by CATHY KELLY
Santa Cruz Sentinel 03/20/2012
SANTA CRUZ – Trial testimony began Tuesday for a 47-year-old man accused of four counts of illegal lodging for sleeping on a bench outside the courthouse at the County Governmental Center, beside a sign proclaiming that sleeping is not a crime.
County officials and sheriff’s deputies disagree with that statement, however, and Gary Allen Johnson was arrested four times in December and January after refusing deputies’ orders to pick up his sleeping bag and move along.
Johnson was arrested twice during one deputy’s shift, first about 10 p.m., and then after being released from jail about four hours later, deputy Daniel Robbins testified.
Defense attorney Ed Frey asked whether Johnson was obstructing or damaging something. Robbins said he was not.
Johnson was convicted of the same charge last year, a misdemeanor violation of a state law against lodging outside, after the Peace Camp 2010 demonstrations.
He was out of custody pending an appeal when he began sleeping on the bench in December.
After repeated arrests, a judge set his bail at $5,000 and Johnson is being held in County Jail, Frey said.
Frey, 71, said he took Johnson’s case pro bono, because he believes the law is unjust and unconstitutional.
“There is nowhere you can sleep legally if you don’t have a property right, so poverty is a crime,” he said. “People have a right to sleep. Many, many constitutional provisions give that right.”
Frey also said that “lodging” is too vague a description of the illegal behavior.
Prosecutors Shannon Murphy and Judith Jane Stark-Modlin called the county’s principal administrative analyst as a witness.
Dinah Phillips testified that the county in November instituted a curfew prohibiting anyone not on county business from being at the County Governmental Center from 7 p.m. to 7 a.m. That action was taken after numerous safety and sanitation problems during the Occupy Santa Cruz demonstrations, she said. Those demonstrators erected a large campsite on city property adjacent to the county buildings and a smaller camping area on the courthouse steps along Water Street.
Several no trespassing signs were posted with the curfew hours, Phillips said.
Frey asked if the county had consulted anyone about the constitutional rights that might be violated by such a curfew, and she said they had, that county counsel had advised them it was within their rights.
Murphy asked sheriff’s Sgt. Dan Freitas, who had warned Johnson, whether Johnson had said he had any purpose for being there other than protesting, or whether he said he did not have anywhere else to go. He did not, Freitas said.
Johnson, a tall, thin man with dark gray hair and a beard, said quietly beside his attorney Tuesday.
Testimony in the jury trial is expected to continue through Thursday, in front of Judge John Gallagher.
Frey said his client could face as much as six months jail time for each of the four violations, if found guilty.