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Indefinite Detention Santa Cruz Style: SleepCriminal Gary Johnson Held on $5000 Bail
by Robert Norse
Wednesday Jan 11th, 2012 2:54 AM
Gary Johnson, the homeless activist doing a nightly protest against the Sleeping Ban, the Lodging Ban, and the curfew at the Courthouse, was held from Friday 1-6 through Tuesday 1-10. On Tuesday morning he was brought into Department 2 (John Gallagher's court) in shackles and manacles in his orange jump suit on $5000 bail. He left in the same condition after getting a February 3 1:30 PM date for a demurrer hearing before Gallagher (challenging the Constitutionality of PC 647e, the Lodging Ban. He was refused release and returned to jail on a bail of $5000.
Ed Frey, who was convicted with Johnson last year, of the same crime he's been charged with for last week's peaceful political protest, made several arguments before Judge Gallagher. Frey argued that Gary had made all his court dates, his so-called crime was a non-violent action which hurt no one, and that, as a homeless man, he had no legal place to sleep in the City of Santa Cruz.

Judge Gallagher insisted he could go to the "homeless shelter". To this, Frey responded that the waiting list was many weeks long and the shelter could only accommodate a fraction of the homeless community. Gallagher echoed the district attorney's argument against a no-bail release pending trial saying that Johnson had told deputies he would be returning to sleep there in protest when he was initially arrested.

Johnson, however, said, through Frey, that he would obey all laws, presumably including 647e, the Lodging Ban, which Gallagher has previous interpreted to include sleeping. Frey pointed out that under that ruling, there was no legal place at all for Gary to sleep, and that sleep was a biological necessity.

Gallagher pointed out that Frey was "getting angry". Frey agreed. February 3 at 1:30 PM was the date and time set for a "demurrer" hearing, which will argue that the law is unconstitutional. Two similar arguments in prior cases have been turned down by Gallagher.

Jury nullification is the right of a jury to say "not guilty" in spite of the judge's instructions and the law's wording in the interests of justice.

Gallagher's clear bias led me to suggest to Frey that instead of another demurrer hearing before Gallagher, Johnson demand a speedy jury trial (required within 30 days, since he's in custody). If one juror refused to find Johnson guilty--seeing the absurdity of the charges perhaps--then the D.A. might be less likely to go for a second trial (costing thousands of bucks). It might also discourage deputies from citing Occupy Santa Cruz protesters for the offense---something repeatedly done, followed by "disappearing charges" which don't show up when the victims come to court. Frey said he would propose this to Johnson.

Linda Lemaster's attorney Jonathan Gettleman has used a different strategy against the protest-smashing 647e charge. He filed a writ of habeas corpus in response to her 647e charge to which the D.A.'s office has recently responded. Gettleman's brief can be found at

Meanwhile a review of court records reveals that the City's Sleeping Ban (MC 6.36.010a), the law against which Johnson has been protesting for several years as far back as PeaceCamp2010 shows that the new fine for sleeping after 11 PM outside or in a vehicle on public property is $155.

Those cited with this law are advised to get on a waiting list at the Homeless (Lack of) Services Center in order to have such future tickets dismissed. HLOSC Director Monica Martinez is refusing to write letters to the court acknowledging that the shelter is full--something previously done as a matter of course under HLOSC Directors Ken Cole and Doug Loisel. However, a law passed under protest pressure in the fall of 2010 requires the City Attorney to dismiss MC 6.36 charges if the person charged was on a waiting list for the HLOSC or the River St. (mini) Shelter.

For those convicted of the City's Sleeping Ban or Blanket Ban (MC 6.36.010b), the law limits judges from giving more than 8 hours of Community Service. In Johnson's case, Commissioner Kim Baskett has twice defied this requirement and given him 25 hours last spring.

Just as Gallagher refuses to follow the U.S. and California Constitutions, Baskett apparently has no problem ignoring even the city's own legal code when by doing so, she can punish poor people more severely.

Comments  (Hide Comments)

by Ed Natol
(ednatol [at] Wednesday Jan 11th, 2012 9:42 AM
And neither are you Robert. "Indefinite Detention"? Please, the judge just refused to OR him, they're not keeping him in an oubliette. Anybody, or anybodies can come in with $500 and get him out on bail. Hell, OSC is talking about giving $300 so somebody can go to DC. Keep that money local, and you've almost made the nut.

Your idea of a speedy trial leading to a hung jury or nullification. Not sure how that's going to play out. Last time we had "juror revolt" and still ended up with a conviction. Frey woundn't be my first choice to represent me in a courtroom, but I think he might know more and have a better idea of what's going on then you do.
by DW
Wednesday Jan 11th, 2012 6:11 PM're absolutely right. Robert doesn't add to his credibility using such hyperbole. Instead, it marks him as either a fool or a liar. Under the Penal Code, a judge must consider the likelihood of the defendant continuing to do what landed him in the clink in the first place. In that event, the judge can not grant OR by law--the judge has no choice in the matter. Bail must be set.
by Phil.I.Am
Thursday Jan 12th, 2012 3:51 AM
Indefinite detention? Really? We're playing drama queen today, are we? Gary's bail is just $500, Robert, a sum you have made crystal clear you will not help with at all. Hardly a life sentence, anyway.

As for your harebrained amateur legal scheme, Ed presumably consented to suggesting it to Gary because a) he's a nightschool lawyer with a somewhat more tenuous grasp of the law than even yourself, or b) he was trying to get you to shut up so he could think.

Presumably you wouldn't be so cavalier about all this if it was your freedom at stake. Of course, you're too smart to get caught up in that machinery yourself. Good thing a Gary Johnson is born every minute, to facilitate your game playing.
by RazerRay
Thursday Jan 12th, 2012 6:40 AM
If there wasn't "A Gary Johnson born every minute" there'd be a lot more STUPID AND ILLEGAL LAWS on the books.

Didja know Phil, that that 647(e) H&S law that Gary is contesting actually had the numerical code 'cribbed' from a 647(e) code that was declared unconstitutional after a TEN YEAR court battle by another homeless person. That idiot-created law allowed a police officer to walk up to anyone who they deemed 'a person of interest', detain, question, and ID check them for no valid reason whatsoever except 'the officer's discretion?

...and if FIFTY people a day FIFTY PEOPLE, like Gary Johnson walked in sat down sang a bar of Alice's Restaurant and walk out... They MIGHT think it's an INSURRECTION.

...and indeed it is.

See you on the streets for some SERIOUS civil disobedience this spring Phil. I do it EVERY TIME I speak with Santa Cruz' 'finest', and I see more and more people do it EVERY DAY, because it's QUITE APPARENT they're corrupt, the 'game' is rigged, and it's time to take... it... DOWN.
It's true that a bail of $5000 is not 'indefinite detention" in the Bush-Obama-NDAA sense.

For poor people, though, high bail has always meant inability to prepare for trial, coerced plea bargains, and habitual oppression.

For them it means being held without prospect of release until trial. Since that trial is likely to be rigged (i.e. Judge Gallagher will, if he follows his past example, ignore the Constitutional right to peaceful protest and/or necessity of sleep), it means further detention via conviction after that.

And the prospect of arbitrarily high bail while seeking appeal is an additional consideration (See ).

Finally, for someone like Gary, who is a political protester who sees it a matter of principle to assert Constitutional and human rights that many allow to slip away, it means continued incarceration--whenever he attempts to assert those rights. For those new to this issue, check out the picture of Gary's "crime" at

For one who must sleep outside (i.e. thousands of homeless in the county and millions nationally), following Gallagher's "thou shalt not sleep except in a shelter or on private property" ruling means being a perpetual outlaw.

In Gary's case, he has a history in and out of court of speaking candidly. When he said he was going to go back and protest, he did and candidly told the deputies so. Gary honestly expressed his concern about the judge's "obey all law" conditions at his original sentencing hearing for a prior 647e conviction (likewise a bogus punishment-for-protest action) last summer and was punished for his telling question with a $50,000 bail--later reduced to $110--and 6 months in jail (Gallagher: "you can sleep in jail")

Gary's response at that time was something like "I'd like to meet your conditions, but isn't it illegal for homeless people to sleep outside period, given your ruling. Where can I sleep?"

In this latest hearing, Gary agreed to the O.R. "obey all laws" condition, seeming to indicate he would not reviolate the abusive 647e law as applied by the sheriffs. Why wouldn't Gallagher believe him, unless the judge intended to be punitive or was unduly partial to prosecution and police?

Folks who want to contact or support Gary should get in touch with Ed Frey at 831-479-8911.
by Becky Johnson
Saturday Jan 14th, 2012 9:59 AM
RESPONSE TO PHIL.I.AM: You say NORSE is "too smart" to get charged with PC 647 (e)? Perhaps you are unaware of Norse's previous arrest history. He's been arrested 35 times, mostly for civil disobedience actions such as occupying Presidio housing with Sister Bernie Galvin in San Francisco, or going to jail for 28 days for serving free food to homeless people in Civic Center Plaza with Food Not Bombs.

THe real question, PHIL, is why aren't YOU getting arrested along with Gary? Oh, yeah. You SUPPORT the law which doesn't even MENTION "sleeping" as a criminal activity yet this is the LYNCHPIN of criminality for the City and County police agencies. Sleep is a necessary biological function which the City and County have criminalized even when no other person is harmed in any possible way.

These laws turn our police force into jackbooted bullies who intimidate and harass activists and homeless people with quasi-laws which amount to the creation of political prisoners.

Gary has only brought this behavior into the forefront. It shouldn't cost $155 for a homeless person should they fall asleep at night!!! What are we? Torturers?

The Sleeping Ban has got to fall!

by Reply to Becky
Saturday Jan 14th, 2012 10:01 PM
You didn't ask me personally, but your question appeared to be generally directed to anyone who disagrees, so here's my why:

Because I think the issue is incidental, and not the end-all be-all you feel it is. Because I don't believe the cops are in general "jackbooted" oppressors.

...and because I think there are much bigger issues, much bigger injustices, and many more important things to expend my energy with than this petty issue.
by Robert Norse
Saturday Jan 14th, 2012 11:33 PM
The mythology of "the magnet effect" (i.e. if you acknowledge human rights for the homeless, they'll flood the town), homeless as subhumans ("bums at a bumfest"), activists as hypocritical villains (secret millionaires or lunatics or publicity hounds) are the usual shitpatties thrown out to distract & demonize.

More serious and ultimately damaging are politicians who posture as or delude themselves into believing they actually are friends of the homeless. Of course, when you dig a little deeper past all their suggestions of dialogue, private charity, and peaceful negotiation, you find they support (by silence or action) police actions that criminalize the very necessities of life for those outside and criminalize those engaged in peaceful first amendment protest. All in the interests of providing more "comfort zone" for merchants and west-side residents. These may not be the 1%, but they cling to a false order that is run by that 1%.

The politicians, bureaucrats, and police need to be constantly held accountable for their destruction of homeless living space--which ultimately destroys homeless lives. Exposing their lies, evasions, and excuses is an important activity that needs to be done at every available opportunity.

Carry a sign and a have a loud voice (mike check!) when the bosses appear. Take a group of folks with specific questions to the offices of these bosses to demand specific answers. Include as diverse a group as possible.

Some obvious power-wielders include City Manager Martin Bernal, County Administrative Boss Susan Mauriello, Mayor Lane or any of his City Council, Parks and Rec Boss Shoemaker, Police Chief Vogel, Deputy-Chief Clark, Sheriff Wowak, or any of the government perps whose powerful collusion has combined to drive out of sight a strong political protest as well as destroy a viable homeless community survival zone.

There should also be investigation into the big developers in town: Have Barry Swenson, George Ow, Charlie Canfield, and a host of others gained special privileges over the years, and relentlessly profiteered while the community sunk deeper into debt?

Occupy Santa Cruz, though driven from its 24-hour visible presence and separated from the homeless community (which most dramatically illustrates the 1%-99% dichotomy), is still a viable and vital force. What's needed now are specific critiques of local fatcats, financial institutions, and government bureaucrats. Such critiques must be well-researched and well-publicized. UCSC students could play a key role here (and perhaps earn college credit!).

Occupy Santa Cruz meets daily, 6 PM weekdays, 2 PM weekends in front of the courthouse on Water St. The "decision-making" General Assemblies are on Tuesday, Thursday, Saturday, and Sunday. Occupy UCSC is also meeting regularly as well.

Those with a particular interest in homeless civil rights should check out HUFF--now meeting 10 AM to noon Wednesdays at the Sub Rosa Cafe (moving from Joe's Pizza downtown) at 703 Pacific Ave. More info: call 423-4833.

Don't waste time on internet trolls who ignore issues and throw personal insults. Some folks misunderstand the issues, swallow police propaganda whole, or simply engage in sport-baiting of activists. Some with serious criticisms and/or questions can certainly call in to my show (Sundays 9:30 AM to 1 PM, Thursdays 6 PM to 8 PM at 831-427-3772).

If anyone has visited Gary Johnson in jail or spoken with him, please post here.
by Razer Raygun
Monday Jan 16th, 2012 8:00 PM
Quote, Martin Luther King Jr, Beyond Vietnam
Quote: Robert Norse
Occupy Santa Cruz, though driven from its 24-hour visible presence and separated from the homeless community (which most dramatically illustrates the 1%-99% dichotomy), is still a viable and vital force. What's needed now are specific critiques of local fatcats, financial institutions, and government bureaucrats.

They categorically will do no such thing. "Well Meaning Liberals" prefer abstraction, such as standing outside pissant bank branches as if it has any effect whatoever, and "Buy Local" means Sooooo much more to them than "Buy Humane". Further, the whole thing has been coopted by the SCAN progressive liberal element, because anyone interested in direct action of any real import abandoned #OccupySantaCruz quite some time ago, leaving the people who actually elected those government bureaucrats, and we KNOW how much the mainstream voter likes to admit making a wrong choice.

by Becky Johnson
Sunday Jan 29th, 2012 11:44 AM
Gary Johnson's jailing is a clear and present example of the local repression of activists,
freedom of speech, and homeless people by our local bureaucrats and politicians.
Let me count the ways.

SUSAN MAURIELLO, CEO of Santa Cruz County has decreed from above that "lodging" shall not be allowed on Government Center property at any time. What "lodging" is, is determined by whatever a cop or judge says it is. Clearly, it removes the ability for a protest to continue on a 24/7 basis as Gary Johnson insisted on doing.

Where in the Constitution--Federal or State-- does it say that freedom to seek redress of government grievances can only be conducted 12 hours a day? It doesn't. In fact, it says "Congress shall pass no laws restricting..." MAURIELLO does not grant interviews.

DANA MCRAE -- was the "genius" County Counsel who suggested sheriff's use PC 647 (e) --the statewide anti-lodging law in the first place.

DINAH PHILLIPS -- ordered orange mesh "anti-lodging" fences installed around the courthouse in a stated effort to prevent "lodging" which also prevented the public from using those previously unused public spaces

DANNETTE SHOEMAKER -- When the City's injunction was not quick enough, misused a section of her own code to crush an encampment in San Lorenzo Park to "save the grass".

VICE-CHIEF STEVE CLARK --smirked in anticipation of evicting to nowhere the remaining 31 tents, homeless people and Occupy Santa Cruz activists. Later claimed he'd dumped "8 tons of garbage" when the City destroyed and dumped the possessions the occupants could not cart off on their backs.

JUDGE JOHN GALLAGHER -- ruled PC 647 (e) "constitutional" then provided his own definition to a jury which included language cribbed from the 1851 Indiana State Constitution forbidding "Negros and Mulattos" from "living or settling in" anywhere in the State.

JUDGE REBECCA CONNOLLY -- ruled PC 647 (e) "constitutional" as is, without any definition of the word "lodging."

CITY MANAGER MARTINE BERNAL --oversaw Klieg Lights set up a City Hall, trespass orders for public properties traditionally open to the public on a 24 hour basis specifically to shut down 24/7 protests like Occupy Santa Cruz, Peace Camp 2010, and Gary Johnson

MAYOR DON LANE -- At his inauguration announced his main goal was to address homelessness, immediately mis-interpreted at seeking to END homelessness. LANE has offered no new shelter, no new services, and still supports criminalization of homeless people for sleeping, sitting down, or begging. LANE claims to oppose MC 6.36.010 b- a.k.a. "the Blanket Ban" but has yet to place repeal on a City Council agenda which he has the full power to do.

In addition to these key players, additional culprits promoting repression of activists and homeless people are LYNN ROBINSON, JOHN BARISONE, RYAN COONERTY, and EMILY BERNARD. Meanwhile, when good people do nothing, they are equally culpable when the tolerate the injustice of the Sleeping Ban.