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Indybay Feature
Related Categories: Santa Cruz Indymedia | Police State & Prisons
Activist/Attorney Bangs on the Barrister Barricade
by Ed Frey (with remarks by R. Norse)
Monday Jan 6th, 2014 3:43 AM
PeaceCamp2010 co-founder and stalwart Ed Frey (pronounced "Fry") is the only local attorney to have been arrested, then trial and then served a six-month house arrest sentence for solidarity with homeless people here defending the right to sleep. He continues his persistent and relentless appeal the absurd and bizarre conviction of "Ground Zero" Gary Johnson. Judge "Grim Gavel" John Gallagher sentenced Gary to two years in jail for sleeping outside the County Building on a bench with a sign denouncing the (Homeless) Sleeping Ban. This happened in the closing days of the Occupy Santa Cruz movement in the winter of 2011-2012--though as an independent action. In his appeal of a blocked appeal, Ed raises technical but substantive legal issues which impact all appeals.

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Ed writes:

The background to the 2-judge panel issue: Gary Johnson was convicted of four counts of unlawful lodging when he slept outside the courthouse four nights with a sign up against his body saying 'sleep is not a crime'.
We challenged the statute on 6 or 8 constitutional issues (freedom of speech, due process of law -- vagueness of the statute, ninth amendment of the US constitution and its California analogue, cruel and unusual punishment, universal declaration of human rights, etc.)
Judge Gallagher rejected all of these contentions without comment then instructed the jury that unlawful lodging means "sleeping", so the jury had to convict Gary. Judge Gallagher then sentenced Gary to two years in jail but released him after 93 days in custody, but Gary was still subject to the full two years if he dared to break any laws, including sleeping in public.

When we appealed to the appellate division of the Superior Court only two judges, Symons and Burdick participated in the appeal, so after they rejected the appeal we requested a rehearing, which Symons and Burdick rejected. On June 13, 2013 we petitioned the Sixth District Court of Appeal in San Jose, based on 2-judge rather than 3-judge panel. Finally, on Dec 5th, the court of Appeal responded, directing the Superior Court and the DA to file briefs in response to the Petition.

We have an expert in the appellate process addressing the local bar at the Paradox Hotel Monday at noon. I contacted her Thursday, and she is interested in the issue of two-judge appellate panels. I will be distributing a memo to the local lawyers (see attached copy).

NOTE BY NORSE: Ed's tenacious determination to press these technical issues continues to keep the more basic moral and human rights issue in focus.

A long largely dated chronicle of the PeaceCamp2010 struggle can be found at . Gary Johnson's continuing blog is at .

Street Spirit published a shortened version of indybay activist Alex Darocy's article on Linda Lemaster (the last of the PC2010 victims) at . The longer original article with more photos at a . Linda's blog is at .

My last indybay note on Gary is at . Earlier articles can be found by searching this website for "Gary Johnson".

Just to reiterate Ed's planned appearance. He wrote:

We have an expert in the appellate process addressing the local bar at the Paradox Hotel Monday at noon. I contacted her Thursday, and she is interested in the issue of two-judge appellate panels. I will be distributing a memo to the local lawyers.

Comments  (Hide Comments)

by Gary Johnson (posted by Norse)
Monday Jan 6th, 2014 10:17 PM
Gary forwarded me the following e-mail (which I've only slightly edited):

FYI, the status of the 2nd case (PeaceCamp2011/2012) can be followed here...

And eventually here, I suppose...

The status of the first case (PeaceCamp2010) is 'dead', as far as I know, which is sad.

It was very encouraging to listen to the recent Desertrain arguments before the 9th Circuit!

The judges made very pointed remarks, especially about vagueness, and some also indicated their interest in the viability of anti-homeless laws.

BTW, a small correction...

Ed got busted for sleeping at PeaceCamp2010 (as did a large number of others, Ed and I were 'cellies' for a while). The trials were about 647(e), turning on the (questionable) definition of lodging. We all lost, 6 months.

The PeaceCamp2011/2012 protests/busts were just me. The tickets were about 602, especially 602(o). That post-7pm 'trespass' threat was used against OccupySantaCruz, and it worked (due in large part to the storm troopers arrival). I read the law, noticed the numerous instances of 'except activities protected by the Constitution', and decided to act (and am nearly exhausted). So PeaceCamp2011/2012 was protesting the criminalization of sleep AND the criminalization of protest. During the busts, I tried to explain the issue to the officers, to no avail. Before trial, during pre-trial incarceration, the charges were changed to 647(e), the law we had tried to strike down. During trial, the judge barred any mention of 602, even when the prosecution presented a photo as evidence (602 was cited on the 'trespass sign' being shown). All of it has been quite absurd, really, but the judge freaking out about any mention of 602 was an absurdity highlight, for
me. Again, the definition of lodging was key, and I received a 2 year sentence (currently suspended). When people ask where; I say 'undisclosed location', as I am now a fugitive dreamer.

The PeaceCamp2013 protest was virtual: 0 tickets, 0 arrests, 0 press, 0 change in unjust laws.

Perhaps PeaceCamp2014 will have a larger impact; for people still suffer and die, hounded because they exist, oppressed by 'ugly laws'...

by arrestTheJudge
Tuesday Jan 7th, 2014 1:41 PM
gary was charged for lodging twice on one of the nights. when does a lodge begin and end? apparently there is nothing stopping the DA from charging a protester hundreds of times for lodging in a single night.
talk about vague..

If you have any disabilities which could be argued to cause you to be homeless, I might be able to add you as a victim to my USDOJ disability discrimination complaint against the County of Santa Cruz and the City of Santa Cruz.

When the HSC denied Andrea Morgan — a severely physically disabled women — access to their services, forcing her to sleep outdoors, I submitted reasonable disability accommodation requests to the City and County of Santa Cruz, arguing that their criminalization of homelessness was discriminating against her disabilities because by virtue of her disabilities and the cost of housing in Santa Cruz, she was homeless because she was disabled.

I asked that Ms. Morgan be allowed a safe zone to sleep in where anti-homeless laws would not be enforced against her and 2-3 other sleeping companions, as well as the SCPD checking in on her to safeguard her several times a night. The City and County completely ignored these requests, yet they did not harass Ms. Morgan nor did they cite her for any anti-homeless violations although she was camping right outside the HSC campus — HSC staff tried to harass her to leave, saying she was violating their no-impact zones.

That City and County attorneys did not even respond with lame justifications showed they realized my arguments were sound. I believe Santa Cruz City and County criminalization of homelessness amounts to criminalizing disabilities. The USDOJ did not quibble with my reasoning.

I think a strong case can be made for this argument. If you are disabled or you know disabled homeless people being criminalized by the City and/or County of Santa Cruz, please inform me about it. I would like to represent and advocate for them, to ask for the same reasonable disability accommodations I requested for Ms. Morgan. Then if the SCPD or the Sheriff's cite them or otherwise harass them, I can add them as victims to my USDOJ complaint against the City/County of Santa Cruz.

My contact information is below. I look forward to corresponding with you via email and/or telephone.

Dr. John Cohen/Colby

email: karma [at] & colby [at]
cellphone: 831.419.1521
fax: 202.204.0820

twitter: @jecolbe
theme song:

postal address:
849 Almar Avenue, Suite C–242
Santa Cruz, CA 95060
by i am not a fucking lawyer
Thursday Jan 16th, 2014 1:27 PM
there is already case law supporting 2 judges. and you still have due process, since if your oral argument dazzles one of the judges, there will be no judgment unless 2 judges concur. so you will have to be reheard with 3 in that case. ed did not convince one of the 2 judges in the instant case, so it is moot.

btw ed made some decent 1st Amendment challenges, why has this case degenerated into a squabble over the size of the judicial audience for an oral argument, instead of the right of the poor to sleep?