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View other events for the week of 6/14/2012
Peacecamp2010 Appellate Panel hearing
Date Thursday June 14
Time 4:00 PM - 5:00 PM
Location Details
Department 5 of the Santa Cruz County Superior Court
Event Type Court Date
Organizer/AuthorEd Frey

June 5th, 2012
Contact: Ed Frey, (831) 479-8911

Santa Cruz, CA: On Thursday June 14th 2012 at 4pm in department 5 of the Santa Cruz County Superior Court a three-judge appellate panel will interpret and apply the United States and California Constitutions to two local convicted protesters.

In June 2011 Gary Johnson, a homeless man, and his lawyer, Ed Frey, were sentenced to six months each in the county jail. Their crime: sleeping outdoors.

They were protesting the fact that our local constabulary, courts, cops and prosecutors, send peace officers out in the middle of the night to breach the peace and roust people who are asleep, not bothering anyone, and simply trying to get the rest they need in order to function during the day.

The protesters argue that deliberately depriving people of sleep, people who have no shelter bed, makes sense only in a culture and politics of cruelty, greed, and domination. This particular sleep cruelty injects more poison into the social atmosphere every day. It makes people feel abandoned and despised simply because they are poor. The protesters argue that courts recoil from their duty to recognize a basic right to sleep because our courts have lost their fundamental ethical bearings. Judges, in effect, now say to homeless people in their criminal proceedings: "despite all our Constitutional principles that clearly protect the right to sleep, I am not willing to acknowledge that right until the Supreme Court says I can". This groveling hesitation, the protesters argue, arises out of the judicial allergy to considerations of human kindness and decency. This is a haunting demonstration, they say, of the kind of disrespect for basic rights that slowly drains the legal system of its legitimacy. After all, the protesters contend, the judges' oath of office requires them to be guided by the words of the Constitution itself, not their surmise about what Clarence Thomas and Antonin Scalia might someday pronounce.

The judges in California have taken one positive step: they've officially acknowledged that sleep deprivation causes both physical and mental ailments which degrade and shorten a person's life. But when judges are confronted by Constitutional principles that clearly protect the right to sleep, the protesters argue, they suddenly turn silent and retreat to the safety of the predominant judicial mission of protecting property rights and corporate profits. The protesters complain that the judges act as if the protections in the California Constitution simply do not exist. Those protections go far beyond the enumerated rights in the United States Constitution. They point to how the right to "life, liberty and the pursuit of happiness" proclaimed in the 1776 Declaration of Independence, later became the right to "life, liberty and property" in the United States Constitution.

The people of California, however, took care of that shortcoming in the November 1974 election, by adding Article I Section I to the State Constitution which declares that "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy". The right to privacy has been called the right to be let alone.

When the last sleeping rights case came before a local appellate panel, however, the judges ignored the California Constitution and affirmed the trial court's decision that neither Constitution protected the homeless defendant, Robert Facer, in his request for the right to merely sleep. Mr. Facer, who was widely loved and respected, died in April this year, perhaps because he was prohibited from an activity that most people take for granted. Mr. Facer's case produced clear proof that the homeless policies are driven by the forces and demands of commerce and finance: the prosecuting attorney asked the policeman, his own witness, "Officer, why were you out enforcing the sleeping ban that night?" and the officer responded "Because the merchants wanted us to..."

Two years ago, in the Summer of 2010, attorney Frey decided to challenge the law by sleeping at the court house and inviting others to join him starting on July 4th. Many local homeless people had been feeling hounded, according to Johnson, and many were angry. Anyone who lacks the funds to purchase a property right that includes a place to sleep is simply out of luck. There is not a single square inch in the entire state of California where it's legal to sleep, except in a homeless shelter. And here in Santa Cruz County, as in much of the rest of the state, there is only one shelter bed for every ten homeless people. Further, the protesters point out, sleeping in a shelter exposes the homeless person to unknown disease and potentially violent offenders. They argue that the status quo can be humanized if enough former lawyers now wearing black robes can get get a grip on the reality of the law's gratuitous cruelty, and its often horrendous consequences.

The case on appeal argues that it's not only the California Constitution that protects sleepers. The argument emphasizes that when the United States Bill Of Rights was being debated in Congress in 1790, a mere three years after the US Constitution took effect, the congressmembers took up the task of stating our most basic rights: freedom of speech, freedom to assemble in public and seek redress of grievances, freedom of and from religion, freedom from unreasonable searches and seizures, the right to remain silent, and the right to due process of law, including the right of the accused to be tried before a jury of fellow citizens. The protesters point out, though, that many congress members were wisely concerned that, if they listed only these rights in the Constitution, and failed to mention others, then judges could reject all sorts of natural rights, reasoning that, "well, this right or that was not included on the list, and therefore does not exist." The Congress resolved this problem by inserting the 9th amendment into the bill of rights, which provides that "The enumeration of certain rights in the constitution shall not be construed to deny or disparage others retained by the people."

The California Constitution has an almost identical provision in article I section 24

Thus the right to breathe, for example, and the right to relieve oneself can not be taken away by judges even though these rights are not mentioned in the Constitution. When the 9th Amendment was being debated, several legal scholars have said, congressman Theodore Sedgewick rose and warned his colleagues that if the 9th Amendment were not included, the government might attempt to control people's sleeping habits. This bit of legislative history in the appellants briefs will be a bright light shining in the judges eyes that will be impossible for them to ignore, say the protesters. The legal briefs by both sides can be reviewed at

In their written arguments, the protesters urge the judges to speak out, to avoid the silent denials of the past, and explain forthrightly how our constitutional law protects or rejects the sleepers. The protesters contend that all the people deserve this explanation.

Frey cites this judicial silence as typical of most of our public office holders, who say they aspire to democracy but offer only the most shallow public discourse.

Johnson and Frey place heavy emphasis on their freedom of expression. They would have preferred to engage in civilized public dialogue with office holders about this injustice, but see protest as the only available process to get a dialogue going under present circumstances. They are disturbed that despite their 1st Amendment protections, their demonstration cost them 6 months in jail. Johnson, who, decided to repeat his protest, was recently sentenced to an additional two years in jail.

The protesters argue that a 25 year old US Supreme Court opinion states clearly that sleeping is a valid form of protest, and point to many other cases which hold that demonstrations on sites that are traditional public forums (like the court house steps in Santa Cruz) are entitled to the broadest protections possible.

The protesters hope that the public will come to the June 14th hearing to view this latest chapter of Constitutional justice.
Added to the calendar on Tuesday Jun 5th, 2012 3:34 PM
Listed below are the latest comments about this post.
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San Jose District Court Refuses to Accept CaseRobert NorseTuesday Jul 24th, 2012 1:42 PM
Appeal denied, appeal of appeal denial is in process.GThursday Jun 14th, 2012 6:35 PM
Santa Cruz judges support sleep tortureJohn E. ColbyWednesday Jun 6th, 2012 9:53 AM
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