Linda Lemaster faces 6 months in Jail for Sleeping

 

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

 

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

by Becky Johnson
December 6, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

       

 

Jailing Attorney Ed Frey is an Outrage!

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

 by Becky Johnson

August 5 2012


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

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

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

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

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

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

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

Under these circumstances HOW CAN THEY SLEEP AT NIGHT? 

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

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

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

Judge Rebecca Connolly rules 647 (e) not vague or overbroad

One of the protesters at Peace Camp 2010 lies down for the night
literally on the front doorstep of the Santa Cruz County Courthouse.
Photo by Becky Johnson August 29, 2010

by Becky Johnson
March 5 2011

Santa Cruz, Ca. -- Yesterday, the newly-elected Judge, Rebecca Connolly faced her first decision regarding the case of Linda Lemaster and the Peace Camp Six. All had been arrested under the State's draconian 647 (e) statute which outlaws "illegal lodging" with the word "lodging" undefined.

Representing Linda Lemaster, Public Defender, Mark Garver had submitted a brief and gotten a response to his brief, at a hearing called a demurrer. Connolly said she'd reviewed both briefs. Garver began by addressing the two cases raised in the Prosecution's brief, both of which addressed camping ordinances. What follows is my version of what I heard, based on my notes and conversations I had with Ms. Lemaster afterwards.

MARK GARVER: In the cases cited by opposition, Joyce v City of San Francisco, and in the People v Scott, in both cases, the statute further defines the behavior addressed. 647 (e) is vague and overbroad. What does it mean to violate it? Does it mean or specify lying down? In Joyce, it states specifically that "merely lying down or sleeping in a bedroll does NOT constitute a violation."

In the People v Scott, it does define "camping" as well. " Camping" is defined as residing or resting in a park for long repetitious periods of time. Your Honor, this is a tangible definition.

Under PC 647 (e) it's not clear if a person violates the statute after one-half hour, or 10 minutes, or after a period of days. Even in the language of the courts on ruling on the W. Hollywood (camping) ordinance, the Justices said "If the City of W. Hollywood had not provided a definition of "camping" they would not have found their ordinance constitutional."

But here, the opposition expects us to merely substitute the word "lodging" for "camping."

What's illegal is using that claim as a living accommodation sufficient to provide guidelines to police to enforce what lodging is. Can we tell what "lodging" is after 5 minutes? Ten minutes? One-half hour? Is it for lying down? Is if for sleeping? This lends itself to arbitrary enforcement by police, or so said the Hawaii Supreme Court when they reviewed the ordinance.

DISTRICT ATTORNEY MCKINNEY: I just saw this case today so I'm not going to respond to those arguments.

MARK GARVER: The Hawaiian decision was different from the Scott decision in that it was "camping" and it did have a definition of "camping." Still it was found vague for other reasons. It defined what "living accommodations" were. It said that's "remaining for a prolonged period not for recreational use." Here we have no definition of "lodging."

And if "lodging" can be defined as someone who stands, sits, or publicly assembles in a protest, it can be used to disperse that protest. I am challenging this ordinance on its face as well as as applied.


DISTRICT ATTORNEY MCKINNEY: In the Hawaiian case, I haven't had the chance to review it all but I don't think you should give it much weight. In Joyce, it details a 647 (i) which is virtually identical to (j) --and they found it was NOT unconstitutional. As for over-broad or unconstitutional, that was not addressed in the counselor's response.

JUDGE REBECCA CONNOLLY: I can't believe this statute is vague. Regarding Constitutional issues, I don't think it's so vague it would influence the 1st amendment. How about the ruling in Scott where they said that "If they'd had a definition...?"


DISTRICT ATTORNEY MCKINNEY: It said it "might" be unconstitutional. We all have a common sense understanding of "camping." We all have a common sense notion of what "lodging" is.

JUDGE REBECCA CONNOLLY: I find the statute as written is sufficient on its face.

As to the citation, it's sufficient As to the citation, it's sufficient to address the charges -- it says it's illegal to "lodge" --with respect to 647 (e), is not void for being over-broad. I'm going to rule to deny the demurrer.

With respect to this case, Judge John Gallagher is handling all the camping cases.

MARK GARVER: So for all purposes that means Department 2?
JUDGE REBECCA CONNOLLY: Yes. Judge Gallagher. Next hearing March 11th at 8:30AM., Dept. 2. I want to thank everyone here. It was very well argued by counsel. Thank-you for your attention to detail. I'll assign it to Dept. 2 in Judge Gallager's court.