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, 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....

Transcript of Juror post-verdict interview May 3 2011

The following are outtakes from five separate audio recordings of Defense Attorney, Ed Frey, District Attorney, Sara Dabkowski, Becky Johnson, Linda Lemaster, with Jury Foreman, Mr. Kauffman, and with 8 jurors. A ninth juror opted to not be recorded and can be heard asking that the recording be turned off. The other jurors said he was a doctor, practicing at Dominican Hospital, and that he was the bullying and non-participating juror.

AUDIOTAPE # 1 1min and 42 seconds

BECKY: Do you mind talking to us a moment about the case?
FEMALE JUROR: I can't. I've got classes. (walks by hurriedly. This juror had formerly agreed to be interviewed by Becky, and was a student at UCSC).
(Becky confronts DA Bob Lee as he walks through the hall "Do you want to talk about your verdict? That you've solved homelessness in Santa Cruz County? That you can have every homeless person arrested on sight?" Lee passes through without comment. Becky returns to interviewing jurors)

BECKY: Do you mind talking about the case?
FOREMAN KAUFFMAN: ....we had a juror that didn't feel that any more discussion would be helpful, was a waste of his or her time. And really wasn't willing to allow for further discussion to happen.
SARA DABKOWSKI: Are you aware that a recording device is on? And do you object to a recording being made of this discussion?
FOREMAN KAUFFMAN: No, I don't.
SARAH DABKOWSKI: So it started at 11 - 1 where that one person just didn't want to talk about that count anymore?
FOREMAN KAUFFMAN: I don't want to comment on that.
SARA DABKOWSKI: That's fair.What do you feel like was the sticking point about on that particular count?
FOREMAN KAUFFMAN: I don't think it was neccessarily about that particular count. It was a question of general time. One person felt that was it.
SARA DABKOWSKI: Was there anything that could be made more clear? In terms of all the other counts, where you were able to reach a decision, was there anything that I could have done to make your job more clear?
JUROR (a doctor ): I'll speak to that. But I don't want to be recorded. (end of clip)

AUDIOCLIP#2: 16 min and 5 sec
.....was the dog, was that part of it? (yeah)
JURY FOREMAN KAUFMAN: I would like to partly disagree with that. Speaking for myself anyway, I didn't feel that I necessarily had the time I needed to fully hear everyone to decide whether or not I was absolutely convinced one-way or another regarding Mr. Anderson.
SARA DABKOWSKI: Yeah.

ED FREY: Are any or you or are all of you convinced you don't have any ownership of this property?

(DA Bob Lee walks through and Becky asks him again if he's now going to have all homeless people arrested and convicted. Lee continues walking without comment.)

K: I do have an opinion about that. We live in a representational government and we elect officials, and they don't obviously do what we want to do, but we do elect them. but that is the way our government is run. It's my belief that...
ED FREY: Actually, the corporations elect our public officials with their campaign contributions.
K: Fair enough.
ED FREY: The corporations are in charge.
K: I'm not going to disagree with that. But we do elect those people, and this is, whether you like it or not, how our government is run and how our laws are run and until you change the laws unfortunately....
ED FREY: What do elections have to do with ownership of the property?
K: Well the people of California...I'm not 100% sure of this, but based on your testimony, I'll believe that the people of California own these grounds. If that's true then the representatives that are elected by the people of California are the people who are in control of these grounds. Obviously every single one of us isn't able to have the same day-to-day...uhm...what am I trying to say? We can't do every single job there is to do in the State of California, all of us standing here. We elect someone to be a judge. We've elected someone to do all kinds of different jobs. We elect those people. So we've elected someone to take control of the grounds.
If we don't like the way they are controlling the grounds, we should elect someone else to change the laws. Unfortunately, that person has been elected to do that, whether you disagree with it or not.

BECKY: Were you concerned that 647 (e) had never been enforced before in this county before August 6th?
K: Yeah. Yeah sure. But I don't see how that could affect how I decided in the case.
BECKY: Isn't is possible that this ordinance was just picked to get everybody off the steps and away from City Hall?
K: Absolutely. I think that's possible.
BECKY: And were you also concerned that even after they left the steps and they left the courthouse, that they would still be in violation of 647 (e) unless they stayed awake all night?
K: Yes. I agree. It's possible.
BECKY: Do you think the repercussions now, as a consequence of your verdict be that the sheriff's will now begin enforcing 647 (e) all over the County against any person who appears to be homeless?
K: Perhaps. And if they do, and people in the County feel it's wrong then they should change the law--WE should change the law.
BECKY: Were you aware that at the time the law was enforced, the sheriffs were unaware of this law even as it was being enforced?
K: Excuse me? Sorry, can you repeat that?
BECKY: The testimony of all the police officers was that they had really no information about enforcement of this law before August 6th. That they'd never used it before, they didn't have any particular experience with it. They just started using it August 6th for this protest
K: My understanding was that when they enforced the law they were aware of the law. Maybe not very far beforehand. But when they enforced it, they were aware of it.
BECKY: And were you concerned that the definition of "lodging" was something that just popped out of the judge's mouth and was not contained in the law?
K: 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.
BECKY: So how were defendants who....
ED FREY: So how is a person who is actually engaged in this activity, how is that person supposed to know what lodging is? If you don't know what it is, (ED points at jurors) and you don't know what it means, and he doesn't know what it means, and she doesn't know what it means, then how is the defendant supposed to know what it is?
(interruption by DA DABKOWSKI)

K: right. And we were specifically told that ignorance of the law does not in any way change whether or not you violate it. ...Sorry. We were told that.
FEMALE JUROR: We have to follow the law. We were told that. It's not as if we had a choice.

ED FREY: So the emergency or the word "emergency" was troublesome?
K: Yeah there were some of us who in general believe homelessness itself constitutes an emergency. It was hard for us to come to a conclusion on this. We had trouble coming to a general conclusion on this. For some people an emergency is when you have to call an ambulance, someone is dying right now. Right now. Now vs. a longterm issue like homelessness, sure, it was a tough point for us.

ED FREY: How long should a homeless person have to stay awake, since there is not one square inch in the State of California, where a person can go to sleep legally if he doesn't have a property right somewhere, How long does a person have to stay awake before you're going to excuse him from this cruel law"
DA DABKOWSKI INTERRUPTS AGAIN: "You know I don't think the juror should have to answer..."
K: No. I want to.
DA DABKOWSKI: Well if they want to they can.
JURY FOREMAN KAUFMAN: I think you should be able to sleep anywhere. I do. I don't have a problem with it. I personally think I should be able to go outside right now and sleep if I wanted to, and so should you and you and you. And I should be able to do it at 4AM in the morning if I want to. As long as I'm not causing any trouble, that's my personal opinion.
5:52
And so I think to enforce a law which was maybe... slanted a little bit one way or another in order to do this one thing. get what they wanted they chose to enforce a law because they wanted to get the people out of there. Was that right? You know (makes a hand gesture indicating indecision)--ehhhn--I don't know. But was it a law that was enforceable by those methods? Yes, it was there on the books. Yes. It was there. It was used.
ED FREY: Isn't that like a good German soldier? Just following orders?
K: Well the difference is, no one has died. And to equate this to the holocaust is, a little...I think the insinuation is a little too strong I think (laughs) . To compare this to Nazi Germany is....
BECKY: Would you have been persuaded if you knew the homeless death toll, last year 32 deaths in the City of Santa Cruz alone?
K: That's awful. That's awful.
BECKY: And couldn't the Sleeping Ban have...?
ED FREY: And the reason for it is people are willing to kick the homeless in the teeth when they are down.
K: That's awful. That's horrible.
ED FREY: They continue to prosecute them, to send them to jail, just because they are homeless.
K: We should change the laws.
ED FREY: I tried. I tried with this judge. With a full motion with this judge based on the Constitution and he rejected it. Back in January. Even though the Constitution gives the right to freedom, to the pursuit of happiness under the US Constitution, and the right to freedom and the pursuit of happiness, under the California State Constitution, the right to pursue safety. The right to pursue privacy. He still rejected it. And even under the 9th amendment to the US Constitution that says that all rights are retained by the people. He rejected all of these arguments.
K: You have my full support in trying to change laws which are unjust.
(GAP)
7:47 into clip
DA DABKOWSKI-- (re: jury instructions) "with the lodging we thought it helpful to give a definition."
8:24 FOREMAN KAUFMAN: "If we had not been given that instruction....you're right, "to lodge" is very vague"

FEMALE JUROR: For me a factor that weighed very large is that they had been warned that they were, indeed, lodging. If they had not been warned, then that would again be different.


ED FREY: Did any of you hear the potential juror mention jury nullification before the trial during the jury picking? Does anyone know what jury nullification is?
(General "no's")
BECKY: So you didn't think that as a juror you had the right to judge the law or perhaps in this application it was politically motivated?
MALE JUROR: It doesn't matter what the motivation was. The defendants were charged with lodging. That being political and protesting...well...it didn't mean much.
ED FREY: What did you think that an emergency existed socially and that we needed to protest that social emergency, that political emergency? Do you have any ideas about that?
FEMALE JUROR: Probably our hardest point. I think that some people who were even staunchly on the other side felt some ambiguity in that issue. Some people. SOME people definitely didn't. It depends on how narrowly you want to define it. ( 8:51 INTO CLIP) Like an emergency being immediately life threatening like a person chasing you with a knife emergency, or a societal emergency --they are so far apart that it that it's almost impossible for a jury to define or to really know exactly what that is.
(MISSING TEXT)
(9:29 into clip)
FEMALE JUROR: There were a lot of other criteria to the necessity defense that others didn't necessarily meet.
ED FREY: So what were the other criteria that we didn't meet?
FEMALE JUROR: Ohhh, here we go! I was afraid you'd ask that. Can anyone else here help me out? (general laughing).
at 10:05
K: Since "lodging" was defined by the judge, that made it pretty clear and we all agreed on the question of who controlled the premises.
DA DABKOWSKI: In terms of the officers, do you think it would have been helpful to provide more information, what each person was doing,

K: 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. I knew they were doing that just so they could have without question, in-the-bag as far as what lodging was but...I think Mr. Frey laid out a pretty good defense that it was unfair and basically what you were doing, was citing people for being asleep.
ED FREY: Thank-you.
(GAP)
FEMALE JUROR: I wasn't one of those people.
(GAP)
contributing to the emergency was one of them
(GAP)
BECKY: Do you think a reasonable person might fall asleep at night?
FEMALE JUROR: Well, that's a silly question. Of course everyone needs to sleep at night.
BECKY: Well the officer's testimony. I believe it was about Gary Johnson. He said that Johnson had just been released 6 days earlier for the crime or the conduct. And there he was, six days later engaging in the same conduct as before, which was sleeping. Didn't it cross your mind that normal people sleep twice within six days.
FEMALE JUROR: Well of course people sleep each night.
BECKY: So where was Gary Johnson supposed to go to sleep legally that night?
FEMALE JUROR: Where had he slept before dozens if not hundreds of other nights?
BECKY: Hiding in bushes...
GALLAGHER'S BAILIFF: (INTERRUPTING) Anyone who wants to can leave. I don't mean to interrupt...
BECKY: You just interrupted.
GALLAGHER'S BAILIFF: ...no one has to stay here.
BECKY: Where could Gary Johnson go that night where he wouldn't be ...
DISSENTING FEMALE JUROR: Excuse me. I just wanted to say, if there were more instructions around being able to make decisions based on a political decision...if we had been given those instructions, that would have impacted our deliberations greatly.
ED FREY: If you were given more instructions on civil disobedience?
(GAP)
13:16
BECKY: Were you influenced at all by the Judge announcing at the beginning of the jury selection that this group of people who were camping on the courthouse steps last summer as (GAP)

FEMALE JUROR: I felt that both sides agreed on that. You and both the prosecution agreed that people were up there...what she's trying to say...that wasn't in dispute
JURY FOREMAN KAUFMAN: That you and the prosecution pretty much agreed you were camping.
FEMALE JUROR: it didn't seem like it was something the prosecution was saying that you were arguing against.

You felt that the defendants arrived pretty much announced that they were camping and guilty of 647 (e)

you were greatly constricted
we were greatly influenced in our verdict based on all of the instructions

it had some influence, definitely.
without any def

on public property

the law specifically stated it included public property and so we didn't have any wiggle room.

whether it was public

Audiotape # 3 at about 8:54

(SKIPPED TEXT)

JURY FOREMAN MR. KAUFMAN: 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?
DA 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.
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)
ED FREY: Can I ask, in your opinion was that one person who was hostile to the whole process, did that person just cave in because he or she just wanted to get out of here?
FEMALE JUROR: No. He was on the side most of us were on, He was leaning towards guilty.

He was screaming at her...it was so awful...
DA DABKOWSKI: It's okay to let the bailiff know.
FEMALE JUROR: It was really awful.

DA DABKOWSKI: I'm really sorry to hear that. Well obviously, you don't want to have a bad experience and not want to be a juror in the future so I'm really sorry to hear that.

This one person, I thought that during the selection of the jury...he made a lot of statements
you're talking about a doctor He's a neurologist Santa Cruz Medical Foundation

everyone else was having reasonable dialogue but we were taken away. He snapped.
JURY FOREMAN MR. KAUFMAN: 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."

on the 13 countes you were able to read\\

we saved the stuff that was harder for hte end and he wasn't willilng to hear it.
10:40
DA DABKOWSKI I didn't think
he's a doctor? A neurologist.

Generally he'll ask the judge.

Everybody else was having reasonable dialogue. I mean, we were chipping away at it.

was it immediately or later on?

It was immediately. But he snapped after lunch.

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.

The County wanted them to leave

by Becky Johnson

April 27, 2011

Santa Cruz, Ca. -- After three days in Judge John Gallagher's court, with two panels of 80 average citizens each having had their lives disrupted, missed classes, had to hire babysitters, missed work and worried how to replace that lost income, a jury panel has been installed: 12 jurors and 2 alternates.

The Peace Camp Six, now reduced to five, following the unexplained absence of charismatic, Peace Camp 2010 spokesman, Chris Doyon, now face a jury of their peers to decide whether they were criminally "lodging" on the steps of the Santa Cruz County Courthouse last July and August, and at the Santa Cruz City Hall last August, September, and October, as part of a protest against the use of Sleeping Bans at all in a situation in which inadequate shelter exists.

Assistant District Attorney Sara Dabkowski has subpoenaed 31 witnesses, to testify, all of them on the County or the City's payroll. Defense Attorney Ed Frey, has subpoenaed three, of which none are on the County or City payroll. I mean what does a boss EXPECT his employees to testify to? Like Donald Trump, asking his celebrity apprentice contestants if they will vote for him for President, and then laughing he'd fire them on the spot if they said "no" "for stupidity."

DISTRICT ATTORNEY'S OPENING STATEMENTS:

DA Sara Dabkowski began by telling the jury that the defendants "chose to be there, chose to sleep there, and not because they needed to. That the five defendants, on eight different nights, chose to spend the night somewhere they did not have permission to be."

"The County wanted the people who were staying there to leave," she explained. "They were given a written warning to leave. If they were packing up and getting ready to leave, they were not cited. The defendants chose not to leave. You will hear testimony that the sheriff's gave plenty of time to leave. " "Some people refused to sign the citation and they were arrested and jailed." "You will hear testimony from Santa Cruz Police who worked it into their normal shift schedule to go thru City Hall, warn people that they couldn't lodge there, and then going back later and citing those who failed to leave. Only the repeat offenders were cited. The people they arrested were the people who were lying down, sleeping, or pretending to sleep. I'm going to ask that you find each and every one of the defendants guilty of illegal lodging."

ED FREY'S OPENING STATEMENT:

"First, I want to thank you for your service on this jury. This is a case of unlawful lodging. You just heard from District Attorney, Sara Dabkowski, that the defendants chose to spend the night somewhere they are not allowed to be. PC 647 (e) says if a person does not own property, and this includes every inch of land inside the borders of the State of California, that if you don't own your own home, don't rent an apartment, or stay in a motel, then you cannot sleep."

"If you don't own it, you may not lodge on it. Defendants were sleeping together in a group. Sleeping by yourself is less safe than sleeping in a group. One of our defenses, under the defense of necessity, is that we wanted to preserve our safety and our health. Sleep is an actual, physiological need for human life. There is also another necessity. A necessity of conscience. There can be a point where, after so much injustice, it is incumbent to break the law, to demonstrate the conviction that a person has a right to sleep.

We have over half a million people homeless in this country. Is that homelessness voluntary?Now I have a home. But the other defendants didn't have a home. And, during this trial, you will come to understand that they are homeless by necessity and circumstances, and not homeless by choice--in fact, no choice was involved. They were subject to circumstances beyond their control.

If when you carefully examine the elements of a necessity defense, you will find the evil they were avoiding is the detriment to their health they would suffer if they couldn't go to sleep. Decide for yourselves if the defendants really had a choice.

LT. FRED PLAGEMAN TESTIFIES FOR THE PROSECUTION

Lt. Fred Plageman was clearly the go-to guy last summer when he was told by County Counsel to issue PC 647 (e) citations (or make arrests) of those who would not leave when told to. A veteran with 23 years experience, Plageman, who supervises 29 employees, was the supervisor in charge of security at the County Building on the night of August 6th.

On or about August 1st, Plageman testified he attended a meeting of Susan Mauriello's assistant and Sheriff Wowock. "They told us to enforce the unlawful lodging law. The people we contacted were lying prone, supine, or on their side, were in bedding, or were sleeping, staying, lodging over night. Someone who was sitting upright or not on bedding, we did not issue a citation. Anyone who refused to cooperate, we issued a citation.

Prior to August first, Plageman testified that "Unlawful lodging was taking place. People were camping overnight, the smell of urine. They were holding social activities 'round the clock. I saw the general decline in the area. I saw the grass turn brown and go to dirt. I saw sticky food substances. The facility use had become extreme and the number of people grew to as many as 30 or 40, although the numbers were greater at night. Sometimes it dropped to 12 or less."

Plageman testified that on the night of August 6th, he personally supervised a team of 6 or 7 sheriff's who first issued warnings in writing to those who were "illegally lodging." After an hour or more, they returned and arrested anyone who did not leave.

When asked if a lot of people left, he said "Yes, about half of them." He testified that they continued to cite people from that point on, perhaps writing the last citation around 2AM.

"Who wrote the notice?" asked DA Dabkowski. "The County Counsel wrote it." He testified that as the team circulated with the warning notices and later to write citations that "there were a lot of people around us who were walking along with us, who demanded to know what our authority was, and what our business was. It started out civil but it progressed to the point where we felt physically threatened, people yelling threats. I was concerned we were going to have a riot."

The notice said that "Lodging at any time will not be tolerated.

On cross-examination, Plageman defined a lodger as "camping, sleeping, or spending the night." He defined camping as "going someplace, going to sleep, bedding, tents." Frey asked " To lodge, don't you need a lodge?" but Dabkowski objected to the question and Gallagher sustained her objection.

"Lodging" is not defined in 647 (e) so it's up to anyone's interpretation of what forms the elements of illegal lodging. So Frey asked "How would defendants know what lodging is?"

"Well, there are signs on the highway that say "Gas, Food, and Lodging" Plageman responded.
"Were there any signs out in front of the courthouse preventing anyone from being there?"
"I don't know."
"Are there any signs there now?"
"I think there might be."

Plageman explained that while Susan Mauriello is in charge of "all county property" her aide, Nancy Carrgordon is in charge of General Services at the County Building. Plageman was called to a meeting with Carrgordon and Sheriff Phillip Wowack. "They decided the activity that was going on was not going to be allowed to continue." He said that the area had degraded to "drugs, fights, public intoxication."

Frey asked Plageman, "What makes lodging illegal?"
Plageman thoughtfully constructed his answer.
"We didn't want to interfere with free speech, but the area had transformed into a campground and posed health risks and hazards. As far as that area goes, lodging was unlawful--the camping, sleeping, and overuse of the area."

"Did you notice the presence of a porto-pottie?" Frey asked.
"Yes. A porto-pottie would arrive when the building was closed and disappeared the next morning."
"Was fecal matter ever found around the courthouse?"
"I heard reports."
"Any personal knowledge of fecal matter found around the courthouse?"
"No personal knowledge."
"Did the people cited ask you where they could go and sleep legally?
"Yes."
"What did you tell them?"
"I said I didn't know."
"So today, if someone were illegally lodging, do you know today where they could go and legally sleep?"
"I don't know."
"Who owns the courthouse?"
"The taxpayers own it."
"In order to legally lodge, you need the permission of the owner. Does the County own it or do the citizens own it?"
"The citizens."
"Were people "lodging" prior to August 6th?"
"Yes."
"Then you as sheriff were aware of a danger presented by the five of us prior to August 6th?"
"No."
"Are you aware of any damage to the courthouse, the county building, or the Government Center from Peace Camp 2010?"
"No."
"How about victims. Were there any victims among the staff or the public during that period?"
"No."
"How about the people of the City of Santa Cruz. Were any of them victims?"
"Objection. Argumentative."
"Objection sustained."

"Was there any shelter space available that night?"
"I don't know."
"Did you or anyone at the County try to find out if any shelter was available?"
"I don't know."
"If not, why not?"
"I don't know."
"Who was in control on August 6th between 6PM and 7PM? If a person wanted to ask for permission, who would they ask?"
"I don't know."
"Did the defendants interfere with anyone's rights or movement?"
"I'm not sure. I don't know. I was approached by workers who were upset and did not feel safe."
"Did any actions by the five defendants here make anyone unsafe?"
"No. There was a fight and a weapon was involved. There was lots of inappropriate yelling an antics that went on, but not sufficient that law enforcement action needed to be taken."
Plageman admitted that the sheriff's went out of their way to avoid making an arrest, despite that unlawful lodging calls for immediate arrest. "Custody is a big drain on our resources, and not necessary for this kind of offense."

Trial begins again on Thursday, in dept 2 at 10:30AM.

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.