Wednesday, December 12, 2012

Appeal For The Second Case

The following is a hastily made copy of the appeal filing that Ed (the lawyer) filed on December 10th, 2012.  The appeal is for the second case (not the first case, which was PeaceCamp2010 specific).  In the second case, I was convicted and sentenced to two years (currently suspended), for protesting the criminalization of sleep and for protesting the criminalization of protest itself (#MakingProtestACrimeIsACrime).

I haven't read this appeal (I only marked it up, hastily, any errors of transcription are mine).  While I am not yet familiar with the contents, my impression is that some of what I wanted (such as asserting the right to sleep as a positive right (thank you India!)) did make it into the filing (it has been a bit contentious, and I am not a lawyer, so I don't have much say, when it comes to filings).

Anyway, I would like to publicly thank Ed Frey.  It hasn't been easy.  It remains a long struggle.  If both cases fail in the higher courts (AKA I am (almost) exhausted), my hope is that the effort might encourage and assist any future attempts, until sleep is legal, or consent is withdrawn.


FILED
Dec. 10 2012
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CRUZ
APPELLATE DIVISION
PEOPLE OF THE STATE OF CALIFORNIA, AP 001660
Plaintiff/Respondent, Criminal Case No. M64170
vs,
GARY ALLEN JOHNSON, Defendant/Appellant
Appeal from Santa Cruz County Superior Court
Hon. John Gallagher, Judge Presiding

APPELLANT’S OPENING BRIEF

Ed Frey (SBN 42814)
4630 Soquel Dr., Ste. 12
Soquel, CA 95073
(831)479-8911
(Fax)479-8174
Attorney for Appellant
GARY ALLEN JOHNSON
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE1
STATEMENT OF APPEALABILITY1
SUMMARY OF FACTS1
SUMMARY OF APPELLANT’S CONTENTIONS3
STANDARD OF REVIEW3
LEGAL DISCUSSION3
I. PENAL CODE SEC. 647(e) VIOLATES APPELLANT’S FEDERAL AND STATE RIGHTS TO FREEDOM OF EXPRESSION3
A. Freedom Of Expression Is Not Absolute; It Can Be Regulated By Reasonable Standards Of Time, Place And Manner4
B.The Manner Of Appellant’s Conduct Was Appropriate4
C. The Place Of Appellant’s Activity Provides The Highest Degree Of Protection For Free Expression.4
D. The Time Of Appellant’s Protest Activity Was Eminently Reasonable5
E. The Prosecution Manipulated The Charging Process To Avoid The Protections For First Amendment Activity Contained In The Trespassing Statutes6
F. Appellant’s Free Speech Rights Were Wrongfully Denied Based On The Content Of The Message7
G. This Case Represents An Ominous Retreat From An Historically Treasured Right.7
II. PENAL CODE SEC. 647(e) IS VOID FOR VAGUENESS8
III. THE TRIAL COURT PROCEEDINGS VIOLATED APPELLANT’S RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES10
IV. THE ENUMERATED RIGHTS OF THE CALIFORNIA CONSTITUTION PROTECT THE APPELLANT’S RIGHT TO SLEEP ON PUBLIC PROPERTY WHEN IT DOES NOT INTERFERE WITH ANYONE ELSE12
V. APPELLANT’S RIGHT TO SLEEP IS PROTECTED BY THE NINTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ITS ANALOG IN THE CALIFORNIA CONSTITUTION15
VI. THE PROHIBITION AGAINST SLEEPING VIOLATES INTERNATIONAL STANDARDS OF HUMAN DECENCY18
VII. SLEEPING IS NOT A CRIME BECAUSE THE SLEEPER IS UNCONSCIOUS19
VIII. THE TWO YEAR SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT20
CONCLUSION20
TABLE OF AUTHORITIES
CasesPage
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d. 45010
Clark v. Community for Creative Non-Violence (1987) 468 US 2884, 5, 6
Connally v. General Constr. Co. (1926) 269 US 3858
Cornelius v. NAACP LDEF (1986) 473 US 7885
Graham v. Florida (2010) 560 US ____18
Griswold v. Connecticut (1965) 381 US 47917
Hill v. Colorado (2000) 530 US 7038
I.C.C. v. Brimson (1894) 143 US 44713
In Re Catalano (1981) 29 Cal.3d. 19, 10
In Re Eichorn (1998) 69 Cal.App.4th 38216
Katzberg v. Regents of the University of California (2002) 29 Cal.4th 30013
Kolender v. Lawson (1983) 461 US 3528
Leger v. Stockton Unified School District (1988) 202 Cal.App.3d. 144813
Marbury v. Madison (1803) 5 US (i Cranch) 13716
McDonald v. Smith (1985) 472 US 479 12
McDowell v. Hyman (1897) 117 Cal. 679, 10
Mehr v. Superior Court (1983) 139 Cal.App.3d.104410
Olmstead v. United States (1928) 277 US 43814
Olson v. Cory ( 1982) 134 Cal.App.3d.8510
People v. Cromer (2001) 24 Cal.4th 8893
People v. Wilkinson (1967) 248 Cal.App.2d Supp. 9069, 10
Pleasant Grove City v. Summum (2009) 555 US 4605
Pryor v. Municipal Court (1979) 25 Cal.3d.2388
Richmond Newspapers, Inc. v. Virginia (1980) 448 US 55518
Roper v. Simmons (2005) 543 US 55118
Snatchko v. Westfield, LLC. (2010) 187 Cal.App.4th 4699
Spence v. Washington (1974) 418 US 4054
United States v. Cruikshank, 92 U.S. 542 (1876)12
Walters v. Weed (1998) 45 Cal.3d. 1 16
Ward v. Rock Against Racism (1989) 491 US 7814, 7
CONSTITUTIONS
United States Constitution
First Amendment4, 5, 7, 10, 12
Fourth Amendment14
Eighth Amendment20
Ninth Amendment15-18
California Constitution
Article I, sec. 112-14
Article I, sec. 310
Article I, sec. 2413, 15
Article I, sec. 2613
STATUTES
CCP sec. 425.16(a)11
Govt. Code sec. 24316
Govt. Code sec. 24416
Penal Code
Sec. 2619
Sec. 602(o)6
Sec. 602.16
Sec. 602.8(c)(2)6
Sec. 647(e)1-3, 7, 8
Welf. & Inst. Code sec. 1700019
OTHER AUTHORITIES
Annals of Congress, First Congress, 759, 76015
International Covenant on Civil and Political Rights19
Reclaiming the Petition Clause (Yale Univ. 2012)11
Retained By the People (Basic Books 2007)15
Supreme Court of India19
39 UCLA Law Review 29516
STATEMENT OF THE CASE

Appellant Gary Allen Johnson was charged with four counts of unlawful lodging under Penal Code sec. 647(e). By demurrer he challenged the constitutionality of the statute on its face and as applied. The trial court overruled the demurrer.

Jury trial was conducted March 19-21, 2012. On March 22nd the verdict was returned, guilty on all four counts.

Sentencing took place March 29, 2012 following denial of Appellant’s oral motion for new trial. The court sentenced Appellant to two years in jail, gave him credit for 84 days already served, and suspended execution of the balance of the sentence. CT 166.

STATEMENT OF APPEALABILITY

This appeal is from judgment entered against Appellant, based on jury verdict. CT 159-162, 166.

SUMMARY OF FACTS

On four separate occasions in late December 2011- early January 2012, Appellant, a homeless person, was cited and arrested for unlawful lodging under Penal Code sec. 647(e). CT 3-5. On each occasion in question, Appellant was lying prone, sleeping on a wooden bench in front of the county courthouse in Santa Cruz in the late evening or early morning hours. Appellant was displaying a small sign that read “Sleep is not a crime”. The courthouse was closed on all occasions. RT 534, 551, 578 and 599.

He explained to the arresting officers that his motive was to protest the prohibition against sleeping and to get a night’s sleep. RT 536, 577, 579 and 595.

Appellant’s activity caused no obstruction of traffic or any other inconvenience to anyone. RT 561 and 600. His activity caused no damage of any kind. RT 560.

The trial judge granted Appellant’s request for judicial notice that the courthouse grounds where the alleged crimes were committed have “been used for public gatherings, protests, and other public demonstrations for many decades, and is still so used.” CT 46; RT 37:21-23.

The jury instructions included a statement that:

“some words or phrases used during this trial have legal meanings that are different from their meanings in everyday use. These words and phrases will be specifically defined in these instructions. Please be sure to listen carefully and follow the definitions that I give you. Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings” CT 122:25-123:1. (Emphasis added.)

Another instruction stated that: “to lodge means to settle or live in a place, including temporary living, and may include sleeping.” CT 89, 146; RT 36:9-37:7.

Appellant had participated in an extended 2010 group protest sleep-in at the courthouse. He challenged the constitutionality of Penal Code sec. 647(e) in that case; the court dismissed the challenge without written opinion or comment. Following a guilty verdict and a six-month jail sentence, he appealed to the Appellate Division of the Superior Court of Santa Cruz County. That appeal was dismissed without written opinion or comment. He then sought certification of the constitutional claims from the Sixth District Court of Appeal. That court dismissed the petition without written opinion or comment. See Appellant’s Request for Judicial Notice dated December 10, 2012.

SUMMARY OF APPELLANT’S CONTENTIONS

Appellant was not operating in a legal vacuum where only one law, the statutory prohibition against “lodging”, applies. On the contrary, Appellant is surrounded by the following express legal protections of his freedom as a human being that are set out in federal and state constitutions that are generally accepted as the supreme law, trumping any statutory law that violates such freedom:

  • Freedom of expression;
  • Freedom to petition government for redress of grievances;
  • Freedom to defend liberty;
  • Freedom to pursue and obtain happiness, safety and privacy;
  • Freedom from vaguely-worded criminal statutes;
  • Freedom from unreasonable search and detention; and
  • Freedom from cruel or unusual punishment.
STANDARD OF REVIEW

The applicable standard is independent or de novo review. There is no dispute on the facts, but, there is a dispute on the constitutionality and interpretation of the law, and a dispute as to how the law is applied to the facts. People v. Cromer (2001) 24 Cal.4th 889, 893-895

LEGAL DISCUSSION

I. PENAL CODE SEC. 647(e) VIOLATES APPELLANT’S FEDERAL AND STATE RIGHTS TO FREEDOM OF EXPRESSION

A. Freedom Of Expression Is Not Absolute; It Can Be Regulated By Reasonable Standards Of Time, Place And Manner.

The standard limitations imposed upon any particular expressive activity are that such activity be conducted in a reasonable time, place and manner. Ward v. Rock Against Racism (1989) 491 US 781, 791 Appellant contends that he readily meets these standards as will be shown below.

B. The Manner Of Appellant’s Conduct Was Appropriate

As the court described protected activity in Spence v. Washington (1974) 418 US 405, 410-411:

“An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.”

The instant Appellant’s intent and message were manifestly clear from his actions.

In another case, when homeless advocates camped out across from the White House, the court said: “Overnight sleeping in connection with the demonstration is expressive conduct protected…by the First Amendment.” Clark v. Community for Creative Non-Violence (1987) 468 US 288, 293

Thus, there is nothing inherently inappropriate in Appellant’s manner of expressive conduct, which consisted in merely sleeping out-of-doors.

C. The Place Of Appellant’s Activity Provides The Highest Degree Of Protection For Free Expression.

The trial court granted Appellant’s Request for Judicial Notice that the courthouse grounds are traditionally used as a public forum. Supra, p2. By way of contrast, the location chosen by the Clark campers was a park located just across the street from the White House, which is regularly visited by millions of people every year. This potentially massive inconvenience, involving pitched tents and other camping infrastructure, defeated the campers’ First Amendment claims. Clark, supra, 468 US at 296, 82 L.Ed2d at 228.

The power of government to limit access to public land for people seeking to engage in expressive activity depends upon the nature of the forum. Cornelius v. NAACP LDEF (1986) 473 US 788, 800 Four categories of forum are recognized: (1) a traditional public forum – government property which by long tradition or government fiat has been devoted to assembly and debate; (2) a designated public forum; (3) a limited public forum; and (4) a non-public forum. The trial court’s judicial notice places the county courthouse in category 1.

Government restrictions on expressive activities taking place in either of the first two categories of forum are subject to strict scrutiny. Pleasant Grove City v. Summum (2009) 555 US 460, 469-470. This means that the activity can only be prohibited where it would defeat some compelling governmental need. There is no such need here. As indicated above, Appellant’s activity obstructed no one at any time.

D. The Time Of Appellant’s Protest Activity Was Eminently Reasonable

The evidence showed that Appellant conducted his protest only during traditional sleeping hours – late evening to early morning – and not at all during courthouse business hours. RT 528, 549. The court in Clark rejected the speech right claims there also because the protestors’ “purposes would be more effectively and not so clumsily achieved by preventing… 24-hour vigils” Clark, 468 US at 288

Again, Appellant did not interfere in any way with anyone else’s movement or activities. RT 561, 600. No citizen complained about Appellant’s activity; the only evidence of any notice being taken of his activity was by on-duty private guards (“First Alarm”) and sheriff’s officers. RT 527, 550.

E. The Prosecution Manipulated The Charging Process To Avoid The Protections For First Amendment Activity Contained In The Trespassing Statutes

At every point of vehicle entry to the courthouse grounds, “No Trespassing 7 p.m. -7 a.m.” signs were posted. RT 543, 545. Upon the first encounter between sheriff and Appellant, the officer notified him that he was trespassing. RT 529.

The second sheriff’s deputy to testify indicated that the Appellant actually helped him to choose which trespassing statute under which to cite him. RT 581. Three of the trespassing statutes, Penal Code secs. 602(o), 602.1 and 602.8(c)(2), expressly exempt alleged trespassers if they are engaged in activities protected by the First Amendment. If he had been ultimately charged under any one of these statutes, the statutory law alone would have rendered the prosecution invalid, even if he had been intentionally interfering with lawful public business at the courthouse. Penal Code sec. 602.1. The trial court prohibited Appellant from cross-examining the sheriff’s deputy about such statutes. RT 582.

Charging Appellant with “lodging” instead of trespassing thus facilitates the local constabularie’s maneuver around freedom of speech.

F. Appellant’s Free Speech Rights Were Wrongfully Denied Based On The Content Of The Message

If Appellant had merely sat on the bench in a waking state, holding his “Sleep Is Not A Crime” sign, the law would have required the sheriff to simply leave him alone, despite the “No Trespassing 7a.m. – 7p.m.” signs.

Appellant chose, however, to deliver a non-verbal message in addition to the written message on his sign, by falling asleep. Conveniently for the prosecution, the trial court defined “lodging” as “sleeping”, and instructed the jury accordingly. CT 146.

Since Appellant’s sleeping was a mere dramatization of his message, the inference is inescapable that the prosecution amounts to a content-based suppression of his rights, in clear violation of established First Amendment doctrine. Ward v. Rock Against Racism , supra, 491 US at 791.

G. This Case Represents An Ominous Retreat From An Historically Treasured Right.

As indicated above, Appellant’s conduct was delivering an urgent message to the government, and caused not one iota of disturbance or inconvenience.

The prosecution was made possible first, by the lack of any time, place or manner limitation in the text of the regulating statute, Penal Code sec. 647(e). Under that statute, at least as applied by the trial court, every person is prohibited from lodging at any hour of the day or night, i.e., 24 hours per day (“time”), on any single square inch, public or private, in the state of California (“place”).

Secondly, the court created its own “manner” restriction, by inventing for the jury a different definition of “lodging” as meaning “sleeping”. CT 89, 146; RT 36-37.

This is the kind of judicial abuse of the time, place and manner doctrine that Justice Kennedy warned against when he said: “[W]hat once were rules to protect speech [have] now become rules to restrict it”. Hill v. Colorado (2000) 530 US 703, 765.

II. PENAL CODE SEC. 647(e) IS VOID FOR VAGUENESS

Prior to trial, Appellant challenged the statute as being void for vagueness. CT 9, 37. Without providing any rationale whatsoever, the court rejected the contention. That ruling implies that the judge thinks that, by the single step of reading the statute, a citizen will readily know what is legal and what is being prohibited, and further, that the statute’s language will not lead peace officers and judges to personally create and apply their own arbitrary interpretations. This latter concern is the more critical and compelling of the two. Connally v. General Constr. Co. (1926) 269 US 385, 391; Kolender v. Lawson (1983) 461 US 352, 357. As the court said in Pryor v. Municipal Court (1979) 25 Cal.3d.238, 252: “Vague statutory language also creates the danger that police, prosecutors, judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law.”

Indeed, the concern about judicial arbitrariness applies here. As noted above, the trial court felt compelled to create and promulgate its own interpretation of the statute and, over Appellant’s objection, instructed the jury that “to lodge” can mean merely “sleeping”. RT 36-37

A more reliable definition for the vague term “lodge” can be gleaned from the California Supreme Court opinion in McDowell v. Hyman (1897) 117 Cal. 67,71. There the court said “A mere lodger is one who occupies…”

More recently, the court in In Re Catalano (1981) 29 Cal.3d. 1, 10 fn.8, adopted the definition of “occupy” found in People v. Wilkinson (1967) 248 Cal.App.2d Supp. 906, 910. In Wilkinson, three uninvited over-night campers on private property were exonerated from trespassing charges based on the trespass statutes’ requirement that the offender “occupy” the property. The court said that occupation requires a “non-transient, continuous type of possession.” 248 Cal.App.2d.Supp.910

The instant trial court’s definition of lodging as mere sleeping (in any place within sight of a peace officer or a reporting citizen) criminalizes any sleeping, anywhere, at any time of the day or night.

This is a dreadful commentary on society, and egregiously punitive for any tired person who does not happen to be inside a private residence.

It is even worse for anyone, homeless or housed, who has the temerity to protest the law by deliberately falling asleep outside. This is the very kind of evil the overbreadth doctrine seeks to avoid, where “a vague law may have a chilling effect causing people to steer a wider course than necessary in order to avoid the strictures of the law.” Snatchko v. Westfield, LLC. (2010) 187 Cal.App.4th 469,494. If the instant trial judge’s pinched definition is sustained, soon everyone, protesters as well as merely tired people, could be justifiably frightened at the mere thought that they might inadvertently fall asleep anywhere in public. Such a prospect opens the floodgates for police and judicial abuse of discretion.

Considering the McDowell definition of “lodger” and the Catalano acceptance of the Wilkinson definition of “occupy”, this instant appellate court must be guided by the court’s opinion in Mehr v. Superior Court (1983) 139 Cal.App.3d.1044, 1048, fn 3, where it says: “The doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. (Olson v. Cory ( 1982) 134 Cal.App.3d.85, 104; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d. 450, 455). There is no exception for Supreme Court cases of ancient vintage.”

III. THE TRIAL COURT PROCEEDINGS VIOLATED APPELLANT’S RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES

Both the United States Constitution (First Amendment) and the California Constitution (Article I, Sec.3) provide the right to petition the government for redress of grievances.

Following Appellant’s participation in a group sleep-in protest in 2010 at the same courthouse grounds, he was convicted by jury and sentenced to six months in jail. See Appellant’s Request for Judicial Notice dated December 2012. Although Appellant took his cause to the Appellate division of the Superior Court and then to the Sixth District Court of Appeal, all three courts issued what can metaphorically be categorized as a dismissal of his constitutional plea with nothing more than a flick of the wrist. Thus a petition to the government seeking to invoke and engage the judiciary’s most important power, the power to expound and enforce the supreme law of the land, receives nothing but a contemptuous, wordless rejection.

It has thus proved to be impossible to learn by what reasoning our peace officers are permitted to breach the peace of anyone trying to protect their health and their ability to carry on in life by merely sleeping, bothering no one, inconveniencing no one.

Any non-totalitarian government with even a modicum of concern for promoting the general welfare surely would at least offer an explanation for this ongoing and gratuitous cruelty.

Examination of the origins of the right to petition the government for redress of grievances discloses that that right included both the right to engage with the appropriate government official(s) and to receive a response to the petition. From the very outset of even the United States Congress, all petitions, no matter their source, received deliberation and a response. Reclaiming the Petition Clause, (p.11) (Yale Univ.Press, 2012) by Ronald J. Krotoszynski, Jr., Professor of Law, Univ. of Alabama.

More recently, the California Legislature has issued a resounding declaration over its concern to avoid legal proceedings that

“[C]hill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” CCP sec.425.16(a) (Emphasis added.)

By his protest activities in late 2011 early 2012, Appellant was petitioning the government for redress of his grievances; those grievances are of great pith and moment for him and hundreds of thousands of others. The exercise of a judge’s naked power to silently suppress the individual’s claim to the most basic constitutional protections renders those protections meaningless and disregards the right to petition. Appellant therefore contends that the silent rejection of his petition in the instant trial court and in the earlier prosecution constitute a judicial form of “abuse of the judicial process.”

As Chief Justice Burger said in McDonald v. Smith (1985) 472 US 479,

“The First Amendment guarantees "the right of the people . . . to petition the Government for a redress of grievances." The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 92 U.S. 542 (1876), the Court declared that this right is implicit in "[t]he very idea of government, republican in form." Id., at 552. And James Madison made clear in the congressional debate on the proposed amendment that people "may communicate their will" through direct petitions to the legislature and government officials. 1 Annals of Cong. 738 (1789). The historical roots of the Petition Clause long antedate the Constitution. In 1689, the Bill of Rights exacted of William and Mary stated: "[I]t is the Right of the Subjects to petition the King." 1 Wm. & Mary, Sess. 2, ch. 2. This idea reappeared in the Colonies when the Stamp Act Congress of 1765 included a right to petition the King and Parliament in its Declaration of Rights and Grievances. See 1 B. Schwartz, The Bill of Rights - A Documentary History 198 (1971). And the Declarations of Rights enacted by many [472 U.S. 479, 483]   state conventions contained a right to petition for redress of grievances. See, e. g., Pennsylvania Declaration of Rights (1776).”

IV. THE ENUMERATED RIGHTS OF THE CALIFORNIA CONSTITUTION PROTECT THE APPELLANT’S RIGHT TO SLEEP ON PUBLIC PROPERTY WHEN IT DOES NOT INTERFERE WITH ANYONE ELSE

The enumerated federal Bill of Rights pales in comparison to Article I, sec. 1 of the California Constitution. This latter provision is a broad declaration of rights that expressly includes (1) the right to enjoy life; (2) the right to defend life; (3) the right to pursue liberty; (4) the right to defend liberty; (5) the right to pursue safety; (6) the right to obtain safety; (7) the right to pursue happiness; (8) the right to obtain happiness; (9) the right to pursue privacy; and (10) the right to obtain privacy.

Further, Article I, sec.24 states the obvious: “rights guaranteed by this constitution are not dependent on those guaranteed by the United States Constitution.”

Further, as stated in Article I, sec. 26: “the provisions of this constitution are mandatory and prohibitory unless by express words they are declared to be otherwise.” It follows that “All branches of government are required to comply with constitutional directives. [citations]” Leger v. Stockton Unified School District (1988) 202 Cal.App.3d. 1448, 1454. See also Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300.

No appellate court has ever tested Penal Code sec. 647(e) against these broad and generous protections. In view of the absolutely crucial role that sleeping plays in allowing a person to live, thrive and survive, however, it is beyond debate that every one of these enumerated protections renders invalid the police practice of waking up and punishing innocent sleepers on public property.

The express rights in Article I, Sec. 1 are more than a set of noble sentiments. They require the court to examine the bedrock principles on which our governments are founded; they invoke the spirit expressed by Mr. Justice Harlan in I.C.C. v. Brimson (1894) 143 US 447, 479: “The principles that embody the essence of constitutional liberty and security forbid all invasions on the part of government and its employees of the sanctity of a man’s home and the privacies of his life.”

Sleeping is the activity that not only restores a person physiologically, it also provides the crucial activity of dreaming and all the psychological and spiritual processes that accompany them. It is wholly inappropriate for the state to destroy these eminently private and personal activities. As Mr. Justice Brandeis said in Olmstead v. United States (1928) 277 US 438, 478:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.” (Emphasis added.)

As is clear from this passage, the right to privacy is further supported by the right to be free from unreasonable search and seizure. Is it not tyrannical for the state to crush these express rights, particularly where, as here, there is no countervailing compelling state interest to serve? It would be intolerable for this appellate court to disregard these explicit California protections, sweep them under the rug, without explaining how it is that our noble system of laws can provide the express inalienable right to “pursue and obtain” safety, happiness and privacy as it blithely approves the rousting of the untouchables among us. The citizens of this state deserve a forthright explanation. This court must not ignore its responsibility to provide it.

V. APPELLANT’S RIGHT TO SLEEP IS PROTECTED BY THE NINTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ITS ANALOG IN THE CALIFORNIA CONSTITUTION

The drafters of the Bill of Rights had the wisdom to foresee that their express listing of certain rights might cause judges to conclude that if it is not in the Bill of Rights then it does not exist. See generally, Retained by the People: The Silent Ninth Amendment and the Constitutional Rights Americans Don’t Know They Have (Basic Books, 2007) by Daniel A. Farber, Professor of Law University of California, Berkeley. A copy of this book will be lodged with the clerk.

Doubtless the drafters felt it would be foolish and undignified to list the right to breathe in the Bill of Rights, or the right to blow one’s nose, or the right to defecate, or the right to sleep. Therefore they inserted the following words: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Ninth Amendment, United States Constitution.

In the course of debate, Congressman Theodore Sedgwick said “If the committee were governed by that general principle [that all rights had to be enumerated], they might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper.” Annals of Congress, First Congress, 759-760.

Courts are not free to ignore this authoritative and transparent legislative history supporting the proposition that the government has no power to interfere with a person’s need and right to sleep, so long as the sleeper is not interfering with the rights of others. This is particularly so for courts in California, where (1) we have our own version of the Ninth Amendment at Article I, Sec. 24 of the California Constitution, and (2) we have the explicit judicial recognition of the fact that “sleep is a physiological need, not an option for humans. It is common knowledge that loss of sleep produces a host of physical and mental problems…” In Re Eichorn (1998) 69 Cal.App.4th 382,389

Nor are the courts free to disregard the principle of unenumerated rights merely because appellate court judges have generally failed to apply it. What counts are the words of the Constitution, not the silence of appellate judges. Interpreting and applying the text of the Constitution is “the very essence of judicial power.” Marbury v. Madison (1803) 5 US (i Cranch) 137, 176

This appellate court is obligated to explicitly decide, yes, the unenumerated rights doctrine protects sleep, or no, it does not, and to state its rationale in writing for all to see and evaluate.

The prosecutor has argued in this case that the Appellant was seeking the right to sleep wherever he wants. Appellant contends that, since the Ninth Amendment and its California analog, protect his right to sleep outside, the state must either designate a reasonable location on public property for such purpose or accept the sleeper’s choice of public property, so long as it does not interfere with anyone else’s rights. Professor Jeremy Waldron said it well: “No one is free to perform an action unless there is somewhere he is free to perform it. Since we are embodied beings, we always have a location.” 39 U.C.L.A. L.Rev. 295, 296 (1991).

A homeless person’s choice to designate a public park as his residence for voter registration purposes was upheld in Walters v. Weed (1998) 45 Cal.3d. 1. As the court there said, “Everybody belongs somewhere.” Id., at p.7. The opinion cites Govt. Code Sec.243, which states that “Every person has, in law, a residence.” And Sec. 244 (the place of residence for a person who lacks a physical abode “is the place where one remains when not called elsewhere for labor or other special or temporary purpose, and to which he or she returns in seasons of repose.”)

Rights protected by the Ninth Amendment and its California analog cannot be made to depend upon the popular will, and for good reason: Professor Waldron captures the prevailing public attitude well:

“Now one question we face as a society – a broad question of justice and social policy – is whether we are willing to tolerate an economic system in which large numbers of people are homeless. Since the answer is evidently, “Yes”, the question that remains is whether we are willing to allow those who are in this predicament to act as free agents, looking after their own needs in public places – the only space available to them. It is a deeply frightening fact about the modern United States that those who HAVE homes and jobs are willing to answer “Yes” to the first question and “No” to the second.” Waldron, supra, p.304. (Emphasis in original.)

The evidence indicates that there is only one shelter space in Santa Cruz County for every ten to twenty homeless residents. (RT 783-786)

As Justice Goldberg said in affirming the right to use contraceptive devices:

“In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the ‘traditions and conscience of our people’ to determine whether a principle is ‘so rooted there…as to be ranked as fundamental.’ The inquiry is whether a right involved ‘is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’…” Griswold v. Connecticut (1965) 381 US 479, 493, 496.

This is a rare and ringing judicial endorsement of the Ninth Amendment’s sweeping reservation of rights in the people. Further, as stated in Richmond Newspapers, Inc. v. Virginia (1980) 448 US 555, 65 L.Ed.2d.973, 991: “Yet these important but unarticulated rights have nonetheless been found to share constitutional protection in common with explicit guarantees. The concerns expressed by Madison and others have thus been resolved; fundamental rights, even though not expressly guaranteed, have been recognized by the Court as indispensable to the enjoyment of rights explicitly defined.” (Emphasis added.)

The Ninth Amendment and its California analog clearly defeat the notion that the government has the power to forbid a person from sleeping merely because he lacks a pre-existing property right in his sleeping-site. The authors of the Bill of Rights would be outraged by the degradation of the law that this foolishly-applied lodging statute has wrought. To hold that an innate human, physiological and psychological need can be smothered in order to honor this notion of property rights shocks the conscience.

VI. THE PROHIBITION AGAINST SLEEPING VIOLATES INTERNATIONAL STANDARDS OF HUMAN DECENCY

The United States Supreme Court insists that the opinions of humankind generally must be respected in our courts, especially as those views are expressed in international treaties or covenants, whether those treaties and covenants are ratified by the United States Senate or not. Graham v. Florida (2010) 560 US ___, 176 L.Ed.2d. 825; Roper v. Simmons (2005) 543 US 551, 575. Thus, where a covenant has been ratified, as with the International Covenant On Civil And Political Rights, (Ratified April 2, 1992) it becomes part of the “supreme law of the land” and has the force and effect of law in our country. US Constitution, Art. VI, Sec.2. The covenant protects the right to life (Art. 6.4), the right to be free from degrading, inhuman and cruel treatment by government (Art. 7), the freedom to choose one’s residence (Art. 12), the right to privacy (Art. 17), the right of peaceful assembly (Art. 21), and freedom from discrimination based on one’s status (Art. 26). These protections carry the force of law and must be enforced by all courts in the United States.

Further, on February 25, 2012 the Supreme Court of India determined that the constitutional right to life protects the right to sleep. http://articles.timesofindia.indiatimes.com/2012-02-25/news/31100031_1_sleep-disruption-privacy Thus, a decent respect for the opinions of mankind, as demanded in the Declaration of Independence, requires that the prohibition against sleeping be struck down. Every county has a statutory duty to protect, not degrade, the health of the indigent. Welf. & Inst. Code sec. 17000

VII. SLEEPING IS NOT A CRIME BECAUSE THE SLEEPER IS UNCONSCIOUS

As provided in Penal Code sec. 26, “All persons are capable of committing crimes except those belonging to the following classes:…Sec. 4 – persons who committed the act charged without being conscious thereof.”.

It is impossible for Appellant or anyone else to be sleeping and simultaneously to be conscious. Therefore, under the trial judge’s definition of “lodging” as “sleeping” the defendant is exonerated from criminal liability.

Regardless of whether he sleeps in the bushes, in the river levee, or in front of the courthouse, the lack of consciousness excuses him from criminal liability.

VIII. THE TWO YEAR SENTENCE CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT

The inference seems inescapable that the trial court felt mortally threatened by what it must have perceived as inexcusable temerity on the part of Appellant in daring to bring his protest against the glaring injustice of a complete government ban on sleeping to the very doorstep of the justice system.

Regardless of the thoughts and emotions of the trial judge, however, the two year sentence constitutes cruel and unusual punishment, and must be stricken.

CONCLUSION

The sleeping ban, created largely by the trial judge, is not a victimless crime. The one and only victim is the “criminal” himself.

For all of the reasons stated above, the lodging statute is invalid, both on its face and as applied, and the judgment below should be reversed accordingly.

December 10, 2012

Respectfully submitted,


Ed Frey, Attorney for Appellant

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