Does Santa Cruz jail people for sleeping?

 
 At a January hearing in 2011, Ed Frey checks in with
expert witness, Dr. Paul Lee, as supporters Robert Norse
and Gail Page look on. Photo by Becky Johnson


by Becky Johnson
June 14, 2012

Santa Cruz, Ca. -- While my title may seem absurd, it is clear that the answer is "yes."  Both Gary Johnson, a homeless man, and his attorney, Ed Frey, slept outside the courthouse as part of Peace Camp 2010, to protest laws which criminalize the act of sleeping.  When County Counsel Dana McRae advised Sheriff's that they could cite protestors with 647 (e), the statewide anti-lodging law, sheriff's began to advise protestors that "illegal lodging would not be tolerated."

The misdemeanor law can involve immediate arrest for the act of "lodging," even though the legal meaning of that term is not defined within the law.

Because of this over-charging ( an infraction sleeping ban ticket would only have resulted in a maximum of 8 hours of community service, if found guilty) the very first ever jury trial on a sleeping ban was held before Judge John Gallagher last May.  Frey and Johnson were found guilty of sleeping.

To show his extreme displeasure with the whole process, Gallagher sentenced both Johnson and Frey to 6 months in jail for the "crime" of lodging, which court testimony said was sleeping. When Frey asked to be released on bail to appeal his conviction, Gallagher set bail at $50,000 each.  Both were handcuffed and jailed right as the hearing ended.

At a later hearing, Gallagher modified the bail to $110, which was, apparently, the bail schedule all along for 647 (e) violations.  Today, in Dept 5, a three-judge panel will hear Frey's appeal.  If the conviction is upheld, Frey and Johnson may be remanded to jail to finish serving their six-month sentences.

Does Santa Cruz REALLY put people in jail for sleeping?  You bet they do.

Peace Camp 2010 defendant, Art Bishoff sentenced to 47 hours community service

An unknown man sleeps at the Santa Cruz County Courthouse as part of Peace Camp 2010 on August 29, 2010. Photo by Becky Johnson

by Becky Johnson
July 29, 2011

Santa Cruz, Ca. -- Art Bishoff is doing better these days. Last summer, he was homeless and jobless and sleeping on the streets. Today he is housed (barely) and works 70 -80 hours a week at minimum wage. Last summer he was arrested as part of Peace Camp 2010 to protest Sleeping Bans. Today, he appeared before Judge John Gallagher to be sentenced for "illegal lodging," a misdemeanor offense.

Now two other defendants, Gary Johnson and Ed Frey, had been sentenced on June 10th to 6 months in jail and $50,000 bail when they refused 400 hours of community service and 3 years of probation for Sleeping as part of a protest against Sleeping bans. Both Johnson and Frey are currently out on bail pending appeal when Gallagher reconsidered bail and reduced it to $110. Apparently that was the bail schedule for PC 647 (e) all along.

DA Sara Dabkowski only slightly modified her demands. She asked for 300 hours of community service and 3 years probation. Attorney, and co-defendant, Ed Frey asked for a reduction "Since Mr. Bishoff is already working 70 to 80 hours a week." Gallagher sentenced him to 30 hours of community service and a combination of fees and fines adding up to $170.

"How much do you earn each month?" Gallagher asked in order to assess whether a fee reduction was in order.

"I just earn minimum wage," he replied.

Gallagher then modified the sentence to 47 hours and cleared him of the $170 fee. He charged him with 1 year probation and ordered him to not "Sleep/camp/or lodge in front of City Hall or here in front of the courthouse."

Then Gallagher gave a little speech. To Ed Frey he said, "Your people caused hundreds of hours of law enforcement dollars to be spent and others were impacted by having to view the scene. I don't need to hear any more evidence since I witnessed days and days of trial and testimony." To Mr. Bishoff he said, "I'm sentencing you differentially, Mr. Bishoff, because you were one of the few people in this protest who were not homeless-by-choice."

He praised Art's success in getting both housing and employment, seeming to show that those who violate PC 647 (e) and then somehow justify their lives after the fact to Gallagher are rewarded with a vastly reduced sentence. Gallagher also seemed to say that those who remain homeless are their "by choice" though no evidence or testimony to that effect was even raised at trial.

And are people REALLY homeless by choice? Who would leave a nice comfy home to go live on a sidewalk? All data show that the number one cause of homelessness is lack of money. And the number one reason for lack of money is the gap between the wages paid for employment and the cost of housing. Santa Cruz County has one the highest cost of housing in the country, which is hardly a "choice" homeless people make.

Yet Gallagher used this as an opportunity to lambast those who remain unemployed in an economy with an 11.5% unemployment rate or unhoused in a very high rental market by distinguishing Arthur Bishoff from "the rest."

"Congratulations on your job and on being a working member of the community."

Ed Frey's Bail reduced from $50,000 to $110

by Becky Johnson
June 24, 2011

Santa Cruz, Ca. -- Considerably regretful, Judge John Gallagher agreed to a bail reduction pending appeal for Attorney, Ed Frey, jailed directly from court last June 10th on a 6 month sentence. "As you know, I had no choice at the time," Gallagher told Peter Leeming, Ed's attorney for his motion to reconsider sentencing.

Gallagher sounded as if he was willing to do what was legally within his means to do, which wasn't much. He does not have jurisdiction to reduce his own 6 month sentence. Only an appeal can do that. He doesn't have jurisdiction to impose probation since Ed turned down the 3 years of probation offered and no counter-offer was made.

Leeming argued that there is very little case law in this area, but he did find a few cases where extraordinary circumstances existed.

"I was very moved by the circumstances in Ed's declaration," Gallagher explained. "Let's see what we can do to get him back to care for his responsibilities to his family and his clients."

The scene was very different from June 10th, in which each side dug in, unwilling to concede any point or position. Ed declaring even after a jury conviction that he had done nothing wrong and

Ed Frey is arrested for sleeping on Aug 7, 2010 as part of a protest against the Sleeping Ban. Photo by Bradley Stuart.

was being punished "for asserting our rights."

Now, wearing green jailhouse clothes and chained at the wrists and ankles, Ed appeared calm and compliant. However, when he asked to speak, it was only to emphasize his lack of funds.


Gallagher asked DA Sara Dabkowski what bail she recommended.

"The standard bail schedule would be acceptable," she replied. Gallagher looked this up.
"The bail schedule for 647 (e) is $110," Gallagher announced. Wasn't this bail for 647 (e) last June 10th? Gallagher had issued $50,000 bail! And Ed is neither a flight risk nor has he missed any court appearances.

And why was bail for COLLETTE CONNOLLY and ARTHUR BISHOFF set at $2500? That's 23 times what the courts have set.

Also appearing in court was GARY JOHNSON, also sentenced to 6 months in jail and not qualifying for work furlough or able to claim "extraordinary circumstances." Ed Frey, chained and shackled stood when JOHNSON stood, much to the chagrin of the bailiff.

"But I'm representing MR. JOHNSON!" Ed protested. Then he said, "Your honor, I have no idea what this hearing is about."

Gallagher called City Attorney CAIO ARELLANO to the podium and told him "I asked you to appear to tell us the status of the other infraction charges against Mr. Johnson."

Arrellano asked that they be dismissed. Gary agreed and all 21 infraction citations against Gary Johnson were dismissed. However, he remains jailed on a 6 month sentence.

Outside court, a beaming Diana, Ed's wife, collected tens and twenties offered up by Ed's supporters to raise the $110 quickly. As she prepared to drive to Watsonville to bail Ed out of the Rountree Medium Security Facility where he is housed, she expressed great relief. "It's been a long two weeks."

Ed Frey, Gary Johnson jailed for 6 months for Sleeping

Defendants refused 400 hours of Community Service, Punitively sentenced by Judge John Gallagher with the maximum possible sentence: 6 months in jail, 3 years probation;

Frey and Johnson taken by armed sheriffs out of the courtroom in chains to begin serving sentence for the act of sleeping

June 10, 2011
by Becky Johnson

Santa Cruz, Ca. -- It began as a motion by Ed Frey for a new trial. Disturbing reports from the jurors of the Peace Camp Six trial jurors detailed one juror refusing to deliberate, telling all it was a waste of his time, and screaming at another juror who wanted to continue to deliberate---all classic examples of juror misconduct. But Judge John Gallagher was only interested in quashing any such reports by any means possible.

The statements are hearsay," Gallagher ruled. "The proper way was to have contacted jurors and have them deposed."
" I'm asking for that now. I need the names and contact information from the court in order to do that.

"This is not the proper time to make that motion. You had your chance. Motion denied."

The reports issued verbally from the Foreman of the jury and backed up by about 8 jurors were made directly after the jury had been excused, but before the jurors had left the courthouse. In a 30 minute discussion attended by Ed Frey, DA Sara Dabkowski, and recorded by Becky Johnson, several allegations of juror misconduct were made. Ed Frey quoted from a partial transcript of the recording and offered to play the tapes in their entirety for the Judge and the court.

Ed quoted the Jury Foreman who said,

JURY FOREMAN: "I do have a question and maybe you might know something about. If you have a juror who is somewhat belligerent. Didn't want to continue to deliberate--thought it was a waste of their time--After we got through most of the counts, we had one juror who was completely belligerent, who refused to continue with deliberations, who thought it was a waste of their time, how...is there anything a jury can do?"

Then Ed Frey quoted District Attorney's recorded response to the Jury Foreman's statement.

ASSISTANT DISTRICT ATTORNEY SARA DABKOWSKI: Well I think, potentially, that you could go to the judge with that issue. There is juror misconduct if a person does not attempt at least to deliberate appropriately. There is a process where if they are refusing to deliberate at all, and they are not following the rules, then potentially there could be an investigation. Generally the courts try to stay out of the jury room as much as possible....I've never actually had it come up....but I think that there's a process where you go to the court. I don't know for sure.

Then Ed Frey repeated a statement made by a female juror:

FEMALE JUROR: We didn't want it to end in a mistrial or completely nullify all of our efforts so far. But it was completely impossible!" (laughs).

Finally Ed quoted the jury foreman again.

JURY FOREMAN: For most of the time, I'd say 75% of the process he was mostly quiet, or made a few statements here or there but there were a few times where he crossed the line. He was not professional. We talked about that. But basically he announced he was not going to be professional, and that it was a waste of his time, "My time has been wasted all day. I'm done wasting my time."

Ed told Gallagher that the discussion had been recorded, DA Dabkowski was present for it, and that we were willing to play the tapes for the court. Gallagher was having none of it.

"The tapes are hearsay," he announced. Frey then asked for the names and contact information of the jurors so he could go and get sworn statements from them. Gallagher refused. "You've had ample time to seek that information," he ruled, even though there is no time limit on providing that information to the court. "I'm asking for the time now," Ed responded.

"Motion denied."

I reeled. In another court on another day, I had been called before the judge and quizzed and then chastized for having SPOKEN to a juror! Here 8 out of 12 jurors were complaining of actual juror misconduct and Gallagher couldn't dispose of that quickly enough!!

So much for the APPEARANCE of propriety!

Having lost the motion for a new trial based on juror misconduct, Frey moved to the more difficult area: Gallagher's OWN misconduct. It's never easy getting a sitting judge to admit he made an error.

Frey challenged Gallagher for having provided for the jurors his own definition of "lodging" since PC 647 (e) did not come with such a definition.

"Where did you get the authority to claim the definition of illegal lodging included sleeping? It's not in the law itself. Opposing counsel cited two authorities, neither of which addressed sleeping as a criminal act. The defendants last August had no access to a definition of "lodging." The sheriff's who enforced it had no guidelines or definition to determine what "lodging" was. Only when we get to trial do we find that you, yourself provide that definition to the jury. Where did you get that definition? On what authority did you base it?

"And how were the defendants last August supposed to know what "lodging" is? You, yourself said it is equivalent to sleeping. But where did you get that?"

"I got it from a dictionary," Gallagher admitted, so softly his words were barely audible. "And the defendants were warned first that they were illegally lodging."

Gallagher was referring to the unsigned notice sheriffs handed out to anyone at Peace Camp 2010 who was sleeping when they came around. Since they only cited people who were sleeping, it appeared to all that the county was only concerned about arresting people for sleeping. Even the jury foreman mentioned it.


PHOTO: Copy of unsigned notice given by sheriffs to Peace Camp 2010 protesters an hour before arrests were made. Photo by Becky Johnson


JURY FOREMAN: Personally I found it pretty crappy that it was clear that they were citing people as soon as they fell asleep. That was the one thing they were really going after.

Frey was adamant about pressing this point. He had filed a motion to dismiss based on vagueness of PC 647 (e) at a January 21st hearing this year. At that hearing, DA Sara Dabkowski argued that a definition was not necessary since "everyone knows what "lodging" means. It is a common word that puts people on notice that they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission. So it's not unconstitutionally vague on its face as written." A complete transcript of that hearing can be found here.

Yet at trial, and against the objections of the defense, Judge John Gallagher introduced his own definition of "lodging" to help the jurors reach a verdict. Gallagher told the jury that they should use this definition of lodging: "to lodge means to settle or live in a place, that may include sleeping."

He told the jurors as part of the Judge's instructions, "Even if you disagree with the law, you must follow the law." But whose law? The law passed by the California legislature? Or the law as defined by John Gallagher from a dictionary at trial?

He told jurors that to find a defendant guilty of illegal lodging, they must "commit the prohibited act with wrongful intent."

"The defendants are charged with unlawful lodging. To find them guilty you must:

1. determine that the defendant lodged in a building, structure, or place
2. defendant did not have the permission of the owner or person in charge

After the verdict, jurors confessed that they had relied on the definition of lodging as supplied by Judge Gallagher to reach it's verdict. They were asked whether they were concerned that the definition of "lodging" was something that just popped out of the judge's mouth and was not contained in the law.

JURY FOREMAN: Well, I'm glad that the definition of "lodging" did pop out of the judge's mouth because otherwise we would have had no way of knowing what "lodging" was one way or another, other than, I suppose, our own general sense. Since "lodging" was defined by the judge, that made it pretty clear.

AND

JURY FOREMAN: "If we had not been given that instruction....you're right, "to lodge" is very vague."

ASSISTANT DISTRICT ATTORNEY SARA DABKOWSKI had, at the time, defended Gallagher's decision to provide a definition of "lodging" for the jury. She put forth that "with the lodging we thought it helpful to give a definition." (Was the "we" the prosecution and the judge acting together as a team?)

But at today's June 10th hearing, DABKOWSKI sniffed that her two authorities cited by the prosecution that "We didn't say they defined 'lodging'. It was about conduct. The man was sleeping in a tent."

There were no tents at Peace Camp 2010 and the ONE citation made by the prosecution was not using 647 (e) and did involve using a tent.

"Mr. Frey had the opportunity to offer his own definition," Dabkowski offered, but that begged the question of when? Gallagher had given it to the jury during the "Judges Instructions" portion of the trial. Certainly Frey couldn't have done it then.

And if Frey could have, then he surely he would have. He surely would have included the 1st amendment as part of the instructions, that "Congress shall make no law which abridges the freedom of speech...the right to peaceably assemble...and the right to redress government grievances." Pulling out a law that no one had ever used, that was not defined, and was selectively enforced only against the protesters, surely violated these Constitutional protections.

Gallagher denied that the protesters in August 2010 didn't know what "lodging" meant. To him it didn't matter. "I think you knew (you were illegally lodging) because the officer told you that you were." But did the officer's themselves know what constituted illegal lodging?

When asked on the stand, Lt. Fred Plageman, the highest ranking officer at the County Building, and who had directed the busts last August, testified that they cited people sleeping in bedding because "one could draw the conclusion that they are there to spend the night." But, as far as in custody arrests for illegal lodging, Plageman was surprisingly opposed. "Custody is a big drain on resources, and not necessary for this type of offense."

Frey told the court, " We see now, very clearly, that no one knows what "lodging"means until the time of trial. A written warning does not meet the test. And this court had so little confidence that the jury could find what "lodging" is, they felt they had to supply their own definition.

Indeed, Gallagher's language, which he claims came from a dictionary, contains suspect language. He used the term "settled in" as an indication of illegal behavior. There is legal precedent for this language. Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution."

While PC 647 (e) does not prohibit blacks from coming into the State, it does condemn to jail any person found within the State boundaries who does not have some form of permission to to sleep, live, or spend the night. That means any person in the State of California can be arrested on sight if they can't prove they have permission to "live" somewhere.

This sounds little different than article 13 of the Indiana State Constitution of 1851. Just substitute the word "homeless" for "Negro."

But the County of Santa Cruz, the County Sheriffs, City police, and the judges at the Santa Cruz County Courthouse have all decided that sleeping is a criminal act. They have decided that depriving homeless people of any right to sleep, any ability to sleep on either public or private property is the cornerstone of their policy to criminalize homelessness. And the jails are full of homeless people.
"I instructed correctly at trial that sleeping is part of the definition of lodging. And you can be punished for that conduct."

DA DABKOWSKI moved on to the sentencing phase. "We are asking for 400 hours of community service from Mr. Frey. People who worked at the County Building said they feared for their safety when they had to walk by people."

Frey argued, "We were expressing ourselves. The first amendment is the most valid right we have. 400 hours of labor for expressing ourselves? That's outrageous. I didn't even know there was a "lodging" law. We were there to protest the Sleeping Ban of the City. We were speaking on behalf of the poorest of the poor. 400 hours is outrageous. I won't serve them."

"Then I sentence you to 6 months in County Jail," Gallagher announced, the maximum sentence possible under 647 (e). Frey asked to be released long enough so he could file an appeal.

"Okay. $50,000 bail!" Double-outrageous.
"I can't find it in any of the laws that were cited that you can't sleep. Go home tonight and sleep if you can, and let my words ring in your ears."

Then Gallagher turned to Gary Johnson, who is homeless. "Do you accept 400 hours of community service?"
"I have more of a problem with the 3 years probation clause "obey all laws." I have to sleep. I can't go three years without sleeping."
"Are you turning down the conditions?"
"It's not that I won't. I can't. I have to sleep. I have to sleep tonight. Where can I go and legally sleep in the State of California?"
"Do you accept the 400 hours of Community service?"
"As a citizen and a patriot, I cannot."
"Okay. Then 6 months in the County Jail for you too. Report to jail next Friday at 3PM."
"But I have to sleep TONIGHT."
"Okay. You can sleep in jail. You will be remanded into custody at the end of this hearing."

Gary Johnson and Ed Frey were handcuffed and led off to jail by County Sheriff's. A protest is scheduled for Monday, June 13th, on the County Courthouse steps beginning at 7:30AM and continuing until....

Budget Considerations in the Peace Camp 2010 Trials

by Becky Johnson
May 7 2011

Santa Cruz, Ca. -- With City and County budgets in crisis, social service programs cut to the bone or eliminated entirely, the Peace Camp 2010 misdemeanor prosecutions may seem a waste of time and money. Actually they are an OBSCENE waste of time and money. But to certain parties, these trials are a cash cow.

First, a little bit about how the organizers

District Attorney, Bob Lee
Photo by Schmuel Thayer March 2011

of Peace Camp 2010 last summer considered our impact on the community in general and the County Building in particular. We also considered the possible consequences of citations or arrests of the people we were attempting to shelter.

We researched the County Camping Ban and found our group would not be subject to it. We anticipated ticketing under infraction MC 6.36.010 section a a.k.a. the Sleeping Ban (a subsection of the Camping Ban). And we believed that any homeless person charged would likely be acquitted by using a defense of necessity since no one disputes there are more homeless people than the available shelter. Even a conviction would only result in 8 hours of community service (a small WIN we'd achieved back in 2000).

No one anticipated ticket and arrest under PC 647 (e). Bob Lee pulled that out of complete obscurity to use against us.

We are still researching its legislative history, but early research shows it to be based on a BLACK CODE from the late 1800's to prevent freed slaves from moving into California.

Its language prevents "illegal lodging" anywhere in the State on both public and private property without the permission of the owner. A similar law, Article 13 of Indiana's 1851 Constitution stated "No Negro or Mulatto shall come into, or settle in, the State, after the adoption of this Constitution." This term "settled in" as a crime, is the exact same language Judge John Gallagher used to define "lodging" for the jury that convicted 4 Peace Camp 2010 defendants on May 4th.

Of course we didn't NEED to tell people that they may be cited or arrested. They LIVE it every day. Local attorney, ED FREY offered to defend pro bono anyone arrested with Robert Norse, myself, and others from HUFF providing tactical support. But NONE of us are paid for this unlike DA SARAH DABKOWSKI and her 31 law enforcement witnesses. THEY are all paid HANDSOMELY!

Subpoenaed for the trial, 29 law enforcement individuals--all paid for a half day if testifying on their off-time. And PAID and in uniform, if called to testify during their regular shift.
City and County staff members, Dinah Phillips, Dannette Shoemaker --with annual salaries of $118,296 and $159,111 respectively, plus any expense for photos, videos, or other exhibits was paid for by the DA's office because their expenses are considered too vital to cut.

"Key public safety positions, including prosecutors and sheriff's deputies, will be spared layoffs...." --from the Santa Cruz Sentinel

"There are particular areas where reductions are not as great," she (Susan Mauriello) said, referring particularly to public safety services in the Sheriff's Office and District Attorney's Office."

Needless to say that DA Sarah Dabkowski is paid over $60,000/yr and the Judge is in the hundred-thousand a year club.

None of the defendants, their witnesses, their supporters, or the ONE attorney we had were paid. No wonder the trials continue unabated. The money virtually pours into District Attorney Bob Lee's office as the chance to arrest and try homeless defendants for misdemeanor lodging are unabated "make work" for law enforcement and DA's alike.

So let justice roll, Santa Cruz Style. Ka-ching!

Guilty of Sleeping Jury finds

Collette Connolly, as Star Warrior, is ticketed for Sleeping at Santa Cruz City Hall on August 19, 2010. She was convicted by a jury trial on May 4, 2011 for sleeping and using a blanket. She faces up to 6 months in jail and/or $1000 fine. Photo by Becky Johnson Aug 19 2010

by Becky Johnson
May 3, 2011

Santa Cruz, Ca. -- Jurors delivered a verdict this afternoon in the Peace Camp Six trial. Guilty, Guilty, Guilty, Guilty, and Hung. A sixth defendant, Chris Doyon, was absent and a bench warrant was issued. A good Samaritan paid Doyon's bail, but that "fact" was irrelevant to District Attorney, Sarah Dabkowski, who reported to SENTINEL reporter that there is a warrant for Doyon's arrest. But then facts were never set in stone for Dabkowski.

Why just last January, Dabkowski said "lodge" means "they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission."

However, despite no definition being contained in the actual language of PC 647 (e), Gallagher supplied his own!
Not waiting for the prosecution to take a stab at what "lodging" means in a legal sense, Judge John Gallagher jumped forth and issued his own definition, creating the perhaps greatest grounds on which to appeal the verdict.

Gallagher told the jury that they should use this definition of lodging: "to lodge means to settle or live in a place, that may include sleeping"

Not only had this been a hotly disputed item at the hearing where Frey challenged the Constitutionality of the law based on it being "vague and overbroad" especially due to the lack of a definition, the defense did not have time to digest the meaning of Gallagher's hand-chosen definition in order to prepare a proper defense. Needless to say, neither did any of the defendants last August, September, and October. I mean, for a homeless person to comply, they'd have to stop "living in a place" since 647 (e) covers the entire State of both public and private property!

Then Gallagher sternly told the jury that "Even if you disagree with the law, you must follow the law." This is standard practice in Santa Cruz County courts but has no legal authority. Jurors are allowed to vote their conscience, and rule on the totality of circumstances. They may consider whether a law is being selectively enforced, or that the prosecution is largely political. They can judge the value of the law itself and find "not guilty" even if the evidence is clear that that law was broken. Being a juror is the most powerful position a single person can have on the justice system, far greater than as a voter. Being a foreman of a jury is perhaps the most influential position a citizen can have in influencing how our laws are applied. This jury was having none of that.

"Ignorance of the law is no excuse," the jurors trumpeted self-righteously. But they themselves were ignorant of the law. So were virtually all of the dozen or so police officers and deputies who testified. After Lt. Steve Plageman testified that in his 23 years or so as a deputy, he'd never written a PC 647 (e) citation before August 6th in his life, the DA objected every time defense attorney, Ed Frey asked about their experience in enforcing the law. Judge Gallagher sustained it every time. They were told the issue was "irrelevant."

But was it? How can anyone, much less a bunch of homeless people without access to computers, televisions, or home libraries going to know about an ordinance that law enforcement had never used before? And no one could know what Judge John Gallagher was imagining the definition of illegal "lodging" would eventually be.

Yet the jurors, like contestants at a beauty show, mouthed important truths about justice and the importance of the law, while failing to see a stark example of selective enforcement right in front of their own eyes. It was obvious from the testimony of a dozen police officers that 647 (e) was ONLY being enforced to shut down an otherwise legal protest against laws which criminalize sleeping, and was ONLY being enforced at City Hall and on the steps of the Santa Cruz County Courthouse.

Defendant, Eliot "Bob" Anderson was not convicted when the jury hung on one juror's opinion: That a homeless person should not have to gas their dog, to use one of our local homeless shelters for the night. Eleven jurors disagreed. No one can sleep well tonight in Santa Cruz County.

"We live in a society where our system elects representatives by the voters of California. They pass our laws," the Jury spokesman, Mr. K said following the verdict. "And if the people think the law is wrong, then they should actively work to change it." He also admitted that had Gallagher NOT given the jury a definition of "lodging," they could not have come to a verdict as easily or at all.

Fresh with a victory, it is now possible that sheriff's and SCPD may now feel emboldened to use 647 (e) more widely now> ANY homeless person, whether sleeping or not, in the day or the night, can be arrested for "settling in, or living in a place, that may include sleeping" or for " intending to spend the night without permission" (as DA Dabkowski challenged, as if that were a crime) on both public and private property." Since public and private property encompasses the entire state of California, they cannot avoid committing the law....ever.

Sigh. More homeless jury trials are upcoming. Gary Johnson faces a jury trial for sleeping twice in twenty-four hours, something our doctors encourage us all to do. And Linda Lemaster has a pre-trial before Judge John Gallagher in Dept 2 at 9 am on Wed. May 4th.





"I don't think we could have come to a verdict without a definition," said the jury foreman after the end of the trial.

Remembering 647 (e) "anti-lodging" Police Repression

In Santa Cruz, we organized Peace Camp 2010, a demonstration at both City Hall and on the steps of the Santa Cruz County Superior Court in order to protest against laws which prohibit the act of sleeping or use of a blanket. We consider these as crimes against humanity and a matter of conscience to oppose. First we were ignored. Then we were ridiculed. Then they really cracked down. Can a win be far away?

Sheriff's Deputies attempt to awaken a sleeping man to tell him he can't
protest there anymore or face immediate arrest for unlawful "lodging."
Aug 6 2010 Photo by Becky Johnson

An unknown protester lies under a camouflage tarp with a copy of the Santa Cruz Sentinel prominently displayed with the title of the article "Homeless Protesters ready to 'resist.'" Photo August 6, 2011 by Becky Johnson











Sheriff's Deputies awake and cite a homeless man for PC 647 (e), unlawful "lodging", in an effort to shut down the protest which County officials had "tolerated" too long. Deputies could not tell any of the protesters where they could go and legally sleep. Nine months later, DA Sarah Dabkowski introduced evidence of 1 or 2 possible shelter beds the sixty some homeless protesters could theoretically have slept in that night as evidence of their "choice."






(on left)
Sheriff's Deputies pour over the art supplies of artist, Dreamcatcher, as
well as bedrolls,
clothing, and food supplies. In court, they referred to these things as "garbage" which was offending the "aesthetics" of the courthouse grounds.





(on right) 72-yr-old Collette Connolly is cited by SCPD for unlawful sleeping. She was convicted of misdemeanor lodging May 4, 2011 and now faces up to 6 months in jail and/or $1000 fine. Connolly is both mentally and physically disabled and homeless.








Gary Johnson gets cited for use of a blanket when he is cited for sitting up, awake, in a charge, but covered with a sleeping bag. Video by Chris Doyon.

Klieg lights, costing about $100 a night to operate, shine down on Peace Camp 2010 at City Hall in a scene reminiscent of Guantanamo Bay. This along with the posting of "No Trespassing" signs at both City Hall and at the Public Library across the street by Parks and Rec Chief, Dannette Shoemaker were justified as "an oversight." Protesters claim the City Council wanted to shut down their legal protest. Photo by Becky Johnson August 19, 2010.

After nearly 165 years of open access by the public to the public grounds of City Hall, "No Trespassing" signs were installed after the arrival of the demonstration against the Sleeping Ban. Unless the public objects, less and less of public space is available for use by the public. Photo by Becky Johnson Aug 21, 2010

Peace Camp 2010: refuge or hazard?

July 29, 2011 as another night of Peace Camp 2010 began. That night, 45 people were welcomed to sleep together in peace and safety, with a porto-pottie and wash sink available for hygienic reasons. A week later, they were arrested in the same place for lying down, covering up with blankets, or for sleeping determined to be "illegal lodging" by the Santa Cruz County Sheriff's Department. Photo by Becky Johnson

by Becky Johnson
April 30, 2011

Santa Cruz, Ca. -- Collette Connolly sleeps on the courthouse steps in an open protest of Santa Cruz' cruel and unusual punishment for homeless people: a ban on the act of sleeping itself. Behind her were two signs she had herself chosen to speak for her cause:

"SLEEPING BAN Unconstitutional AND Cruel!!"

And "Free Gary Johnson -- Peace Camp 2010 --
the sleeping ban 6.36.010 a"

Collette had been cited by the Santa Cruz County Sheriff's on August 6th under an even more punitive and open-ended law against illegal "lodging" PC 647 (e).
Connolly, age 75, is both physically and mentally disabled, was sheltered for a time (less than 30 days) at the Paul Lee Loft, but lost her place when she failed to return in time for the evening curfew.




A homeless man, certain there was no shelter for an able-bodied, single male at any local shelter, sleeps in front of the Santa Cruz County Courthouse as part of a protest to raise public awareness about laws which criminalize the act of sleeping on both public and private property. Photo by Becky Johnson July 30, 2010














Christine Nibheolain, an Irish national, is interviewed by Azenith Smith of KION after she was cited for misdemeanor "lodging" as she slept in front of the Santa Cruz County Courthouse to protest the Sleeping Ban.

"I've never been arrested before," says Nibheolain, "I've never been in trouble before. I figure if I'm going to get arrested for, it's something I believe in."

Nibheolain spent eight hours in jail. The Ireland native joined the homeless camp four days ago, since she says, the shelters are full.

"I'd rather be here illegal and under the lights and know that I'm safe," says Nibheolain.

Who owns the courthouse? Who is in charge?

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

by Becky Johnson

April 28, 2011

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

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

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

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

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

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

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

DEPUTY KYLE MATSON

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

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

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

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

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

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

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


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

DEPUTY RYAN KENNEDY

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

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

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

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

DEPUTY MICHAEL MULLET

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

DEPUTY DOUGLAS SMITH

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

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

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

DEPUTY ZACHARY REED

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

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

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

SCPD OFFICER ABELINO VIGIL

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

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

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

SCPD OFFICER NATHAN VASQUEZ

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

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

SCPD OFFICER IAN BURNHAM

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

DINAH PHILLIPS TESTIFIES

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

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

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

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

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

Jurors near revolt in Peace Camp Six Trial

A lone protester sleeps in the forbidden zone at Santa Cruz City Hall last August as City-sponsored klieg lights glare down at him. Photo by Becky Johnson Aug 20 2011

by Becky Johnson

Santa Cruz, Ca. They swarmed the hallways, cluttered the benches, many clutching books in preparation for a long day. At least eighty public citizens who still believe in the purpose of jury trials ( or were afraid of facing criminal charges if they failed to respond to that letter in the mail) arrived at Judge John Gallagher's court to volunteer to serve to adjudicate whether the six defendants were guilty of "lodging" on the Courthouse steps last July and August as part of a peaceful protest against the Sleeping Ban in Santa Cruz.

Gallagher told juries "I expect this trial will last two weeks," which caused a concerned murmur through the crowd. He then told the court that they were in the middle of a "heavy-duty financial crisis" and that the court had had to "lay off 30 to 40 employees, has closed the misdemeanor court in Watsonville, closed the domestic violence court, and drastically reduced the drug court." Gallagher told jurors that he had to adjudicate "136 cases in one day."

Gallagher had the opportunity to throw the charges aside when Attorney and defendant, Ed Frey filed a motion to dismiss last January. Gallagher ruled that PC 647 (e) is NOT vague and overbroad and that the prosecutions could proceed. Judge Rebecca Connolly ruled essentially the same on March 4th in the case of Linda Lemaster, also charged with 647 (e). Lemaster will be tried later in May on the same charge, and, presumably, a different jury will be seated.

Assistant District Attorney Sarah Dabkowski for her part, picked up the gauntlet and filed subpoenas for the following witnesses* from the Santa Cruz County Sheriff's Office: Lt. Fred Plageman, Mattson, Matrargan, Reed, Santos, Butin, Buchanan, Burreul, Gidding, Habermeil, Hanks, Huntsman, Hurley, Kennedy, Mullet, Murphy, Nathan, Murrey, Peterson. From the Santa Cruz Police Department, she subpoenaed the following: Birnham, Conner, DeCampo, Guegelo, Forbus, Medina, Pendleton, Vasquez, Venetion, Vigil. She subpoenaed a witness from the Parks and Recreation Department to be named later, and a witness from the Homeless Services Center, to be named later. From the County administration she subpoenaed Dina Phillips for a total of 31 prosecution witnesses, all of whom will be paid for testifying.

* (Spelling may be approximate for some of these witnesses. My apologies to the reader)

Frey has subpoenaed Paul Brindel of the Shelter Project, Paul Lee, namesake for the Paul Lee Loft and founder of the Homeless Garden Project, and Monica Martinez, Executive Director of the Homeless Services Center.

She and her staff will also be paid, but Ed Frey will not be paid, despite serving the duty of a public defender for the other five homeless defendants.

Actually, defendant Arthur Bishoff has since obtained both housing and employment. Defendant Eliot Anderson also achieved housing and employment but has since been laid off from his job and lost his housing. Defendant Collette Connolly was sheltered for about a month at the Paul Lee Loft after Peace Camp 2010 was disbanded in October. She will not be eligible for those shelter services for at least six months now. She, and co-defendant, Gary Johnson, remain homeless. Defendant Christopher Doyon has not appeared in court and will be tried at a later date.

Police officers are paid for a four-hour shift if called to testify on their day off. If on duty, they testify in uniform, and do not serve on their beat during those hours, depriving the public of their actual services. Lt. Fred Plageman and Dina Phillips presumably will testify as part of their administrative salary.

The defense, other than the actual defendants themselves have only subpoenaed three witnesses: Paul Brindel of the Shelter Project, Paul Lee, namesake for the Paul Lee Loft at the Homeless Services Center, and Executive Director, Monica Martinez (or her substitute) of the Homeless Services Center.

When jurors learned they would not be serving on a jury to try a child molester, a rapist, a murderer, or an extortionist, but instead would be asked to determine whether a couple of homeless people "lodged" on the courthouse steps as part of a protest last summer, they rebelled.

A kindergarten teacher from Brooknoll Elementary School started the rebellion. "When I first came to Santa Cruz, I lived in my van for three years. During that time, I was hassled, arrested, and jailed. There is no way I could be impartial in this case considering the pain these people are suffering."

The next juror to object said "I grew up homeless and my dad was a veteran. I've been hassled and harassed, and I'm hostile. They make victims of people. They don't help them out. You can't take a homeless kid and give them a $225 ticket."

When DA Dabkowski asked " Do any of you believe this is a case that should not be brought to court," another juror raised his hand. "I have a strong respect for people's property rights, but I speculate that the people charged here had no other option. This is simply a case of right and wrong laws."

The next juror who objected said "I not only object, but I'm shocked really. I arrived not knowing anything about this case and now find you want to conduct a two week trial? And it's simply about a group of homeless people being where they're not supposed to be? What a waste of people's time. It's a travesty really, spending this much time and money on this here."

When Judge John Gallagher asked him if he could put his bias aside and render an unbiased decision he said "I'd just be sitting here, stewing, that I can't believe we are spending all these resources on this."

Potential juror #4 said "I'm honored to be here and to serve. However, I am not impartial. I feel this is a waste of time for the taxpayers. I tried to use my calculator to add up the expenses. And I'm upset we've opened up this much time on this particular case. You say it's criminal? Then why do the sheriff's spend so much time being giving tickets, just harassing people, especially my own kids, aged 17 and 18? And then not showing up when I need them. My storage locker was broken into and thousands of dollars worth of my things were stolen, and I never got anything back. You say this is criminal so perhaps there's more to it."

Another potential juror described her previous jury experience. " There was a break-in and we did reach a verdict, and I sat on the jury for a four-week trial on a rape case. But I'll say I'm already feeling some pre-conceived notions as I keep hearing this case is about illegal lodging, not what I keep hearing. It feels like we're getting away from that. Honestly, I don't think I can be unbiased."

Juror #36 was disillusioned with the whole process. "I testified in court once as a witness for the prosecution in an attempted murder case. And even though I was testifying against the defendant, the prosecutor was so aggressive in his tactics, I came to resent the whole court process. This case here shouldn't be taking place at all.

Potential juror #2 had experienced both sides of law enforcement. "I was saved by police at age 9. But then I've had relatives of mine pulled over by police and hassled for no reason at all."

Jury selection continues today. The trial is expected to last two weeks. Defendants face up to 6 months in jail and/or $1000 fine on each charge. Defendant Gary Johnson, who has the most charges, faces up to two years in jail for sleeping at the courthouse and at City Hall as part of a protest against Sleeping Bans.

Ed Frey can be contacted at 831 479-8911
Becky Johnson can be contacted by e-mail at becky_johnson222 (at) hotmail.com.

647 (e) Anti-lodging Jury trials to begin Monday, April 25th in Santa Cruz

Peace Camp 2010 defendant, Gary Johnson, sleeps on a public sidewalk August 29, 2010 to protest the Sleeping Ban. He faces up to two years in jail if convicted for his multiple charges of sleeping and "lodging."

by Becky Johnson

Santa Cruz, Ca. -- As the State, County, and City struggle to meet record budget deficits, there are two local leaders of City and County government who know no limits on what they will expend on their budgets. And this despite any evidence these expenditures produce any public benefit other than to feather their own nests. They are City Attorney John Barisone and the District Attorney Bob Lee.Both proceeding at breakneck speed to prosecute homeless people for...well...for BEING homeless. And the sky is the limit as far as costs go.

Now logic tells us that if some guy doesn't have $100 for a motel room, he's not going to be able to afford a $97 citation for sleeping on public property. Nor will turning him into a criminal help him find housing or employment.

But that's standard operating procedure in Santa Cruz. The City has MC 6.36.010 section a, also known as the "Sleeping Ban,"for which around 60 citations are issued monthly. The County has its own Camping ordinance, but it doesn't apply to the Government Center properties.

Last August, Santa Cruz County Sheriff's made a series of arrests under PC 647 (e), the Statewide anti-lodging statute which provides immediate arrest and jailing for those who don't possess a deed to a piece of property, a mortgage on a house, a lease on an apartment, a rental agreement, or a receipt for a motel room if they are found within the borders of the State of California and a cop tells them they no longer have "permission."

And if it is TRULY illegal to "lodge" which, according to Assistant District Attorney Sarah Dabkowski, representing the people, the law "puts people on notice that they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission." Dabkowski is prosecuting the Peace Camp Six who laid down their bodies on the court house steps as part of a protest last July and August to challenge laws which criminalize sleeping at night. Laws which are disproportionately directed at displaced former tenants and not against truck drivers, cabbies, kids waiting in line overnight for the opening of Star Wars: Episode III--Revenge of the Sith, or against those sleeping inside upscale-looking motorhomes.

The Peace Camp Six are five houseless individuals and their attorney, Ed Frey. Frey made a motion to dismiss the charges based on the vague and overbroad language of the statute which can make "living" without permission an arrestable offense. A three-judge panel, headed by Paul Marigonda, and joined by Judges Paul Burdick and Timothy Volkmann, met in chambers and voted to deny the motion. DA Dabkowski, has subpoenaed 28 to 30 sheriff's deputies, police officers, staff members at the Santa Cruz County Courthouse and Government Center to testify with jury selections to begin on Monday, April 25th at 9AM in Dept 2 before Judge John Gallagher.

A separate jury trial is likely forthcoming in the case of a seventh defendant, Linda Lemaster,who also faces trial beginning early in May. She is being defended by attorney Jonathon Gettleman, who defended Miguel Deleon against the City's civil injunction for sleeping in the downtown area. Neither City Attorney John Barisone nor District Attorney Bob Lee have any compunctions about performing jury trials, calling dozens of witnesses who are paid staff of both the City and the County, paying their own staff for hundreds of hours billed at between $215 and $225 and hour to prosecute homeless people for "living" "staying the night" "sleeping" or "lodging" in a public place where they are not trespassing.

It goes to say, that a fraction of these costs could be used to house, feed, transport, and provide job training the very same people who lack a permanent shelter and hence tend to be subject to these and other laws.

Facing trial on Monday are Eliot Anderson, Arthur Bishoff, Collette Connolly, Christopher Doyon, Gary Johnson, and Ed Frey. If all are found guilty, what does anyone "win?"

For more information: call Ed Frey at 831 479 8911
or contact Becky Johnson at becky_johnson222 AT hotmail.com

Peace Camp Six Jan 21 2011 Hearing Transcript

TRANSCRIPT FOR "MOTION TO DISMISS" HEARING

Jan 21, 2011
1:30PM

Santa Cruz County Superior Court
701 Ocean St.
Santa Cruz, Ca. 95060
Department 2

The Honorable JOHN GALLAGHER, Presiding Judge
ED FREY, defendant and attorney for the defense,
Assistant District Attorney, SARAH DABKOWSKI, for the prosecution
Peace Camp Six defendants, COLLETTE CONNOLLY, ARTHUR BISHOFF,

ELIOT ANDERSON, GARY JOHNSON, and ED FREY were present.
CHRISTOPHER DOYON, also a defendant was not present

THE HEARING BEGINS AT 3:50 PM

JUDGE JOHN GALLAGHER: Mr. Frey. I believe you are representing everyone on the motion to dismiss. Is that true?
ED FREY: Yes it is.
JUDGE JOHN GALLAGHER: Is there anyone else here in the courtroom waiting for a
matter to appear other than people represented by Mr. Frey? (silence)
Okay. I think we can take your matters now. I'll call them for the record.
So the matters that are remaining are the People v Eliot Mathew Anderson et al. Is Eliot
Mathew Anderson present?

ELIOT ANDERSON: Yes, sir.
JUDGE JOHN GALLAGHER: Perhaps all of Mr. Frey's clients could sit in the first row near
the bailiff station. If others sitting there would kindly vacate that area.
Gary Allen Johnson is present. Eliot Mathew Anderson is present. Mr. Frey is present.
Christopher Mark Doyon?

ED FREY: Is not here, your Honor
JUDGE JOHN GALLAGHER: Collette Marie Connolly is present. Good afternoon.
Arthur William Bishoff is present.
JUDGE JOHN GALLAGHER: Mr. Frey, Can you tell me anything about Christopher
Mark Doyon's status?
ED FREY: No. Mr. Doyon lives in a place that is very inaccessible, he lives about 20
miles out of town, and has no telephone. I don't know why my client is not in court.

JUDGE JOHN GALLAGHER: All right. Given that you are his counsel and you're
here, I am going to excuse his absence for the purposes of this hearing. And who is
handling this for the people?
DA SARA DABKOWSKI: Sara Dabkowski, representing the people

JUDGE JOHN GALLAGHER: Good afternoon to all the people
represented by Mr. Frey. I'm sorry you had to wait all day to
have this happen. Or perhaps all afternoon. I have read the moving papers, the opposition, and
the reply. And I will hear your arguments at this time. Mr. Frey it's your motion.

ED FREY: Thank-you, your Honor.
JUDGE JOHN GALLAGHER:How much time do you think you need?

ED FREY: I'd say 15 minutes.
JUDGE JOHN GALLAGHER: Excuse me . I need to deal with the media request. I have
a media request to record, photograph for broadcast submitted by the Santa Cruz Sentinel,
a Mr. Dan Coyro of the SENTINEL. Is Mr. Coyro present?

(voices: he's not present)
All right. Then if he's not present then I don't need to deal with that request. Mr. Frey,
your other request?

ED FREY : That it be recorded aurally.
JUDGE JOHN GALLAGHER:: "It IS being recorded by the court's recording system.
And that will be the only audio recording. If you want a copy that will be the official copy.
ED FREY: Very good.
JUDGE JOHN GALLAGHER: Ms. Dabkowski, how much time do you need?
DA SARA DABKOWSKI: I guess it will depend on if the court would like me to
address the specific issues: I'd say 10 minutes.
JOHN GALLAGHER: Perhaps, since to some extent this is an evidentiary hearing because
Mr. Frey has asked me to address a number of items for judicial notice. Why don't we first
address the issues of judicial notice. Mr. Frey, why don't you go forward.
FREY: Okay. The first is request for judicial notice is that the fact that this courthouse is a
place...that's traditionally been a location for public protest.

JOHN GALLAGHER: Do the people have a position on this?
DA SARA DABKOWSKI: Your Honor, I thought the type of fact... it's not the type of facts
that would be taken under judicial notice in the evidence subsection 452, facts that one would
take judicial notice of, items of common knowledge, like what kind of (unintelligible) there
would be on a particular day. Such as what day of the week is Feb. 14th is on. I don't think
it's the type of fact that the court can take judicial notice of.
ED FREY: Your Honor, I believe that we cited not section 452 for that, but we cited section
452 for that fact, but section 451 subdivision F

JUDGE JOHN GALLAGHER: "Facts and propositions of generalized knowledge that are
so universally known that they cannot reasonably be the subject of dispute."

ED FREY: Yes.

DA SARA DABKOWSKI: I'd have the same argument, that that is not something that is
generally universally known. It is a proposition or opinion. It could be disputed.
JUDGE JOHN GALLAGHER: Mr. Frey, your response?

ED FREY: Yes. Actually 452 (g) is probably the most appropriate : "Facts and
propositions that are such common knowledge within the territorial jurisdiction of
the court they cannot reasonably be the subject of dispute."
JUDGE JOHN GALLAGHER: All right. Is your response any different to that
sub- section Ms. Dabkowski?
DA SARA DABKOWSKI: No, your Honor.
JUDGE JOHN GALLAGHER: "Mr. Frey, I've lived in this community for roughly
31 years, and if I had been asked to say whether I think
that is a fact, that that is indisputable under any of these sections, even though I've been
coming to this courthouse for 32 years, my personal
opinion is "no". I know it's not my personal view that supports whether or not judicial
notice should be given. But I did want to tell you that
even as from someone who's been coming to this building for nearly 32 years, I would
not have found that that is true.
ED FREY : Can we think about all the times, for example, that the SEIU would hold
demonstrations here? And in front of the stairway over
in front of the high rise building. Then there's all the public groups that hold meetings and
public demonstrations here. SAM FARR came here
and spoke . It's a place where the public has gathered. I've been to about thirty or so myself
at this location. "
JUDGE JOHN GALLAGHER: Your specific request is that the County courthouse and
civic center of the City of Santa Cruz, City Hall....
you mean city hall, that complex?
ED FREY: Yes.
JUDGE JOHN GALLAGHER: Have been used as sites for public gatherings, public
demonstrations , for many decades and are still so used.
ED FREY: Yes
JUDGE JOHN GALLAGHER: You're not asking me to say that this is a frequent
occurrence, just that these occurrences have happened in these two locations for many
decades continuing till today. Is that a fair statement?
ED FREY: Yes.
Now Ms. Dabkowski, now that I'm focusing on that particular language, do you have
anything to add?
DA SARA DABKOWSKI : I guess I would add that Judicial notices are irrelevant,
since what we are arguing today is whether or not 647 (e) is valid or invalid on its face
and this particular judicial notice does not go to the argument and is irrelevant.
JUDGE JOHN GALLAGHER: Mr. Frey, what is your response to that?

ED FREY: Well, as I understand the demurrer process, and that is essentially what
this is as counsel has pointed out. Evidentiary facts...any facts are not permissible.
However, the exception is if facts are taken by judicial notice.

JUDGE JOHN GALLAGHER: That is the rule of law and that I accept that it is
accurate.
ED FREY: It's relevant especially to our first amendment argument of course.
JUDGE JOHN GALLAGHER: I'm going to grant the request for judicial notice
as stated on number one. I'm not ruling whether that evidence is admissible on the
motion to dismiss.

ED FREY: "The second request for judicial notice is "the defendants purpose and
what they did was, well one of their purposes was, to protest the Sleeping Ban. And
that again was under section 452 (g).
JUDGE JOHN GALLAGHER: "I'm denying that request for judicial notice. I'm
guessing that Ms. Dabkowski, you won't want to talk me out of that decision?

DA SARA DABKOWSKI: No, thank you.

ED FREY: "The last request I have is one of those general propositions. That it is safer to
sleep in group when you are sleeping outside than it is to sleep by yourself."
JUDGE JOHN GALLAGHER: "I will deny that request for judicial notice. I assume
the people have no objection. Are there any other evidential matters before we go to arguments?
ED FREY: No.
DA SARA DABKOWSKI: Your Honor, I also would object to Mr. Frey's declaration.
JUDGE JOHN GALLAGHER: Is Mr. Frey's declaration attached to something?
DA SARA DABKOWSKI: I believe it was attached to the motion that he filed.
ED FREY: It is filed as separate document, I believe. It was filed contemporaneously
with our opening brief.
(long silence)

JUDGE JOHN GALLAGHER: I'm looking over all the files and I can't find it.
ED FREY: It may be in Mr. Anderson file as that is the case that it was filed under.
JUDGE JOHN GALLAGHER: do you have a copy?

ED FREY: I do. (gives Judge his copy)

JUDGE JOHN GALLAGHER: Let me refresh my recollection here. Mr. Frey, this would not be
something I could take judicial notice of in the demurrer process. This kind of submittal is not
acceptable, traditionally at least. So do you have any response to that?

ED FREY: No, I think in general counsel is right. We are challenging the statute on its face and
therefore to bring in new facts would not be appropriate. We have to just take just the statute itself.
JUDGE JOHN GALLAGHER: I will treat this as an evidential objection by Ms. Dabkowski. And
I will sustain that objection and not consider the contents of the declaration or the attachment or
any other references to the attachment. Any other evidential issues?

DA SARA DABKOWSKI: No, your honor.

JUDGE JOHN GALLAGHER: Let's go for it.

ED FREY: May I request of the court whether you have a tentative decision? Or if the court
wants to hear arguments on a particular issue vs a request for others?
JUDGE JOHN GALLAGHER: I don't have an opinion and I don't have a request for issues.

ED FREY: The point I would make first, your Honor, is that even though The Ninth Amendment
to the United States Constitution has hardly ever been cited by the Supreme Court of the United States.
The same can be said with regard to that portion of article 1 section 24 in the California State Constitution
that says basically the same thing the 9th Amendment says, and that too has not been a subject of
appellate review or application.

But we are faced with is applying the law set out in the Constitution directly in this case without
having to examine how other appellate judges have treated it. Obviously, there is almost no history
there. I don't know if the court had a chance to review the book I mentioned about the 9th amendment
in my briefs?

JUDGE JOHN GALLAGHER: If you did not submit it for me to review, I did not review it.

ED FREY: But I do cite several points made in that book about the 9th amendment that the purpose
of the 9th Amendment, was that the authors of the Bill of Rights were concerned that if we list certain
rights then are judges going to assume that those are the ONLY rights available? And that was precisely
what the drafters and the authors of the Bill of Rights did not want to happen. So that was the purpose of
putting it in --the 9th amendment in. To say clearly to everyone, especially the judges, that the
enumeration of these rights above --such as freedom of expression, freedom from unreasonable searches
and seizures, etc.--- are not, that list was not meant to exclude other rights that are retained by the People.
Rights which obviously are too numerous to mention, and too obvious to mention. As I said, the right to
breathe was not put into the Constitution. Because it's pretty obvious to everyone, if you can't breathe,
you can't live. I think the same thing can be said about the right to sleep. If one cannot sleep one will not
live very long. One cannot survive without sleeping. And that the right to sleep has to be one of those
unenumerated rights.

JUDGE JOHN GALLAGHER: "Did the founding fathers side to protect any rights associated with
the physical process of living?

ED FREY: Not to my knowledge. I don't believe so. Of course the right to freedom of speech, freedom of
religion, unreasonable search and seizure, the right to counsel, the right to jury trial. It seems that none of
these have anything to do with bodily functions.

JUDGE JOHN GALLAGHER: Does that tell us something?

ED FREY: Yes, it tells me that those bodily functions are so ingrained in human life, so necessary to
human life that if one were to apply a modicum of common sense, one would say we need not list these
things.
JUDGE JOHN GALLAGHER: Isn't it also a reasonable assumption that they were protecting
political rights but not physical rights?"

ED FREY: Well I think they were reserving all sorts of rights that were not listed, not specifically listed.
But I certainly couldn't give a catalog of what I would surmise to be what those rights might be. But the right
to sleep, I certainly would say is included in there, because, as I said, if you can't sleep you can't live.
JUDGE JOHN GALLAGHER: Is the right to pursuit of happiness anywhere found expressly in the Constitution?

ED FREY: Not in the United States Constitution, but in the California Constitution, it's right there:
the right to pursue and obtain happiness. That's another broad set of rights, article 1, section 1 of the 
California Constitution that is extremely broad, and yet it has to mean something. It means, really,
that the people retain the right to do whatever they want to do so long as they don't interfere in someone
else' rights.
JUDGE JOHN GALLAGHER: the "Right to pursue happiness" was found in other documents around
the Revolutionary period. Were they not?

ED FREY: In the Declaration of Independence but not in the United States Constitution. But in the
California State Constitution.
JUDGE JOHN GALLAGHER: Don't you see the dichotomy there? By the time the Declaration of
Independence they were expressing that right, but by the time they got around to writing the Constitution,
they were focusing on political rights, and not more personal or physical rights.

ED FREY: Yes. I believe that's an accurate statement. The California Constitution, the drafters of that..
.actually it was adopted by the voters, I believe, in the State of California in 1874. They decided they
wanted to put it in. So we have that right as Californians. We have much greater rights as Californians
under the California Constitution than Americans generally do under the United States Constitution.
JUDGE JOHN GALLAGHER: But even in that much broader document, voters did not choose to
enumerate the rights you're seeking here. Is that correct?

ED FREY: Yes, it's correct. But again, for the same common sense reason. They wouldn't put in
"the right to breathe" because it would seem silly. Everyone has the right to breathe. It's kind of
absurd to put that in a legal document.

JUDGE JOHN GALLAGHER: I didn't mean to steer you off course. I just had some questions.
Please continue.

ED FREY: So I believe what we are talking about here is precisely what the drafters of the Bill of Rights
 had in mind. And that is the right to do something that they weren't prepared to list in their very
basic list of political and civil rights listed in the Bill of Rights.

Then with regard to our second basic set of rights under due process of law. The 5th and 14th amendments
to the United States Constitution, generally that the law that we're dealing which here which outlaws
"lodging" whether it be on public or private property, at any time or at any place. There's no limitations
on it, there's no definitions on it. A citizen reading that law would have no clear idea whatsoever what is
permitted and what is prohibited. "Lodging" in general, means, as I have always understood the word,
living in a particular place. You are lodged in a house, you're lodged in a trailer. You're lodged at a big...
Yosemite Lodge. To me it's always implied a structure. Unless you're using it in the other term as when
an object gets "lodged" between two rocks, but that's not the sense in which the statute speaks, I don't think.
Unlawful lodging means a person is in a place where they are not supposed to be. How can a person know
what they can or can't do just by reading it? 
Your Honor, as I pointed out in my opening brief, "lodge" has been used very specifically for various
statutory purposes in California and it is always surrounded with the rights that go along with real property
occupants; tenants rights; lodger's rights. That sort of thing. Even, as I point out, if you are considered a
"lodger" because you rent one room in a home, in a single family residence that is occupied by the owner,
you are then considered to be a "lodger." You can be ousted by the police from that, but you have to have 7 days
written notice before that can happen. It's one of the only cases where under landlord/tenant law, an unlawful detainer
is not necessary to dislodge someone from real property. You can just call the police and have them come.
In fact, if the policemen come to oust you, one of the questions they will ask the owner is, "Have you given this
person 7-days notice in writing?" If not, if the answer is "no," the policeman will go away. There is no right of
the owner to dislodge the person without having first given that 7 days written notice.

So reading this entire body of California law, a citizen could say, if I'm just sleeping in front of the courthouse,
I'm not lodging. Because "Lodging" has always implied that you had permission. That you have some sort of
written contract with the owner or the person who is in control of the property. Here we had no contract.
We just came and we slept. We didn't ask anybody first.

So we're not lodgers. Or we don't think we are lodgers and the statute doesn't make it clear. And because that's so,
that's one reason the law should be held void. Another basic reason it should be held void for vagueness is, of course,
that Sheriff's and the police have no guidelines for them to know what to do and what not to do, and who is breaking
the law and who isn't breaking the law. It opens up the situation to the possibility of arbitrary and capricious
enforcement and that is precisely the most important factor that the United States Supreme Court has held,
when present, to find the statute void for vagueness.

JUDGE JOHN GALLAGHER: You don't think the statutes acknowledges the permission
element in the standard for "lodging?"

ED FREY: It says "without permission" but what does "lodging" mean? Lodging implies a
structure--it imply s a lodge
or it implies.... If you are walking down the sidewalk and you're really tired and want to sit
down and rest, that doesn't
require permission, generally.

JUDGE JOHN GALLAGHER: But doesn't the statute provide definition to that when it
says "building, structure, vehicle, or place?"
ED FREY: No. That is so broad in includes every square inch in the State of California.
                                              "Every place" in California. Every place.
It could be on a sidewalk. It could be in a park. It could be in front of the Courthouse.

JUDGE JOHN GALLAGHER: Why should any place be unprotected?

ED FREY: It's not that any place should be unprotected. What we need here are reasonable guidelines. For example,
if the County authorities felt it was not a good thing to have people sleeping here at night, they could write a regulation
or an ordinance that says "not here" "not permitted here" but they can't prohibit it everywhere in the county. Because the
people have a right to be here, and they have the right to remain here as I pointed out in the reply brief, there is a statute
in California which tries to answer the dilemma that public welfare authorities would have, "If a person is homeless,
how do we know where he resides?" Well, that statute says he resides where ever he remains unless he's called away.
So anyone who remains in the County of Santa Cruz, has a right to remain here....but this statewide statute takes away
his right to sleep while he remains here."

JUDGE JOHN GALLAGHER: Your time has been exceeded. But please take a minute to wrap up if you like.

ED FREY: I know I'm asking the court to do something that is unprecedented. But that's just in the nature of things.
We have these very broad Constitutional provisions. The fact that they've not been applied or referred to by other judges,
especially other appellate judges doesn't mean we can ignore them. Those are the basic rules that the court goes by, as
the court well knows. The Constitution must be applied. You can't just say those are just pretty sounding words.
Those words mean something. The right to pursue safety. The right to pursue privacy. The right obtain privacy.
The right to obtain safety. These words have to mean something and given meaning. And in this context, the right to
pursue happiness, the right to pursue privacy has got to include the right to sleep. Because otherwise, your life
is ruined if you can't sleep.

ASSISTANT DISTRICT ATTORNEY DABKOWSKI gives her summation


DA SARA DABKOWSKI: Your honor, Mr. Frey is correct that this is an unprecedented request he is making. And that there is no law which supports granting his untimely request. Let me point out that this is an untimely motion that is being treated like a demurrer. A demurrer is something that must be filed before a plea is entered. All defendants have entered pleas. And if a demurrer has not been filed prior to a plea, then all rights to a demurrer are waived. And that's something that's found in the penal code. And it is untimely to proceed as a demurrer. And that would be the proper motion or format to address these particular issues. Particularly the question of whether 647 (e) is void on its face. Because that is something that a demurrer definitely asks, whether the charge or code section is valid and addressing the code section on its merits and asking if 647 (e) is unconstitutionally vague.

Case law supports that it is not unconstitutionally vague. It does put people on notice. As case law says, it does have to "provide sufficient definite guidelines for a potential violator and to the public and sufficient definite guidelines to law enforcement" so there is not arbitrary enforcement of the particular section. In this case, there is sufficient information to give notice that it is illegal To 'lodge' somewhere you don't have permission. To "lodge" somewhere, it's a common word. It does put people on notice. It's a word that can mean that you are a lodger at a motel, spending the night, staying the night. Or as Mr. Frey pointed out, it can have a more permanent meaning. That you are a "lodger" in someone's home. But it is a common word that puts people on notice that they can't lodge, can't live, can't stay the night, can't sleep somewhere, can't set up roots somewhere if they don't have permission. So it's not unconstitutionally vague on its face as written. To lodge at a hotel, to live, stay the night, sleep somewhere, set up roots where they don't have permission.

So it is not unconstitutionally vague. Particularly because in this case a person can ask themselves, "What do I have permission to do here?" 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 courthouse is closed. And I should know that no person gave me permission to sleep here.

And so there are guidelines to put the public on notice, to put law enforcement on notice, and put juries how have to decide on such things on notice. It's not unconstitutionally vague. It uses common words which have common meanings. No law is going to be absolutely perfect where every single time everyone has the exact same idea but the point it, it has to provide sufficient and definite guidelines, which this particular statute does.

Turning to the 9th amendment. There is no ninth amendment violation right here. There is no constitutionally protected "right to sleep." It's not a recognized right under the US Constitution nor under the California State Constitution. while sleep may be a need and a very important need, and in no way are we down-playing the importance of the need, and we're not unsympathetic to the plight of a lot of people, but here in Santa Cruz, homelessness is a pervasive and common issue here that we are all as a community dealing with. it's not a right at this time. It is not recognized as a right. There is no authority to support it. But there is no Ninth Amendment violation in this case. Nor is there any particular section of the California State Constitution either cited by counsel or otherwise that shows that there is any California violation in this case.

Finally, in Counsel's case, Counsel raised the issue that defendants' first amendment rights may have been violated. But the defendants were not cited for their speech. They were not being punished for any speech. They were cited for conduct after they were warned to leave. This is not a punishment on speech. 647 (e) on its face is content neutral. It doesn't in any way target particular types of speech or types of expressive conduct. It does have reasonable time, place, and manner regulations because 647 (e) just applies to areas where you don't have permission. As the cases we cited, it's reasonable for the government to maintain the safety, maintain the cleanliness of common places. That is a government interest that they can protect. The cleanliness of public spaces. They have a right to have reasonable time, place, and manner restrictions put on even expressive behavior and expressive speech. So I think it is reasonable time, place, and manner restrictions that you can't lodge in places where you don't have permission.

Is there anything else which the court specifically would like me to address?

JUDGE JOHN GALLAGHER: I don't think so. Mr. Frey, would you like to reply?

ED FREY'S FINAL ARGUMENTS

ED FREY: Just briefly, your Honor. When the People say there is no law that supports our motion, I'm sorry, but I have to basically disagree in a very arduous manner. The law that supports our motion is very strong. It's right, directly in the Constitution. It's not law that appellate judges have established, but it is law that is right in the Constitution. To say that "there is no law.." is simply inaccurate. With regard to providing guidelines, the only guideline is that counsel mentioned is the one that says you have to have permission. that means in effect that the requirement of getting consent from someone, then if you are so poor you can't afford a motel room, you have no where in the State of California where you can go and legally sleep. That is simply and morally unacceptable.

JUDGE JOHN GALLAGHER: Thank-you Mr. Frey and Ms. Dabkowski. You both made well-prepared written and oral presentations.


GALLAGHER'S RULING

JUDGE JOHN GALLAGHER:"It's my intention to deny the motion to dismiss. I think the People make a good point when they say that "Sleeping is not a Constitutionally protected activity." And that this statute provides a reasonable time, place, and manner restriction. I am not unmindful of the difficult situations of people who don't have the assets or means to purchase lodging, don't have the means to purchase a campsite. And what it means to buy accommodations in a given area. But I don't think it was the intention of the people of California amending the Constitution to say that someone could sleep on any piece of public property or private property without permission as part of the pursuit of happiness under the State Constitution. I'm even more comfortable that the founders of the United States Constitution did not envision a "right to sleep" anywhere when they were drafting the United States Constitution's Bill of Rights and I think I followed that with my argument that that is a document that protects political rights and not physical rights and those who drafted the Bill of Rights did not envision to allow anyone to sleep on ANY public or private property without permission.

They did not envision an ingrained "right" to sleep anywhere when they were drafting the Constitution. As I suggested in my discussion that that is a document that highlights political rights and not physical rights.

I appreciate that as a society we have not found a good solution to the terrible economy we have in this State and in this country and we haven't for quite some time. But the People of the State of California and the people who wrote the Constitution did not intend it to allow the right of the people to sleep anywhere they wanted without permission from the landowners. I have to deny this motion to dismiss. So I'd be happy to set consistent dates as counsel wishes. Do the people move to intend to join these cases?

DA SARA DABKOWSKI: I guess I'll file a motion to join these trials unless Mr. Frey objects.

ED FREY: No. We don't object. We don't want separate trials. That would be wasteful to everyone.

JUDGE JOHN GALLAGHER: So you'll stipulate to the rejoinder?

ED FREY: Yes your Honor.

JUDGE JOHN GALLAGHER: Can you contact CHRIS DOYON and inform him his presence will be required at these trials?

ED FREY: Yes I will do that. Your Honor, may I make one additional one-sentence comment about your ruling?

JUDGE JOHN GALLAGHER:I request that you do not do that.

Transcription by Becky Johnson on March 18, 2011

misdemeanor 647 (e) California State anti-lodging law

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.