THERE WILL BE BLOOD: California Penal Code Lodging 647(e) VERSUS The First Amendment

'WRIT OF HABEAS CORPUS' REGARDING CALIFORNIA'S LODGING LAW 647(e) CHALLENGES LAW'S APPLICATION DURING A FIRST AMENDMENT PROTECTED DEMONSTRATION ON BEHALF OF HOMELESS PEOPLE

My Attorney, Jonathan Che Gettleman, Files 'Traverse', Steps Closer to Either a Judge's Decision Or a Hearing

Courts Reassign Case to Honorable Judge Paul Marigonda

by Linda Ellen Lemaster for Linda's hearth

Here's my update and perspective followed by my attorney's recent email filed at the end of January --- regarding the Lodging 647(e) courtroom struggles.

Friday a week ago, Gary Johnson, a homeless defendant from a Lodging ticket sentencing, had a moment in court to try again launch a Demurrer, thanks to his attorney Ed Frey who wanted to get Gary out of jail. Seems hard to persuade Honorable John Gallagher to sense the urgency or critical nature of this law against sleep, as applied locally.

But Gary remains in jail. He's jailed -- for weeks going on a month I guess? -- for actually daring to sleep again outside (by himself now), this since the trial finding him guilty due to sleeping at the same protest where I got my Lodging ticket. Johnson's "guilty" sentence, from which he is on probation, is currently moving through the legal appeals process. Despite what's obvious to everyone else, the courts still have a blind spot regarding the fact that there are way fewer "shelter beds" than there are homeless people; locally, almost to the tune of twenty to one.

Not that I am a proponent of shelving and sheltering everyone in a bunk house. There is NO "one size fits all" solution to our Nation's shameful policy allowing ever compound growth of displaced Americans. It's just really a tangible place to get a handle on the bigoted and shifty politics of homelessness. And the legal system is oh so good at making things more 'black and white' than they are in "reality." Or we might say, "more fixed than transient"?

We can demonstrate that public emergency or walk-in sheltering resources are too few for their job of protecting special needs, disabled, and families-with-children subgroupings of homeless people. Nursing homes are even turning away the frail elderly in our area; people here are dying while waiting for half a room in a nursing or care home. Nobody who's in the shelter business is even pretending to fully serve the able-bodied, white, freshly homeless 'under age 55/over age 24' male.

Yet legal maneuvers and misspent questions in the earlier Lodging trial, where Gary was found guilty, have so far blocked the courts from having any overview that could illustrate the seriousness of this emergency.

Or to put this another way, homeless people and their allies have not yet figured out how best to "prove" to the legal system that there's no legit place Gary Johnson -- and most other local people who find themselves homeless on a given night -- can legally lie down, let alone sleep.

Gary was one of five PeaceCamp2010 demonstrators -- most of them homeless at that time -- who was found guilty in a single trial that ended about a year after the First Amendment PeaceCamp2010 protest was busted up when these Lodging citations were given.

My trial for getting charged with a Lodging 647(e) ticket has been postponed and postponed again by the courts, and more recently (since October 28th) twice more delayed by the D.A. replying to Gettleman's Writ of Habeas Corpus regarding the County Sheriff's application of this Lodging law to roust us.

My attorney did a great job in my view, of bringing the focus of this Writ more clearly back into the light of our First Amendment-protected reasons for assembling there outside the courthouse for over a month.

As earlier noted in this blog, PeaceCamp2010 was protesting the fact that in Santa Cruz County, there is no safe place for the growing population to maintain themselves, individually nor severally, that is safe. Yes, one can get in a shelter, typically for a month. Maybe only three days, maybe for 18 months for a smaller handful of folks; for those who have a sufficient support system. But after the three dry nites, or the wonderful system for a few dozen people who can afford our transitional support scene, the homeless person generally finds herself back outside and treated like scum, like a criminal, regardless their actual behaviors.

The portrayal in court suggests either one is a "good" homeless person who's tucked in at a governmentally regulated shelter at night, or else one is a "bad" homeless person who's wandering around in the dark, looking for opportunities to run amok or to commit crimes. After all, if one is NOT up, at night when outside, one is a criminal by definition. And the Lodging law used here in Santa Cruz County was passed to give a sponge to the state's police: a "tool" to apprehend the meandering person before she stumbles onto a crime of opportunity. I got this stuff from legal researching Lodging.

It already seems to me self-evident that our laws have put the homeless survivor into an ongoing double-bind. And these criminalizing laws appear to make it obvious! Yet somehow the court testimony twists around enough to reinforce mainstream lies, suggesting that if somebody "tries hard enough" to quote District Attorney Sarah Dabkowski in Gary's trial, one CAN get a bed/mat/unit in safe shelter on a given night in City of Santa Cruz.

But back to this Writ about misusing section e of California's Lodging law:

Explicating some of the legal issues previously obscured in court beneath palpable anti-homeless prejudice, this Traverse says that circumventing the First Amendment requires a higher standard of care by law officers than they've testified to having applied during the breakup of PeaceCamp2010.

In this situation, a legitimate approach should have required that established criteria for parkside "time, place and manner" be followed and upheld by Sheriff Deputies; and that the "dampening" of tickets and arrests and orders to banish (vanish?) ourselves totally thwarted our demonstration.

Without some such standards, the government is not permitting our right to free speech in the context of bringing our grievances to our government and talking to our neighbors about an unjust law.

CALIFORNIA'S ANTI LODGING LAW 647(e)

For those interested in following the legal developments, this traverse is worth reading, see below for attachment.

The trial and this aspect of it, following the Writ's challenge to completion, is now assigned to a different court, with Honorable Judge Paul Marigonda.

As my lawyer notes below, Judge Marigonda may simply decide to rule on this Writ now, based on what has been written to the court from both "sides", or he may call for a hearing if he has questions unanswered within the filings. Gettleman told me that there's a good chance the judge's decision could lead to dismissing the need for a trial.

}{ Linda's Editorial comment:

I believe that if Honorable Judge Paul Marigonda is willing to make a clean decision based on the record regarding Lodging 647(e), it will be the cause of joy and relief for many un-named Sleep Criminals all over California. If he tries to play King Solomon with our homeless people's lives at stake, there will be many more trials coming through our courts, perhaps including the dozen or so "illegal Lodgers" from among Occupy Santa Cruz devotees, who dared to sleep or camp or spend some night on another side of the Courthouse this winter. }

{ end LL editorial comment

Thank you, everyone, for your ongoing support and encouragement. Still no specific dates for anything court related. If you know of other people interested in this legal struggle, or about criminalizing people for sleeping in general, please forward them this message or send their contact information to me?

Sleep Is Not A Crime

Free Gary Johnson

............................................................ email from attorney -- Final Traverse (Re your habeas writ)

From:	Jonathan Gettleman
To:	Linda Lemaster

habeas_petition_for_linda_lemaster_2_-1.pdf
download PDF (191.4 KB)

(This attachment is the "traverse," or answer to a DA's reply to the writ. -LL)

---

Final Answer. Now we wait to hear from the Court. We'll either have a hearing or we'll get a ruling directy from the Court without a hearing. Cross your fingers.

I have now filed this. So you can share it with whomever you wish.

Jonathan

Law Office of Jonathan Che Gettleman

Tel: (831) 427-2658 Fax: (831) 515-5228 www.advocateforjustice.net

.................................................................................................................

sincerely,

Linda Ellen Lemaster

Housing NOW! in Santa Cruz

P O Box 42, Davenport, CA 95017

Were they Lodging? Guilty, guilty, eleven times guilty, and one verdict hung

Demonstrating Against the Sleeping n Camping Bans:

Free Speech takes a Back Seat to County Aesthetics

by Becky Johnson
May 3, 2011

Evening at the courthouse last summer.
"Oh, what a mess, how can anyone STAND them?"

The top of Ed Frey's truck that brought our porta-potty each
evening and returned it by quarter to 8 am every morn.

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.