Thursday, April 28, 2011

Who owns the courthouse? Who is in charge?

Peace Camp 2010 at 7PM on the night of July 20th on day 16 of the protest
against the Sleeping Ban in the City of Santa Cruz. Photo by Becky Johnson.

by Becky Johnson

April 28, 2011

Santa Cruz, Ca. -- Only three of the original six defendants in the Peace Camp 2010 anti-lodging trial were in court. Collette Connolly was seen earlier during jury selection, behaving somewhat erratically, falling down but not obviously drunk, and belligerent when someone tried to help. Collette was nowhere to be seen today. Arthur Bishoff was in court earlier this week, but now has housing and employment and did not attend due to a conflict with his new work hours. Gary Johnson and Eliot "Bob" Anderson were quite another story, having attended every minute of their trial, and actively participating in their own defense. Chris Doyon, the once prominent camp spokesman, has not made an appearance. Linda Lemaster, who is housed, is scheduled for another jury trial next week on the same PC 647 (e) charge. Defense Attorney, Ed Frey, who is also housed, no doubt will be using a necessity defense-of-others for himself later on, but for the moment is seeking a not guilty verdict from the jury.

Yesterday, the jurors heard from Lt. Fred Plageman, who was the supervisor in charge of security for the Santa Cruz County Courthouse on the nights in which Frey and the others were either cited or arrested under PC 647 (e) the State's anti-lodging statute. Plageman revealed that in his 23 years on the force, he had never written a citation for 647 (e) in his career.

As Frey and DA Sarah Dabkowski met in court prior to the seating of the jury, Judge John Gallagher told Frey "It's not relevant to ask members of law enforcement their interpretation of what the law is. And I'm going to sustain every objection made."

"The law requires probably cause. I have a right to ask them on what criteria they are determining that there is probable cause that a crime has been committed," Ed countered.
"These officers had orders to give verbal and written warnings to these defendants, not to interpret what was said on the flyers," Gallagher firmly insisted. The flyers were unsigned.

This is a touchy subject for Judge Gallagher, because Frey had already challenged the statute for being vague and overbroad before Gallagher earlier this year, and Gallagher had ruled the ordinance is Constitutional since "there is no Constitutional "right" to sleep." But the fact remains, that "lodging" is not defined in the ordinance, and one is left with 14 dictionary definitions or however the officer chooses to interpret it as a crime.

Now with FREY trying to nail down that the officers themselves had NO IDEA what constitutes illegal lodging, and how to enforce it, Gallagher ruled Ed's line of questions to be out of order which would help to conceal the officer's lack of knowledge or experience in citing this law from the jury.

Once seated, jurors heard from a parade of sheriff's and police officers, some in full uniform, and some in suits and ties that some of the protesters were "setting up a camp, laying down on a sleeping bag, or showing they were not going to leave." When Ed Frey objected to a photo not being properly verified, Gallagher ruled that it was, and then told the jury "We are establishing that a proper foundation has been laid since Deputy Matson testified." The "we" Gallagher meant is surely the prosecution and himself, the judge. Truer words were never misspoken.


Santa Cruz Sheriffs Deputy, Kyle Matson, who had cited Eliot "Bob" Anderson, testified that "I don't remember warning Mr. Anderson personally." While 647 (e) does not require a warning, it seems clear that the prosecution is attempting for that unsigned written notice, or a verbal "you can't lodge here" warning to be sufficient notice

Warning notice given to protesters at Peace Camp 2010. Photo by Becky Johnson Aug 7 2010
that the "owners" of the property do not give their permission for lodging.

Ed asked Matson, "Who owns the courthouse?" but Dabkowski objected claiming lack of relevance and Gallagher sustained the objection. Ironically the wording of PC 647 (e) says you can't stay on property without the permission of the owner or the person in control. But the DA and Gallagher were preventing Frey from determining if the police even knew who that person might be. How can if be "irrelevant" if it's a requirement in order to enforce the law?

Matson also testified he cited 75 year old Collette Connolly when "she was sitting on her sleeping bag." The two photos showed Collette sitting on her sleeping bag, full clothed. Behind her is a sign which a reader can barely make out the words as "The Sleeping Ban is Unconstitutional and Cruel." When Matson was asked why he cited her, he said "She had not made an attempt to move." So sitting on a sleeping bag is an arrestable offense? Apparently.

A man sleeps at Peace Camp 2010 on July 20th. Photo by Becky Johnson.

Dabkowski asked, "What did you do on August 7th?"We attempted to remove the remaining people who were sleeping in front of the courthouse." On cross examination, Ed Frey asked "Isn't it true you've never used 647 (e) in front of the courthouse until the night of August 6th?

Objection. Sustained. This jury would not hear how Matson determined that "the owner" had not given "permission" to "lodge."

"Did you observe these defendants causing any damage to the property?" Ed asked.
"Objection." "Sustained."
"Did people ask you where they could go and sleep legally?"
"They did."
"What did you tell them?"
"I didn't have an answer for them."
"As you sit here today, do you have an answer now?"
"I do not."
"Did anyone at the sheriff's office make any attempt to call the Homeless Services Center on August 6th to see if there were shelter beds that night?"
"Did you see a cane with Ms. Connolly? Did she appear disabled?"
"Was Ms. Connolly interferring with anyone else's rights? Was she obstructing anyone?
"The courthouse was closed at the time and there was no foot traffic in and out so, no."


Next, Deputy Ryan Kennedy of the Sheriff's office testified he'd attended a briefing that night "about lodging happening" so he "talked to the lodgers" and about 12:40AM issued citations after that warning had been given. When Kennedy cited and arrested defendant Gary Johnson, he reasoned "he hadn't dispersed, was lying down in some sort of bedding, and planning on staying the night."

Gary Johnson, for his part, fully cooperated in confirming his identity. As each officer pointed him out in court, Johnson unzipped his jacket to reveal the same red shirt and hood he was wearing in his arrest photos. Johnson is not trying to conceal either his presence at Peace Camp 2010 or the fact he slept there. It WAS a protest AGAINST all Sleeping bans. Gary was not only openly violating their law, but was challenging it.

Frey asked Kennedy "Were standards issued as to how to enforce PC 647 (e)?"
"Yes. There were guidelines. If people were lying down, had bedding, were sedentary, or looked like they were going to spend the night we warned or cited them. If they were actively moving around, or standing, they were not cited. If they were up and around and moving, then they're not a lodger."

"What is lodging?"
"Objection." "Sustained."
"Did you have an understanding that this was a political action? A protest?"
"Was anyone causing a problem for anyone, obstructing anyone's way?"
"Yes. The bedding was partially obstructing our way. We had to move around it."
When asked if anyone else during the entire time, not just on August 6th, had caused anyone any danger, destruction of property, or injury to anyone, Kennedy said "yes."
"There were traumatic effects when the lodgers possibly left behind remnants, items, and trash." and while Kennedy didn't personally see any of the defendants leave any trash behind, he argued that their presense "caused unrest among the people who work at the County Bldg."
"Multiple times," he explained "as county workers were coming out of the building at late hours, they felt threatened and asked for a police escort."
"Was there any factual basis for these threats?" Frey asked.
"They felt threatened by the presence of people they were unsure about in that place and time."
"Do you think homeless people are more dangerous than other people?"
"Objection." "Sustained."
"Did you arrest anyone for just sitting?"
"No. They were lying down."
"Did people ask you if there was a legal place they could go and sleep?"
"Objection--relevance." "Sustained."
"Do you know who is in control of the building at night?"
"Objection." "Sustained."
"Prior to the night of August 6th, did you know what unlawful lodging was?"
"Objection." "Sustained."
"If this is a crime, can you identify a victim?"
"Objection." "Sustained."


The next witness was Sheriffs deputy Michael Mullet who's job that night was to book property.
Mullet reported that he was up all night booking property seized, and that his 17-page report included 16 pages of property items including multiple tents.
"Did any of the defendants use a tent? " "No."
"Who was in control of the courthouse that night?
"Objection." "Sustained."
"Do you know who owns the Courthouse?"
"Objection." "Sustained."
"Are you aware of any permanent property damage that was done by either the defendants, or the people protesting?" "No."
"What was the nature of the trash?"
"Fast food containers, a broken meth pipe, broken dishes, broken glass, cereal boxes."
"Do you know if the defendants were responsible for the trash?"
"It would be impossible to say."


The next witness, Deputy Sheriff Douglas Smith, was in charge of taking the police video of the first round of warnings. He admitted that his film did not turn out, and that the DA was forced to rely on a system of hand-written name cards placed previously by other deputies as proof that the person "had been warned" and could now be cited or arrested.
"All of the still photos were taken at the time of arrest, and not during the warning period."
Among the people Deputy Smith cited, was Collette Connolly. "She did not speak. She had a self-imposed silence and nodded her head that she understood the warning."

After the lunch break, Ed Frey asked Deputy Smith if those "lodgers" had asked where they could go to safely sleep."
"Did you hear a response?"
"Objection. Hearsay."
"Did any of the defendants create any danger by obstructing the sidewalk, or injure someone else in any way?"
"Yes. People were victimized. There was a lot of garbage there, and if you had to walk by it in the daytime, you'd be victimized." When Frey asked the nature of the garbage he replied "Cups, cans, bottles, stuff from food." Yet, of the 26 photos the DA had produced thus far in the trial, NONE of them showed this "trash". No littering tickets were issued during the 3 months Peace Camp 2010 was in existence.

"Did you ever enforce PC 647 (e) prior to the night of August 6th?"
"Objection-irrelevant." "Sustained."


Deputy Zachary Reed testified that he cited Arthur Bishoff at the County Bldg. "laying flat on his back with his eyes closed and a sleeping bag on top of him." Bishoff was lying behind a large rock on the traffic island in front of the courthouse.

"He told me his address was 115b Coral St."(the mailing address for the Homeless Services Center).

"Where did Mr. Bishoff go after you cited him?" Ed asked.
"He stood up and wandered off across the parking lot towards Ocean St. The last time I saw him, he was seen exiting the parking lot towards Highway 17." Was Reed disappointed to see Bishoff had not only not left town, but was now declaring "not guilty" and demanding a jury trial?


Officer Vigil was the first SCPD prosecution witness. Peace Camp 2010 had moved its location to 809 Center St. and stationed itself on the brick patio next to Center St. in front of City Hall. Officer Vigil described an "extra check" that sometimes involved officers going outside of their regular beat to conduct. "Our sergeant told us to do extra checks at City Hall." Vigil cited Connolly, Frey, and one other man in a sleeping bag.

On the night of August 17th, did you notice any unusual lighting situation?" Ed asked.
"I don't recall," Vigil replied, but on further questioning, Vigil remembered something.
"There were some vehicle-pulled lights."
"What was the purpose of those extra lights?"
"I didn't put them there, so I don't know."
"Did you notice that they were powered by a diesel engine that produced light pollution, sound pollution, and exhaust?"
"Objection-relevance." "Sustained."
"Do you remember any property seizures that night? Do you remember any protest signs being taken?"
"I don't recall."
"Do you remember seeing anyone there patrolling besides the police?"
"I don't recall."
"Isn't it true that a private company--1st Alarm--had a securty officer stationed there?"
"I don't recall."
"So you have no specific knowledge on any night of the protest, when you were on duty or even when you were not on duty, seeing a 1st Alarm security guard standing there?"
"Yes, I did see one."
"Did you see any of the defendants presenting any danger to anyone there?"
"Did you get asked where they could go to get a safe and legal place to sleep?"
"We hand out homeless resource cards."
"On the night we were describing?"
"Were any shelter beds available that night?"
"I don't know."
"Do you have any idea what happens in the City of Santa Cruz when a person is cited on a night when no shelter exists in Santa Cruz?"

This question prompted a sidebar. At the end of the sidebar, Judge Gallagher explained that an objection had been made and he had sustained the objection.
"Who owns City Hall?"
"Objection." "Sustained".
"Who is in control of City Hall?"
"Objection." "Sustained." The witness was excused.


Frey asked SCPD officer Nathan Vasquez who had ordered the "extra check" at City Hall.
"We do that if someone asks. In this case, the City Council had asked for an extra police check at City Hall." Vasquez cited Collette Connolly. He also testified that the reason he used PC 647 (e) was not because he believed that was the most applicable ordinance to apply but because "Sgt. Conner told me to cite under 647 (e).

"Did anyone ask if there was a safe place for them to sleep?"
"I don't know the number for that. In the past, I have contacted the shelter and they told me they would not be accepting campers on my request."


Officer Burnham testified he cited Arthur Bishoff that night when he and two other officers conducted an extra check at City Hall. He testifed that "about 15 people" were there. When asked about the Klieg lights he said "I saw the flood lights set up by the City."
"Why were those lights there?"
"I imagine for officer safety. We've done this before for Halloween, New Years."
"Was the purpose of these lights to drive people away?"
"Objection." "Sustained."
"Did anyone ask you where they could sleep that night?"'
"I've been asked that question many times. My standard answer is that it is not legal to sleep anywhere in the City. There is an ordinance against it."
"Do you know who controls City Hall?"
"Objection--relevance." "Sustained."
"Do you know who owns City Hall?
"Objection," this time triggering a sidebar. At the end of the sidebar, "Sustained."


Dinah Phillips testified that she is a "Principle administrative analyst for the County Administration office. She is the media contact for the County and has worked for the County for 30 years.

"Our office is in charge of every property in the County. Susan Mauriello is my boss." Phillips told of issuing a press release last August to clarify an issue that had mistakenly been reported in a Santa Cruz Sentinel article.

"Did you come across an application I submitted to conduct a protest in July and August at that location? Ed asked.
"I think I recall something like that," Phillips admitted, "but it would have had to go through my immediate boss."
"When did you first notice that we were there?" Ed asked.
"As soon as they were there. There were a lot of discussions and I was responding to people in multiple departments. I had to tell them that people have a right to protest."
"So why did you then decide to take action?"
"It had become a health, safety, and welfare situation. There was no restroom facilities open at night. Employees who had to walk through there felt threatened. People who were walking by had things said to them."
"Did they present a danger?"
"I couldn't say that."
"Do you have any written regulations for what is permitted or forbidden on these grounds?"
"No. I could probably look for some."
"Why didn't you enforce the County Camping Ban?"
" To my knowledge, the County doesn't have a camping ban."
"Do you know if any of the protesters were given permission to stay?"
"It's County property. The County can determine who can stay overnight."
She admitted there are no posted rules or hours on either the government building or the courthouse.
"I believe the building is locked at night," she replied as though that explained it. Then to make matters even more muddled, she said "I think its legal to be on the property, but I don't think it's legal to be there overnight." She admitted that , other than one sign on the basement door, that "there are no signs showing hours of operation."

"You said that there were no restroom facilities open at night. Did you notice the porto-pottie there?"

"I did see the porto-pottie, but I couldn't tell how many nights it was there. I know that the Park Service was very concerned. We had to steam-clean the steps after the folks left. It smelled like urine. I saw it sometimes."
"Who owns the County Bldg.?"
"Objection." "Sustained."

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