Linda Lemaster faces 6 months in Jail for Sleeping

 

Attorney Jonathon Gettleman and client, Linda Lemaster await the jury's verdict on November 8, 2012 in Santa Cruz, Ca. photo by Becky Johnson

 

Little-used portion of California's disorderly conduct charged against sleeping Lemaster, PC 647 (e) "illegal lodging" eliminates public assembly, protest

by Becky Johnson
December 6, 2012

Santa Cruz, Ca. -- 12 jurors and 2 alternates listened to Linda Lemaster tell her story on the witness stand of her night on the steps of the courthouse back in August of 2010.  She told jurors that she had not meant to fall asleep at all, despite a certain civil-disobedience element of the protest going on. For Peace Camp 2010 WAS a protest against Sleeping Bans. Part of the protest included people sleeping openly on the courthouse steps to educate the public on the lack of legal places for homeless people to sleep in the City and County.

"I was there to attend to Christopher Doyon," she told jurors. "He wouldn't go to the hospital, and I couldn't get anyone else to watch over him, so I ended up staying there that night."

Her good Samaritan efforts were not rewarded. At 4:30AM, Sheriff's deputies woke her and others up to cite them, not for MC 6.36.010 section a, the Sleeping Ban, which outlaws the act of sleeping between 11PM and 8:30AM (an infraction), but instead, sheriff's were using PC 647 (e) a Statewide part of the disorderly conduct code which outlaws "illegal lodging." What constituted "lodging" proved to be a sticky wicket. Not that that stopped prosecutors or juries.

While PC 647(e) applies to the entire State, Sheriff's opted to enforce it ONLY on the steps of the courthouse where the protest was taking place. Those who refused to leave quickly enough were cited. Lemaster attempted to speak to a Deputy about Doyon and his condition, but was asked to wait. She complied but was cited instead. While Lemaster was not homeless, and had not made those steps her "new home", on November 9th, the jury convicted her.
 

Linda Lemaster reacts to her guilty verdict November 9, 2012 video by Becky Johnson

In May 2011, Ed Frey and Gary Johnson were both convicted by a jury of illegal lodging and Judge John Gallagher sentenced them both to six months in county jail. Both have finished serving their sentences.

It's estimated that each jury trial costs between $80,000 and $100,000 to conduct. Jail costs at our already overcrowded facilities are in addition to that figure. Housing homeless people in area motels could cost a fraction of that amount.

Lemaster, who suffers from severe allergies and asthma,  worries her health could be adversely affected if she is incarcerated. She currently lives in specialized housing to reduce the impact of dust and mold on her lungs.

Today, Linda Lemaster is to be sentenced by Judge Rebecca Connolly at 3:30PM in dept 5. Many of her supporters are likely to be there and will speak on behalf of Ms. Lemaster. At age 63, Linda, a disabled woman and the mother of three has done a remarkable amount of service to the community of Santa Cruz. Despite three separate bouts with homelessness herself (the last time due to a fire at her father-in-law's apartment that resulted in the entire family becoming homeless), Lemaster has served on a number of City Commissions and Task Forces. 

 Supporters begin to gather at a Benefit for Linda Lemaster held at India Joze Restaurant on Dec 2nd. photo by Becky Johnson

She is the former Chair of the Commission for Prevention of Violence Against Women, Former Chair of the Homeless Issues Task Force, project director of Housing Now! Santa Cruz, and a member of the County's Homeless Action Partnership which recently sponsored a very successful "Homeless Summit" attended by 250 social service providers, police, politicians, faith-based program members, and homeless advocates at Cabrillo College on December 1st.

In addition to her service for non-profits and City Commissions, Lemaster is a gifter writer, has been published in Street Spirit, and has her own blog, Linda's Hearth. She is personally compassionate person who has helped many individuals suffering from homelessness thru feedings, clothes donations, and offering showers to some as well.

A Rally is planned at 2:30PM at Occuplaza (The northside of the courthouse on the Water St. side) with sentencing to begin at 3:30PM  in Dept 5.

IF U ATTEND:  701 Ocean St. Santa Cruz, Ca. 95060  parking up to 2 hours in lot is free. 

IF U OPPOSE the use of Sleeping Bans or the use of PC 647 (e) against homeless people, please contact DA Bob Lee, District Attorney for the County of Santa Cruz with your concerns. 

       

 

Lemaster Lodging trial turns into inquisition and hate-fest

Linda Lemaster (left) attending one of many pre-trial hearings with supporters, Leslie and Kent, November 2, 2012 for a "lodging" ticket she got two years ago. Photo by Becky Johnson

 by Becky Johnson

November 9, 2012

Santa Cruz, Ca. --  According to ADA Alex Byers, Linda Lemaster faces Six Months in Jail for the "crime"of sleeping/not sleeping on public/private property with /without possessions for a long/short period of time which can be intentional/unintentional, all subject to the "permission" of the "authority."
  

Linda is on trial for PC 647 ( e ) or  illegal "lodging" under a little-used portion of the State code, which sheriff's had not used before citing protestors at Peace Camp 2010.

According to Byers,  a protester with his/her sign attempting to peaceably assemble to seek redress of government grievances may do so: 
  

ONLY where the govt. tells them they can.

ONLY when the govt. tells them they can.

And, apparently, NOT while sitting, lying down, or sleeping since these = lodging. And if a Sheriff tells you you can't "lodge" then whatever you are doing is "lodging." According to Byers, Sheriff's didn't need to prove a person was "lodging" in order to issue a citation. Only that they were "still there on the steps when sheriff's came back."

 On the night of August 10th, as Linda Lemaster was cited for illegal lodging, Sheriff's moved elderly, Collette Connolly off the steps. Here she collapses in exhaustion on her belongings a scant 50 feet from the courthouse. Why Sheriff's told us the steps of the courthouse were illegal at 4:30AM but the parking lot was not was only one of the many arbitrary and confusing encounters Peace Camp 2010 had with law enforcement. Photo by Becky Johnson

Oh, THAT's a convenient definition of the code! When a sheriff hands you an unsigned piece of paper, then, according to Byers, that person "has been educated"that they no longer have the right to carry a sign, to protest, or to seek redress of government grievances.  And if a protester wants to publicly assemble? They must follow "time, place, and manner restrictions" which are not written in the law anywhere.

Christopher Doyon a.k.a. "X" of Peace Camp 2010 pauses on the lower steps at Peace Camp 2010. In the background, Ed Frey's white, pick-up truck can be seen hitched to the camp porto-pottie. Other than Ed's privy, homeless people had no access to a bathroom at night other than at Peace Camp 2010. Photo by Becky Johnson July 30, 2010

For ADA Alex Byers, camping = lodging except that "camping" is not illegal in that particular location under County Code.

While camping is , according to Byers, essentially the same thing, "lodging" rates 6 months in jail and/or a $1000 fine. And CAMPING is legal in the location where Linda was cited.   Committing the same crime in the City (and Lemaster WAS in the City when she was cited) rates a $92 citation or 8 hours of community service as a possible consequence. So why did the sheriff's use the statewide "lodging" code rather than the County's camping code or the City's Sleeping and Blanket ban?

According to ADA, Alex Byers, it was due to "tolerance."

Those at Peace Camp 2010 know better. The plucky little group had discovered that the County's camping ban does not apply to the grounds around the courthouse and government center. In other words "camping" is legal there. Also, due to jurisdictional agreements, City police do not patrol the grounds at the Government Center. Sheriff's opted to not enforce City codes against Sleeping and using  blankets. Codes that are all infractions, violations of which do not include jail. These were the twin laws the protest had assembled to challenge.

On July 29th, 2010, Ed Frey received a letter from County Counsel, Dana McCrae. She informed Frey that city ordinances ARE enforceable at the County Center, since it is within the City limits.  The SENTINEL reported that the reason no citations had yet been issued was because "government officials, law enforcement officers and legal experts (had to) sort out what rules apply to the property."

Peace Camp 2010 used public space which is unused at night. This photo taken on July 20th at 8:13PM shows people setting up bedding. At 8:00AM, Ed Frey would drive the porto-pottie off of the property and normal use of the facilities would commence.  Photo by Becky Johnson

Around the end of July,  County Counsel, Dana McCrae dusted off the lawbooks and dug up a code which used language lifted from an 1880 law in California designed to keep freed slaves from moving into the State. Judges Gallagher and in this trial, Connolly further eroded civil rights by creating a definition which lifts language from the 1851 Indiana State Constitution which states:  "No Negro or Mulatto shall come into, or settle in, the State..."

The new definition of lodging which Judge Rebecca Connolly approved: "To occupy a place temporarily or permanently, or temporarily settle or to live in a place, it may, but does not have to include sleeping. It means more than just sleeping and less than moving into a place permanently." 

Byers told jurors of the flyer sheriff's passed out willy-nilly to anyone who wanted one: The flyer only stated you are illegally lodging without permission. Merely telling Petitioner or anyone else that they are lodging or that they do not have the owner’s permission in no way clarifies what lodging means or how one can avoid it. In this circumstance “to lodge” illegally appears to have meant to the deputies- to further physically occupy space in any manner on the steps of the Santa Cruz County courthouse.

Sheriff's deputies stopped calling what we were doing as "camping" and started to accuse us of "lodging." We knew something was coming. About a week later, sheriff's handed out this flyer which had no letterhead, was unsigned, and unconvincing in its text as part of their "Education phase."  --Photo by Becky Johnson Aug 7 2010

THE COUNTY'S PLAN

Byers told jurors about a 2-phased Plan to get the protesters to leave the location.

--Education phase followed by an Enforcement phase.

"Lt. Plageman testified that they weren't' interfering with the right to protest.

Their goal was to stop people from the intent of the protest which was to violate

the law." He told jurors that flyers were handed out in the following way:  "If you were lying down, you were sleeping, you were violating the law. At 4:30AM, they were already lodging when the

Sheriffs deputies arrived. They were already breaking the law."
 

Sounds like a slam-dunk. 
  

So does the "law" outlaw lying down, or sleeping? No. PC 647( e ) outlaws "lodging"

but that word is not defined anywhere in the code. In 2011, at the Peace Camp Six

trial, Judge John Gallagher made up a definition by looking at old codes and

a dictionary.  Judge Rebecca Connolly has made up a new definition. In neither

case, were any of the defendants allowed access to either definition of lodging

when cited two years ago. 
  

"The dictionary includes 14 different definitions of "lodging," Defense Attorney Jonathon Gettleman quickly added in.

But Connolly had decided 18 months ago that PC 647( e ) is Constitutional, so

jurors don't know that defendants (and their attorneys) have challenged that

Constitutionality. See:"Sleeping is not a Constitutionally protected right" 

Byers showed some really dark and grainy videos which roughly show a mess. John Valley's voice can be heard and the sound of Linda coughing.  Even worse, he paints the protest as characterized as "junk all over", none of which has ANYTHING to do with Linda Lemaster. Linda was wide awake at 11PM with no bedding. That, at 4:30AM, sheriff's came and found her sitting up and looking sleepy, doesn't mean a crime was committed.

Byers asserted more claims that I doubt are true.
 

"No one is allowed to lodge on the steps of the courthouse at night." Huh? Lodging isn't defined as an activity done at night only. And when Linda Lemaster was there at 4:30AM, she wasn't trespassing. The courthouse steps were a legal public place to be (at the time. Since this has been changed by County administration to make it a crime to BE THERE between 7PM and 7AM).

Jailing Attorney Ed Frey is an Outrage!

Attorney Ed Frey retrieves the Peace Flag from deputies and returns it to Peace Camp 2010 while protester, Vamp, stands by July 13, 2010.   Photo by Becky Johnson

 by Becky Johnson

August 5 2012


Santa Cruz, Ca. -- Respected local Civil Rights Attorney Ed Frey, has been ordered to report to the Santa Cruz County Jail on Wednesday morning of August 8th at 9AM. He is scheduled to begin serving the remainder of his six month sentence for "lodging" which is a highly-suspect section of the statewide disorderly conduct code. For instance, "lodging" is not defined anywhere in the code section, so law enforcement (and local DA's and Judges) can interpret what constitutes illegal "lodging" anyway they wish. And since it is a misdemeanor, a violation can result in immediate arrest. Activists consider it an end-run around loitering laws which have largely been declared unconstitutional.

Testimony by several sheriff's deputies at Ed Frey's trial cited observing defendants "sleeping" with no other index of criminal activity reported. During the 92 day protest, not a single littering ticket was issued. Ed Frey provided a porto-potty every night as he and hundreds of housed and homeless people alike slept in civil disobedience of laws which criminalize sleeping.

This model of protest was copied and expanded with Occupy Santa Cruz a year later. Ed Frey served on the legal support working group and defended the encampment in court.  In each of these cases, Ed worked tirelessly, providing a powerful voice, setting a moral and ethical framework for dealing with the influx of homeless people who joined the encampment primarily to meet their own physical needs. He even took a pregnant, homeless woman to his home for several nights.

Judge John Gallagher sentenced Frey in a fit of anger he later grew to regret.  The law Ed Frey was primarily focused on opposing was MC 6.36.010 section a, a.k.a. "the Sleeping Ban" for which the maximum fine would have been 8 hours of community service. DA Sara Dabkowski sought 400 hours of community service, which constitutes a 50 fold increase in sentencing. When Ed Frey refused to serve 400 hours of community service, Gallagher angrily sentenced him to the maximum sentence he could issue: 6 months in jail for a 1st offense.

Frey asked to be released on bail pending appeal, only to have Gallagher set bail at $50,000!
Frey served 14 days in jail before being set free at a hearing before a much calmer Judge Gallagher who set bail at $110 which was, apparently, the bail amount for that charge normally.

Frey's only real chance at appeal took place before appeals court panel, Judge Paul Marigonda and Judge Timothy Volkmann. Marigonda claimed the 6 month sentence was not excessive since he, as a prosecutor, had commonly sent defendants to jail for the maximum sentence when THEY refused community service.  Of course his defendants were involved in domestic violence cases, while Ed Frey was engaged in 1st amendment activities which victimized no one.

The bottom line is it is a CRAZY use of police, court, and jail resources to arrest people for SLEEPING. Be it protestors at a protest or homeless people who can't afford a roof over their heads. It is wrong. Mean. Cruel. Counter-productive. Selective. It is a human rights abuse done under color of law. And NO ONE who is convicted for sleeping will ever refrain from future sleeping. Sleeping is not a voluntary act.  Every living thing must sleep in order to live. Enforcing a sleeping ban is torturous and causes sickness, mental illness, depression, fatigue, poor immune function and yes, death.  The sleeping ban causes death.

Under these circumstances HOW CAN THEY SLEEP AT NIGHT? 

How can DA Bob Lee, County CAO Susan Mauriello, County Counsel Dana McRae, Sheriff Phil Wowack and Judges Gallagher, Connolly, Marigonda, and Commissioner Baskett sleep at night knowing they are the chief conspirators to foment this policy of persecution and judgement.

Attorney Ed Frey made a mockery of our local justice system so that Gallagher had to make up language to feed to his hand-picked jurors in order to get a conviction.  Gallagher even used language cribbed from the 1851 Indiana State Constitution which stated  "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution," when he defined "lodging" as "settling in or living in a place which may include sleeping" as HIS definition of what constituted illegal behavior statewide.

Please attend a protest beginning August 7th at 6PM to oppose the Jailing of Ed Frey. Assert our rights to seek redress of government grievances, our right to peaceably assemble, and our right to be free from cruel and unusual punishment or excessive fines.

Six Months in jail for SLEEPING? Is this America?

URGENT!  Attorney Ed Frey and his client, Gary Johnson, both convicted under PC 647 (e),  the anti-homeless statewide anti-lodging statute for sleeping at a protest against Sleeping Bans, face a certain six months in jail apiece as Frey exhausts his appeal process. Legal, moral, and political support is badly needed. Frey and Johnson could be jailed as soon as Tuesday, July 24th, 2012 when they go before Judge John Gallagher at 8:30AM in Dept. 2

 A homeless man sleeps on the benches outside of the Santa Cruz
Main Library as part of Peace Camp 2010 when protesters had
been driven away from City Hall across the street. These benches
have since been removed by public officials.  Photo by Becky Johnson

by Becky Johnson
July 20, 2012

Santa Cruz, Ca. -- When Ed Frey envisioned Peace Camp 2010, he was sure of his cause. Sleeping itself is a criminal act within the City of Santa Cruz. It is illegal under MC 6.36.010 section a, to sleep anywhere out of doors or in a vehicle between 11PM and 8:30AM, with few exceptions. And while the City of Santa Cruz does pay for a sizable percentage of services offered to homeless people (some Cities provide nothing), the number of persons enumerated by each census far outnumber the number of spaces of legal shelter available.

But for reasons largely unexplained (thought to be a squabble between City police and County sheriffs) neither Ed, nor protesters Gary Johnson, Eliot Anderson, teepee visionary Robert "Blind Bear" Facer,  "Anonymous" Commander X, Collette Connolly, the former Chair of the Commission for Prevention of Violence Against Women, Linda Lemaster, radio host Robert Norse, and Art Bishoff were charged with the City's Sleeping Ban. Instead, County Counsel Dana McRae  advised sheriff's to charge misdemeanor PC 647 (e), as a disturbing the peace charge.

Linda Lemaster in front of the Santa Cruz County Courthouse 2010

Photo by Becky Johnson

A jury trial was held for five defendants including Ed Frey who served as both the defense attorney for his fellow defendants and as his own defense. All, except Anderson were convicted. In Anderson's case, the jury hung 11 - 1 for conviction. One juror didn't think Anderson should be compelled to gas his dog in order to sleep in a shelter for one night. The remaining jurors did.

At a sentencing hearing for Gary Johnson and Ed Frey, Judge John Gallagher sentenced both men to 6 months in jail following their refusal to accept 400 hour of community service. In addition, when Johnson asked Gallagher how he could "obey all laws" since illegal lodging is illegal 24/7 and he was homeless, the Judge told him he "could sleep in jail" and ordered him jailed immediately.

When Frey asked for bail in order to file an appeal, Gallagher set bail at $50,000 apiece. Both men went to jail for several weeks. Frey was able to modify the bail to $110 each ( the bail schedule for PC 647 (e) charges) , both men were able to bail out.

Just as Johnson had warned, he was again cited four times for illegal "lodging" and jailed for another 85 days. Now both men, having exhausted their immediate appeal route due to lack of legal resources and inadequate funding, face being returned to jail to serve the remainder of their 6 month sentences.

Neither is accused of having trespassed, littered, or bothered anyone at all. Only sheriffs were disturbed to see protesters against the Sleeping Ban sleeping in direct defiance of the ban as part of a 1st amendment protected protest, and at a traditional public forum. And what was the behavior they testified to as requiring immediate arrest for disturbing the peace? Sleeping at 4:30AM. In fact, sheriff's testified they had to awaken the sleeping protesters! And six months in jail for sleeping has got to be excessive punishment.

And if an attorney and activist can be jailed for sleeping, how are homeless people treated who have limited legal shelter options?  Thanks to Ed and Gary, we now have a clue.

Those with legal resources, financial or political support, should contact ED FREY here.

Jury Trial date set for Linda Lemaster October 15th

 A depiction of the outrage of the Sleeping Ban as depicted by a local homeless artist.

Trial date set in case of Santa Cruz Peace Camp protester Linda Ellen Lemaster

By ROMAIN FONSEGRIVES - Santa Cruz Sentinel

First published:   07/06/2012 08:09:28 PM PDT

Found online here.

SANTA CRUZ - A trial date of Oct. 15 was set Friday for Linda Ellen Lemaster, a community activist involved in a controversial homeless protest in 2010 on the steps of Santa Cruz County Superior Court and City Hall.

Lemaster, a homeless activist and projects facilitator for the Santa Cruz group Housing Now!, is charged with illegal lodging for her participation in the demonstration. The protest, called "Operation Peace Camp 2010," gathered activists opposing parts Santa Cruz's camping ban.
 
The occupation comprised a group of more than 50 people who slept and held signs on the courthouse steps. It lasted three months, before deputies began warning, ticketing and arresting protesters under a criminal misdemeanor law for unlawful lodging.


  Attorney Ed Frey, Robert "Blind Bear" Facer, and Linda Lemaster confer at City Hall
during Peace Camp 2010, a protest against Sleeping Bans. Photo by Becky Johnson


Lemaster appeared in court with friends Friday. Her attorney Jonathan Gettleman said he filed a writ of habeas corpus with the 6th District Court of Appeals in San Jose. The 53-page writ requests the court to hear and dismiss Lemaster's case, linking it to the protection of freedom of speech under the First Amendment.

"This matter is very serious as far as we're concerned," Gettleman said. "This case could really injure people's ability to engage in protests."

Gettleman said the illegal lodging law was misused to put an end to the protest and violated the constitutional right of people to assemble peacefully and to petition the government for a redress of grievances.

Gettleman said he not only hopes to clear Lemaster, but also to make the illegal lodging law unconstitutional. The federal court should decide whether to hear the case in the next few months, before the beginning of the Santa Cruz trial in October.

In a previous case related to the protest, two other activists, Ed Frey and Gary Johnson, were sentenced to six months in County Jail last October.

Judges affirm that sleeping at any time or place is illegal

 Attorney Ed Frey is arrested for sleeping on August 7, 2010 as part of Peace Camp 2010

protest against sleeping bans. Photo by Bradley Stuart

 

Santa Cruz Superior Court Appeals Panel

affirms 6-month sentence for Sleeping

by Becky Johnson

June 17, 2012
(updated June 29th)

Santa Cruz, Ca. -- A two-judge panel has affirmed the conviction of Ed Frey and Gary Johnson for sleeping.  The law, PC 647 (e), the statewide anti-lodging law, outlaws illegal lodging. But it was clear from evidence introduced at trial, statements by Judge John Gallagher, and finally statements by the two appeals Judges, Paul Marigona and Timothy Volkmann, that "sleeping" equals "lodging" for "the people."

The judgement upholds the conviction for the two men, and Gallagher's draconian sentence of 6 months in jail for sleeping for each man. Unmentioned at the appeals hearing was that Gallagher had also set bail at $50,000 each, a bail that was later modified to $110, which was the bail schedule all along for this "crime."

Of course the "crime" in the case of PC 647 (e) violations is to use the extremely broad activity of "lodging" as an arrestable crime against homeless people who have no other choice than to live in public places, and against protestors, in this case, set against the backdrop of Occupy Santa Cruz.

A homeless man sleeps as part of Peace Camp 2010, in front of the Santa Cruz County Courthouse
on July 12, 2010  photo by Becky Johnson

Appeals Court Judge, Paul Marigonda began in support of denying the appeal by claiming the defendants were claiming "a right to sleep anywhere." He claimed that neither County law nor the 9th Amendment to the Federal Constitution did not provide "any such right. That government provide any such place to sleep, is not there either."

Marigonda then referenced three sources. He said that "lodging can be setting up in a place with the intention of spending the night," language which he cribbed from section "c" of the Santa Cruz City Ordinance 6.36.010 Camping prohibited.

"It can be to occupy a place temporarily," which Marigonda got from a regular dictionary.
"It can be to settle in or live in a place temporarily, that may include sleeping," which is the definition Judge John Gallagher cobbled together to give to the jury that convicted Frey and Johnson in May of 2011. He asserted that "time, place and manner restrictions" were "entirely reasonable."

Marigonda then addressed the six month sentence handed down to the two men. "It's not unusual when the two men involved refused to accept the terms of the probation."  Frey and Johnson had turned down 400 hours of community service and a 3-year probation including 'obey all laws'.

A homeless kitten explores at Peace Camp 2010

Photo by Chris Doyon

Johnson, who is homeless, had objected to the 'obey all laws' clause saying that he "needed to sleep" and that he couldn't go three years without sleeping. Gallagher had resolved that by jailing Johnson on the spot telling him he "could sleep in jail." Frey had called the 400 hours of community service "slavery." Considering that DA Sara Dabkowski had sought 50 times what a conviction for MC 6.36.010 section a, also known as "the sleeping ban," the law they were there sleeping in direct violation as an act of civil disobedience.

Ed Frey, who was both a defendant and the defense attorney, began by correcting Marigonda.

"We weren't attempting to say we had a right to sleep anywhere, we say we have a right to sleep somewhere.  We're asking the Superior Court to acknowledge that sleeping is a valid form of expression. We're all physical embodiments. Will we say to anyone who doesn't have any property rights or access to a physical abode, that you don't have a right to live?

Judge Timothy Volkmann assured Frey he had read Ed's brief "four times." "While sleeping is expressive conduct, it is subject to time, place and manner restrictions."
"The statute itself says you can't lodge anywhere in the State. And not at any time in a 24 hour day. And the California State Constitution doesn't allow cruel or unusual punishment. Has anyone else you know been sentenced to six months in jail for sleeping?"

"You didn't take advantage of your probation offer," responded Volkmann.

Marigonda, referencing his experience as "10 years as a prosecutor in domestic violence felony cases" he said it was a common practice to charge the maximum sentence for defendants who refused probation terms. "And it could be just a touch."

Frey countered, "We generally sentence based on harm to a victim. How did Gary and I harm anyone by sleeping in front of the courthouse when all the workers were home in bed?"

Marigonda: "Judgement of lower court is affirmed in its entirety."

But Frey and Johnson were not immediately jailed to complete their 6-month terms for sleeping.
Frey sought permission from the court to certify the case for further appeal, which the court granted. However, on Friday, June 29th, the court turned him down. So now he is preparing a writ of Habeas Corpus to appeal to the Supreme Court of the State of California.

Gary Johnson fights the Sleeping Ban from Jail

Photo: Sheriff's deputies arresting Attorney Ed Frey as part of Peace Camp 2010 --Bradley Stuart Aug 7 2010


Sleepcriminal Gary Johnson holds in custody hearing, before Judge John Gallagher challenging PC 647 (e), the Statewide anti-lodging law, and acting on his right to protest against Sleeping Bans

by Robert Norse

Monday Feb 20th, 2012

See " Sleep Criminal Again in Court" for some of the legal pleadings involved.

About ten supporters attended. There was subsequent discussion of the hearing on Free Radio Santa Cruz with Becky Johnson (about 3 1/2 hours into the audio file).

The hearing lasted for nearly an hour. Much of it saw Judge Gallagher debating with attorney Ed Frey. Gallagher seemed to be playing the role of prosecution attorney, a claim repeatedly made by Frey. Gallagher kept insisting that sleeping on a bench had "destructive" environmental impact, that one could "sleep during the day", and that the law was not vague, but a reasonable regulation of time, place, and manner.

PC 647 (e) reads "Every person 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...is guilty of disorderly conduct, a misdemeanor" "Lodges" is nowhere defined in the penal code regarding this section.

Three deputies twice-removed an older woman in the back row for some sort of silent gesture of solidarity with Gary Johnson ("no communicating with the prisoner) over her anguished protests. When the woman protested that she simply wanted to attend the hearing as a member of the public, Judge Gallagher recessed proceedings until the brown-shirted bailiffs strong-armed the woman out of the courtroom, even though Gallagher had given no instructions to that effect and proceedings had not been disturbed prior to the bailiffs demanding the woman leave.

Gallagher again held that the state 647e law under which Johnson has been held for a month and a half is not unconstitutionally vague and does not unreasonably impact the First Amendment protection.

Johnson is charged for sleeping on a bench in front of the courthouse. Gary was charged and jailed on repeated nights with a sign near him with such messages as "MC 6.36.010, PC 647e A Legacy of Cruelty" and "Sleep is Not a Crime". His protest was designed to highlight both the criminalization of the homeless and the crackdown on peaceful political protest around the courthouse.

In December, Chief Administrative Officer Susan Mauriello, without any action or specific authorization from the Board of Supervisors, established a nighttime curfew on the entire courthouse/county building grounds, apparently in response to the peaceful nightly General Assemblies of Occupy Santa Cruz.

Various activists have been arrested for simply being present with protest signs there after 7 PM and declining to leave when ordered to do so by sheriffs. (See "Courthouse Steps Now Free Speech-Free at Night..." at http://www.indybay.org/newsitems/2011/12/09/18702196.php).

Those arrested or cited got court dates, but when they went to court, some missing work to do so, they found there were no charges.

Some suggested that the prosecution noted a provision of the state trespass law exempts First Amendment activity and were worried the charges were actually unconstitutional. Others suggested that prosecutors were just biding their time, intending to charge later, and simply using the threat to discourage subsequent legal but forbidden public assembly.

Gary Johnson was originally arrested for violating the same trespass statute (PC 602), but the charges were changed into the anti-lodging law 647e when he appeared in court.

Gallagher again denied Johnson release on bail (currently $5000). Contact Ed Frey for more info and to be put on Gary's visitor list. Gary can be contacted by mail at 100 Roundtree Lane, Watsonville, CA.

A transcript of the proceeding should be interesting. A transcript of a prior demurrer hearing for the same defendant facing the same anti-homeless 647e code section b efore the same judge can be found at http://www.beckyjohnsononewomantalking.blogspot.com/2011/03/peace-camp-six-jan-21-2011-hearing.html .

A prior hearing on the constitutionality before Judge Rebecca Connolly is described at http://www.beckyjohnsononewomantalking.blogspot.com/2011/03/judge-rebecca-connolly-rules-647-e-not.html

Radio interviews with Gary Johnson and additional comment: http://www.indybay.org/newsitems/2012/01/05/18704208.php?show_comments=1#comments

Earlier update: http://www.indybay.org/newsitems/2012/01/11/18704560.php . http://www.indybay.org/newsitems/2012/01/05/18704165.php

Cease activity constituting lodging

This notice was handed to me by Lt. Amy Christie of the Santa Cruz County Sheriff's Office in the predawn hours when 20 sheriff's demanded protesters at Occupy Santa Cruz remove several tents and a dome structure. Photo courtesy of Auntie Imperial November 12, 2011

What if that "activity" which "constitutes lodging" is the same activity a people use when peaceably assembled to seek redress of government grievances?

by Becky Johnson

November 12, 2011

Santa Cruz, Ca. -- It is 5:40AM on a Saturday morning, and I have arrived at the Santa Cruz County Courthouse to find a Sheriff's raid in progress. Deputies are loading deflated tents into waiting sheriff's vehicles while sleepy-looking Occupy Santa Cruz protesters carry on a myriad of conversations with a dozen different deputies. Supervised and directed by Lt. Amy Christie, the sheriff's deputies were making videotapes of the area, conversing with the protesters, loading tents into police vehicles, and handing out notices.

"My tent was taken, " one thin, scared young woman told me. I could see her shivering.

"They made me drag my tent to the curb," another man told me as I surveyed a wreck of wet blankets, tarps, personal belongings, and a deflated tent all piled up in the gutter. Another woman pointed to a tent she'd placed on top of her vehicle.

"They told me to take it down, but I refused. I told them 'It's my property and I'm not going to take it down."

" Who is in charge here?" I asked, as a Sheriff's deputy pointed to his commander.
"Lt. Christie is in charge, " he told me.

I found her and immediately began to question exactly what it was she thought she was doing there.

"Is it illegal to camp here? According to the County Camping ordinance, is it illegal? You know it's not."

"What are the elements of 'lodging' that you see here, Lt. Christie?"
" We're done. You're illegally lodging here, " she told me. "I'm going to give you this and ask you to walk away from me." She handed me a piece of paper that had the letterhead for the County of Santa Cruz on it.
"I'm not lodging here," I said. "Yeah, you are," she insisted with robot-like speech.

This was not the first raid on Occupy Santa Cruz but the first one where I was able to witness some the actions of the deputies firsthand. In the raid on November 3rd and 4th, 1 man, Felix Krull, was physically arrested and 3 people were cited. Krull was jailed for five days for not having I. D. and released without charges. On November 5th,Chris Doyon was cited by Sgt. Esther Beckman while 7 others were cited under the now-infamous PC 647 (e) on November 11th.

The section is found under the "Disorderly Conduct" section of the California Penal Code. However, the only people I witnessed "disturbing the peace" in the predawn hours were the sheriff's! No one was arrested or cited, but police did seize two tents as "unclaimed property" as protesters followed them back to the basement of the County Building with chants of "We're the 99% You're the 99%!" I'm not sure that applies to Lt. Amy Christie. SHE may be one of the 1%.
She certainly SERVES the interests of the 1%.

Looking at the new "Lodging" notice, I can see that this version is decidedly different than the last version. Not only has the County letterhead been added, but much of the language appears to specifically apply to Occupy Santa Cruz including outlawing of "domes whether covered or not". Since the doors to the courthouse on the north side of the building have been closed to the public for a decade, the area is, in no way, obstructing or interfering with any of the normal business conducted in the Courthouse or the County Building.

The first line, however is wrong. It says "This property is owned by the County of Santa Cruz." Technically, it is the citizens of Santa Cruz County which collectively "own" Santa Cruz County public property. And the Courthouse itself is owned collectively by the citizenry of the State of California, being State land. Clearly this land is not "owned" by County CEO, Susan Mauriello, however, if HER signature were on the document, along with the date and time of the warning, it MIGHT have some legal sway.

The next difference I noticed was this: "All of these structures must be removed or.... they will be removed for you and stored safely for pick up by the owners." THAT's new!

Perhaps the County Counsel has been reading up on the Kincaid Decision in Fresno where the City was forced to pay the claims of dozens of homeless people who'd had their property confiscated and destroyed by Fresno Police? Or perhaps the Sheriffs have simply become more humane and eschew destroying survival sleeping gear and tents from poor people?

There is just no way on God's Green Earth that PC 647 (e) can be Constitutional. How can a person be ARRESTED and JAILED for not having a motel receipt? It's vague, overbroad, ANND selectively enforced. The notice Amy Christie handed me this morning says "You are being requested to cease activity constituting lodging." Here we go again.

What IS "activity constituting lodging?" DA Sara Dabkowski in January of 2011 said "To 'lodge' somewhere, it's common knowledge. To lodge, live, stay the night, where they don't have permission." Yet on May 4th 2011, Judge John Gallagher told a jury that "to lodge means to settle or live in a place, that may include sleeping." Judge Rebecca Connolly also found PC 647 (e) to be Constitutional. She faced Public Defender Mark Garver who said " if "lodging" can be defined as someone who stands, sits, or publicly assembles in a protest, it can be used to disperse that protest. I am challenging this ordinance on its face as well as as applied."

So "settling in" or "living in a place" is an arrestable crime? Where have we heard that language used before?

Council's behind the scenes machinations typical of the 1%ers

Robert Norse raises his arm in a mock, fascist salute to Mayor Ryan Coonerty for sending police to remove another man for speaking out at a City Council meeting on November 8, 2011. Photo by Alex Darocy

by Becky Johnson


Santa Cruz, Ca. -- On Thursday, November 10th, City Attorney John Barisone filed an injunction against Occupy Santa Cruz in an ex parte hearing before Judge Timothy Volkmann. No one from OSC attended the closed hearing, due to the court doors being locked.

Nevermind that members of OSC had petitioned both Councilmember Don Lane and Councilmember Tony Madrigal to place an item on the City Council agenda to support Occupy Santa Cruz (or perhaps to set the parameters for OSC). Both indicated that they would consider doing this. They did not follow through, and two city council meetings passed with the only mention of OSC at the oral communications section and raised by members of the public only.

All this changed on Tuesday, November 8th, when the City Council met during its usual closed session where litigation and personnel matters are discussed. While the council is required by the Brown Act to place all items discussed on the City Council agenda, the OSC item was NOT on the agenda. However, once in the meeting, at least 5 city councilmembers voted to place an "emergency" item on the agenda: seeking an injunction against the encampment located in San Lorenzo Park. It strains credulity, that they did not have time to notice the item to deal with the 32 day old encampment.

All of this explains what happened Tuesday a few hours later during the oral communications period when most of those who spoke supported Occupation Santa Cruz. Mayor Ryan Coonerty, who has permanently shortened oral communications from three minutes to two minutes even further shortened the speech of the public to ONE MINUTE each. ("Less speech is better speech"--Ryan Coonerty March 2005)

One of these speakers was Former Mayor Celia Scott who began by questioning City investment funds for those that support enriching the 1%. She was unable to finish her statement, attempted to speak beyond the 1 minute Mayor Coonerty allowed, only to be shut down.

As soon as oral communications had ended, Vice-Mayor Don Lane began a 6 minute speech in which he first apologized to members of the public claiming that councilmembers "can't take actions on items presented in oral communications." Of course he concealed that the council had already voted to "take action" by moving to shut down the camp in court during a secret city council session earlier that day.

Robert Norse, from the audience interjected "Open the bathrooms!" indicating that Lane COULD authorize the opening of the public bathrooms in San Lorenzo Park on a 24 hour basis to serve the 200 or so campers in the park, whether the item was brought up in oral communications or not. Mayor Ryan Coonerty then warned Norse for his interjection, and when a 2nd person repeated "Open the bathrooms!" from the audience, Coonerty directed the FOUR police officers in the Council chambers to find and eject the person who had spoken in violation of their 'rules of decorum.' It was at this point, that Norse stepped forward and gave a "Nazi" salute in reaction to Coonerty's repressive use of police force to suppress speech. Few believed that if the man had shouted "Go Ryan!" the police would have been invoked.

Lane then crossed into giving his own opinions about the Occupy Santa Cruz encampment in San Lorenzo park, remarks that, according to their own process, should have been made by Lane during his ONE MINUTE of oral communications. He offered his "personal reactions" claiming "we do have a city park that is genuinely being damaged."

At this point another man shouted "Liar!" and the council reacted with great offense, head-shaking and tutting about the need for a "civil process."

For his part, City Attorney John Barisone saw another chance to bill the City for ANOTHER questionable injunction. He has filed injunctions in the past against a homeless couple for sleeping around downtown too much and against a HUFF Koffee Klatch at the Mayor's office in a lobbying effort to get the Sleeping Ban on the City Council agenda. Whether he wins or loses these injunctions, HE gets paid.

Lane reported that he 'd been at 3 General Assembly meetings and one committee meeting but "the guy never called me back." Despite these claims, Lane said he had "no idea" how to communicate with OSC, apparently not staying long enough to learn how to get on the stack. He also never learned how to get the key for the porto-potty and reported that when he had visited "it was locked."

"The park is important to the City" and that "the City has no interest in limiting your freedom of speech." He said the City issued a permit so it could "use the park in an appropriate way." He ended with "the park is not being protected at the status quo."

Then Mayor Ryan Coonerty gave his own "personal responses" by addressing the point former Mayor Celia Scott had tried to address calling for the City to examine its own financial holdings in relationship to enriching the 1%. Coonerty, in a self-serving, deflecting comment claimed that their practices were "cutting edge." Then he lectured the members of the public saying that the City "is challenged to balance all of the interests of the different park goers" when one group uses a small portion of the park for its own purposes.

"We don't issue permits to dampen your freedom of speech, we just must make sure we have full access for everyone to these public spaces."

Note that the City which claims their purpose is to "make sure we have full access for everyone to these public spaces" has criminalized BEING in the park after dark, with a dog, and if you smoke, exacting heavy fines for each offense, but allows its own city workers unfettered access to the park 24/7. They water the grass heavily so that even during the day, its not possible to set a blanket on the grass and lie down, even during droughts.

Of course the REAL issue the Mayor and City Council have with the OSC encampment in San Lorenzo Park is that homeless people have apparently, mostly peacefully joined OSC and have swelled its numbers beyond 200 people. Simultaneously, greenbelts and parks are experiencing fewer illegal campers, and OSC seems to be handling both litter removal and public hygiene despite City Manager Martine Bernal's abject refusal to open the public bathroom in the park on a 24 hour basis. Meanwhile, the positive effect on homeless campers who've joined OSC is evident.

"Before OSC, I slept maybe two or three hours each night," a homeless man nicknamed "Purps" told me. "For the last month I've slept ten hours each night."