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

by Linda Lemaster (posted by Norse)
'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, Filed a 'Traverse' and Stepped Closer to Either a Judge's Decision Or a Hearing. The Courts Reassigned the Case to Honorable Judge Paul Marigonda.

The constitutionality of California PC 647e, the anti-lodging law, is a very important issue for Santa Cruz homeless activists, Occupy Santa Cruz activists, and activists generally engaging in political organizing that involves overnight vigiling (or even just plain vigiling).

The law's text is simple: "Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor:... 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."

It has been used in Santa Cruz to varioulsy threaten, cite, arrest, and even convict homeless people simply sleeping on public property, housed protesters holding up signs late at night on County property, & Occupy Santa Cruz protesters simply standing on public property.

Gary Johnson and attorney/activist Ed Frey have already been convicted and sentenced to six months in jail for its violation at the PeaceCamp2010 protest (go to for some of the history, and to for Gary Johnson's own experiences and analysis. Those sentences are on appeal, but Gary is charged with more counts of 647e for which he'll appear in court Friday February 17th at 1:30 PM in Dept. 2.

The most extensive challenge to 647e as applied to protesters yet has been mounted by attorney Jonathan Gettleman as Linda describes below. More of her struggle on this issue can be found at


I've let myself get stalled trying to figure out how to write an update on the current homelessness/political scene. There is so much activity since new year began, I wanted to send news about three huge things and some casual mentions.

But turns out I can barely handle one paragraph at a time, just now. Here's my update and perspective followed by my attorney's recent email and attached legal document filed early February --- 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.

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.

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. }

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?

by Linda Lemaster (posted by Norse)
by Linda Lemaster (posted by Norse)
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Daniel Brainerd
Fri, Mar 29, 2013 7:10PM
Thu, Feb 16, 2012 3:17PM
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