both a right and an obligation to protect both the interests of the residents and the freedoms of speech so that a person does not have a fundamental right to speak in any place, at any time, or in any manner."

"Madison in Geader vs Rockford, their noise ordinance was upheld claiming that speech, even political speech is not limitless in a place where people live. It is not a pure right, but a tempered right. As in this case,where the record shows that they were singing for three hours straight, the trial court found that the speech was prolonged as it was in this case. "

"You say ask where it is that we can have our rights? Well perhaps if the singers had traveled and not sung in one place for three hours. Or if they chose to sing in a City park away from residences, then we would have a different set of facts to consider, in that potential case."

"So I the panel finds that the ordinance is constitutional as applied. The appeal is denied."

Frey: "I have one additional important question. Can this panel certify this case to appeal it to the next court of appeal?"

"You've exhausted your appeal, " Volkkmann added.

"We rarely do that," Symons answered. I was surprised too. I was under the impression that in the case of an infraction, I was allowed only one level of appeal by law. But Ed had found that this was not necessarily the case.

"We'll take that matter under advisement and rule on it later," Burdick concluded.