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:
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
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
B. Due process of law (Fifth and Fourteenth Amendments to U.S. Constitution Article I,
defending life and liberty, pursuing and obtaining safety, happiness and privacy);
D. Freedom of expression;
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The California Supreme Court has rejected a prior constitutional challenge 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)
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
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.”
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
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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
(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
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
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
includes protecting the right to breathe, to eat, to drink, to blink, to defecate, to wear
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.”
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
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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
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
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
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?
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:
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
The need to avoid arbitrary police action is particularly acute where their target is
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,
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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
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
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
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
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The notice requirement set out above is merely one of a whole panoply of
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-
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
permission, any structure, any dwelling unit, any seven-day notice, any indoor habitation,
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)
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
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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
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
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,
constitution are not dependent on those guaranteed by the United States Constitution.”
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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):
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):
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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
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
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.
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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
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.
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
particularly as those standards are expressed in widely accepted treaties and declarations
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
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
Thus the Convention Against Torture and Other Cruel, Inhuman or Degrading
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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.
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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,
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
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,
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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…”
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.
For all the reasons set out above, Defendants respectfully request that this court
Respectfully submitted,
______________________________________
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