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SleepCrime Case Goes to Jury; Defense Lawyer Goes to Contempt Hearing for Dressing Down
My thoughts, with heavy editorializing, on the last day of the Gary Johnson trial. For the benefit of those D.A.'s prosecuting journalists for reporting on 75 River St., let me add that my viewpoint does not stand in the way of presenting useful facts to the public about these cases. I consider the public intelligent enough (however numbed, frightened, and distracted) to separate opinion from fact.
MANY FOR THE PROSECUTION, ONE FOR THE DEFENSE
After about a dozen prosecution witnesses testifying to misdemeanor SleepCrime for activist Gary Johnson, Judge "Gouge the Grubby" Gallagher allowed only one defense witness to speak on Gary's behalf--community activist Smooth-Tongued Steve Pleich. Pleich who unexpectedly qualified as an expert witness.
Pleich revealed a long line of credentials and organizational positions including ACLU Board of Directors membership (while at the same time getting in a shot at the ACLU's inaction on this and virtually all other local civil liberties issues). He then highlighted and detailed the lack of significant emergency shelter compared to the number of homeless people in Santa Cruz each night--something the judge had originally sought to keep from the jury. His deliberate but rapid pace seemed to baffle the sleep-snatcher Prosecutor Shannon Murphy (and baby bumbuster Judith Jane Stark-Modlin, apparently in training who gave the closing arguments).
THOSE ILLUSIVE SHELTER BEDS and THE MERRY MACHINATIONS OF MONICA MARTINEZ
Still the two rights-wranglers managed to dredge up a couple of povertypimp professionals Monica Martinez, Executive Director of the Homeless (lack of) Services Center, and Tracy Heggum, mini River St.shelter boss,to muddy the waters with claims that had Gary showed up at 3 PM, on one of the nights he might have been able to get a bed. Apparently on Wednesdays and Thursdays there are occasionally a few beds available at the Martinez's Paul Lee loft (which go first to those on a six-week long waiting list), and on other days occasionally there are one or two beds at Heggum's place.
Martinez has been caught lying in public about her shelter policies, though always with a smile. She claimed publicly and falsely on Community TV last year (http://blip.tv/videos-posted-by-ken-knobler/vftv-8-14-11-homellessness-in-santa-cruz-5505386 [46 minutes and 45 seconds into the video file]) that homeless folks who got sleepcrime tickets could get letters attesting to a full shelter, those going there have found otherwise.
Additionally Nancy Lou Biscotti, the shelter manager, has specifically denied they give out such letters (which used to be issued without fanfare under previous directors Ken Cole and Doug Loisel). Not only was this a lie about policies as of August 2011, when she spoke, but her promise to issue such letters in the future was also untrue--as HUFF activists who tabled at her "campus" confirmed in late January.
"Campus" is Martinez sweetspeak for the closed-at-night, open-only-to-those-with-business during the day 115 Coral St. operation. The Martinez management has also set up a "No-Impact" zone around the area, threatening homeless people who linger on the sidewalks nearby in order not to offend the sensitive bigotry of nearby Not-In-My-Backyard neighbors and businesses.
Unfortunately attorney Ed Frey, much overburdened with other Occupy Santa Cruz and sleepcrime prosecutions as well as ill health, didn't bring this up (nor was I sharp enough to realize this at the time).
"Gouge the Gritty" Gallagher himself seemed to be somewhat defensive himself, wavering from earlier rulings that would have required Gary to prove he would have gone to a shelter had he had the opportunity. Gallagher missed or ignored the point, highlighted in the famous Jones settlement in Los Angeles overturning their sleeping ban, that if shelters are obviously insufficient, there's not much point in trying and no requirement that an individual seek shelter to prove the 'necessity" defense.
NECESSITY DEFENSE
That defense, consisting of six elements, requires the defendant by a preponderance of the evidence that this conduct (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.
More on a successful homeless case at http://www.thestreetspirit.org/June%202005/arcata.htm .
Locally the necessity argument was made informally and successfully in the case of then-homeless medical marijuana advocate Craig Canada back in 2007 (http://www.indybay.org/newsitems/2007/10/01/18450882.php). where Canada argued that the Homeless (Lack of) Services Center banned in from shelter because of his doctor-recommended use of marijuana for medical conditions resulting in a necessity to sleep outside. Unfortunately in what appeared to be a political reversal, when police subsequently ticketed Canada for the same life-sustaining behavior (sleeping), Judge Denine Guy reversed her opinion for no apparent reason.
DEFENSE WITNESSES EXCLUDED
Witness Becky Johnson was not allowed to testify even though she agreed to risk prosecution cross examination on the false felony charges she is facing in the 75 River St. case. I and Linda Lemaster decided we couldn't contribute enough to the case (given the judge's ruling that shelter and necessity-to-protest issues could not be brought in) to make it worth testifying, but would have been excluded in any event.
CLOSING SUMMATION
Describing his closing summation afterward, Frey recalled “Gary Johnson just as much as anyone else in California, owns that property, doesn't need permission to be there, one of the elements of crime of lodging. The judge did us a big favor in what he said to the jury even before we started picking. Every time Gallagher's had a jury, he goes out to the hallway in his robes and invites people in, saying 'I just work here, this is your building'“ Frey recalled that he then echoed the judge's opening statement reminding the jury that the people, not the deputies or CAO Mauriello, owns the building where the alleged “lodging” and “trespass” crimes took place. “This is your building.” The D.A.(s) objected and Grim-Gavel Gallagher warned Frey never to repeat this statement.
Further points raised in his closing summation: “The audacity and insanity of the law that makes it a crime to sleep.” His summation was initially interrupted with a sustained objection from the D.A. But as he continued, the judge seemed to allow the very arguments he had struck down. Could Gallagher be feeling the pangs of doubt, Frey wondered.
The closing prosecution statements were read by the new D.A., Stark-Modlin, who had said little during the trial. It was, Frey reported, a color-by-number litany of the elements of the sleepcrime, how many times arrested, etc.
EARLIER JURY EXCLUSIONS
The jury is due to return to court for deliberations around 9 AM today. It's unclear how long they'll be out for, though an active conscience on just one juror could create a hung jury. I guess we'll see how dead the spirit really is in Santa Cruz among those roped in for jury duty. Frey noted that in the original panel there were some who spoke strongly about the absurdity in of a sleepcrime trial and the right of the jury to throw this out. Judge G. responded to these concerns about cost and conscience by immediately removing the offending voices from the jury panel before the trial began.
CONTEMPT FOR DRESS-CRIME
In a final thrust at Frey, the judge said he was going to hold a contempt hearing on April 29th, because Frey did not wear a suit and tie to court, showing “disrespect” for the court (after Gallagher had earlier instructed the outspoken attorney on proper attire for sleepcrime trials). I don't recall Judge G objecting to my bathrobe and teddy bear when I came into his court earlier in the week, but perhaps he's trying to set a new and higher fashion standard. Nor did he object to Johnson wearing his jail clothes (presumably to bring home to the jury--not allowed to know he was facing 4 years if convicted) that he was a prisoner and not a willing participant in the proceedings.
Frey and Johnson's previous "lodging" sleepcrime convictions (also in Gallagher's court) are currently on appeal. Johnson is will continue to be held in jail on $5000 bail because of GrimGavel's refusal to believe Johnson that he will obey all laws.
Previously when Johnson asked how he could do that when sleeping (a necessity) was described as lodging (a crime), the dour judge retorted, "you can sleep in jail."
After about a dozen prosecution witnesses testifying to misdemeanor SleepCrime for activist Gary Johnson, Judge "Gouge the Grubby" Gallagher allowed only one defense witness to speak on Gary's behalf--community activist Smooth-Tongued Steve Pleich. Pleich who unexpectedly qualified as an expert witness.
Pleich revealed a long line of credentials and organizational positions including ACLU Board of Directors membership (while at the same time getting in a shot at the ACLU's inaction on this and virtually all other local civil liberties issues). He then highlighted and detailed the lack of significant emergency shelter compared to the number of homeless people in Santa Cruz each night--something the judge had originally sought to keep from the jury. His deliberate but rapid pace seemed to baffle the sleep-snatcher Prosecutor Shannon Murphy (and baby bumbuster Judith Jane Stark-Modlin, apparently in training who gave the closing arguments).
THOSE ILLUSIVE SHELTER BEDS and THE MERRY MACHINATIONS OF MONICA MARTINEZ
Still the two rights-wranglers managed to dredge up a couple of povertypimp professionals Monica Martinez, Executive Director of the Homeless (lack of) Services Center, and Tracy Heggum, mini River St.shelter boss,to muddy the waters with claims that had Gary showed up at 3 PM, on one of the nights he might have been able to get a bed. Apparently on Wednesdays and Thursdays there are occasionally a few beds available at the Martinez's Paul Lee loft (which go first to those on a six-week long waiting list), and on other days occasionally there are one or two beds at Heggum's place.
Martinez has been caught lying in public about her shelter policies, though always with a smile. She claimed publicly and falsely on Community TV last year (http://blip.tv/videos-posted-by-ken-knobler/vftv-8-14-11-homellessness-in-santa-cruz-5505386 [46 minutes and 45 seconds into the video file]) that homeless folks who got sleepcrime tickets could get letters attesting to a full shelter, those going there have found otherwise.
Additionally Nancy Lou Biscotti, the shelter manager, has specifically denied they give out such letters (which used to be issued without fanfare under previous directors Ken Cole and Doug Loisel). Not only was this a lie about policies as of August 2011, when she spoke, but her promise to issue such letters in the future was also untrue--as HUFF activists who tabled at her "campus" confirmed in late January.
"Campus" is Martinez sweetspeak for the closed-at-night, open-only-to-those-with-business during the day 115 Coral St. operation. The Martinez management has also set up a "No-Impact" zone around the area, threatening homeless people who linger on the sidewalks nearby in order not to offend the sensitive bigotry of nearby Not-In-My-Backyard neighbors and businesses.
Unfortunately attorney Ed Frey, much overburdened with other Occupy Santa Cruz and sleepcrime prosecutions as well as ill health, didn't bring this up (nor was I sharp enough to realize this at the time).
"Gouge the Gritty" Gallagher himself seemed to be somewhat defensive himself, wavering from earlier rulings that would have required Gary to prove he would have gone to a shelter had he had the opportunity. Gallagher missed or ignored the point, highlighted in the famous Jones settlement in Los Angeles overturning their sleeping ban, that if shelters are obviously insufficient, there's not much point in trying and no requirement that an individual seek shelter to prove the 'necessity" defense.
NECESSITY DEFENSE
That defense, consisting of six elements, requires the defendant by a preponderance of the evidence that this conduct (1) to prevent a significant evil, (2) with no adequate alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief in the necessity, (5) with such belief being objectively reasonable, and (6) under circumstances in which he did not substantially contribute to the emergency.
More on a successful homeless case at http://www.thestreetspirit.org/June%202005/arcata.htm .
Locally the necessity argument was made informally and successfully in the case of then-homeless medical marijuana advocate Craig Canada back in 2007 (http://www.indybay.org/newsitems/2007/10/01/18450882.php). where Canada argued that the Homeless (Lack of) Services Center banned in from shelter because of his doctor-recommended use of marijuana for medical conditions resulting in a necessity to sleep outside. Unfortunately in what appeared to be a political reversal, when police subsequently ticketed Canada for the same life-sustaining behavior (sleeping), Judge Denine Guy reversed her opinion for no apparent reason.
DEFENSE WITNESSES EXCLUDED
Witness Becky Johnson was not allowed to testify even though she agreed to risk prosecution cross examination on the false felony charges she is facing in the 75 River St. case. I and Linda Lemaster decided we couldn't contribute enough to the case (given the judge's ruling that shelter and necessity-to-protest issues could not be brought in) to make it worth testifying, but would have been excluded in any event.
CLOSING SUMMATION
Describing his closing summation afterward, Frey recalled “Gary Johnson just as much as anyone else in California, owns that property, doesn't need permission to be there, one of the elements of crime of lodging. The judge did us a big favor in what he said to the jury even before we started picking. Every time Gallagher's had a jury, he goes out to the hallway in his robes and invites people in, saying 'I just work here, this is your building'“ Frey recalled that he then echoed the judge's opening statement reminding the jury that the people, not the deputies or CAO Mauriello, owns the building where the alleged “lodging” and “trespass” crimes took place. “This is your building.” The D.A.(s) objected and Grim-Gavel Gallagher warned Frey never to repeat this statement.
Further points raised in his closing summation: “The audacity and insanity of the law that makes it a crime to sleep.” His summation was initially interrupted with a sustained objection from the D.A. But as he continued, the judge seemed to allow the very arguments he had struck down. Could Gallagher be feeling the pangs of doubt, Frey wondered.
The closing prosecution statements were read by the new D.A., Stark-Modlin, who had said little during the trial. It was, Frey reported, a color-by-number litany of the elements of the sleepcrime, how many times arrested, etc.
EARLIER JURY EXCLUSIONS
The jury is due to return to court for deliberations around 9 AM today. It's unclear how long they'll be out for, though an active conscience on just one juror could create a hung jury. I guess we'll see how dead the spirit really is in Santa Cruz among those roped in for jury duty. Frey noted that in the original panel there were some who spoke strongly about the absurdity in of a sleepcrime trial and the right of the jury to throw this out. Judge G. responded to these concerns about cost and conscience by immediately removing the offending voices from the jury panel before the trial began.
CONTEMPT FOR DRESS-CRIME
In a final thrust at Frey, the judge said he was going to hold a contempt hearing on April 29th, because Frey did not wear a suit and tie to court, showing “disrespect” for the court (after Gallagher had earlier instructed the outspoken attorney on proper attire for sleepcrime trials). I don't recall Judge G objecting to my bathrobe and teddy bear when I came into his court earlier in the week, but perhaps he's trying to set a new and higher fashion standard. Nor did he object to Johnson wearing his jail clothes (presumably to bring home to the jury--not allowed to know he was facing 4 years if convicted) that he was a prisoner and not a willing participant in the proceedings.
Frey and Johnson's previous "lodging" sleepcrime convictions (also in Gallagher's court) are currently on appeal. Johnson is will continue to be held in jail on $5000 bail because of GrimGavel's refusal to believe Johnson that he will obey all laws.
Previously when Johnson asked how he could do that when sleeping (a necessity) was described as lodging (a crime), the dour judge retorted, "you can sleep in jail."
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Ed needs to forget his "Full Spectrum Democracy" crap and belief in the local judicial system.
This case belonged in a state court, and with any evidence at all (I sent 'Free Land' a packet full of evidence regarding selective enforcement of 'sleep laws' and an offer to testify about it at his request and then never heard from him again) the corrupt local court could have been sidestepped and a court with REAL jurisdiction employed.
Right now I am sitting in the window seat of a local coffee shop looking out the window at dozens of people waiting outside a theater for the opening of "The Hunger Games", with lawn chairs, personal possessions and blankets spread out on the sidewalk and against the buildings violating any number of municipal ordinances which are STRICTLY & SELECTIVELY enforced against the homeless of Santa Cruz California.
They are "Blocking the sidewalk".
They are "sitting within 14' of a building"
...and they are camping, according to the interpretation used by the SCPD when citing homeless people who have their personal property out of it's 'container' and a blanket down.
A police car containing one sergeant Harms (Yes... that's his name for the non-believing), a well-known thug, and harasser of the homeless has rolled by twice, yet he doesn't even glance at the crowd.
A few years ago when this happened I flagged an officer down and asked him why he was not enforcing the law. His response was (from behind his Black Fly sunglasses as the electric window rolled back up) "I'm VERY busy right now" as he slowly rolled away.
The image above is from that incident, and later today the scene outside the theater will be identical, and ignored by the SCPD, First Alarm patrols, and the downtown 'hosts'
Until you get this corrupt scumhole of a police department and city government attended to by the state AG, you got nothin', less than nothing.
This case belonged in a state court, and with any evidence at all (I sent 'Free Land' a packet full of evidence regarding selective enforcement of 'sleep laws' and an offer to testify about it at his request and then never heard from him again) the corrupt local court could have been sidestepped and a court with REAL jurisdiction employed.
Right now I am sitting in the window seat of a local coffee shop looking out the window at dozens of people waiting outside a theater for the opening of "The Hunger Games", with lawn chairs, personal possessions and blankets spread out on the sidewalk and against the buildings violating any number of municipal ordinances which are STRICTLY & SELECTIVELY enforced against the homeless of Santa Cruz California.
They are "Blocking the sidewalk".
They are "sitting within 14' of a building"
...and they are camping, according to the interpretation used by the SCPD when citing homeless people who have their personal property out of it's 'container' and a blanket down.
A police car containing one sergeant Harms (Yes... that's his name for the non-believing), a well-known thug, and harasser of the homeless has rolled by twice, yet he doesn't even glance at the crowd.
A few years ago when this happened I flagged an officer down and asked him why he was not enforcing the law. His response was (from behind his Black Fly sunglasses as the electric window rolled back up) "I'm VERY busy right now" as he slowly rolled away.
The image above is from that incident, and later today the scene outside the theater will be identical, and ignored by the SCPD, First Alarm patrols, and the downtown 'hosts'
Until you get this corrupt scumhole of a police department and city government attended to by the state AG, you got nothin', less than nothing.
For more information:
http://auntieimperial.tumblr.com/
http://www.santacruzsentinel.com/ci_20232326/jury-convicts-santa-cruz-man-four-counts-illegal.
I believe Pasco is in error about the potential penalties for 647e convictions. It is my understanding that the penalty was doubled in May 2011 or so claims writer Steve Argue in his article“Homelessness in California is now punishable by a year in jail. Free Gary Johnson! “ at http://www.indybay.org/newsitems/2011/06/26/18682916.php . If anyone has updated info, please post.
I believe Pasco is in error about the potential penalties for 647e convictions. It is my understanding that the penalty was doubled in May 2011 or so claims writer Steve Argue in his article“Homelessness in California is now punishable by a year in jail. Free Gary Johnson! “ at http://www.indybay.org/newsitems/2011/06/26/18682916.php . If anyone has updated info, please post.
Some of the subparts have additional penalties for repeat offenses (peeping tom-ism or being in a state of 'undress') and none of them apply in this case, but there's nothing to prevent a judge from sentencing sequentially.
http://law.onecle.com/california/penal/647.html
http://law.onecle.com/california/penal/647.html
For more information:
http://auntieimperial.tumblr.com/
RazerRay, Please do not duplicate post your images on Indybay. You have already published these photos. Please simply link to them instead.
Thank you in advance for your understanding and cooperation.
-Indybay Volunteer
Thank you in advance for your understanding and cooperation.
-Indybay Volunteer
...amateur lawyers....
First of all jury nullification is banned under California law. Any prospective juror who indicates their intent to do that is disqualified from serving and must be excused by the judge. Any seated juror likewise who indicates an inability to follow the law can be removed for cause.
As for the Jones v LA case the validity of the ordinance was ultimately upheld in an out of court settlement. The 9th Circuit opinion was withdrawn and the appeal denied as moot in light of the settlement. The net result was the state of the law is what it was prior to the ruling. It should be noted no serious challenge has been mounted against SF's "sleep/lie" ordinance, which is similar to Santa Cruz's rule. I believe that is a result of what happened in the LA case. I've been told the Jones ruling was on shaky ground and ran a good chance of reversal by the Supremes.
First of all jury nullification is banned under California law. Any prospective juror who indicates their intent to do that is disqualified from serving and must be excused by the judge. Any seated juror likewise who indicates an inability to follow the law can be removed for cause.
As for the Jones v LA case the validity of the ordinance was ultimately upheld in an out of court settlement. The 9th Circuit opinion was withdrawn and the appeal denied as moot in light of the settlement. The net result was the state of the law is what it was prior to the ruling. It should be noted no serious challenge has been mounted against SF's "sleep/lie" ordinance, which is similar to Santa Cruz's rule. I believe that is a result of what happened in the LA case. I've been told the Jones ruling was on shaky ground and ran a good chance of reversal by the Supremes.
Mea Culpa... But just one more. This one's five minutes old and it speaks volumes. Blocking a doorway of an open business, camping, 'resting' within 14' of a building, plus 'in an alcove or doorway at any time', all-in-one. The doorway belongs to Palace Arts.
No need to post any more. I think I've made my point.
No need to post any more. I think I've made my point.
While it is true that in both L.A. (Jones) and San Diego (Spencer), the settlements removed any legal force elsewhere from the prior Jones decision, both settlements are nonetheless significant.
The current Jones settlement is as follows:
JONES V. CITY OF LOS ANGELES
Settlement Agreement
It is hereby agreed among Appellants and Appellees (collectively, “the Settling Parties”) in Jones v. City of Los Angeles, Case Number 04-55324 in the United States Court of Appeals for the Ninth Circuit:
1. The Los Angeles Police Department will issue a policy directive stating that it will not enforce Los Angeles Municipal Code (“LAMC”) section 41.18(d) between the hours of 9:00 p.m. and 6:00 a.m., except as set forth in Paragraphs 2 and 3 below. The Los Angeles Police Department will keep this policy in effect and operate according to this policy until an additional 1250 units of permanent supportive housing are constructed within the City of Los Angeles, at least 50 per cent of which are located in Skid Row and/or greater downtown Los Angeles. These units shall be constructed as housing for current or formerly chronically homeless persons and shall not include housing units already existing as low income housing units and/or occupied as low income housing within the past 6 months.
2. LAMC section 41.18(d) will be enforceable at all times at locations within ten (10) feet of any operational and utilizable
entrance, exit, driveway or loading dock.
3. Measurement of Distance
a) Entrance/Exit to Building: 10 feet measured perpendicularly from the outer edges of the opening, along the exterior wall of the building, and from those points the area encompassed by the measurement shall extend to the curb line.
b) Entrance/Exit to Parking Lot: 10 feet measured perpendicularly from the outer edges of the driveway, and from those points the area encompassed by the measurement shall extend to the curb line.
c) Loading Dock: 10 feet measured perpendicularly from the outer edges of the opening, whether raised or not, and from those points the area encompassed by the measurement shall extend to the curb line.
4. No person shall be cited or arrested for a violation of LAMC section 41.18(d) unless a peace officer for the City of Los Angeles has first given the person a verbal warning regarding such section and reasonable time to move and the person has not complied with that warning.
5. The Settling Parties agree that this Settlement Agreement is limited to LAMC section 41.18(d) as presently codified and will not apply to any ordinance enacted by Appellee City of Los Angeles in the future, nor will this Settlement Agreement serve to limit Appellee City’s right to repeal or amend said section.
6. Upon the Settling Parties’ execution of this Settlement Agreement, the Settling Parties shall file a joint motion in the Ninth Circuit pursuant to Federal Rules of Appellate Procedure, Rule 42(b) seeking to:
a) vacate the Ninth Circuit opinion (Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006)) as moot; and
b) remand to the District Court for further proceedings in accordance Paragraph 7 of this Settlement Agreement. If the Ninth Circuit does not grant the joint motion in its entirety, this Settlement Agreement is rendered void in its entirety.
7. Upon remand from the Ninth Circuit pursuant to Paragraph 6 of this Settlement Agreement, Plaintiffs-Appellants will dismiss the action with prejudice against all defendants.
8. The Settling Parties reserve all rights regarding recovery of attorneys’ fees.
_____________________________
Carol A. Sobel, Esq. For Plaintiffs-Appellants
______________________________
Mark Rosenbaum, Esq. For Plaintiffs-Appellants
______________________________
Richard H. Llewellyn, Jr., Esq. For Defendants-Appellees
SPENCER SETTLEMENT
The specifics of the original settlement are described in the following court transcript: http://www.ckslaw.com/pdf/spencer.pdf
A news story gives this description:
Homeless Lawsuit Settlement Reached
http://www.voiceofsandiego.org/survival/article_fd89dc84-32f1-58f8-9ce5-9a5793f66d79.html
Posted: Thursday, February 22, 2007 12:00 am
City officials announced this eveing a settlement in a lawsuit regarding city police officers issuing illegal lodging tickets to homeless people sleeping in public spaces at night.
The settlement, which is subject to City Council approval, means police officers will not issue illegal lodging tickets to homeless people between 9:00 p.m. and 6:00 a.m. sleeping on public property, if the act of sleeping outdoors is their only offense. Mayor Jerry Sanders emphasized that the acts of sleeping on private property, drinking in public or using drugs in public are still cause for police action.
The settlement avoids the controversial plan that had been supported by City Attorney Mike Aguirre that certain neighborhoods in the city would be declared "free zones."
At a press conference to announce the settlement this afternoon, Sanders and Aguirre were joined by Bill Maheu, assistant police chief, and Tim Cohelan, an attorney representing nine homeless individuals in the lawsuit, which was filed in November 2004.
In November, the Police Department adopted similar policies to those outlined in the settlement in response to a federal court ruling in Los Angeles. The ruling found that the issuing of illegal lodging tickets available was cruel and unusual punishment when homeless shelters had too few beds.
Cohelan, one of the attorneys representing the homeless plaintiffs pro bono, said his team's been monitoring the new procedures adopted by the police, and because of their apparent success so far, he approached the city about resolving the lawsuit.
He said both sides gave up some ground but were satisfied with the settlement.
"I understand why the mayor can't be for free zones," Cohelan said. "It's a total political loser. It's hard enough to be on the side of the homeless."
Aguirre said amnesty for past holders of outstanding illegal lodging citations is not included in the settlement, but those cases would be carried out in the spirit of the settlement.
"I think the most significant thing is that both sides are pleased," said Sharon Johnson, the city's homeless services chief. "It's one of the truly successful negotiations."
— KELLY BENNETT
In 2011, the Settlement was modified:
[In November 2010, the settlement agreement in Spencer v. City of San Diego was modified so that a homeless person can be fined or arrested if a police officer offers his or her an available shelter bed within five miles and he or she chooses to decline the bed.]
--Johanna Argoud http://www.huffingtonpost.com/christine-schanes/johanna-argoud-in-her-own_b_1156925.html
A news story describes the changes:
Cops begin enforcing homeless laws again
By Juliette Vara
February 10, 2011
SAN DIEGO -- The city of San Diego has reached an agreement that will let police ticket and arrest homeless people who sleep on the street for the first time in about five years, city officials said Wednesday.
Under terms of a settlement of a lawsuit filed by homeless advocates, San Diego police officers can issue citations for illegal lodging and even take someone into custody. But there has to be a bed available in a shelter.
"If that person refuses bed space, they could get a citiation," said Assistant Police Chief Boyd Law. "If they continue to refuse, they could be arrested."
Boyd said on most nights there are on average five available shelter beds in the downtown area.
Previously, police were not allowed to cite the homeless between 9 p.m. and 5:30 a.m.
The terms of the settlement are being incorporated into training guides for police officers, who will first make any homeless person they encounter aware of available services and try to provide help.
"Our streets are atrocious,'' City Attorney Jan Goldsmith said. "It will help people in San Diego get a bed and help themselves with treatment."
The problem of illegal lodging is critical downtown, where transients line the sidewalks in some areas at night -- a concern of both safety and neglect visible to residents and visitors to Petco Park, the Gaslamp Quarter and downtown hotels.
"What we're announcing today is vitally important to downtown San Diego,'' said Kevin Faulconer, the city councilman who represents the area. "This step will make downtown a nicer place for residents, businesses and tourists.''
"The only way for this to be effective is if there were thousands of beds available to house people downtown," said Amy Gonyeau with Alpha Project, a homeless advocacy group.
City officials believe the majority of the homeless will turn down the offer of shelter space, but will move on to avoid a ticket, which can be fine of up to $1,000. But one homeless person told Fox 5 that the threat of a fine wouldn't change his mind about shelter beds.
"I'll take all those tickets and get warm with them," said Billy Miles. He and his wife live on the streets of the East Village. Given a choice to live outside on a sidewalk or in a shelter, Miles said he would choose a sidewalk.
"I'm almost 60 years old, and it don't take much for me to get sick," he said. "All those people don't shower, don't shave. It's a disease factory."
The settlement approved by U.S. Magistrate Judge William McCurine was reached after numerous meetings between plaintiff lawyers Timothy Cohelan and Robert Scott Dreher, the City Attorney's Office and Faulconer.
The current Jones settlement is as follows:
JONES V. CITY OF LOS ANGELES
Settlement Agreement
It is hereby agreed among Appellants and Appellees (collectively, “the Settling Parties”) in Jones v. City of Los Angeles, Case Number 04-55324 in the United States Court of Appeals for the Ninth Circuit:
1. The Los Angeles Police Department will issue a policy directive stating that it will not enforce Los Angeles Municipal Code (“LAMC”) section 41.18(d) between the hours of 9:00 p.m. and 6:00 a.m., except as set forth in Paragraphs 2 and 3 below. The Los Angeles Police Department will keep this policy in effect and operate according to this policy until an additional 1250 units of permanent supportive housing are constructed within the City of Los Angeles, at least 50 per cent of which are located in Skid Row and/or greater downtown Los Angeles. These units shall be constructed as housing for current or formerly chronically homeless persons and shall not include housing units already existing as low income housing units and/or occupied as low income housing within the past 6 months.
2. LAMC section 41.18(d) will be enforceable at all times at locations within ten (10) feet of any operational and utilizable
entrance, exit, driveway or loading dock.
3. Measurement of Distance
a) Entrance/Exit to Building: 10 feet measured perpendicularly from the outer edges of the opening, along the exterior wall of the building, and from those points the area encompassed by the measurement shall extend to the curb line.
b) Entrance/Exit to Parking Lot: 10 feet measured perpendicularly from the outer edges of the driveway, and from those points the area encompassed by the measurement shall extend to the curb line.
c) Loading Dock: 10 feet measured perpendicularly from the outer edges of the opening, whether raised or not, and from those points the area encompassed by the measurement shall extend to the curb line.
4. No person shall be cited or arrested for a violation of LAMC section 41.18(d) unless a peace officer for the City of Los Angeles has first given the person a verbal warning regarding such section and reasonable time to move and the person has not complied with that warning.
5. The Settling Parties agree that this Settlement Agreement is limited to LAMC section 41.18(d) as presently codified and will not apply to any ordinance enacted by Appellee City of Los Angeles in the future, nor will this Settlement Agreement serve to limit Appellee City’s right to repeal or amend said section.
6. Upon the Settling Parties’ execution of this Settlement Agreement, the Settling Parties shall file a joint motion in the Ninth Circuit pursuant to Federal Rules of Appellate Procedure, Rule 42(b) seeking to:
a) vacate the Ninth Circuit opinion (Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006)) as moot; and
b) remand to the District Court for further proceedings in accordance Paragraph 7 of this Settlement Agreement. If the Ninth Circuit does not grant the joint motion in its entirety, this Settlement Agreement is rendered void in its entirety.
7. Upon remand from the Ninth Circuit pursuant to Paragraph 6 of this Settlement Agreement, Plaintiffs-Appellants will dismiss the action with prejudice against all defendants.
8. The Settling Parties reserve all rights regarding recovery of attorneys’ fees.
_____________________________
Carol A. Sobel, Esq. For Plaintiffs-Appellants
______________________________
Mark Rosenbaum, Esq. For Plaintiffs-Appellants
______________________________
Richard H. Llewellyn, Jr., Esq. For Defendants-Appellees
SPENCER SETTLEMENT
The specifics of the original settlement are described in the following court transcript: http://www.ckslaw.com/pdf/spencer.pdf
A news story gives this description:
Homeless Lawsuit Settlement Reached
http://www.voiceofsandiego.org/survival/article_fd89dc84-32f1-58f8-9ce5-9a5793f66d79.html
Posted: Thursday, February 22, 2007 12:00 am
City officials announced this eveing a settlement in a lawsuit regarding city police officers issuing illegal lodging tickets to homeless people sleeping in public spaces at night.
The settlement, which is subject to City Council approval, means police officers will not issue illegal lodging tickets to homeless people between 9:00 p.m. and 6:00 a.m. sleeping on public property, if the act of sleeping outdoors is their only offense. Mayor Jerry Sanders emphasized that the acts of sleeping on private property, drinking in public or using drugs in public are still cause for police action.
The settlement avoids the controversial plan that had been supported by City Attorney Mike Aguirre that certain neighborhoods in the city would be declared "free zones."
At a press conference to announce the settlement this afternoon, Sanders and Aguirre were joined by Bill Maheu, assistant police chief, and Tim Cohelan, an attorney representing nine homeless individuals in the lawsuit, which was filed in November 2004.
In November, the Police Department adopted similar policies to those outlined in the settlement in response to a federal court ruling in Los Angeles. The ruling found that the issuing of illegal lodging tickets available was cruel and unusual punishment when homeless shelters had too few beds.
Cohelan, one of the attorneys representing the homeless plaintiffs pro bono, said his team's been monitoring the new procedures adopted by the police, and because of their apparent success so far, he approached the city about resolving the lawsuit.
He said both sides gave up some ground but were satisfied with the settlement.
"I understand why the mayor can't be for free zones," Cohelan said. "It's a total political loser. It's hard enough to be on the side of the homeless."
Aguirre said amnesty for past holders of outstanding illegal lodging citations is not included in the settlement, but those cases would be carried out in the spirit of the settlement.
"I think the most significant thing is that both sides are pleased," said Sharon Johnson, the city's homeless services chief. "It's one of the truly successful negotiations."
— KELLY BENNETT
In 2011, the Settlement was modified:
[In November 2010, the settlement agreement in Spencer v. City of San Diego was modified so that a homeless person can be fined or arrested if a police officer offers his or her an available shelter bed within five miles and he or she chooses to decline the bed.]
--Johanna Argoud http://www.huffingtonpost.com/christine-schanes/johanna-argoud-in-her-own_b_1156925.html
A news story describes the changes:
Cops begin enforcing homeless laws again
By Juliette Vara
February 10, 2011
SAN DIEGO -- The city of San Diego has reached an agreement that will let police ticket and arrest homeless people who sleep on the street for the first time in about five years, city officials said Wednesday.
Under terms of a settlement of a lawsuit filed by homeless advocates, San Diego police officers can issue citations for illegal lodging and even take someone into custody. But there has to be a bed available in a shelter.
"If that person refuses bed space, they could get a citiation," said Assistant Police Chief Boyd Law. "If they continue to refuse, they could be arrested."
Boyd said on most nights there are on average five available shelter beds in the downtown area.
Previously, police were not allowed to cite the homeless between 9 p.m. and 5:30 a.m.
The terms of the settlement are being incorporated into training guides for police officers, who will first make any homeless person they encounter aware of available services and try to provide help.
"Our streets are atrocious,'' City Attorney Jan Goldsmith said. "It will help people in San Diego get a bed and help themselves with treatment."
The problem of illegal lodging is critical downtown, where transients line the sidewalks in some areas at night -- a concern of both safety and neglect visible to residents and visitors to Petco Park, the Gaslamp Quarter and downtown hotels.
"What we're announcing today is vitally important to downtown San Diego,'' said Kevin Faulconer, the city councilman who represents the area. "This step will make downtown a nicer place for residents, businesses and tourists.''
"The only way for this to be effective is if there were thousands of beds available to house people downtown," said Amy Gonyeau with Alpha Project, a homeless advocacy group.
City officials believe the majority of the homeless will turn down the offer of shelter space, but will move on to avoid a ticket, which can be fine of up to $1,000. But one homeless person told Fox 5 that the threat of a fine wouldn't change his mind about shelter beds.
"I'll take all those tickets and get warm with them," said Billy Miles. He and his wife live on the streets of the East Village. Given a choice to live outside on a sidewalk or in a shelter, Miles said he would choose a sidewalk.
"I'm almost 60 years old, and it don't take much for me to get sick," he said. "All those people don't shower, don't shave. It's a disease factory."
The settlement approved by U.S. Magistrate Judge William McCurine was reached after numerous meetings between plaintiff lawyers Timothy Cohelan and Robert Scott Dreher, the City Attorney's Office and Faulconer.
...And the Santa Cruz California Homeless 'Service' Center/River Street Shelter exhibits every single one of them.
This is not surprising if one considers the county and city of Santa Cruz never wanted a shelter program to start with, so they've done their best, with taxpayers dollars, to make it absolutely useless to anyone but exactly the cohort within the homeless population that the Santa Cruz Sentinel, the Downtown (business) Association, and Take Back Santa Cruz complain about... Funny how that happens. You'd think they had created their own perception management program for vilifying the homeless.
[A little perception management for the rest of us]
Because they have. Only people who have been institutionalized, unaware they're being institutionalized, or forced by circumstances beyond their control into an institutionalized environment, would tolerate it, and many of the people mentioned, the mentally ill, drug addicts in need of substance abuse/psychological care, and sociopaths unable to integrate in a cooperative manner with the larger community of homeless, make the best 'poster people' for 'everything wrong with the homeless'.
Ask any of the literally thousands of travelers coming through Santa Cruz every year, some young and adventurous... 'roadies', some older and simply looking for work or a safe place where they won't freeze to death in the winter.
Ask them if they've been out to 'River Street'.
They'll tell you either they'd been there, but won't be again, or that they'd heard through the grapevine before they ever arrived in town that SCRCH is an out of control behavioral health unit and were warned to stay away from it.
It's disgusting that homeless 'activists' in Santa Cruz would support a facility like this... but they do.
It's NOT a 'shelter'... Or even a 'resource center'. It's a county run prison yard for drug addicts and people with' behavioral problems' who can be used by the city and business community as PR and rationale for their overall hostile attitude and often illegal (unconstitutional laws intended to target the homeless and blatantly selective enforcement of those laws) behavior towards their un-housed citizens, whom a recent survey showed a large majority of those people were working and housed in the area until unchecked redevelopment and gentrification occurred in the wake of the 1989 Loma Prieta Earthquake . ~~Razer Ray
This post is dedicated to Logan. Panhandling and sleeping out doesn't kill people, but living simply as a young person in a world based on 'stuff' can be a killer. Even still one must pity people so poor that all they have are money and 'things'.
After my first rape, it was a homeless man who saved me. I was tucked into a bloodied ball behind a dumpster, deep in shock. Without his intervention, I would have died. He covered me and sang mumbled songs. He bathed me like a child in someone's motel room where he'd carried me. Fittingly, his name was Justus. My angel had Parkinson's and had suffered several strokes. His bladder control wasn't perfect so he smelled pretty bad, too. He talked to me of soldiers he'd seen shell-shocked in Vietnam. He prayed and sang "Amazing Grace" as I stared into space, trembling and waiting, hoping to die while he carefully dabbed my face with a washcloth. He showed me a very old picture of his daughter, a cute toddler in corn rows. He spoke of her with such love. It was then I unfroze and began to cry. If this gentle, lovely man could be discarded and dying out where no one cared what hope was there for anyone? (source)
1> Homeless Shelter Hours Incompatible with Work HoursPlease Read FirstI spent a lot of the time when I was homeless sleeping "in the rough" which is another way of saying outdoors. I've been asked a lot of times why I didn't just stay in homeless shelters. The two answers most homed people will give as to why homeless people don't use shelters is that either such people are drug users and drug use is against homeless shelter rules or that some people refuse to follow homeless shelter rules pertaining to check in and checkout.As someone who has worked in homeless shelters I am very aware that the vast majority of homeless shelter workers are good people who are doing their best. I am glad that homeless shelters exist to help people without homes. However, it would be an injustice to pretend that homeless shelters in America are plentiful enough or that all of those shelters that exist are safe enough, or free from downsides.
The issue is pretty complex, but no, I was neither using drugs nor too defiant to obey homeless shelter rules. I'd like to give my reasons for sleeping in the rough and also some of the reasons I've seen other homeless people avoid shelters while exposing some common homeless shelter dangers. Some of these reasons might surprise you. I know I was shocked to discover a few myself. ~~Kylyssa
Homeless shelters operate on rigid schedules... So do jobs!
Contrary to popular belief, many homeless people have jobs. Because check in hours for shelters are often rigid and the process of waiting in line and checking in usually takes hours, most working homeless people cannot use them. Other homeless people work evening or night hours which don't allow them to get into a shelter before curfew. People who work from nine to five usually can't use homeless shelters, either; by the time they get off work, it's usually too late for them to get in line to check into a shelter.
Another reason some homeless shelters are incompatible with having a job is that they require the shelter users to attend AA or other drug abuse rehab classes (often held during normal work hours) every day they use the shelter - whether those people have a drug or alcohol problem or not.
By the time I had a regular job, I had decided to sleep outside exclusively so this was not a problem for me.
Continue reading Why Homeless People Don't Use Shelters @ Kylyssa's Squidoo. Also see another of her articles: "What I Learned While Being Homeless" that addresses topics such as "Why I Hate The Words "The Homeless" and tips for survival if you find yourself in that situation.
For more information:
http://auntieimperial.tumblr.com/
That post was very touching, Ray, and moved me in a deep way, especially the part about homeless people and their dogs, the only friends who hadn't deserted them. If I close my eyes and sit very still, I can almost hear the faint wail of the violins wafting through the misty night air. Thanks.
The tag line to that photo is "Perception management for the rest of us". It was supposed to be blatant, but nevertheless it's a true statement and I know more than a couple of people who feel that way about their buddies.
(If I'm correct, the retort will be how badly those animals are treated, mal-tended malnourished and all that, but any perfunctory look at the pets of the local houseless prove that to be an unfounded assumption anyway)
(If I'm correct, the retort will be how badly those animals are treated, mal-tended malnourished and all that, but any perfunctory look at the pets of the local houseless prove that to be an unfounded assumption anyway)
This illustrates the sad state of criminal justice in Santa Cruz. Instead of protecting citizens from true criminals, the Sheriffs and the DA are punishing a man for sleeping.
Gary Johnson faces more time in jail than twice convicted Meth dealer Anthony Ruffo (who destroyed countless childhoods).
This is both shameful — Santa Cruz should be ashamed of our law enforcement agencies and our DA — and absurd. This explains why so many Santa Cruzans have lost faith in local law enforcement protecting their neighborhoods and children from dope dealers and gang bangers.
Gary Johnson faces more time in jail than twice convicted Meth dealer Anthony Ruffo (who destroyed countless childhoods).
This is both shameful — Santa Cruz should be ashamed of our law enforcement agencies and our DA — and absurd. This explains why so many Santa Cruzans have lost faith in local law enforcement protecting their neighborhoods and children from dope dealers and gang bangers.
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