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.


THE HEARING BEGINS AT 3:45PM

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

DISTRICT ATTORNEY DABKOWSKI CONFLATES "LODGE" WITH "LIVE" WITH "SPEND THE NIGHT"

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."

ED FREY'S FINAL ARGUMENTS

"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."

GALLAGHER'S RULING

"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.

NIGHT FOUR: Peace Camp 2010

by Becky Johnson

July 8, 2010

from: Homeless United for Friendship & Freedom

831 423-HUFF

Santa Cruz, Ca. -- They began arriving as the sun faded, some on bikes. Some carrying bedrolls. Most had backpacks. Prime sleeping areas next to the front doors promised a dry night with the protecting eaves, and thus, those spots were taken quickly. "What do you think the chances are that the cops will bust us tonight?" one man asked nervously, as he looked around for security cameras. "Zero," said Leigh, without any hesitation. "Unless the Deputies need to conduct a mutual aid service's call, there's no chance that they're going to cite us tonight."

Organizer, ED FREY, who had chosen the location, discovered very quickly that with the courthouse smack dab in the middle of the City of Santa Cruz, the Santa Cruz police had no authority to enforce their own law. And the Santa Cruz County Deputies have no corresponding laws criminalizing sleeping, covering with blankets, or even camping in that particular location---all of which would be illegal in any other part of the City.

HUFF has demanded the City suspend ticketing under the Sleeping and Blanket Bans or, barring that, set up a clean, safe, well-lighted place with plumbing facilities where it is legal to sleep in the City. For the moment at least, they have found the latter. While the Council has dug in to defend the Sleeping Ban, there is no doubt that Peace Camp 2010 has already accomplished one of its goals.

" So I guess we won, " mused FREY. Tuesday night, 21 souls slept openly and safely together. Tonight there were thirty. Five twenty-somethings wandered in past midnight. Two who arrived begged for a blanket, fearing having to spend the night without one. With cops seizing possessions regularly as "trash" there are never enough blankets to go around.

In news media reports, Vice -Mayor RYAN COONERTY has issued statements about how the City supports the bans which are needed "for safety reasons." Mayor MIKE ROTKIN defends the bans by claiming that the impressive sounding amount of money the council has spent on homeless services somehow justifies, as a matter of policy, waking up homeless people in the wee hours of the morning, detaining them, running warrant checks on them, and even sometimes, as Lt Steve Clark once did to ANTHONY PATANJO, seize the only blanket they have at 3 AM as "evidence" of sleeping, and then leave them shivering in the cold with a $97 ticket. If City Attorney JOHN BARISONE has his way, next year their will be jury trials for sleeping and keeping warm with a blanket and sentences of up to one year in jail for convictions.

"I've been atop many a bridge lately, " one man confided to me in low tones, "considering suicide. But this gives me hope." Supporter and Endorser, SARAH RINGLER came by with a large platter of Japanese fish pancakes and a bottle of soy sauce to go with. One by one each person took a single pancake and joyfully consumed the still warm food. None took seconds. There would not be enough for firsts for everyone as it was.

ED FREY is appealing the twin convictions for sleeping near the beach by ROBERT"BLINDBEAR" FACER, but the hearing has inexplicably been postponed until late September. "Homeless people can't wait until September to sleep, " declared ED who recently relocated to a residence inside the City in order to establish residency. A new race for City Council begins in early August.

At 11: 52PM the sprinklers switched on and, in seconds, two sleeping bodies quickly became soaked. Others rushed to pull their belongings out of the sudden downpour, but despite their quick reaction, both men shivered and groaned with everything they owned and the clothes they were wearing suddenly soaked.

As each new person arrives, there is cheer, relief, and for some, a look of redemption on their faces as they realize that they will be allowed to bed down, and sleep. The porto-pottie shines like a beacon of humanity, and those exiting it have a look of immense relief. Nervous neighbors grumble about "mountains of trash" and "poop and pee everywhere" but there really is none now. And when the Sheriff's deputies drive by and flash their lights, one gets this distinct feeling that they are there to PROTECT the sleepers from harm. Is this a change we can believe in?

DONATIONS NEEDED: flashlight, blankets, food of any kind, water bottles.

ED FREY can be contacted at his office in Soquel, Ca. at 831 479-8911

Poor Science by the CDC and HHS on Second Hand Smoke

Man openly defies the smoking ban on Pacific Ave.
January 10, 2010 -photo by Becky Johnson

Editors Note: On June 16th of 2009, Laurie Lang testified before the ad hoc Outdoor Smoking Task Force headed by Santa Cruz City Councilmembers Ryan Coonerty, Mike Rotkin, and Don Lane, As the representative of the Santa Cruz County Department of Health she made the following claim:

"There are hidden costs to smoking. Three years after Pueblo, CO instituted its smoking ban, a 40% drop in emergency room visits for heart problems was recorded."

But is it true? That seems a very dramatic drop in emergency room visits based on banning second hand smoke in restaurants and bars? Yet, here was an expert, a paid professional health spokesman, reminicient of the flouride is good for our teeth people. Filled with their own authority and lulling the populace into thinking that solid science is behind these claims. Well, just as I suspected, it's not. But it takes a Medical doctor who has been studying the effects of tobacco on the human body for 20 years as a scientist, and is currently a professor at a university teaching social and behavioral sciences, to read the studies, look at the data, and ask what turn out to be very reasonable questions any thinking person should have asked.---Becky Johnson, Editor

"I am a physician who specialized in preventive medicine and public health. I am now a professor in the Social and Behavioral Sciences Department, Boston University School of Public Health. I have 20 years of experience in tobacco control, primarily as a researcher. My areas of research interest include the health effects of secondhand smoke, policy aspects of regulating smoking in public places, effects of cigarette marketing on youth smoking behavior, and the evaluation of tobacco control program and policy interventions."

--- Michael Siegel, Boston, Ma.

CDC: Pueblo Smoking Ban Reduced Heart Attacks by 41%, Due Mostly to Decreased Secondhand Smoke Exposure; But Conclusions are Biased and Invalid

by Dr. Michael Siegel
January 5, 2010

Published at: The Rest of the Story
Tobacco News Analysis and Study
found online at: http://tobaccoanalysis.blogspot.com/2009/01/cdc-pueblo-smoking-ban-reduced-heart.html

In a new study published in the current issue of MMWR (Morbidity and Mortality Weekly Reports), researchers from Colorado and from the Centers for Disease Control and Prevention (CDC) have concluded that the smoking ban in Pueblo, Colorado caused a 41% reduction in heart attacks during the three years following its implementation, primarily due to a reduction in secondhand smoke exposure associated with the ban (see: Alsever RN, et al. Reduced Hospitalizations for Acute Myocardial Infarction After Implementation of a Smoke-Free Ordinance --- City of Pueblo, Colorado, 2002--2006. MMWR 2009; 57(51);1373-1377).

The study compared the rate of hospitalizations for acute myocardial infarction (heart attacks) in the city of Pueblo with similar rates in Pueblo county (outside of Pueblo) and El Paso county (which includes Colorado Springs) for the 18-month period prior to the implementation of Pueblo's smoking ban and for the two 18-month periods following the smoking ban, which was implemented in July 2003. While there was no significant reduction in heart attack admissions for Pueblo or El Paso counties, there was a reduction in the heart attack rate of 19% and 41% from pre-implementation to the first and second post-implementation periods, respectively, in the city of Pueblo.

The study concludes: "These findings suggest that smoke-free policies can result in reductions in AMI [acute myocardial infarction] hospitalizations that are sustained over a 3-year period and that these policies are important in preventing morbidity and mortality associated with heart disease. This effect likely is mediated through reduced SHS [secondhand smoke] exposure among nonsmokers and reduced smoking, with the former making the larger contribution."

The Rest of the Story

Before you jump to any conclusions here (something the study did prematurely), consider this: let's accept the study's conclusion as correct - that smoking bans do lead to a dramatic, immediate reduction in heart attacks, in part because of a large reduction in smoking prevalence. Let's suppose that you want to demonstrate this "fact" by showing that compared to a similar city, heart attack rates in the city with the smoking ban fell substantially more after the ban was implemented.

Now you have to choose a comparison city. You have two choices, with the following information available about the smoking prevalence changes in those cities from pre-implementation to post-implementation:

City A - The smoking prevalence increased from 19% to 24%.
City B - The smoking prevalence remained relatively unchanged, dropping only from 24% to 23%.

Which city would you choose as the comparison city?

If you choose city B, you would be justified. There was little change in smoking prevalence, which mirrored the changes nationally during that time period, so one could argue that this is a reasonable comparison group.

If you choose city A, where there was a large increase in smoking prevalence, you are going to expect to see an increase in heart attacks due to the rise in smoking alone. This is going to artificially reduce any secular decline in heart attacks occurring in the comparison city and bias your results towards finding a larger decline in heart attacks in the city with the smoking ban.

A researcher who chose city A as the comparison city would certainly be suspected of having intentionally biased the results towards finding an effect of the smoking ban on heart attacks.

The last thing in the world that you want for a comparison city is one in which there was actually an increase in smoking prevalence, defying all odds about what the national trends in smoking are throughout the nation.

Unfortunately, this is exactly what this study does: it knowingly uses a comparison county in which it has been documented that the smoking prevalence over the study period has increased from 17.4% to 22.3%.

The study doesn't try to hide this fact. It openly acknowledges that the reported smoking prevalence in El Paso County (the comparison group) increased from 17.4% in 2002-2003 to 22.3% in 2004-2005.

Given this finding, El Paso County simply cannot be used as a comparison population. You can't take a population in which you know that smoking prevalence increased substantially and "pretend" that it represents a reasonable area in which to evaluate the baseline secular trends in heart attack admission rates that would have occurred in the smoking ban city in the absence of the smoking ban.

Of course you are going to find that the rate of heart attacks in El Paso County did not decline all that much, given the increase in smoking. El Paso County is clearly not going to give you a good, representative picture of what the actual secular trend in heart attack admissions is.

Now if smoking rates throughout the country had increased substantially during the same time period, one could argue that El Paso county is representative of the nation as a whole, or of Colorado as a whole. But clearly, the trends in smoking reported in El Paso are an anomaly - they are very different from the rest of the nation and from Colorado, where we know that smoking has continued to decline during the study period.

While I am not arguing here that the study intentionally used El Paso county in order to try to create the finding of a smoking ban effect on heart attacks, the fact that the study failed to even consider this problem suggests to me that there is a great deal of bias inherent in the paper. Yes, I do think that the study wanted to find an effect of the smoking ban and that it lost its neutrality somewhere in the process. It's natural to want to see the positive effects of a public health policy. But you have to separate your desires from the science itself. More about that later.

Another important problem is the other comparison group that was used: the rest of Pueblo county. Since this area is directly adjacent to Pueblo, which is the one city in this area, it would be expected that many residents of Pueblo county work in, and/or spend time in Pueblo, including eating in restaurants in the city. Thus, one would expect that if the smoking ban reduced heart attack rates, it would reduce rates among Pueblo county residents as well. It's not like those residents were somehow shielded from the intervention.

For this reason, the study should have combined the heart attack admissions from Pueblo and Pueblo county. Doing this, the reduction in the heart attack rate from pre-implementation to the second post-implementation period is 33%, rather than 41%.

Two logical comparison groups that one would want to consider are the state of Colorado as a whole and the nation as a whole. Heart attack admission rates for Colorado during the approximate period of the study (2002-2005) dropped by 18.4%. For the United States as a whole, the heart attack admission rate dropped by 17.2% during this period.

It is quite a different situation to claim that the smoking ban in Pueblo reduced heart attacks by 41% (because there was no significant decline in the inappropriate comparison county of El Paso) than it is to view the whole picture, and see that a 33% decline in heart attacks in Pueblo must be compared with about an 18% drop throughout the state of Colorado and a 17% decline nationally during the same time period.

The fact that these comparisons were not made is problematic, since the data are readily available (it took me about half hour to access and run the numbers). Why wouldn't the study want to look at the statewide trends in Colorado, rather than simply rely on the biased control group of El Paso county? In 30 minutes, the study could have determined that there was an impressive 18% decline in heart attacks in the whole state during the study period, thus making it clear that the present conclusion of the study is inaccurate.

The bottom line is that the study fails to appropriately determine the baseline secular trends in heart attacks in order to be able to judge the differences observed in Pueblo from the trends that would have been expected in the absence of the smoking ban. For this reason, the study cannot conclude that the observed changes in heart attacks are due to the smoking ban, rather than to other changes that took place over time, including changes in medications being used to treat heart disease, better diagnosis and more aggressive treatment of heart disease, and a substantial decline in smoking prevalence in Pueblo county during the study period, which may or may not be due to the smoking ban itself.

More troubling to me than the fact that the study draws a conclusion that is premature and inadequately supported by the data is the appearance of bias in the study. Not only in the choice of a comparison community where smoking prevalence dramatically increased during the study period, but also in the conclusion itself.

Even if we stipulate that the smoking ban did cause the decline in heart attacks, how can the study possibly conclude that the effect was due primarily to reduced secondhand smoke exposure? The study made no attempt to determine the smoking status of the heart attack victims, so there is no evidence that the reduction in heart attacks occurred primarily among nonsmokers. Neither did the study measure changes in population-based exposure to secondhand smoke.

Moreover, the study itself documents that there was a substantial decline in smoking prevalence in Pueblo county during the study period, from 25.9% to 20.6%. Wouldn't this documented decline in active smoking prevalence be the presumed major reason for the observed decline in heart attacks, as opposed to reductions in secondhand smoke exposure? At very least, wouldn't a study simply remark that both mechanisms may be operating, but that it can't be determined to what extent each is contributing?

The fact that the study concludes that it must primarily be the secondhand smoke reduction is curious. The fact that the editorial note of the study begins by claiming that evidence shows that brief secondhand smoke exposure can trigger a heart attack is revealing. If you look at the report to which that claim refers (the 2006 Surgeon General's report), you will not find any conclusion that brief secondhand smoke exposure triggers heart attacks. And you certainly won't find any evidence in that report that if we reduce secondhand smoke exposure, we can reduce heart attacks triggered by secondhand smoke exposure.

You may remember that I have previously called attention to the poor science by CDC and the Department of Health and Human Services in their communications regarding the acute cardiovascular effects of secondhand smoke, when they went out on a limb, against the advice of respected and expert scientists in the tobacco control field, and told the public that brief secondhand smoke exposure is enough to trigger heart attacks, cause heart disease, and cause lung cancer.

It seems odd that even if we stipulate that the overall conclusion of the study is valid (that the smoking ban caused a dramatic reduction in heart attacks in Pueblo), the study would emphasize that the effect must be primarily due to the reduction in secondhand smoke and thus a reduction in heart attacks among nonsmokers that would have otherwise been triggered by brief secondhand smoke exposures in restaurants or other public places.

Even if I were writing this editorial as a highly biased advocate, I would have simply concluded that the effect is likely due to the combination of a reduction in smoking prevalence and a reduction in secondhand smoke, but that the study provides no way of teasing out the degree to which these two phemomena are operating.

In fact, given the large decline in smoking prevalence reported in Pueblo county, even the above conclusion seems biased, since it is clear that if the effect were real, the smoking prevalence reduction would likely have been a major reason.

The study goes overboard not only in its overall conclusion, but in its attempt to paint these data as somehow proving that eating in a smoky restaurant for a half hour is causing lots of people to keel over from heart attacks. The study does nothing of the sort.

Let me finish by emphasizing that I would like nothing more than to have strong evidence presented that smoking bans are resulting in immediate and dramatic reductions in heart attacks. As I have devoted much of my life's work to promoting smoking bans, especially in bars and restaurants, it would bring a great sense of fulfillment to now that these policies are immediately saving lives and that we can document these acute effects.

However, I am first a scientist and I believe that in public health, our conclusions must be based on solid science, not just on conjecture or our deeply felt desire to see the success of our policies.

The Politics of the Playground

Wednesday, 20 January 2010

by Chris Snowdon





PHOTO: Man openly violates the smoking ban
on Pacific Ave. January 10, 2010





found online at: http://velvetgloveironfist.blogspot.com/2010/01/politics-of-playground.html

Like many a political leader before him, the Mayor of Santa Cruz is learning that when it comes to tobacco, nothing you do is ever good enough to satisfy the prohibitionists.

As reported previously, Santa Cruz recently enforced an outdoor smoking ban to go along with its many other anti-smoking laws. Santa Cruz resident Ethan Epstein describes how 'comprehensive' these bans are:

In this bastion of “tolerance,” smoking has been banned throughout all indoor public spaces, outdoor dining areas, parks, beaches, and downtown thoroughfares. My (exorbitantly overpriced) apartment building has imposed a smoking ban that even covers private residences.

I don’t smoke, but my girlfriend does, and she is forced to shiver in the bitter – for California – cold when she wants to light up. That smell wafting into your apartment is not cigarette smoke: it’s illiberalism and intolerance.

And what does the American Lung Association in California (ALAC) do to reward Santa Cruz's slavish devotion to the anti-smoking cause? It awards the city a 'D' in its Tobacco Report Card.

Treating this arbitary rating system with absurd high seriousness, ALAC spokesman Paul Knepprath said the city was oh-so-close to getting a 'C'.

Paul Knepprath, vice president for advocacy and health initiatives with the American Lung Association in California, said although Santa Cruz city code identifies "smoke" as a public nuisance, the wording isn't strong enough.

Knepprath said if the code specifically referred to second-hand tobacco smoke, it would have meant an additional bonus point, which after the errors were fixed, would raise the overall grade.

"That's how close it was," he said.

In other words, Santa Cruz could have only got a 'C' if its politicians lied and said that smoking outdoors posed a health risk to nonsmokers. There is, of course, no evidence for this.

What makes all this funnier, is that the Mayor has taken the news very badly indeed and has started throwing his toys out the pram. He scribbled an angry letter to the ALAC, saying...

"This is ridiculous and, frankly, it does not motivate me to press my City Council colleagues to take further action to reduce smoking: quite the reverse."

Quite the reverse? You mean you're going to take action to increase smoking just because the ALAC hurt your feelings?

"I feel we are being abused and that the rating system is clearly a fraud and meaningless."

And Mayor Rotkin was still throwing a hissy-fit when the press caught up with him...

"Frankly, it makes me so angry I don't ever want to talk to these people again," he said in an interview.

Is this the level of school-yard politics we've be reduced to? Draconian laws being introduced to impress the bigger boys and then petulant name-calling when they don't get the pat on the head they feel they deserve?

I don't claim to be an expert on local politics in America, but aren't politicians supposed to be acting in the interests of their electorate rather than trying to to earn gold stars from out-of-town single-issue campaigners? Rotkin's reaction makes it pretty clear that climbing up a league table comes ahead of serving his electorate.

Rotkin himself is a rum fellow. He teaches 'Community Studies' at the University of California ("yes, I think I will have fries with that"). This includes an Introduction to Marxism, which I'm sure he teaches in a balanced and reasoned way, as you would expect from someone who edited The Socialist Review for ten years, describes himself as a "Marxist-Feminist" and lists his interests as...

Marxist theory, capitalist system, community power structure, institutional analysis, and affirmative action.

According to Discover the Networks:

Rotkin's ideals are outlined in his 1991 PhD thesis (entitled Class, Populism, and Progressive Politics: Santa Cruz, California 1970 - 1982), which describes his stealth strategy to implement socialism in the United States. A chapter from this thesis, titled "A Three-Part Strategy for Democratic Socialism," currently serves as an assigned reading for his "Introduction to Marxism" course.

Part one of this strategy is Grassroots Organizing, which means finding groups with grievances against society and helping them to "wrest concessions," as he phrased it in his thesis. Borrowing from Saul Alinsky's tactics, Rotkin advocates hiding his true socialist agenda from the people he helps while "preparing the ground" for subsequent stages.

I don't wish to offend the good people of Santa Cruz who have elected him as Mayor four times, but from where I'm sitting this man sounds like an asshole.

And it gets better. Mayor Rotkin - who, let's say again, has banned smoking outdoors - is a board member of the American Civil Liberties Union. Is this guy for real, or what?

It's interesting to note that Santa Cruz's recent outdoor bans were brought in to curry favour with the ALAC after getting a 'D' last year.

The city received a "D" for 2008, which partially prompted the council to pass the ban on smoking along Pacific Avenue, West Cliff Drive, the Santa Cruz Municipal Wharf and other public sites. The ordinance, which took effect in October, expanded earlier prohibitions against smoking in restaurants and in lines for movies and concerts.

All of which makes last year's debate over whether or not to bring in these bans look like a bit of a charade. Policy seems to be being dictated by unelected pressure groups rather than the council. The silver lining is that the ALAC seem to have gone too far this time and alienated the childish and self-absorbed politicians upon whom they rely. I predict Santa Cruz will be getting a 'C' sometime soon.

Thanks to Becky for the tip

Sing a Song, Go to Jail?

Photo: Officers Schoenfeld and Inouye interview a suspect accused of singing on Pacific Ave. January 6, 2010. The suspect was cited for "listening" to HUFF singers.


by Becky Johnson
January 08 2010


Santa Cruz, Ca. -- They say that "Let it Snow," one of the most popular Christmas songs in American history, was written by two Jews during a record heat wave in Hollywood and doesn't mention Christmas at all. Likewise when a few HUFF members decided to to sing a new song (to us, anyway)the sun was shining brightly and folks were walking along Pacific Ave. in tee-shirts. Yet in a town actually called the Leftmost City, two Santa Cruz police officers were chilling freedom of speech by issuing four $445 tickets to four people singing "Let it Snow".

SCPD Officer Schoenfeld #159 interrupted our first attempt at "Let it Snow" and told us she'd received a complaint of excessive noise.

"They're happy with you protesting, they just said you were a little loud. They were willing to sign a citation. I'd rather not do that." Since we were in one of the two "free speech" zones on Pacific Avenue, not playing amplified music which requires a permit, singing, and engaged in 1st amendment activities , and hadn't been very loud, the charge seemed odd. Of course in America, any citizen can sue anyone about anything, or so we're told.

"An elderly couple are in one of the apartments upstairs and they're trying to take a nap and they say you've been playing for about four hours. My obligation is to write a ticket if someone makes a complaint,"we were told. "I'm here to try to inform you that someone is complaining."

Photo: Ian, who heckled as four people were cited for "unreasonably disturbing noise" on January 6th, 2010 on Pacific Ave. in Santa Cruz, Ca. Photo by HUFF

"I couldn't even hear from across the street," said Valerie Promise, a local street singer associated with S.A.F.E. (Society for Artistic Freedom of Expression who had chanced by our event, and had joined us in singing "Let it Snow" when Officer Schoenfeld walked up. Valerie was not cited.

A somewhat lengthy discussion took place which resulted in Officer Schoenfeld revealing that she really expected us to pack up and go away based on the warning enforced by her threat of citation. We understood her warning to be about excessive noise and not our presence with the HUFF table, our petitioning effort ( 3 petitions, including one about police harassment were on the table), or our giving away a pot of hot, tasty soup to many hungry and grateful recipients. Our theme that day was "Unsafe to be Homeless in Santa Cruz" which was chosen after a record number of annual homeless deaths, 47, had been reported the previous month.

Vice-Mayor Ryan Coonerty formed a Downtown Task Force along with councilmembers Robinson and Mathews in the spring of 2007 which privately met with business owners, members of the Downtown Association, and agents from the Redevelopment Agency and the police department to teach citizens how to call police to enforce minor violations against people they didn't like. Ryan's committee completely bypassed the Downtown Commission, an indication of things to come.

Had Ryan Coonerty met with the complainant before he left the building? Did he speak to Schoenfeld before she came to "warn" us? Ryan was seen exiting Bookshop Santa Cruz less than 10 minutes before Officer Schoenfeld arrived.

HUFF members milled while Schoenfeld, now joined by Officer Inouye , questioned witnesses, only to be confronted by a man on a bicycle named Ian who stopped to jeer at us loudly. A woman leaned out of an upper window and yelled things at us, so people started to yell back at her and a noisy dialogue ensued, far louder than any noise our tabling event had produced earlier. She openly videotaped us as well. Meanwhile the complainant, Sean Riley, came down to fill out his complaint. As I took his photo, he gave me "the finger" right in front of Officer Schoenfeld. She ignored him.

"They've been here for three hours!" Riley told Schoenfeld. This was about 3PM and didn't sync with when our first HUFF member had arrived at 1:30PM to pick up the soup or the publicized time of our event. I myself arrived at 2:30PM and only sang one and a half songs. In all, I maybe sang for about 15 minutes. We had no amplification, and other than our singing, the only other sounds we made were with Blindbear's little drum and Coral's keyboard, an instrument she has played on Pacific Ave. for five years.

Yet despite that we had stopped singing when Schoenfeld had interrupted us. Despite that we had not started singing again, she inexplicably decided to write us citations anyway.

Robert "Blindbear" Facer, who was cited, did not sing a word but participated solely by keeping time on his small drum. He has been homeless on the streets of Santa Cruz for about 18 months now, and has been taken to court for sleeping out of doors twice. Now this man who sleeps in the dirt has been issued an expensive citation. He doesn't have the income to pay the $70 fee to register for the so-called "humanitarian option" of community service, much less pay the fine. And if he "doesn't take care of it" he will eventually wind up being jailed for it down the road.

"I was just making a joyful noise to the Lord," said Facer, "on the feast of the Epiphany." Facer is Amish.

Photo: Robert "Blindbear" Facer shows his identification to Officer Schoenfeld prior to being cited for "unreasonably disturbing noise Jan 5th, 2010." Photo by HUFF


After the last citation was issued, Robert Norse told Schoenfeld that he also wanted to make a citizen complaint. He wanted to cite the citizen complainant, Sean Riley, for filing a false police report---a misdemeanor. Schoenfeld suddenly did a 180. "I don't think his police report was false," she stated. Robert pressed her. "Why do you think his report is accurate when you said earlier that you didn't witness the excessive noise." "I didn't say that," she insisted. "You witnessed us singing and yet you didn't cite any of us Officer. I'm not telling you how to do your job, but if you witnessed a crime, you are somewhat obligated to either issue a warning or a citation, aren't you?

"I did warn you," she said. "But you refused to move..."

"I thought this was about excessive noise. If we played more softly would we be in violation if we didn't leave?" Norse continued. Schoenfeld finally and reluctantly admitted that "yes" that would have been legal. We asked to speak to her sergeant and were told he was "too busy" and would "call later."

I couldn't understand why Schoenfeld decided to cite us since we had stopped singing or playing any music and had not refused to stop playing or started to play again. I mean if a cop warns you to stop doing something, and you stop, is it really a warning if they give you a citation anyway?

Michelle who is a friend of Coral's, had heard us starting to sing, and came down to listen. She also lives in the same building as the complainant. We were all shocked to see that she was cited. She exclaimed her innocence and said "Robert, tell them!! I wasn't singing. " Robert told her "They don't care." He was right. They didn't.

I'm not much of a singer, but then this wasn't American Idol either. Since we had been warned about something we didn't do---violate the excessive noise ordinance---and then following the "warning" we had not continued our activity, why the citation? It was extremely chilling because now we had no idea what constitutes a violation of the law and Officer Schoenfeld was playing some kind of guessing game with us when we asked for clarity regarding what constitutes a violation of the code.

When Schoenfeld moved to cite Robert Norse, he protested. "What me?" said Robert. "I spent most of my time here talking to people who were signing petitions. I barely sang at all." "I heard you singing," replied Schoenfeld, who had suddenly decided she could determine whether our singing rose to the level of a code violation or not. Apparently for Schoenfeld, singing anything at all was sufficient cause for a citation.

Schoenfeld and Inouye left without taking Norse's cross-complaint of making a false police report.

Valerie Christy of HUFF had not been at our event due to her job, but had planned to play with Coral later that night. However, after the citations, both were too frightened to play. Later we heard that Schoenfeld intimidated two other musicians to stop playing music from the sidewalk in front of Borders Books, also with the threat of citation based on "citizen complaint" for "excessive noise".

Municipal Code 9.36.020 "unreasonably disturbing noise" states in part:

"No person shall make, cause, suffer, or permit to be made any noises or sounds (a) which are unreasonably disturbing or physically annoying to people of ordinary sensitivenesss or which are so harsh or so prolonged or unnatural or unusual in thier use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted."

Without some objective standard, even LISTENING to a political song can be dangerous. Does this mean that when Officer Schoenfeld gets out her ticket book, every person in the vicinity had better get up and leave because this is one SCPD officer who believes in guilt by association?

This is not an isolated incident. Police have been regularly going up to street performers and telling them to stop playing and move along or they'd get a ticket 'from a citizen'--a form of pressuring which chills free speech, misreads the law, and allows a “heckler's veto” to any street singer.

HUFF members met with Mayor Mike Rotkin on January 15th. He suggested the ordinance did not apply to singers on the street unless they were screaming at the top of their lungs over a long period of time and promised to “look into” the matter.”

Robert Norse contributed to this article last updated January 17, 2010.

HUFF Xmas Carols

The following lyrics were written by Robert Norse, Becky Johnson, Joseph Schultz, and Valerie Christy. Two of the songs were sung by HUFF members during the 2009 Holiday Parade amid some controversy. Enjoy! --- Becky Johnson, Editor




SGT HARMS IS COMING DOWNTOWN

You better not sit, you better not beg,
you better not chalk, or drink from a keg,
Sgt. Harms is coming downtown!

He's making a list, he's checking it twice
poor folks are naughty and rich folks are nice
Sgt Harms is coming downtown!

He knows if you have warrants
He knows who are the bums
He knows if you play hacky-sack
or feed the birds bread crumbs

You better just shop,'cause nothings for free.
You better be white and have an I.D.
Sgt Harms is coming Downtown!

You better not sleep, nor linger too long
nor dare to sit down while singing this song...
Sgt. Harms is coming downtown!

He knows if you're suspicious
Or hanging out while poor,
Don't beg a dime after dark downtown
You'll get tickets by the score!

The benches are gone
Get out of the parks
Don't sit in your car
Be gone after dark
Sgt. Harms is coming Downtown!


God Bless ye Merry Gentlemen

God Bless ye Merry Gentlemen
but not in Santa Cruz!
Mayor Rotkin has a Sleeping Ban
he'll cite you if you snooze
and if you're warm beneath your quilts
your blankets you shall lose
Bad tidings, not comfort or joy,
comfort or joy
Bad tidings NOT comfort or joy

The sidewalks are for business use, so don't delay or sit!
We've friendly cops with ticket books, three hundred bucks a hit.
They'll show up fast in squads of three as fast as you can spit.

Sad tidings, not comfort or joy, comfort or joy!
Sad tidings, not comfort of joy.

Yet this was made for all of us and not just for the rich
Watch out for "hosts" who prowl the street all smiling as they snitch.
And if you're mad, then just be glad, you know which way is which.

Mad tidings, not comfort or joy comfort or joy,
Mad tidings not comfort or joy.

In Santa Cruz we often fight for peace throughout the world
Discrimination isn't us, just keep your bedroll furl'd
Progressive politics with anti-poor laws here are swirled

Bad tidings, not comfort or joy, comfort or joy
Bad tidings, not comfort or joy



OH COME ALL YE SHOPPERS

Oh come all ye shoppers
with creditcards and checkbooks
and bank cards and bills and coins and
lay-away accounts
Come and buy new stuff
although you don't need it
Because you must have it
Because you must have it
Because you must have it and
right now!




AWAY ON VACATION

Away on Vacation no time for the poor
Says Mayor Mike Rotkin "No Sleep for the poor"
For thousands of homeless it's a crime just to sleep
the police will harass you in your car on the street

We love all our homeless
they even get mail
but sit, beg, or sleep and they'll wind up in jail
It's Christmas time now, time to buy lots of stuff
Your pain frightens shoppers, so the cops will get tough

City Takes Broadcaster to Court for Chatting at the Metro

Trial Friday May 15 1:30 PM

by Robert Norse

Thursday May 14th, 2009

originally published at: http://www.indybay.org/newsitems/2009/05/14/18594788.php
Photo by Becky Johnson taken at the Free Radio Santa Cruz studio in November 2008

Over 6 months ago on Sunday 11-2-08, I was approached by a Metro Security guard at the Metro Transit Center in downtown Santa Cruz. I was interviewing two homeless men for Free Radio Santa Cruz. The guard insisted I leave. I declined to do so. He called the police. He insisted I be given a citation for "Refusal to Leave a Business When Asked"--a charge with an apparent fine of $200+ Police did so and demanded under threat of custodial arrest that I leave the property. I was forced to do so. A week or two later I returned with a group of protesters and we reasserted the right to be in that public space.

HOW IT BEGAN

Two homeless men, Les and Jack, approached me after my Sunday radio show as I walked along Pacific Avenue and complained that religious sermons were coming out of the speakers at the Pacific Ave. entrance to the Metro Transit Center. They said they'd complained and were told to leave with the sermonizing continuing.

I then went to the Metro, found they were correct, and began recording what the Metro speakers were broadcasting. I then approached a security guard who refused to identify himself or his superior and declined to help me. In subsequent public records act requests, the guard involved still remained anonymous.

I then approached a Metro Supervisor who arrived on the property--Mr. Ed Nelson--who had the religious sermonizing turned off, explaining that classical music was customarily used to "discourage" assemblies of young people on the adjacent public sidewalk and in front of the Metro Center. All this is documented on audio tape available on line on this website (see below).

An hour later I returned and began interviewing Jack and Les near the sidewalk at the broad entrance way to the Metro Center next to Pacific Avenue. When a security guard directed two Latino men to "move on", I advised them that they had the right to be there. A second security guard, whom I later learned was named D. Delgadillo, then approached me and demanded I move. When I insisted he identify himself, he demanded I leave the property.


BUSTED FOR CHATTING AT THE METRO

The SCPD instead of defending my right to be there and advising the Metro Security guards to stop bothering me, forced me to leave the property on threat of arrest.

A Metro supervisor subsequently humiliated me further and banned for the day because I was visibly tape recording the complaint I made to her and her response.

More of the story can be found at:
"Ticketing for Standing and Talking at the Metro Bus Stop Sunday"
http://www.indybay.org/newsitems/2008/11/04/18548934.php


TRIAL ON MAY 15, 2009 -- FRIDAY AFTERNOON

The charge is refusing to leave a "business" when asked to do so.

Attorney David Beauvais of Berkeley will be defending me in the case. Attorney Kate Wells will be filing the subsequent federal law suit for damages. The trial will be before Judge Ariadne Symons without a jury. City attorney Barisone or one of his attorneys will presumably be appearing for the city.


SUBSEQUENT PROTEST

I returned to the Metro Transit Center a week or two after the police incident with a group of people, distributed fliers, and tried unsuccessfully to get Metro management to clarify what the rules were for the public and what the powers of their security guards were (i.e. could they simply ban people whose attitude they didn't like). I got no answer. However on this occasion, with video cameras rolling and lots of witnesses, the same guard did not harass or attempt to arrest us.

The story of the protest is told at in a subsequent posting on indybay.org/santacruz in the story--" Rotkin Claims: No Flyering Allowed at the Metro Center--Protest 11-26 11:30 AM"
http://www.indybay.org/newsitems/2008/11/25/18552885.php


ROTKIN'S ROLE PROTECTING THE POLICE

Vice-Mayor Mike Rotkin (who has been on the Transit Board for some years) initially advised me there was no "flyering" allowed. I wasn't flyering when I was cited on November 2nd (simply standing and talking to two homeless guys). When I heard Rotkin's outrageous rule, I and others organized a peaceful protest that specific included distributing a flyer that described what happened on November 2nd.

We spoke to members of the public and distributed literature for about an hour. Rotkin subsequently called me and advised me that he was mistaken--that it was okay to flyer the public at the Metro Transit Center.

As long as it didn't "disrupt business."

Somewhat later in a subsequent interview, when I brought it up again, Rotkin apologized for the misunderstanding, but took no action to look into the bogus ticket.

He was also not helpful in securing documents for my trial, clarifying the rights of passengers, or advising the Metro and City Attorney to drop the case. He could have spared the city, county, and Metro Transit District money in these lean times by acting promptly and fairly to quash this groundless prosecution.

Instead we're going to trial Friday.


POLICE MISUSING THE LAW TO DRIVE AWAY THE POOR

The trial will also highlight the collusion between security guards and the Santa Cruz Police Department in accepting an unlawful arrest.

Members of the public at the Metro are supposedly protected by a law that requires they be given written notice, a specified period of time, and an opportunity to have a hearing--as well as the right to use the facilities unless actual disruption is occurring (MC 9.60.0101 - TRESPASS ON PUBLIC TRANSIT FACILITIES)

Police and Metro Security Guards have colluded instead in using an inapplicable broader law that allows private businesses to order people off their property. Obviously, the Metro is not a private business, but a public facility. Even if it were, MC 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE. provides exceptions for "prohibited discrimination", "duties relating to common carriers", and "inhibition of...freedom of speech or assembly."--all of which were involved.

It took six months worth of Public Records Act requests and discovery demands to get the SCPD to cough up some statistics: Not just me but five other people have been apparently wrongly charged under this broader law instead of the more appropriate MC.9.60.0101). It's a nice way of sweeping people away from an area without any due process.

Of course, that's what happens to homeless people all around Santa Cruz.


AUDIO OF THE ENTIRE INCIDENT AVAILABLE

Those who want to hear what happened on November 2nd can go directly to the audio file included in the first story. I recorded virtually everything that I and the various guards, supervisors, and police said--as well as the original complaint I received that the Metro was broadcasting religious sermons over its loudspeakers.

It may have been management resentment at my raising this issue with the security guards that motivated the subsequent harassment.

I was also critical of the guards for harassing poor and possibly homeless people hanging out there who were doing nothing wrong. And refusing to identify themselves or their superiors when asked to do so.

The public is welcome to attend the trial. I shall move to have it audio recorded for public broadcast, but judges have become increasingly secretive in the past few years, so I may be banned from making a recording.

If you can't make it on Friday, I'll be discussing the case on my Sunday show at 11 AM on Free Radio Santa Cruz at 101.1 FM (http://www.freakradio.org).

SEIU Union Holds Heated Debate Over the Sleeping Ban in Santa Cruz

"There is a law that makes sleeping illegal. There is a law that makes covering up against the elements at night illegal. This smacks of the old South, racism and a community in denial about the human rights violations going on to a certain class of people."

by Becky Johnson

Originally published in August 2005

MARCH 22 2009 UPDATE: This article can be viewed where it was originally published at:
http://www.thestreetspirit.org/August2005/labor.htm
Since this article came out, the 9th Circuit Court of Appeals found a similar law in Los Angeles illegal due to "cruel and inhuman punishment." The crux of their decision rested on outlawing sleep in a situation where inadequate shelter exists. As of today, the Sleeping Ban is still in place and supported by the entire City Council. The HRO is still holding meetings. But they are now held at Taqueria Vallerta downtown at 2PM every Saturday. ---Becky

Santa Cruz, Ca. -- Five years ago, the Santa Cruz City Council struggled with ending the sleeping ban that criminalizes sleep for homeless people, but they fell short of that goal. Instead of ending the sleeping ban, they settled for lower fines and fewer hours of community service required for hapless sleepers caught catching forty winks within the city limits.

Since then, City officials have acted to prevent the unhoused from residing in vehicles or even parking them, whether they were sleeping in them or not, in vast swaths of the city. Arrests under the sleeping ban are markedly up from just a few years ago, and there is nary a councilmember who is moved to do anything about it.

Yet a small group of determined activists are pushing forward in their efforts to end the ban, driven not by a groundswell of support, nor by political expediency, but just by a gut feeling that as long as homeless people can't sleep at night, no one else can truly rest.

When Human Rights Organization (HRO) member Bernard Klitzner approached Tim Ahern of the Service Employees International Union (SEIU), he found they were in sync on this issue.
Ahern is part of a struggle by In-Home Health Care workers with a union that is satisfied with negotiating less than a living wage which leaves the threat of homelessness looming for SEIU homecare workers. Once homeless, even if still employed, SEIU workers fall victim to the sleeping ban. Ahern's union voted to abolish the sleeping ban sections of the Santa Cruz camping ordinance which prohibits all sleep on any public property from 11 p.m. to 8:30 a.m. -- even in a licensed vehicle.

HRO organizer Bob Patton said, "Our intent is to alert the community as to how devastating these laws are to the homeless person and how against the Bill of Rights they are. As far as we are concerned, these laws are against human rights,"

In that spirit, Ahern vowed to take the issue before the SEIU membership and asked Klitzner to organize some speakers. At their first meeting, a healthy debate emerged and some wanted to immediately endorse ending the sleeping ban on the spot in executive session. But since Jeff Smedburg and other union leaders were still smarting from having endorsed the ill-fated Santa Cruz Coast Hotel Project in a similar executive session, and without consulting the full membership, they balked at proceeding without a formal forum being held.

On July 13, 30 SEIU members and some members of the public attended a forum held at the Union Hall in Santa Cruz. HRO organizer Bob Patton was worried when he arrived and found that SEIU leaders had scheduled the presenters from the HRO in a debate style and facing opponents. Worse, the signs in front of each group referred to repealing the camping ordinance and not the sleeping ban. A park ranger and a Parks and Recreation worker volunteered to take the position of the City of Santa Cruz in opposition to ending the sleeping ban.

"We had five specific points we wanted to present and have them endorse," said Patton. "By the time it came to July 13th, things had gotten bastardized and turned around. Our five points were gone and it was a debate about repealing the camping ordinance. We had to explain ourselves over and over again that that was not our issue."

The five points advocated by the Human Rights Organization were first articulated in a letter to the Santa Cruz City Council by local civil rights attorney Kate Wells in December 2004. They are:
1. Suspend winter citations for sleeping, use of blankets and camping.
2. Dismiss all present and past citations.
3. Set up a minimum of 40 car parking spaces which allow sleeping at night.
4. Set up emergency campgrounds in parklands for homeless people.
5. Mandate additional training and direction to the police department.

"The union has members within it who are homeless from time to time," Patton said. "Our initial response when we went to the executive meeting in May was that they were quite enthusiastic to our proposal."

But it was a different audience at the July 13th debate. Several Parks and Recreation officers and maintenance workers arrived with photos of garbage piles and buckets of hypodermic needles. Parks and Recreation worker Andrew told the audience that "only one in a thousand can be helped." He added, "They leave needles in the children's playground; they defecate in the children's playground. We hauled five tons of garbage out of Moore creek. I just talked to a councilmember before this meeting. He told me that there is adequate shelter for those who want to use it."

Santa Cruz Mayor Mike Rotkin -- a supporter of the sleeping ban -- acknowledges that homeless shelter is inadequate, and glaringly so, 8 months of the year.

"Please do not pass this, not for the sake of the union members, but the sake of our community," Andrew urged the SEIU membership. He then denounced the homeless residents of Santa Cruz in the most pejorative terms, stating, "They are not city residents, they are not county residents, they are not even from our state. They come here for cheap drugs and generous social services. It's not all of them. That would be unfair. There are families out there that need our help."

Many SEIU members also expressed apprehension about an "influx of homeless" and the loss of a valuable "police tool" for questioning vagrants were the sleeping ban to be lifted.

Opponents of the ban replied that the entire homeless community could not be denied their need to sleep at night because of the bad behavior of a few. "They were a bit too enthusiastic about their invasive enforcement tools," Patton said later. "The Needs Assessment Survey of 2000 showed that 71 percent of our homeless population last had housing in Santa Cruz County. There are laws and regulations that deal with specific acts such as littering, trespassing, etc. that can be used. I was frightened at the animosity and the outright disdain for the homeless expressed by the rangers."

At the meeting, SEIU member Anna Brooks declared that she "knew all about the camping enforcement." She claimed that ticketing is rare, only done on complaint, after a warning has been given, and only as a last resort. Brooks unsuccessfully sued Klitzner, Norse, and the author of this article in 2000 for harassment, but the suit itself effectively derailed a lobbying campaign against the sleeping ban by the mayor's office at the time. As one of the presenters, I commented that the complaint-driven ticketing only occurs in residential areas, whereas citations issued out in the parklands (the majority of tickets issued in Santa Cruz) are issued in the absence of any complaint.

Parks and Recreation maintenance worker John Gilbert tried to see both sides of the issue while addressing the impact of illegal camping on Parks and Rec facilities. "I understand that people need to have a place to live," he said. "I understand that not all the campers trash the place. One of the problems of having camping -- a constant presence -- is that stuff isn't necessarily used in the manner in which it was designed. You go and clean up the bathrooms in the morning, where scores of people have come out of the woods to bathe and use the facilities, and there is a big mess one hour after it opens."

HRO presenter Ray Glock-Grueneich warned the audience that the current ordinance was a "false solution to the current problem. The kids who want to be in your face are from the suburbs and are not the ones they run out of the bushes."

Since the current law makes sleeping illegal from 11 p.m. to 8:30 a.m., it attempts to reverse the sleep cycle in homeless people. One wonders at a city mandate which, if followed, leaves people disoriented and less functional. "One of the techniques that the military have used in Guantanamo was to reverse the sleeping hours," Glock-Grueneich said. "There is a debate about whether this is torture or not. You find that when the sleeping hours are involuntarily reversed, you cannot function to the same degree."

He suggested that we only have two choices in a city that is not ready to address the sleeping ban: "Get enlightened leadership from places like the unions. Or you use coercion. Get lawyers and file a civil rights lawsuit." He asserted that the sleeping ban is unconstitutional when applied to poor people who have no place else to sleep because shelters are full. "That's why we have Eichorn which provides for the defense of necessity. But there's a catch. The defense of necessity requires the burden of proof to be on the defendant to prove their case. A defendant has to hire an attorney. So a defendant has to come up with thousands of dollars for an attorney when they didn't have the $50 for a motel room."

The SEIU conferred in closed session. John Gilbert reported the results. "We decided to not vote on it. The issue was not tabled. It was removed from consideration." He said that many anticipated a bitter fight if the SEIU went forward. Many asked why this issue should be voted on right now. Gilbert left one note of hope. "The door is not closed to a more concrete proposal," he said.

Bob Patton described his own bottom line. "I keep coming back to -- and I can hardly believe I am saying it -- there is a law against sleeping in Santa Cruz. There is a law that makes sleeping illegal. There is a law that makes covering up against the elements at night illegal.
"This smacks of the old South, racism and a community in denial about the human rights violations going on to a certain class of people. And the destruction that these laws cause, not just to these individuals, but to our civil society itself. We are a community with responsibilities. Like it or not, we are responsible for the damage we are doing to this class of people. These laws are not the answer."

The Human Rights Organization meets weekly at 115 Coral St. in Santa Cruz inside the Homeless Services Center dining room from 1:45 p.m. to 2:45 p.m. All are welcome.