Homeless people and their allies, just before court yesterday. Forgot the man on left (sorry), then Robert Norse, attorney Ed Frey, Gail Page, adn with the great hat, Paul Lee. The top of defendant Gary peeks over attorney Frey's shoulders in this photo. photo by Dan Croyo, Sentinel

By Cathy Kelly - Santa Cruz Sentinel Posted: 01/21/2011 07:40:37 PM PST

SANTA CRUZ - A judge refused Friday to dismiss misdemeanor unlawful lodging charges against six people involved in the Peace Camp 2010 demonstration, despite their attorney's claim that the state law banning sleeping outdoors is unconstitutional.

Peace Camp 2010 began July Fourth as a protest against a Santa Cruz law, which makes it an infraction to sleep outside from 11 p.m. to 8:30 a.m. It began on the county courthouse steps, moved to Santa Cruz City Hall and fizzled out on Oct. 2. Participants wracked up several citations for sleeping outside.

At the courthouse, after issuing warnings, deputies cited sleeping people using a state law that makes lodging outside a misdemeanor offense.

Attorney Ed Frey was arrested during the protest and is representing himself and five others - Gary Allen Johnson, Colette Marie Connolly, Elliott Matthew Anderson, Christopher Doyon and Arthur William Bischoff. A jury trial is set for Jan. 31.

Frey vowed to fight on after Friday's setback, and to appeal if defeated at trial.

About 20 supporters came to the hearing.

Frey argued that the U.S. and California constitutions give people the right to the basics of life, including the right to sleep and the right to be left alone as long as no one else's rights are being infringed upon. He further argued the language in the statute is too vague and that the campers had the right to sleep as a form of protest and that it should be protected as freedom of expression.

"We are not claiming we can sleep anywhere we want; just that we can sleep somewhere," he said outside court.

But prosecutor Sara Dabkowski filed a document opposing the motion to dismiss, stating the right to sleep was not a Constitutional right. And she stated that simply because a person performs an act as an expression or for a symbolic purpose, that does not make that act constitutionally protected.

After court, she said she had no personal opinion about the argument that sleeping is a basic right, but looked forward to presenting evidence at trial.

She said several other anti-lodging cases are working their way through the system.

Homeless advocates say there are about 2,000 homeless in the county and about 200 shelter beds, and that of the 30 homeless people who died in the county last year, four died as a result of exposure coupled with acute substance abuse.

"That is part of why we're doing this. It's very real," advocate Becky Johnson said.

Gary Johnson, 46, said he wracked up 21 lodging violations. Each carries a possible six months in jail and $1,000 fine.

Johnson said he has been in Santa Cruz about 20 years and homeless for about a year. He said he has worked in the computer software field, but has not been able to find work recently.

"How are they going to reform me? Put me in jail and tell me to quit sleeping?" he said.

After Peace Camp 2010, the Santa Cruz City Council voted to dismiss citations for camping if a homeless person was on a shelter wait list when the ticket was issued.