I.

INTRODUCTION

By this motion to dismiss, Defendants contend that the statute under which they

stand charged with a misdemeanor, Penal Code section 647(e), is invalid on its face under

the United States Constitution and the California Constitution. The statute criminalizes:

“Every person…who lodges in any building,

structure, vehicle or place, whether public or
private, without the permission of the owner or
person entitled to the possession or in control of it.”

As will be shown below, the term “lodge” is problematic and seems to be used as

a mere euphemism for “sleep”. The undeniable impact of this language, whose broad

sweep includes every “place, whether public or private,” is that, if a person has not

previously obtained permission from someone in a position of authority, there is not a

single square inch in the entire state of California where he or she can go to sleep without

committing a misdemeanor.

The invalidity arises out of any one or more of the following separate and

independent constitutional grounds:

A. Unenumerated right to sleep (Ninth Amendment to U.S. Constitution and

Article I, Section 24 of the California Constitution);

B. Due process of law (Fifth and Fourteenth Amendments to U.S. Constitution Article I,

Section 7 of the California Constitution) (vagueness);

C. Rights provided in Article I Section I of the California Constitution (enjoying and

defending life and liberty, pursuing and obtaining safety, happiness and privacy);

D. Freedom of expression;

E. International law protecting the rights of the individual.

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 The California Supreme Court has rejected a prior constitutional challenge on

behalf of homeless individuals against a municipal ordinance banning “camping” on

designated public areas. Tobe v. City of Santa Ana (1995) 9Cal.4th 1069. That challenge

was limited, however, to constitutional claims of (a) the right to travel, (b)

vagueness/overbreadth created by the term “camping” despite the ordinance’s explicit

definition, and (c) punishment for the status of homelessness. Id.,at 1080.

Tobe does not control any of the instant challenge’s points of law.

II. DISCUSSION

A. The Right of a Person to Sleep Outdoors in a Public Place Where It Does Not
Inconvenience Anyone Else is Protected by the Ninth Amendment

The Ninth Amendment to the Constitution, which is the second to last of the Bill

of Rights, states that:

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage
others retained by the people.

The California State Constitution, Article I, section 24, provides similarly: “This

declaration of rights may not be construed to impair or deny others retained by the

people.”

In a major study of the Ninth Amendment called RETAINED BY THE PEOPLE:

The Silent Ninth Amendment and the Constitutional Rights Americans Don’t Know They

Have (Basic Books, 2007), Professor Daniel A. Farber of the Boalt Hall School of Law

explains its purpose:

“The Ninth Amendment is key to understanding

how the founding fathers thought about the liberties

they expected Americans to enjoy under the

Constitution. They did not believe that they were

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 creating these liberties in the Bill of Rights.
Instead, they were merely acknowledging some of
the rights that no government could properly deny.
The history of the Constitution reveals the purpose
of the Ninth and the Founders’ intent: to protect
what constitutional lawyers call unenumerated
rights – those rights the founders assumed and felt
no need to specify in the Bill of Rights.
Unenumerated rights include, for example, the right
to privacy. In the America of today, unenumerated
rights account for freedoms like a woman’s right to
abortion.” Pp. IX-X (emphasis in original).

Thus the Supreme Court in Roe v. Wade 410 U.S. 113, 122, 35 L.Ed.2d 159

(1973) expressly approved the District Court’s view that the statute prohibiting all

abortions were “void on their face because they were both unconstitutionally vague and

constituted an overbroad infringement of the Plaintiff’s Ninth Amendment rights.”

(emphasis added).

Three years earlier, Justice Peters spoke for the California Supreme Court as it

struck down the California statute forbidding abortion, stating “that such a right is not

enumerated in either the United States or California Constitutions is no impediment to the

existence of the right.” Peo.v. Belous (1969) 71Cal.2d.954,963.

The framers of the Bill of Rights understood that inserting an express list of rights

into the Constitution would invite future commentators and judges to limit constitutional

rights to those listed under the “exclusio argument (naming some things excludes all

others)…” Farber, p.33.

During the debates on the Bill of Rights, Congressman Theodore Sedgwick

pointed to the absurdity of attempting to enumerate all rights; he argued that such a list

would have to include the right of a man to “go to bed when he thought proper.” Farber,

p.36.

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 Despite the tragic toleration of the Southerners’ insistence upon the right to own

slaves, the founders were imbued with a strong sense of the historic concepts of natural

law – the doctrine whose essence holds that the very purpose of government was to

secure the “unalienable rights” all people were endowed with, particularly those rights

which support life, liberty and the pursuit of happiness. Farber, pp.21-28. Under any

common-sense construction of natural law, protecting the right to life necessarily

includes protecting the right to breathe, to eat, to drink, to blink, to defecate, to wear

clothing and to sleep. As stated in In Re Eichorn (1998) 69Cal.App.4th 382,389:.

“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…”

Thus, it is beyond debate that we are dealing with what the modern courts call a

“fundamental” right, and when the exercise of such a right has been made into a crime,

“the critical issue is not whether such rights exist, but whether the state has a compelling

interest in the regulation of a subject which is within the police power of the state.”

Belous, supra, 71 Cal.2d at 964.

Just as with First Amendment rights of freedom of expression, reasonable

regulation of time, place and manner of the act of sleeping would not violate any

constitutional guarantees. No one could reasonably argue, for example, that a prohibition

of sleeping on the freeway or in a store doorway should be struck down. But under the

Ninth Amendment and its California analogue, the lack of express enumeration cannot be

used, as Penal Code section 647(e) permits, to deprive people of that right everywhere

and at all times.

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 As stated in a passionate but closely reasoned argument concerning the ethics of

prohibiting homeless people from sleeping, “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.” Homelessness and the Issue of Freedom. 39 UCLA 295, 296 (1991) by

Jeremy Waldron, Professor of Law, Boalt Hall School of Law (“Waldron”).

The place to sleep chosen by the instant Defendants, as indicated in each of the

accusatory pleadings filed herein, was the County Courthouse grounds. This location

was eminently appropriate: Every city and county in California is mandated by statute to

plan and provide places for emergency homeless shelters. Statutes 2008, Ch. 633 (S.B. 2,

amending Govt. Code sections 65582 ff.); see also, Statutes 1983, Ch. 1089, amending

Health & Safety Code sec.50800(a).

Thus, although a judicial declaration recognizing the fundamental but

unenumerated right to sleep does not require any prior public recognition of that right, the

fact that the California legislature has for decades declared the urgency of the need for

government action to provide the traditional accommodations for sleeping is clear

reinforcement for such a declaration.

The natural law recognized by the drafters of the Ninth Amendment honored the

right to perform all actions necessary to sustain human life. Farber, pp.21 ff. Living

requires sleeping. Who can deny that? On what grounds, then, can a court rightfully

deny a person the right to sleep unless he or she has someone else’s permission?

There is no appellate decision, state or federal, holding for or against the

proposition that the Ninth Amendment (or its state analogue) protects the right to sleep on

public property. This court is thus free to exercise common sense and declare that such a

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 right is one of those unenumerated rights that is protected under the California

Constitution, at least where such activity does not interfere with anyone else.

B. The Statute is Void for Vagueness Under the Due Process Clause

The lodging statute criminalizes the act of any one who “lodges” without

permission in any “place”, “public or private” anywhere in the state of California. This

all-inclusive prohibition is vague, particularly so because the verb “lodge” is not defined.

No reading of the statute provides the reader with any guidepost by which to avoid

criminal behavior.

Furthermore, as a result of the vagueness, the police are free to engage in arbitrary

and discriminatory enforcement activities. The statute is therefore void for vagueness.

Papachristou vs. City of Jacksonville (1972) 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110;

People vs. Heitzman (1994) 9 Cal. 4th 189, 199. See generally, 1 WITKIN & EPSTEIN:

CALIFORNIA CRIMINAL LAW: Introduction to Crimes, Sections 40 ff.

The lodging statute is part of the pattern of broad historical prohibitions against

“vagrancy”, “loitering” and poor people generally. The purpose of these “Poor Laws” has

always been to keep social control over the lives and movements of the poor and laboring

classes. Papachristou, supra, 405 U.S. 161-162.

The need to avoid arbitrary police action is particularly acute where their target is

a demonized class, such as here: poor people who have no abode.

The Void-for-Vagueness doctrine seeks to avoid two evils, both of which are

present here: First, the challenged statute must give fair notice of the act to be avoided –

it obviously violates due process to impose criminal liability if the defendant cannot

understand, by a fair reading of the statute, what is and what is not prohibited. Secondly,

6
the statute must provide reasonably adequate standards to guide law enforcement in order

to avoid abusive and arbitrary practices. Kolender v. Lawson (1983) 461 U.S. 352, 357,

75 L.Ed.2d 903, 909. In Kolender, U.S. Supreme Court struck down former California

Penal Code section 647(e) (loitering). The present statute fails both tests.

How can a person know if he is “lodging”? As noted above, the term implies a

pre-existing contract or arrangement with a landlord or innkeeper. As the court states in

Roberts vs. Casey (1939) 36 Cal. App.2d Supp.767, 774, if one is a lodger, then he has “a

personal contract.”

Under Code of Civil Procedure section 1159, a “lodger” is a person who “hires

real property.” Under Civil Code section 1940(a), a “lodger” is someone who “hires” a

“dwelling unit”, and under section 1940(c), a “dwelling unit” is a “structure or the part of

the structure that is used as a home, residence or sleeping place by one person who

maintains a household or by two or more persons who maintain a common household.”

A lodger is a “mere licensee”. Edwards v. City of Los Angeles (1941)

48 Cal.App.2d 62, 67. In Stowe v. Fritzie Hotels, Inc. (19) 44 Cal.2d. 416, 421, the court

distinguished between a “tenant” and a “lodger”, stating that a tenant has exclusive legal

possession of real property and is responsible for its care, but a lodger has merely the

right to use the property.

Under Civil Code sections 1946 and 1946.5, a lodger is a person “hiring…a

room…on a periodic basis within a dwelling unit occupied by the owner…” and can only

be summarily removed following a minimum of seven days’ written notice. Thus, the

term “lodging” seems to imply at least the existence of a physical lodge, and that the

prohibited activity takes place indoors.

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 The notice requirement set out above is merely one of a whole panoply of

statutory due process protections afforded to occupants (including “lodgers”) of real

property in California, which provide minimal assurance that they will not be charged

with a misdemeanor and summarily ousted by the police as Defendants were here, before

they have had their day in court. It is unlikely the Legislature intended to overthrow such

protections for large numbers of real property occupants by employing the kind of meat-

ax approach set out in Penal Code section 647(e).

Thus, it seems clear that Penal Code section 647(e) is aimed primarily at people

sleeping outdoors who do not have “permission” or any other colorable claim to the

traditional status of tenant or lodger. In the instant case, neither the statute nor the

accusatory pleading makes any reference to a contract, a hiring, a license, any

permission, any structure, any dwelling unit, any seven-day notice, any indoor habitation,

or any other indices of lodging as defined under express California law.

It follows that a person reading all the available law on the subject of lodging in

California would not be reasonably informed by the text of Penal Code section 647(e)

that she was prohibited from sleeping on the courthouse grounds.

Other questions arise: What did defendants do to earn the label “lodger”? Was it

their act of sleeping? Did their sleeping somehow create a contract with the authorities

who control the courthouse grounds? And why aren’t the defendants, as members of the

public, part “owners” of the courthouse grounds? Who else has a stronger claim to

ownership of the public commons? Does the statute also make it unlawful to sit on the

courthouse grounds? Lie down? Stand still on the steps? Under what conditions and at

what times? Further, how will the peace officer know when someone is “lodging”? And

8
won’t that vagueness allow him too much leeway as to whom he will target and for what

reasons?

Therefore, the statute is void for vagueness under the doctrine of Due Process of

Law. It is too vague for the defendant to know what is illegal, and too vague to keep the

peace officer from acting out of arbitrary standards of enforcement.

As the United States Supreme Court makes clear, “the more important aspect of

the vagueness doctrine ‘is not actual notice, but the other principal element of the

doctrine – the requirement that a legislature establish minimal guidelines to govern law

enforcement.’ Smith v. Goguen 415 U.S. 566, 574, 39 L.Ed.2d.605. Where the

legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a

standardless sweep that allows policemen, prosecutors and juries to pursue their personal

predilections.’” Kolender supra, 461 U.S. at 358, 75L.Ed.2d.909.

C. The Enumerated Rights of the California Constitution Protect the

Defendants’ Right to Sleep on Public Property Where It Does Not
Interfere With Anyone Else.

The enumerated federal Bill of Rights pales in comparison with Article I, section

1 of the California Constitution. This broad declaration of rights 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, section 24 states the obvious: “Rights guaranteed by this

constitution are not dependent on those guaranteed by the United States Constitution.”

9
No court has ever tested Penal Code section 647(e) against these broad and generous

protections.

In view of the absolutely crucial role that sleeping plays in allowing one to live

and survive, it seems beyond debate that everyone of the above ten protections renders

invalid the police power to wake up and punish innocent sleepers on public property

(“innocent” in the sense that the sleeper’s presence does not interfere with anyone else).

The express rights of Article I, section 1 are more than a set of noble sentiments –

they bind the people and they bind the court. They require the court to examine the

bedrock principles on which our governments are founded, and invoke the spirit

expressed by Mr. Justice Harlan in I.C.C. v. Brimson 143 U.S. 447, 479, 38 L.Ed.1047,

1058 (1894):

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 our sleeping and dreaming. It seems wholly inappropriate for the state to

destroy these eminently private and personal phenomena. As Mr. Justice Brandeis said in

his dissenting opinion in Olmstead v. United States 277 U.S. 438, 478, 72 L.Ed.2d.944,

956 (1928):

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

10
 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.

In the absence of precedent cases for guidance, this court faces the duty of filling

a blank slate, interpreting and giving effect to the words of the California Declaration of

Rights. As is clear from the Brandeis quote, the California right to privacy is supported

by the right to be free from unreasonable search and seizure. Is it not tyrannical for the

state to crush these express rights where, as here, there is no countervailing compelling

state interest to serve?

D. The Statute Violates Defendants’ Rights to Free Expression and

Assembly

Defendants request that the court take judicial notice of the fact that one of

defendants’ central purposes in sleeping at the courthouse was to protest the sleeping

bans. As stated in Clark v. Community for Creative Non-Violence (1984) 468 U. S.

288,293, 82 L.Ed.2d.221, 226-227, “Overnight sleeping in connection with the

demonstration is expressive conduct protected to some extent by the First Amendment.”

As the Supreme Court noted, the regulation under attack there was designed to

protect a specific location, Lafayette Park, which is directly across the street from the

White House in the “Heart of the Capitol” where millions of people visit each year.

468 U.S.at 296, 82 L.Ed.2d.at 228.

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 Here, however, the applicable law forbids this kind of expressive conduct

throughout the state of California. Such a broad ban clearly violates the freedoms of

speech and assembly. The court in Clark quotes from United States v. O’Brien

391 U.S. 367, 20 L.Ed.2d.672 (1968):

Symbolic expression…may be forbidden or

regulated if the conduct itself may constitutionally
be regulated, if the regulation is narrowly drawn to
further a substantial governmental interest, and if
the interest is unrelated to the suppression of free
speech. Clark, 468 U.S.at 294, 82 L.Ed.2d.at 227.

As further stated in O’Brien :

“A government regulation is sufficiently justified if

it is within the constitutional power of the
Government; if it furthers an important or
substantial governmental interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that
interest.”

These standards make it clear that Penal Code section 647(e) violates the

Defendants’ First Amendment rights. Not only may they not sleep outdoors

anywhere in the state of California, they are barred from demonstrating their

opposition to the ban on sleeping in one of the most dramatic ways possible, i.e.

sleeping outdoors in a group.

E. The Court Must Be Guided by Standards of International Law and

Justice

The law of the land in the United States includes all international treaties signed

by the President and ratified by the Senate. As stated in Art. VI of the United States

Constitution:

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 This Constitution, and the laws of the United
States which shall be made in pursuance
thereof; and all treaties made, or which shall
be made, under the authority of the United
States, shall be the supreme law of the land;
and judges in every state shall be bound
thereby, anything in the constitution or laws
of any state to the contrary notwithstanding.
(emphasis added)

The United States Supreme Court has repeatedly emphasized the importance of

American judges examining and applying evolving standards of International Law,

particularly as those standards are expressed in widely accepted treaties and declarations

concerning governmental treatment of individuals.

Thus, when a Florida minor challenged his state court-imposed life-without-

parole sentence for a non-homicidal crime, the Supreme Court noted the fact that the

United States is the only nation in the world that hands down such oppressive

punishment. Graham v. Florida (2010) 560 U.S.____, 176 L.Ed.2d. 825. The court said

that the United Nations Convention on the Rights of the Child, November 20, 1989, 1577

U.N.T.S. 3 (entered into force September 2, 1990), which the United States has not

ratified, condemns the practice, and that such international sentiment lent strong support

to the court’s decision striking down the sentence.

Similarly, in Roper v. Simmons (2005) 543 U.S. 551, 575, the court struck down

the use of the death penalty against minors, regardless of the offense saying that the

decision is supported by the fact that the United States is the only country in the world

with such a penalty.

Thus the Convention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (General Assembly Resolution 39/46 of December 10, 1984,

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entry into force June 26, 1987, in accordance with Art. 27(l), United Nations General

Assembly 39/46, Annex, Senate advice and consent: 136 Cong. Rec. S17491-2

(October 2, 1990).

One method of torture commonly used by tyrants the world over, including many

tyrants running American detention centers in several parts of the world, is sleep

deprivation. The defendants do not contend that the local Santa Cruz form of torturing

people who have no physical abode is as vicious as that employed the world over in what

used to be called the War on Terror – here the practice could more accurately be called

slow-drip tyranny (just keep harassing the poor until you wear them down so much they

leave for other parts). It is a toxic combination of physical and psychological punishment

designed to tidy up our public places by making the rabble invisible, thus permitting

commerce to flourish. But it still comes within the prohibition imposed by the treaty.

The term torture is defined in the treaty as:

Any act by which severe pain or suffering,

whether physical or mental, is intentionally
inflicted on a person for such purposes as
obtaining from him or a third person
information or a confession, punishing him
for an act he or a third person has
committed…or intimidating or coercing
him…or for any reason based on
discrimination of any kind, when such pain
or suffering is inflicted by or at the
instigation of or with the consent or
acquiescence of a public official or other
person acting in an official capacity” Id.,
Part I Art.1.

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 As stated in Article 2, “Each State Party shall take effective legislative,

administrative, judicial, or other measures to prevent acts of torture in any territory under

its jurisdiction.”

Further, as the treaty’s name indicates, it prohibits other official abuses. Art.16,

Part 1 provides, in part:

“Each State Party shall undertake to prevent

in any territory under its jurisdiction other
acts of cruel, inhuman or degrading
treatment or punishment which do not
amount to torture as defined in Art. I, when
such acts are committed by or at the
instigation of or with the consent or
acquiescence of a public official.”

It seems beyond doubt that the sheriffs’ hounding of the defendants constitutes

degrading treatment at the hands of public officials. On December 10, 1948, all members

of the United Nations adopted the Universal Declaration of Human Rights. Even a

cursory reading of that document makes it clear that the United Nations condemns the

kind of oppressive treatment made possible under Penal Code section 647(e).

III. CONCLUSION

In view of the substantial constitutional protections set out above, the burden

shifts to the people to explain what possible “compelling state interest” is served by Penal

Code section 647(e).

It appears the local constabulary are under significant pressure to tidy up the

streets, particularly in commercial retail districts, by harassing the homeless and driving

them out of town, or at least out of sight. In a recent Santa Cruz municipal ordinance

“camping” ban prosecution, Peo. v. Robert Facer, Santa Cruz County Superior Court

Case Number SCT051993, SCT052537 and AP001565, Officer Sergio Venegas testified,

15
in response to the City Attorney’s question as to why he was out enforcing the camping

ban on the night in question, said, “Due to complaints from the business owners…”

Such obeisance to the commercial forces seems misplaced, particularly when

weighed against the crucial rights which support the Defendants’ ability to protect their

health and their very lives. The statute in question is part of a larger “disorderly conduct”

statute. It is not unfair to contend that, in the present context, the police enforcement

activity in waking up innocent sleepers and threatening them with jail is the actual

disorderly conduct.

As stated by Professor Waldron:

“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, 39 UCLA Law Review,
p.304. (emphasis in original).

For all the reasons set out above, Defendants respectfully request that this court

declare Penal Code section 647(e) invalid on its face.

Dated: December 20, 2010

Respectfully submitted,

______________________________________

Ed Frey, Attorney for Defendants

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