Bob’s Introduction to Belle’s post
[ NOTE: Recently, in a police verses political activist encounter, a tent was entered without a search warrant. This case may well have to be decided by the US Supreme Court.
As a public service we will reproduce a collection of relevant cases and germaine information collected by Counsel by Consensus for OccupySF. This draft was never filed as the Occupy San Francisco camp and homeless were scattered. If the new Berkeley case is heard by the US Supreme Court, reporters for the New York Times and Washington Post will appreciate this public service.]
1876 Market St 104E
San Francisco, CA 94102
(408) 843 0755 cell
Attorney pro bono publico for
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA
OccupySF, by and through and individually, ) CASE NO._____________________
v ) EMERGENCY
UNITED STATES DEPARTMENT OF ) DECLARATORY JUDGEMENT 28USC2201 et seq
HOMELAND SECURITY; CITY AND COUNTY ) and Mandamus 28USC 1361
OF SAN FRANCISCO; MAYOR ED LEE, )
personally and in his executive capacity; ) Verification, Exhibits and Declarations
CHIEF OF POLICE GREGORY SUHR, )
personally and in his official capacity, )
STATE OF CALIFORNIA, GOV. JERRY
DOES 1-100 )
EMERGENCY COMPLAINT FOR DECLARATORY RELIEF AND INJUNCTION REGARDING CONSTITUTIONALITY OF MUNICIPAL ORDINANCE AND STATE PENAL CODE AS APPLIED. 28 USC PART VI CHAPTER 151-DECLARATORY JUDGEMENTS (SEC. 2201et seq.) (FRCP RULE 2, 3 ) WITH AFFIRMATIVE RELIEF UNDER FRCP RULE 65 AND UNDER 28USC 1361 FOR AN ORDER TO COMPEL THE UNITED STATES AND ALL SUBORDINATE GOVERNMENT ENTITIES TO PERFORM THEIR DUTY TO FOLLOW THE CONSTITUTION OF THE UNITED STATES AND PROHIBIT THE FURTHER ENFORCEMENT OF THE ORDINANCE AND STATE CODE HEREIN QUESTIONED FOR IT’S ABUSE OF DISCRETION AND THE CHILLING OF FREE SPEECH BY OCCUPYSF CONSTITUTIONAL DEMONSTRATORS.
Complainant-Petitioners allege that the “”SIT/LIE” San Francisco Police Code 168 ordinance was contemplated from the beginning to be and has been “SELECTIVELY ENFORCED” and has been used to CHILL THE FIRST AMENDMENT RIGHTS OF PETITIONER-COMPLAINANT’S AND THE ENTIRE OCCUPYSF NON-VIOLENT PROTESTS. Seattle (Washington), Berkeley, Portland, Santa Cruz, and Palo Alto have ordinances in place that are similar to the Sit-Lie Ordinance.
FURTHER, THE ARBITRARY AND CAPRICIOUS ENFORCEMENT OF SAN FRANCISCO POLICE CODE 168 COUPLED WITH CALIFORNIA PENAL CODE 347(e) IS UNCONSTITUTIONAL AS CRUEL AND UNUSUAL AND APPLIED TO DENY SLEEP AND REST OR ANY RESPITE FROM THE ELEMENTS IN A GOVERNMENT COORDINATED SUPPRESSION OF FREE SPEECH AND A CHILLING OF SEVERAL CONSTITUTIONAL GUARANTEES.
All Petitioner-Complainants are United States citizens except
OCCUPYSF which is an “unincorporated association/assembly” FRCP 17(b)(A); (d), 23.2.
DEREK WHALER, Occupier and Complainant Petitioner
One or more Defendant-Respondents are government entities:
Defendant-Respondents United States Department of Homeland Security,The State of California and The City and County of San Francisco are governmental entities.
Defendant-Respondent Ed Lee is Mayor of San Francisco.
Defendant-Respondent Gregory Suhr is Chief of Police of San Francisco
Does will be named as they become known under 28USC1367 SUPPLEMENTAL JURISDICTION and Complainant-Petitioners hereby reserve the right to a jury trial should supplemental jurisdiction take this matter beyond equity and preserves the claims for 42 USC 1983 individual damages.
28 U.S.C. § 1331
This is a matter which questions the Constitutionality of a governmental act, an ordinance, and the coordination of it’s use by the UNITED STATES THROUGH THE DEPARTMENT OF HOMELAND SECURITY AND IT’S COORDINATION OF SUPPRESSION OF THE OCCUPY PROTEST SITES, IN PARTICULAR THE OCCUPYSF SITES, BY DIRECTION OF THE MAYORS, IN PARTICULAR MAYOR LEE OF SAN FRANCISCO, CALIFORNIA AND WHICH HAS ALSO INCLUDED SUPERVISION AND/OR COORDINATION BY THE STATE OF CALIFORNIA WHICH HAS HAD ACTUAL AND PUBLIC NOTICE OF THESE FACTS AS WELL AS ANY CONFIDENTIAL NOTICE BY VIRTUE OF ITS DUTY WITH REGARD TO DEMONSTRATIONS THROUGHOUT CALIFORNIA BY MANY OCCUPY GROUPS IN CITIES EVERYWHERE .
Due to the overwhelming national and state media coverage which has uncovered so many facts and stories as well as video footage, They are offered as evidence under the Federal Rules of Evidence – particularly Article II “Judicial Notice” and Article VIII “Hearsay” exceptions. The compainant-plaintiffs request a waiver of fees for their indigency and the transmittal of all pertinent public records covered in Article X Rules 1004(b)(c) and 1005.
III STATEMENT OF THE FACTS
OccupySF (Occupy San Francisco) is an association and free speech assembly. Usual meaning of term “association” is unincorporated organization composed of body of persons partaking in general form and mode of procedure or characteristics of corporation. Estate of Irwin (1925) 196 Cal. 366, 372, 237 P. 1074. The General Assembly process of Occupy SF fulfill this function. Association, though neither incorporated nor engaged in business for material profit, has right to obtain injunction where another organization uses its name. Law v. Crist (1940) 41 Cal. App. 2d 862, 865-866, 107 P.2d 953 (theosophists lodge); see also Ball v. American Trial Lawyers Assn. (1971) 14 Cal. App. 3d 289, 300-305, 92 Cal. Rptr. 228 (use of name similar to American College of Trial Lawyers) See generally : Unincorporated association’s cause of action for defamation. Washburn v. Wright (1968) 261 Cal. App. 2d 789, 793-795, 68 Cal. Rptr. 224 (trust); see also Daniels v. Sanitarium Asso. (1963) 59 Cal. 2d 602, 609, 30 Cal. Rptr. 828, 381 P.2d 652 (labor union); Mullins v. Brando (1970) 13 Cal. App. 3d 409, 422, 91 Cal. Rptr. 796 , cert. denied, 403 U.S. 923 (1971) (policemen’s association)
Constitutional protection of freedom of association protects intimate and expressive associations; intimate associational interest is fundamental element of personal liberty; expressive associational interest protects right to associate for purpose of engaging in activities relating to speech, assembly, petition for redress of grievances, and exercise of religion. Board of Dirs. of Rotary Int’l v. Rotary Club (1987) 481 U.S. 537, 544-545, 107 S. Ct. 1940, 95 L. Ed. 2d 474 ; Roberts v. United States Jaycees (1984) 468 U.S. 609, 617-618, 104 S. Ct. 3244, 82 L. Ed. 2d 462 ; Warfield v. Peninsula Golf & Country Club (1995) 10 Cal. 4th 594, 624-626, 42 Cal. Rptr. 2d 50, 896 P.2d 776 ; Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal. App. 3d 1, 12, 231 Cal. Rptr. 769 , appeal dismissed, 484 U.S. 805 (1987)
Conduct is expressive and thus protected by First Amendment when two factors are present: (1) intent to convey a particularized message, and (2) a substantial likelihood that the message will be understood by those receiving it. Spence v. Washington (1974) 418 U.S. 405, 410-411, 94 S. Ct. 2727, 41 L. Ed. 2d 842 ; Colacurcio v. City of Kent (9thCir. 1998) 163 F.3d 545, 549 n.1 (nude dancing)
Traditional or historic use of both the property and other similar properties [see, e.g., Venetian Casino v. Local Executive Bd., Las Vegas (9th Cir. 2001) 257 F.3d 937, 944 ; Jacobsen v. Bonine (9th Cir. 1997) 123 F.3d 1272, 1274] .
“Traditional” public fora are defined by the objective characteristics of the property, which include whether, by long tradition or by government fiat, the property has been devoted to assembly and debate [ Arkansas Educ. Television Com'n v. Forbes (1998) 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875, 886 ; Perry Educ. Ass'n v. Perry Local Educators' Ass'n (1983) 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794] . The government can exclude a speaker only when necessary to serve a compelling state interest, and the exclusion is narrowly drawn to achieve the interest [ Arkansas Educ. TV Comm'n v. Forbes (1998) 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875, 886] . Thus, traditional public forums are state properties that historically have been used by the public for exchange of ideas [see Ward v. Rock Against Racism (1989) 491 U.S. 781, 790-791, 109 S. Ct. 2746, 105 L. Ed. 2d 661] , such as:
Public streets and sidewalks [see, e.g., Frisby v. Schultz (1988) 487 U.S. 474, 480-481, 108 S. Ct. 2495, 101 L. Ed. 2d 420 ; Boos v. Barry (1988) 485 U.S. 312, 318, 108 S. Ct. 1157, 99 L. Ed. 2d 333] .
Parks [see, e.g., Berger v. City of Seattle (9th Cir. 2009) 569 F.3d 1029, 1035-1036 ; United States v. Baugh (9th Cir. 1999) 187 F.3d 1037, 1042 ; Grossman v. City of Portland (9th Cir. 1994) 33 F.3d 1200, 1204] .
Public squares [see, e.g., Capitol Square Review & Advisory Bd. v. Pinette(1995) 515 U.S. 753, 761, 115 S. Ct. 2440, 132 L. Ed. 2d 650 (statehouse square)].
Peaceful picketing in a public forum such as a public sidewalk is a time-honored method of protest protected by the First Amendment. Any governmental restrictions on such activity are subject to strict scrutiny, as discussed in , above [see, e.g., Boos v. Barry (1988) 485 U.S. 312, 318, 108 S. Ct. 1157, 99 L. Ed. 2d 333] . Furthermore, any injunction against such picketing must satisfy the even more rigorous standards discussed in § 59.12 [see, e.g., Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 114 S. Ct. 2516, 129 L. Ed. 2d 593] .
To be valid under the First Amendment, a regulation of speech, such as a statute or an ordinance, must not delegate overly broad discretion to a government official to decide whether to restrict speech [ Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality, Repression and the Criminalization of a Generation v. City of Seattle (9th Cir. 2008) 550 F.3d 788, 798-803 ; Long Beach Area Peace Network v. City of Long Beach, 522 F.3d 1010, 1022 (9th Cir. 2008) ; Santa Monica Food Not Bombs v. City of Santa Monica (9th Cir. 2006) 450 F.3d 1022, 1037 (9th Cir. 2006)] .
The First Amendment forbids government officials from retaliating against individuals for speaking out [Moore (2006) 547 U.S. 250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 ; Blair v. Bethel School Dist. (9th Cir. 2010) 608 F.3d 540, 543] . To recover for retaliation, a plaintiff must prove each of the following [ Blair v. Bethel School Dist. (9th Cir. 2010) 608 F.3d 540, 543] :
Plaintiff engaged in constitutionally protected activity.
As a result, plaintiff was subjected to adverse action by defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity.
There was a substantial causal relationship between the constitutionally protected activity and the adverse action.
For adverse, retaliatory actions to offend the First Amendment, they must be of a nature that would stifle someone from speaking out. The most familiar adverse actions are exercises of governmental power that are regulatory, proscriptive, or compulsory in nature and have the effect of punishing someone for his or her speech [ Blair v. Bethel School Dist. (9th Cir. 2010) 608 F.3d 540, 544 ; see also Laird v. Tatum (1972) 408 U.S. 1, 11, 92 S. Ct. 2318, 33 L. Ed. 2d 154] .Citizens allegedly targeted by law enforcement because of their political speech activities [see, e.g., Mendocino Envtl. Ctr. v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1288-1289 If a person or persons, whether or not acting under color of law, interferes or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or rights secured by the Constitution or laws of California, the state Attorney General or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief, in the name of the people of the state of California, to protect the peaceable exercise or enjoyment of those rights [Civ. Code § 52.1(a); see Olympic Club v. Superior Court (1991) 229 Cal. App. 3d 358, 360-361, 282 Cal. Rptr. 1 Any individual whose rights are so threatened may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Civ. Code § 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise and enjoyment of the rights secured [Civ. Code § 52.1(b)]. Nothing in Civ. Code § 52.1 requires any showing of actual intent to discriminate [ Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 841, 11 Cal. Rptr. 3d 692, 87 P.3d 1] .
An action brought under Civ. Code § 52.1 is independent of any other action, remedy, or procedure that may be available to an aggrieved individual under any other provision of law, including, but not limited to, an action, remedy,or procedure brought pursuant to Civ. Code § 51.7 (regarding freedom from violence) [Civ. Code § 52.1(g)].
In addition to any damages, injunction, or other equitable relief awarded in an action under Civ. Code § 52.1(b), the court may award the petitioner or plaintiff reasonable attorney’s fees [Civ. Code § 52.1(h)].
The First Amendment doctrine of overbreadth is an exception to the normal rule regarding the standards for facial challenges. Under the overbreadth doctrine, a law may be invalidated if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep [ United States v. Stevens (2010) ___ U.S. ___, 130 S. Ct. 1577, 1587, 176 L. Ed. 2d 435 ; Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449 n.6, 128 S. Ct. 1184, 170 L. Ed. 2d 151] . Showing that a law punishes a substantial amount of protected free speech, judged in relation to the law’s legitimate sweep,suffices to invalidate all enforcement of the law until a limiting construction or partial invalidation narrows it to remove the seeming threat or deterrence to constitutionally protected expression [ Virginia v. Hicks (2003) 539 U.S. 113, 123 S. Ct. 2191, 2196, 156 L. Ed. 2d 148] . The doctrine’s concern with “chilling” protected speech attenuates as the otherwise unprotected behavior it forbids the state to sanction moves from pure speech toward conduct.
A party may challenge a statute or injunction as overbroad because its very existence may cause others not before the court to refrain from constitutionally protected speech, and, if the overbreadth is “substantial,” the law may not be enforced against anyone until it is narrowed to reach only unprotected activity [ In re Englebrecht (1998) 67 Cal. App. 4th 486, 497, 79 Cal. Rptr. 2d 89 citing Broadrick v. Oklahoma (1973) 413 U.S. 601, 612, 93 S. Ct. 2908, 37 L. Ed. 2d 830] . However, a claim of overbreadth will not lie if no one other than those before the court are affected [ People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1113, 60 Cal. Rptr. 2d 277, 929 P.2d 596] .
A-Challenges to Restrictions on Sleeping, Camping, Sitting, or Storing Property in Public Places
I. Federal Cases
Schneider v State 308 US 147; 60 S. Ct 146 (1939) concerning leaflets and the circumstances and reasons in support of the regulation (to abate littering). The standard applied was strict scrutiny- were there less restrictive means to deal with litter considering the First Amendment “… shall make no law abridging …” clause. In Cox v New Hampshire 313 US 569; 61 S.Ct. 762 (1941)
The right of assembly was made subject to time, place and manner as a permit for proper policing to stem or confusion/risk of disorder was deemed reasonable. Martin v Struthers 319 US 141; 63 S. Ct 862 (1943) dealt with door to door solicitation and it was reasonable to limit the time to not disturb after or before hours citizens comfort and convenience in their homes.
But Cox v Louisiana 379 US 536; 85 S. Ct 476 (1965) again addressed public order and safety and considered the public official as censor which regulation then must be narrowly tailored to further the State’s legitimate interests (Heffron v International Society for Krishna Consciousness (ISKON) 452 US 640 (1981). In Adderly v. Florida, 385 U.S. 39 (1966), the U.S. Supreme Court said: “The right to petition for the redress of grievances has an ancient history [fn. omitted] and is not limited to writing a letter or sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. See N. A. A. C. P. v. Button, 371 U. S. 415, 429-431. Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.” (Id. at pp. 49—50.)
This was followed by Metromedia, Inc v San Diego 453 US 940; 101 S. Ct 2882 (1981)stating a state may not choose subjects for discourse nor aesthetics with regard to a billboard as communication. US v Grace 461 US 171; 103 S. Ct. 1702 (1983) Tackled the question of the use of public sidewalks finding them a time honored tradition of free speech, association and press. Members of City Council v Taxpayers for Vincent 466 US 789; 104 S. Ct 2118 (1984) stands for the proposition that the First Amendment bars regulation of viewpoints or ideas at the expense of others.
Clark v Community for Creative Non Violence 468 US 288; 104 S. Ct. 3065 (1984) stated the national park could prohibit camping outside of park regulations while also finding that using tents would be symbolic speech appropriate to protest homelessness. City of Ladue v Gilleo 512 US 43; 114 S. Ct 2038 (1994) Again the question of litter with signs and posting being clutter but the regulation banned too much.
Amalgamated Food Employees v Logan Valley Plaza 391 US 308; 88 S. Ct 1601 spoke about picketing a supermarket and found obstructing the passage to be a reasonable restriction. The Court in Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 164 (2002), found invalid a permit requirement before Jehovah’s Witnesses plaintiffs could sell their literature.
All in all, a peaceful non-violent protected First Amendment activity such as OccupySF, where OccupySF provided sanitation that the City and County would not but attempted to cooperate and communicate with city officials with every health and safety concern as well as not impeding the flow of pedestrian traffic at 101 Market Street in San Francisco and overflow sites as the protest grew.
In GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965) begins a new era of privacy that compainant-petitioners now step forward to asset that without privacy their is no Fourth Amendment protection. In this case ” The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents’ choice – whether public or private or parochial – is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143 ) and freedom of inquiry, freedom of thought, and freedom to teach (see Wieman v. Updegraff, 344 U.S. 183, 195 ) – indeed the freedom of the entire university community. Sweezy v. New Hampshire, 354 U.S. 234, 249 -250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112 ; Baggett v. Bullitt, 377 U.S. 360, 369 . Without [381 U.S. 479, 483] those peripheral rights the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.
In NAACP v. Alabama, 357 U.S. 449, 462 , we protected the “freedom to associate and privacy in one’s associations,” noting that freedom of association was a peripheral First Amendment right. Disclosure of membership lists of a constitutionally valid association, we held, was invalid “as entailing the likelihood of a substantial restraint upon the exercise by petitioner’s members of their right to freedom of association.” Ibid. In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of “association” that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, 371 U.S. 415, 430 -431. Those cases involved more than the “right of assembly” – a right that extends to all irrespective of their race or ideology. De Jonge v. Oregon, 299 U.S. 353 . The right of “association,” like the right of belief (Board of Education v. Barnette, 319 U.S. 624 ), is more than the right to attend a meeting; it includes the right to express one’s attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means. Association in that context is a form of expression of opinion; and while it is not expressly included in the First Amendment its existence is necessary in making the express guarantees fully meaningful. [381 U.S. 479, 484]
The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516 -522 (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Fourth and Fifth Amendments were described in Boyd v. United States, 116 U.S. 616, 630 , as protection against all governmental invasions “of the sanctity of a man’s home and the privacies of life.” * We recently referred [381 U.S. 479, 485] in Mapp v. Ohio, 367 U.S. 643, 656 , to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” See Beaney, The Constitutional Right to Privacy, 1962 Sup. Ct. Rev. 212; Griswold, The Right to be Let Alone, 55 Nw. U. L. Rev. 216 (1960).
We have had many controversies over these penumbral rights of “privacy and repose.” See, e. g., Breard v. Alexandria, 341 U.S. 622, 626 , 644; Public Utilities Comm’n v. Pollak, 343 U.S. 451 ; Monroe v. Pape, 365 U.S. 167 ; Lanza v. New York, 370 U.S. 139 ; Frank v. Maryland, 359 U.S. 360 ; Skinner v. Oklahoma, 316 U.S. 535, 541 . These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
“The principles laid down in this opinion [by Lord Camden in Entick v. Carrington, 19 How. St. Tr. 1029] affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life.
Mr. Justice Story wrote of this argument against a bill of rights and the meaning of the Ninth Amendment:
“In regard to . . . [a] suggestion, that the affirmance of certain rights might disparage others, or might lead to argumentative implications in favor of other powers, it might be sufficient to say that such a course of reasoning could never be sustained upon any solid basis . . . . But a conclusive answer is, that such an attempt may be interdicted (as it has been) by a positive declaration in such a bill of rights that the enumeration of certain rights shall not be construed to deny or disparage others retained by the people.” II Story, Commentaries on the Constitution of the United States 626-627 (5th ed. 1891).
He further stated, referring to the Ninth Amendment:
“This clause was manifestly introduced to prevent any perverse or ingenious misapplication of the well-known maxim, that an affirmation in particular cases implies a negation in all others; and, e converso, that a negation in particular cases implies an affirmation in all others.” Id., at 651.
These statements of Madison and Story make clear that the Framers did not intend that the first eight amendments be construed to exhaust the basic and fundamental rights which the Constitution guaranteed to the people. 5
While this Court has had little occasion to interpret the Ninth Amendment, 6 “[i]t cannot be presumed that any [381 U.S. 479, 491] clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, “real effect should be given to all the words it uses.” Myers v. United States, 272 U.S. 52, 151 .
Berkeley Community Health Project v. City of Berkeley, 902 F. Supp. 1084 (N.D. Cal. 1995). In February, 1994, plaintiffs challenged two recently enacted Berkeley ordinances prohibiting sitting or lying down on a sidewalk within six feet of the face of a building during certain hours and soliciting in certain locations or in a “coerc[ive], threaten[ing], hound[ing] or intimidat[ing]” manner.21 Plaintiffs alleged violations of their rights under the First and Fourteenth Amendments to the U.S. Constitution and various provisions of the California Constitution. The U.S. District Court for the Northern District of California issued a preliminary injunction forbidding enforcement of the anti-solicitation ordinance, finding that it was a content-based regulation of speech in violation of the Liberty of Speech Clause of the California Constitution. The court also issued a preliminary injunction prohibiting enforcement of the restriction on sitting, finding that sitting can sometimes constitute expressive activity, and that the ordinance did not further a substantial government interest unrelated to expression, was not narrowly tailored, and did not leave open ample alternative channels of communication.
Complainant-Petitioners forward the position that protected speech and assembly with a penumbra of privacy makes the Fourth Amendment active and several law review articles have looked at the implications of the Fourth Amendment :
Fourth Amendment Challenges to “Camping” Ordinances: The Government Acquiescence Doctrine as a Legal Strategy to Force Legislative Solutions to Homelessness NICHOLAS M. MAY 114 CONNECTICUT PUBLIC INTEREST LAW JOURNAL Vol. 8:1
The Eighth Amendment mandates that “cruel and unusual punishments [shall not be] inflicted.”2 Among the many judicial doctrines sprouting from this generally-worded prohibition, the United States Supreme Court has held that legislation that punishes mere status is unconstitutional. In Robinson v. California, Robinson v. California, 370 U.S. 660, 667 (1962), the Court invalidated a California law that criminalized addiction to narcotics, regardless of whether or not the accused actually used narcotics or committed other crimes associated with the addiction. The Equal Protection Clause of the Fourteenth Amendment prohibits any state from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” Camping ordinances are presumably at least rationally related to the legitimate state interests of public safety, crime prevention, and public sanitation, among others. However, if state or municipal legislation either 1) discriminates on the basis of a suspect classification, or 2) infringes upon constitutionally protected “fundamental” rights, courts will apply strict scrutiny. United States v. Carolene Products Co., 304 U.S. 144, 153 n.4 (1938)
Municipal ordinances that sanction the destruction, removal, or gathering of homeless residents’ personal property or makeshift homes constitute a “meaningful interference with an individual’s possessory interest in that property.”Katz v. United States, 389 U.S. 347, 350 (1967). Furthermore, such seizures undoubtedly have more than a “de minimus” impact on the property interests of the homeless. United States v. Jacobsen, 466 U.S. 109, 113 (1984) Joyce, 846 F.Supp. (quoting CAL. PENAL CODE § 647(1)) at 862. The court cited a San Francisco police memorandum communicating to officers that “the mere lying or sleeping on or in a bedroll of and in itself does not constitute a violation.” Id. at 863.
Fourth Amendment Challenges to “Camping” Ordinances: The Government Acquiescence Doctrine as a Legal Strategy to Force Legislative Solutions to Homelessness NICHOLAS M. MAY 114 CONNECTICUT PUBLIC INTEREST LAW JOURNAL Vol. 8:1 see also Robert C. McConkey III, “Camping Ordinances” and the Homeless: Constitutional and Moral Issues Raised by Ordinances Prohibiting Sleeping in Public Areas, 26 CUMB. L. REV. 633, 641 (1995–96) (placing Robinson as the first in a line of cases addressing criminalized status with respect to the Eighth Amendment). OKLAHOMA LAW REVIEW VOLUME 61 SPRING 2008 NUMBER 1 SYMBOLIC SPEECH: A MESSAGE FROM MIND TO MIND JAMES M. MCGOLDRICK, JR.
. The Court in Virginia v. Hicks, 539 U.S. 113, 124 (2003) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)), in discussing the overbreadth doctrine, said that “the overbreadth doctrine’s concern with ‘chilling’ protected speech ‘attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct.’” In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 588 n.5 (1980) (Brennan, J., concurring), Justice Brennan’s concurrence in a case involving the access of the press to a criminal trial said, “Some behavior is so intimately connected with expression that for practical purposes it partakes of the same transcendental constitutional value as pure speech.”
B- THE FIRST AMENDMENT IS TO PRESERVE THE VOICE OF TRUTH
“Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also ‘‘expressive conduct,’’ which includes picketing, patrolling, and marching, distribution of leaflets and pamphlets and addresses to publicly assembled audiences, door-to-door solicitation and many forms of ‘‘sit-ins.’’ There is also a class of conduct now only vaguely defined which has been denominated ‘‘symbolic conduct,’’ which includes such actions as flag desecration and draft-card burnings…. to the degree that these actions are intended to communicate a point of view the First Amendment is relevant and protects some of them to a great extent”. 108th Congress 2nd session, Senate Document No. 108-17, at page 1238.
In New York Times Co. v. Sullivan, 967 the Court surveyed the controversy surrounding the enactment and enforcement of the Sedition Act and concluded that debate ‘‘first crystallized a national awareness of the central meaning of the First Amendment…. Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history …. [That history] reflect[s] a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment.’’ The ‘‘central meaning’’ discerned by the Court, quoting Madison’s comment that in a republican government ‘‘the censorial power is in the people over the Government, and not in the Government over the people,’’ is that ‘‘[t]he right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government.’’ 376 U.S. 254, 273–76 (1964). The teaching of Times and the cases following it is that expression on matters of public interest is protected by the First Amendment.
See also Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting):
“Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command “Congress shall make no law … abridging the freedom of speech””. (At 630-31)
“…the United States constitutionally may punish speech that produces a clear and imminent danger … about forthwith substantive evils.” (At 627)
The San Francisco “Sit-Lie” Ordinance, Exhibit 1 attached hereto (Police Code 168), and all other ordinances similarly in effect, was conceived with selective enforcement contemplated and and, in an abuse of discretion was carried out brutally against the Complainant-Petitioners of OccupySF at the specific direction of the Mayor of San Francisco, Ed Lee, and Chief of Police, Gregory Suhr, under National coordination by The United States Department of Homeland Security and/or other agencies and officers of the United States, Defendant-Respondents, while not enforcing the same ordinance across the street or across town unless one was identified with Occupy. Thus, this matter is ripe as the application of the “Sit/Lie” Ordinance was used to chill the free speech of peaceful citizens and unconstitutional as applied and practiced.
WHITNEY V CALIFORNIA (1927) 247 US 357 BRANDEIS; “… a statute even if not void on its face may be challenged because invalid as applied…” (At 1107) PALKO V CONNECTICUT (1937) CARDOZO; “On the other hand the due process clause of the Fourteenth Amendment may make it unlawful for a state to abridge by it’s statutes the freedom of speech which the First Amendment safeguards… or the right of peaceable assembly, without which speech would be unduly trammeled…”. (At 324) “…the legislative judgement, if oppressive and arbitrary may be overridden by the Courts.” (At 327)
C- ORDINANCE IS OVERBROAD AND USED SELECTIVELY
In separating legitimate speech from illegitimate speech the standard of responsibility not narrow specificity in GOODING V WILSON, 405 US 518, 92 S CT 1103 (1972); “… to make an offense of conduct which is calculated to create disturbances of the peace leaves wide open the standard of responsibility.” (At 527 referring to Cox v Louisiana and Ashton v Kentucky) Thus, not sensitive to conduct speech such as sitting or lying. Citing Herndon v Lowry “… (t)he fault of the state is that it leaves wide open the standard of responsibility, so that it is early susceptible to improper application.” (At 528)
OccupySF confined itself to the sidewalk allowed and did not disrupt pedestrians in front of the Federal Reserve Bank of San Francisco, 101 Market Street, and was exercising protected speech: BROCKETT V SPOKANE ARCADES, 472 US 491, 105 S CT 2794 (1985); Concerning demonstrations on Supreme Court grounds not reached “… holding to the invalidity of the statute as applied to picketing on public sidewalks …”. (At 503)
ALL DEFENDANT-RESPONDENTS ENGAGED IN A CONSPIRACY TO DENY PEACEFUL FIRST AMENDMENT EXERCISE OF RIGHTS OF DISSENT AND GRIEVANCES AND IN FACT WERE, IF NOT INSTIGATORS, CERTAINLY WERE BRUTALLY OVERREACTING TO CIRCUMSTANCES. R.A.V. V CITY OF ST PAUL, 500 US 377, 112 S CT 2538 (1992); “In its practical operation … the ordinance goes even beyond mere content discrimination to actual viewpoint discrimination.” (At 391)
In fact, SFPD 537 (side 1) Exhibit states San Francisco Police , Section 168(b) “In the City and County of San Francisco, during the hours of 7:00 AM and 11:00 PM, it is unlawful to sit or lie down upon a public sidewalk or any object placed upon a public sidewalk.” This precludes any rest for the old even to placing shopping items purchased at any store on ground to sit on-including canes with collapsible seats attached, baggage or even a purchased television in a box OR EVEN SITTING IN A PARK!
The technique of “catch-and-release” as harassing detention and with or without citation releasing the arrested or detained is unconstitutional as cruel and unusual punishment as applied to the exercise of free speech is designed not to enforce an ordinance but to intimidate and chill the exercise of those rights through fear of arrest and indefinite detention. ASHCROFT V FREE SPEECH, 535 US 234, 122 S CT 1700 (2002) “… a law imposing criminal penalties on protected speech is … speech suppression.” (At 244) “The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law abiding adults.” (At 252) “… speech must be protected from the government because speech is the beginning of thought.” (At 253). Association is the handmaiden of thought.
“The government may not suppress lawful speech as the means to suppress unlawful speech. … ‘The over breadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.” (At 255)
THERE CAN BE NO ARGUMENT THAT THE FEW PROBLEMS ENCOUNTERED FROM OCCUPYSF JUSTIFIED THE AGGRAVATION OF THOSE PROBLEMS THROUGH DENIAL OF GOVERNMENT RESOURCES ALREADY IN PLACE IN SAN FRANCISCO FOLLOWED BY THE BRUTAL RESPONSE OF THE GOVERNMENT AND IT’S AGENTS AND ELECTED OR APPOINTED OFFICIALS. SCALES V US, 367 US 203 (1961) AT 278 (HARLAN) “… of course, (i)f there were a similar blanket prohibition of association with a group having legal and illegal arms, there would indeed be a real danger that legitimate political expression or association would be impaired…”.
D- THE ORDINANCE IS VAGUE ABOUT THE FIRST AMENDMENT AND LONG TERM DEMONSTRATIONS
SMITH V GOGUEN, 415 US 566, 94 S CT 1242 (1974); “…it requires legislatures to set reasonably clear for law enforcement officers … to prevent arbitrary and discriminatory enforcement.” (At 572-3) “But there is no comparable reason for committing broad discretion to law enforcement officers in the area of (flag contempt).”
THERE IS NO PROVISION FOR THE LONG TERM FREE SPEECH DEMONSTRATION AND THE ORDINANCE ATTEMPTS TO MAKE FREE SPEECH SUBJECT TO COMMERCIALISM AND THE RIGHTS TO ENGAGE THE PUBLIC IS MADE THEREBY DENIGRATED TO THE STATUS OF ADVERTISING OR EVEN LESS. COATES V CINCINNATI, 402 US 611, 91 S CT 1780 (1971) “Our decisions establish that mere public intolerance or animosity cannot be the basis for abridgment of these Constitutional freedoms.”
E-THE ORDINANCE IS UNCONSTITUTIONAL AS A PRIOIR RESTRAIN ON FIRST AMENDMENT RIGHTS
THE BURDEN OF PROOF STANDS SQUARELY ON THE DEFENDANT-RESPONDENTS AS THE APPLICATION OF THE “SIT/LIE” ORDINANCE IN ITS APPLICATION WAS TO RETRAIN ANY FURTHER CONSTITUTIONALLY PROTECTED DEMONSTRATION, NOTWITHSTANDING ANY CLAIM OF NATIONAL SECURITY OR FALSE CHARGES OF SEDITION. A CONSTITUTIONAL MOVEMENT IS NOT AN ENEMY. SEE BANTAM BOOKS V SULLIVAN, 372 US 58, 83 S CT 631 (1963); “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutionality.” (At 70); FREEDMAN V MARYLAND, DOUGLAS ON CENSORSHIP 380 US 51, 85 S CT 734 (1965); re speech citing Speiser “…burden of persuasion to show … engaged in criminal speech.” (At 58) “… danger of tolerating … in the First Amendment freedoms, the existence of penal statute susceptible of sweeping and improper application.” (At 56)
Even if no permit applied for (and none was available for a long term demonstration such as Occupy) if application has a chilling effect as the statute in question does as it applies only to parades and commercial activities and has no process for long term public protest and exercise of First Amendment rights. OccupySF was a long term protected demonstration. The quoted Cox v Louisiana states that if permits for commercial activity then permitted free speech must be allowed. (See THOMAS V CHICAGO PARK DISTRICT, 534 US 316, 122 S CT 775 (2002)).
Further, the allowance of shoppers to camp the night before a big sale or ticket holders to camp for early sport or concert tickets, nude protest sitting in the Castro and the allowance of others to lie and sit and sleep and camp up and down Market Street in San Francisco-even across from the protest site or around the corner on Mission Street or other places is dispositive of the claimed unconstitutional selective prosecution and suppression of free speech and assembly while being cruel and unusual punishment without equal protection and outside of due process chilling any rights of complainant-petitioners and those nearby or witnesses to the brutality through some media like television or even hear of such oppression and denial of basic rights.
F- CONSIDERING THE ABOVE THE COMBINE OF POLICE CODE 168 AND PENAL CODE 647 ARE APPLIED UNCONSTITUTIONALLY TO DEPRIVE COMPLAINANT-PETITIONERS OF THEIR CIVIL RIGHTS AND CHILL ANY FURTHER EXERCISE THEREOF
Penal Code 647(e) is over broad, and unconstitutionally infringes on petitioner’s right to engage in constitutionally protected protest activity. OccupySF is a nationally, if not globally, known protest against corporate and political corruption and economic oppression. Second, Penal Code section 647(e) is void for vagueness both because it does not provide adequate notice to the public but also because it does not provide adequate direction to law enforcement officers regarding its appropriate use. Penal Code section 647(e), is invalid on its face under the United States Constitution and the California Constitution. The statute criminalizes: Except as provided in subdivision (l), every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: … (e) 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 asa mere euphemism for “sleep”. The undeniable impact of this language, whose broadsweep 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 andindependent constitutional grounds:
A. Unenumerated right to sleep (Ninth Amendment to U.S. Constitution and Article I, Section 24 of the California Constitution);
Castro v. Superior Court of the State of California for the County of Los Angeles (1970) 9 Cal.App.3d 675, 704 (Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights.)) The Castro court analyzed the First Amendment in terms of both speech and expressive conduct, ruling,
There can be no question that fundamentally the demonstrations, for that is what the walkouts were, were designed to publicize grievances, real or fancied. Although some hell was raised by some participants, hell raising as such was not the objective. Though not entitled to all the protections of ‘pure speech,’ a demonstration is a legitimate exercise of First Amendment rights. (Id. at 682.)
In the context of an attempted class action injunction on labor strikes, the California Supreme Court in United Farm Worker v. Superior Court of Monterey County (1976) 16 Cal.3d 499, held,
It is well established that peaceful picketing is an activity subject to absolute constitutional protection in the absence of a valid state interest justifying limitation or restriction. Moreover, an order affecting peaceful picketing must be couched in the narrowest terms that will accomplish the pinpointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field the State may not employ means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. (Id. at 505.)
Therefore, it is well established that speech, picketing and demonstrations are clearly protected by the First Amendment of the United States Constitution and can only be regulated by narrowly drawn regulations that limit no more speech than necessary. (Id.)
In Clark v. Community for Creative Non-Violence (1984) 468 U.S. 288, 293, the United States Supreme Court followed the Court of Appeals holding that overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment. Castro, supra, 9 Cal.App.3d at 683. The Castro court went on to rule that, However, since we are dealing with First Amendment rights, broad prophylactic rules are suspect and precision of regulation must be the touchstone in an area so closely touching our most precious freedoms. Because First Amendment freedoms need breathing space to survive, government may regulate only with narrow specificity. Standards laid down must be in terms susceptible of objective measurement. Finally, and in this particular case, most vitally, the regulation must not be of such a nature as to frighten those coming within its sweep into limiting their behavior to that which is unquestionably safe. (Id. at 683; see also Freedman v. Maryland (1965) 380 U.S. 51, 58 (If a state law, as enforced by applicable state procedures, does not show the necessary sensitivity to freedom of expression it must fall.))
The concept of overbreadth rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. (Id. at 699.) The issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution. (Id. at 700.) Where the statute is attacked on First Amendment grounds, the court is not limited in its examination to the application of the statute involved in the particular case, but may consider other possible applications of the statute. (Id.)
Overbreadth Doctrine in a First Amendment Context.
A function of free speech under our system of government is to invite dispute. (Terminiello v. Chicago (1949) 337 U.S. 1, 4.) It may indeed best serve its high purpose when it induces unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. (Id.) The constitutional right to speak, demonstrate, and picket on behalf of causes known to be highly offensive to those picketed was settled in Terminiello. (In re Cox, supra, 3 Cal.3d at 222.) Thus the First Amendment nullifies an ordinance so loosely drawn that a police officer can construe it to mean that he can expel from public places persons whom he finds objectionable. (Id.) To give the police officer the ambulatory power to act as a roving legislature is to give him a license to vitiate the First Amendment. (Id.) The In re Cox court also ruled that, In Shuttlesworth v. Birmingham (1965) 382 U.S. 87, that court [United States Supreme Court] confronted facts analogous to those here. Finding no evidence that Shuttlesworth obstructed pedestrian passage by his mere presence on the street, the Supreme Court recognized a grave constitutional defect in an ordinance which forbade ‘any person to stand or loiter upon any street or sidewalk of the city after having been requested by any police officer to move on.’ …. The constitutional vice of so broad a provision needs no demonstration…. Instinct with its even present potential for arbitrary suppressing First Amendment liberties, that kind of law bears the hallmark of a police state. (In re Cox, supra, 3 Cal.3d 222, citing Shuttlesworth, supra, 382 U.S. at 90-91.)
Mr. Author Sherry, a law professor at the University of California Berkeley was called upon by the Assembly Interim Committee on Judiciary, Subcommittee on Constitutional Rights to testify regarding Penal Code section 647. In his law review article Vagrants, Rogues and Vagabonds-Old Concepts in Need of Revision he wrote the following on the history of Penal Code section 647, “The vagrancy law of California is a direct descendent of the ancestors of the statutes of the older states. It is faithful to the concept of status as a basis for punishment, and, while its language may not be as colorful as those which are more faithful to the original models, it is just as vague, just as indiscriminate and just as subject to abuse as any of the others. Sections 647, 647a and 6501/2. Penal Code and 11721 Health and Safety Code are birds of a feather. In police parlance, they are known as “roust” sections. They permit the police to pressure people, who, for personal or ciminal [sic] economic reasons are susceptible to being pressured.
The text of Penal Code section 647(e) states the following: Every person who lodges in any building, structure, or place, whether public or private, without the permission of the owner or person entitled to the possession or control thereof is guilty of disorderly conduct. Penal Code Sec. 647, subsection (e).
The above text was revised in 1961 AB 874, Chapter 560 from the original 1872 version which stated, Every person who lodges in any barn, shed, shop, outhouse, vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or party entitled to the possession thereof is a vagrant.
In analyzing the text of this subsection related to “lodging,” the legislature and its recognized commentators gave some indications as to the intended use of this subsection. For example, the vetoed predecessor of AB 874, AB 2712 included the exact same revised “lodging” language as AB 874. Post-Enrollment documents regarding Assembly Bill 2712 (Bill Memorandum by O’Connell, Waldie and Burton), p.1 BS 408. The Bill Memorandum to then Governor Brown stated that, “All subdivision 7 punished those who lodged in buildings without permission. New subdivision (e) of 2712 accomplishes substantially the same purpose.” Post-Enrollment documents regarding Assembly Bill 2712 (Bill Memorandum by O’Connell, Waldie and Burton), p.4 BS 411.
In Mr. Sherry’s letter to then Governor Brown, he states, This is a re-draft of subsection 7 of the existing statute [AB 2712]. Its scope has been enlarged to reach the individual who sets up housekeeping in a public park as one who makes lodging in a farmer’s barn. You may remember about a year or so ago a man was discovered living in a cave near on of San Francisco’s beaches. This conduct is not covered by the existing subsection 7, and would be squarely within the wording of the suggested draft.
Because the illegal “lodging” conduct was not in any way separated from the legitimate exercise of First Amendment rights as it was enforced, the application of 647(e) was overbroad and unconstitutional. (Castro, 9 Cal.App.3d at 699.) It seems fairly clear from the legislative history that section 647(e) was designed to prevent persons from establishing residences or living accommodations in unauthorized locations, not to break up political protests.
Restricting persons from occupying public space during First Amendment activity where the person is not otherwise disrupting the flow of human activity, and at the whim of a police “move along” command, is exactly the type of behavior that was held to be unconstitutional in Shuttlesworth, supra, 382 U.S. at 90-91.
Therefore, Penal Code section 647(e) as applied to petitioner is overbroad and unconstitutional pursuant to the First and Fourteenth Amendments to the United States Constitution and Article One, Section Two of the California Constitution. Restrictions on first amendment activity must be coached in the narrowest terms possible. (United Farm Worker, supra, 16 Cal.3d at 505.) Under the context of the First Amendment, the Court must look beyond the immediate circumstance and determine if the legitimate application of 647(e) in other circumstances will significantly compromise recognized First Amendment protections. (Castro, supra, 9 Cal.App.3d at 700; Snatchco v. Westfield, LLC (2010) 187 Cal.App.4th 494.)
Penal Code section 647(e) is so broad that a legitimate interpretation of the statute could be used to disrupt any political protest that is not physically moving at the time of police contact. All “sit-in” participants could be charged with lodging in that place. Martin Luther King could have been charged with lodging in segregated lunch counter restaurants, picket lines and demonstrations. Picketers who are standing on a public sidewalks not blocking human traffic could be charged with lodging in that place so long as they do not have the express permission of the public entity to conduct their First Amendment activity. Even as a time, manner or place restriction, the use of Penal Code 647(e) cannot be considered a sufficiently narrowly tailored restriction where failure to leave a protest at the whim of police is an excepted standard.
The problem with the application of the antiquated vagrancy law related to lodging in the context of a clearly defined and publicized political protest is clear. Therefore, this Court should rule that in the context of a First Amendment activity, Penal Code section 647(e) is unconstitutionally overbroad. (Article One, Section Two of the California Constitution and the First and Fourth Amendment to the United States Constitution.)
G-Due process of law (Fifth and Fourteenth Amendments to U.S. Constitution Article I,
enjoying and defending life and liberty, pursuing and obtaining safety, happiness and privacy);
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.
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 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.”
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) such a list would have to include the right of someone to go to bed when he thought proper. 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 “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 Protesters was the sidewalk from the curb without impeding any pedestrian or business traffic at the Federal Reserve. The extreme economic necessity, disagreement with the deregulation of the banks, the private corporate nature of the federal reserve and the lack of homeless shelter room made this location 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). Those who went to shelters were obliged to sleep in a chair if there was space and there is an admitted shortage of services and shelter for the overwhelming number of homeless that keeps expanding. See, Elizabeth Schultz, The Fourth Amendment Rights of the Homeless, 60 Fordham L. Rev. 1003 (1992), http://ir.lawnet.fordham.edu/flr/ vol60/iss5/7. See also, State v. Dias, 62 Haw. 52, 55, 609 P.2d 637, 639-40 (1980) (finding that squatters on public land were protected under the fourth amendment in their makeshift shacks)
Therefore, the tent-dweller is no less protected from unreasonable government intrusions merely because his dwelling… place, whether flimsy or firm, permanent or transient, is its inhabitant’s unquestionable zone of privacy under the Fourth Amendment, for in his dwelling a citizen un-questionably is entitled to a reasonable expectation of privacy. Kelley, 146 Ga. App. at 182-83, 245 S.E.2d at 874-75.
H-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
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, 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 onlybe 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.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).
A law is unconstitutionally vague if it fails to meet two basic requirements: 1) The regulations must be sufficiently definite to provide fair notice of the conduct proscribed; and 2) the regulations must provide sufficiently definite standards of application to prevent arbitrary and discriminatory enforcement. Snatchco, supra, 187 Cal.App.4th at 495. The present statute fails both tests. 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 public sidewalk during a well publicized political protest.
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? 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?
Therefore, the statute is void for vagueness under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. It is too vague for the defendant to know what is illegal. (Snatchco, supra, 187 Cal.App.4th at 495.) 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 (1974) 415 U.S. 566, 574. 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.)
No definition of the term “lodge” exists in Penal Code Section 647(e) or any related section. In Joyce v. City and County of San Francisco (1994) 846 F.Supp. 843, the San Francisco matrix program (forbidding the setting up of “public living accommodations”) was saved from unconstitutional vagueness only when read in conjunction with a supplemental memorandum to police which indicated clearly that “the mere lying or sleeping on or in a bedroll of an in itself does not constitute a violation.” (Id. at 863.)
I. The Statute Violates Defendants’ Rights to Free Expression and
Defendants request that the court take judicial notice of the fact that one of defendants’ central purposes in sleeping at the Federal Reserve 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. 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. Further, the practical effect of the combined selective use of both the local San Francisco Police Code 168 and the California Penal Code 647 is to make any sleeping, sitting or even the setting down of any bag or object subject to criminal prosecution even when the thrust of the sleeping, sitting, lying or setting something down is part of a protected First, Fourth, Fifth, Eighth, Ninth and Fourteenth Amendment activity, i.e. a protest involving long term conduct and expression.
J. International law protecting the rights of the individual.
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: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.
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, 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 contend that the local San Francisco form of torturing people who have no physical abode is vicious. 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. 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 hounding of the defendants with nighttime washing by San Francisco Department of Public Works and the denial of sanitation with portapottie latrines while encouraging the bringing of severely disabled emotionally and mental individuals and “dumping” them at the site of a protest is and 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) and SF Police Code 168 as well as terrorist acts of hydroterrorism (washing down streets in the early AM hours and soaking people and or possessions, including sleeping materials), bioterrorism (lack of provision for sanitation while encouraging people to swell the camp and even dropping off the most mentally disabled poor at the protest site) and social terrorism of both the homeless, mentally ill and first amendment protesters chilling every human and constitutional guarantee of any rights of liberty.
K. THERE IS EVERY INDICATION THAT THE DEPARTMENT OF HOMELAND SECURITY AND OTHER GOVERNMENT ENTITIES HAVE COORDINATED AN UNCONSTITUTIONAL ATTACK ON OCCUPY NATIONWIDE
At http://gothamist.com/2011/11/16/justice_dept_official_raids_of_occu.php according to Rick Ellis at the Examiner, a Justice Department official says that the recent evictions of Occupy movement across the country including Salt Lake City, Denver, Portland, Oakland, and New York City were “coordinated with help from Homeland Security, the FBI and other federal police agencies.”
Mother Jones reports that the US Conferences of Mayors has stated that two conference calls, one on October 13, … and the second on November 10, were held with “mayors and police top brass.” They discussed “issues of concern” and how to “maintain public health and safety” during the occupations.
Michael Hastings Of Rolling Stone Magazine, In February of 2012 ( http://www.rollingstone.com/politics/blogs/national-affairs/exclusive-homeland-security-kept-tabs-on-occupy-wall-street-20120228#ixzz1pFXiMJ8h ) wrote: As Occupy Wall Street spread across the nation last fall, sparking protests in more than 70 cities, the Department of Homeland Security began keeping tabs on the movement. An internal DHS report entitled “SPECIAL COVERAGE: Occupy Wall Street,” dated October of last year, opens with the observation that “mass gatherings associated with public protest movements can have disruptive effects on transportation, commercial, and government services, especially when staged in major metropolitan areas.” While acknowledging the overwhelmingly peaceful nature of OWS, the report notes darkly that “large scale demonstrations also carry the potential for violence, presenting a significant challenge for law enforcement.”
… DHS also appears to have scoured OWS-related Twitter feeds for much of their information. The report includes a special feature on what it calls Occupy’s “social media and IT usage,” and provides an interactive map of protests and gatherings nationwide …”Social media and the organic emergence of online communities,” the report notes, “have driven the rapid expansion of the OWS movement.”
The most ominous aspect of the report, however, comes in its final paragraph: … The continued expansion of these protests also places an increasingly heavy burden on law enforcement and movement organizers to control protesters. … What’s more, there have been reports that Homeland Security played an active role in coordinating the nationwide crackdown on the Occupy movement last November – putting the federal government in the position of targeting its own citizens in the name of national security. There is not much of a bureaucratic leap, if history is any guide, between a seemingly benign call for “continuous situational awareness” and the onset of a covert and illegal campaign of domestic surveillance.
This is further reported : Obama’s DHS Coordinating Response With Mayor & Police Chiefs To Occupy Movement http://www.youtube.com/watch?v=A6Tl0UrR79Y&feature=share; “…Naomi Wolf points out in her article in the UK Guardian, 18 US cities are apparently getting their orders from the Department of Homeland Security … https://apps.facebook.com/theguardian/commentisfree/cifamerica/2011/nov/25/shocking-truth-about-crackdown-occupy?fb_ref=U-WSpLctUcrIPq4iH1IqLqgo-CFCONX01FRS-33thvXXX&fb_source=other_multiline&fb_action_types=news.reads ; admittedly based upon Oakland Mayor Jean Quan’s remarks on the BBC interview http://www.dailykos.com/story/2011/11/26/1040029/-Occupations-Threatened-With-Eviction-In-Seattle-San-Francisico-Los-Angeles-Philadelphia and http://www.democracynow.org/2011/11/16/police_crackdowns_on_occupy_protests_from; http://www.washingtonsblog.com/2011/11/homeland-security-coordinated-18-city-police-crackdown-on-occupy-protest.html and even Associated Press writers Tom Hays and Eileen Sullivan in Washington have written “Since the Sept. 11 terrorist attacks, the New York Police Department has become one of the nation’s most aggressive domestic intelligence agencies, targeting ethnic communities in ways that would run afoul of civil liberties rules if practiced by the federal government, an Associated Press investigation has found.
These operations have benefited from unprecedented help from the CIA, a partnership that has blurred the line between foreign and domestic spying.”.
Locally, The Bay Guardian of April 2011 http://www.sfbg.com/2011/04/26/spies-blue?page=0,0 states “San Francisco cops assigned to the FBI’s terrorism task force can ignore local police orders and California privacy laws to spy on people without any evidence of a crime. … The ACLU obtained the document April 4 under the California Public Records Act after a long battle. It’s a 2007 memorandum of understanding outlining the terms of an agreement between the city and the FBI for San Francisco’s participation in the Joint Terrorism Task Force.”
Embarcadero Center Threatened to Sue City Over Occupy Encampment By Lauren Smiley sfweekly.com Mon., Dec. 19 2011 at 10:50 AM : The Embarcadero Center threatened to sue the city in three letters in November for allowing Occupiers to camp out in tents, Boston Properties, the owner of Embarcadero Center. A November 7 letter by the landlord’s attorney Marshall Wallace threatens to sue the city for damages and injunctive relief for failing to enforce city codes at Justin Herman Plaza, part of which Embarcadero Center maintains.
In a second letter dated Nov. 10, Boston Properties reported $30,000 in damages from the previous night. In a third letter from Nov. 11, the landlord said if the city didn’t provide them a specific plan of action by the following Monday with a clear immediate timetable for evicting the tent city, they would file suit.
CounterPunch: Triad of Business, Cops & Politicians Attack Occupy Triad of Business, Cops & Politicians Attack Occupy Carl Finamore CounterPunch December 27, 2011 http://www.counterpunch.org/2011/12/27/triad-of-business-cops-politicians-attack-occupy/print
A political campaign by San Francisco’s well-heeled “property owners” was launched to influence police and politicians to aggressively demobilize Occupy SF and to dismantle their encampments. And, there are documents to prove it. San Francisco State University full-time accounting student Sean Semans was an Occupier until he himself was severely injured by the San Francisco police. “I saw a trend throughout November of escalating police attacks that seemed to converge with the increased corporate campaign against Occupy. In the first weeks of our Occupation in September and October, we were having a steady dialogue with the Mayor and the various city parks, fire and health departments.
“We responded agreeably to most of their issues by moving tents off grass, cleaning the area and enforcing safety rules.
“But then in early November, particularly after Mayor Lee’s election, things changed. Every interaction with police resulted in some kind of injury, someone being jabbed with a nightstick, being thrown to the concrete, being stepped on or being kicked in the head with swollen limbs twisted and broken. The level of violence against peaceful protestors was systematic.”
Twenty-three year old San Francisco native Emma Ashley-Roth went to Justin Herman Plaza on the evening of December 7 after Occupy SF’s main camp had been evicted early that morning. “When I arrived at Justin Herman Plaza [renamed Bradley Manning Plaza by Occupy] the General Assembly was just beginning and people were standing in a circle in the park, holding a meeting – the very definition of peaceful assembly. Suddenly we were surrounded by riot cops brandishing nightsticks. We never even heard a dispersal order.” Emma was trapped with about 50 others inside the police perimeter for over three hours. “At first, people went up to the police and asked if they could leave. The cops refused to talk. Anyone who approached the police line was struck with nightsticks and one man was seriously injured. I was pretty scared. The cops didn’t arrest us but they kept us trapped in the park under threat of physical harm.
Shaw San Liu, the activist with CPA, was also encircled by the cops and said of that evening: “What is this if not harassment and intimidation aimed at discouraging peaceful dissent?”
Ashley-Roth wondered out loud, “Aren’t the police supposed to serve the interests of the people, not of corporations? To me, it sounds like Hyatt is trying to use SFPD as its own Pinkerton force.”
The most troubling aspect is detailed in http://www.humanevents.com/article.php?id=47575 : But a little-known but influential private membership based organization has placed itself at the center of advising and coordinating the crackdown on the encampments. The Police Executive Research Forum, an international non-governmental organization with ties to law enforcement and the U.S. Department of Homeland Security, has been coordinating conference calls with major metropolitan mayors and police chiefs to advise them on policing matters and discuss response to the Occupy movement. The group has distributed a recently published guide on policing political events.
Speaking to Democracy Now! On November 17, PERF Executive Director Chuck Wexler acknowledged PERF’s coordination of a series of conference-call strategy sessions with big-city police chiefs. These calls were distinct from the widely reported national conference calls of major metropolitan mayors.The coordination of political crackdowns on the Occupy movement has been conducted behind closed doors, with city officials and PERF refusing to say how many cities participated in the conference calls and the exact nature of the discussions. Reports of at least a dozen cities and some indication of as many as 40 accepting PERF advice and/or strategic documents include San Francisco, Seattle, New York, Portland, Oakland, Atlanta, and Washington DC.The San Francisco Police Department and Mayor Ed Lee’s office did not returned the Guardian’s request for comment about the PERF calls by press time. However, Oakland interim Police Chief Howard Jordan was quoted by the Associated Press confirming Oakland and San Francisco police involvement in the strategy sessions.
PERF coordinated a November 10 conference call with city police chiefs across the country – and many of these cities undertook crackdowns shortly afterward. “We know that there were influential conference calls of private groups that include police chiefs who played key roles in repressing the anti-globalization movement, in order to stage rolling attacks on occupations across the country,” said Baruca Peller, an organizer for Occupy Oakland. “In less than a week an unprecedented number of protesters have been brutalized and arrested, and in many cities such as Oakland these evictions were pushed for by the local one-percent.”
According to PERF’s website, general membership in the group is exclusive to “the executive head of a municipal, county or state-funded agency that provides general police services. The agency must have at least 100 full-time employees, or serve a population of 50,000 or more people.” PERF’s current and former directors read as a who’s who of police chiefs involved in crackdowns on anti-globalization and political convention protesters resulting in thousands of arrests, hundreds of injuries, and millions of dollars paid out in police brutality and wrongful arrest lawsuits. These current and former U.S. police chiefs — along with top ranking police union officials and representatives from Canadian and British police — have been marketing to municipal police forces and politicians their joint experiences as specialists on policing mass demonstrations.
Chairing PERF’s board of directors is Philadelphia Police Commissioner and former Washington D.C. Metro Police Chief Charles Ramsey, who was responsible for coordinating the police response to protests against international banking institutions including the World Bank and International Monetary Fund. Those protests, and Ramsey’s response to massive anti-war demonstrations in Washington DC in the lead up the the Iraq War, often resulted in preemptive mass arrest of participants that were later deemed to be unconstitutional. Ramsey’s predecessor as organization chair is former Philadelphia Police Commissioner and former Miami Police Chief John Timoney, who is responsible for the so called “Miami Model,” coined after the police crackdown on the 2003 Free Trade Agreement of the Americas protest. The police response to protesters in Miami lead to hundreds of injuries to protesters. The ACLU won multiple suits against the Miami P.D. over abuse to protesters and free speech concerns.
Prior to the 2003 protest, Timoney was quoted as saying that the FTAA was “the first big event for homeland security … the first real realistic run-through to see how it would work.” Timoney arrived in Miami with plenty of baggage. At the 2000 Republican National Convention, Timoney coordinated a crackdown that resulted in more than 420 arrests with only 13 convictions, none of which resulted in jail time. As in Miami, there was well documented abuse of some of the people arrested.
Also among PERF’s directors is Minneapolis police chief Tim Dolan, who was responsible for the crackdown on protesters at the 2008 Republican National Convention. That event also resulted in lawsuits, protester injuries and an outcry from the national press about police brutality and the preemptive nature of the police action.
PERF is more than a mere policy group. Wexler has personally represented PERF at major political events, in face-to-face dialog with police tactical commanders and leadership. That was the case at the 2008 Republican National Convention, where Wexler and Minneapolis Police Chief Dolan coordinated what is widely regarded as one of the most aggressive political crackdowns in recent American history. Wexler spent the afternoon of October 14 observing Occupy Philadelphia with Philadelphia police commissioner Ramsey. Speaking to the Philadelphia Tribune, Ramsey said: “They wanted to see what the Occupy protesters were doing here in Philadelphia. As we walked through their encampment, almost immediately they were texting other groups around the country – it was happening while we were there and that was very, very interesting. It’s instant communication, and it’s worldwide. We have to become more adept at using the technology. Our police department has its own active Facebook page as a way of reaching out to the community.”“Had a great one-day conference in Philly about social media – very pertinent these days with the occupy protests …” Wexler stated from his twitter account. As the occupation movement grew, PERF began circulating a publication titled Managing Major Events: Best Practices from the Field. The manual – a copy of which we downloaded — amounts to a how-to guide for policing political events, and gives special attention to policing “Anarchists” and “Eco Terrrorists” at political events.
The guide encourages the use of undercover officers and snatch squads to “grab the bad guys and remove them from the crowd.” It urges local law enforcement to use social media to map the Occupy movement. An earlier PERF guide Police Management of Mass Demonstrations advocates the use of embedded media to control police messages, the use of undercover cops to infiltrate protest groups, the use and pitfalls of preemptive mass arrest, an examination of the use of less-than-lethal crowd control weapons, and general discussion weighing the use of force in crowd control. (11.18.11 Shawn Gaynor http://www.sfbg.com/politics/2011/11/18/cop-group-coordinating-occupy-crackdowns ). There are even pictures of DHS involvement in arrests – Federal Protective Service officers arrest a photographer in Terry Shrunk Plaza. ( http://www.demotix.com/photo/906228/homeland-security-detain-occupy-portland-photographer )
Consider this coupled and in concert with ” http://www.sfexaminer.com/local/2012/03/sfpd-wants-keep-its-fbi-ties-covert#ixzz1p86fTcZf : SFPD wants to keep its FBI ties covert By: Joshua Sabatini | 03/13/12 10:18 PM SF Examiner Staff Writer : A bill passed by the Board of Supervisors would require the San Francisco Police Department to share more information about its work with the FBI Joint Terrorism Task Force. Police Chief Greg Suhr said Tuesday he wants the mayor to veto legislation that would open up to public scrutiny the department’s working relationship with the FBI’s counterterrorism unit.” There is also the public website of Infragurard : “InfraGard is an information sharing and analysis effort serving the interests and combining the knowledge base of a wide range of members. At its most basic level, InfraGard is a partnership between the Federal Bureau of Investigation and the private sector. InfraGard is an association of businesses, academic institutions, state and local law enforcement agencies, and other participants dedicated to sharing information and intelligence to prevent hostile acts against the United States. InfraGard Chapters are geographically linked with FBI Field Office territories. InfraGard is a unique national partnership between the private sector and the U.S. government represented by the Federal Bureau of Investigation (FBI). The San Francisco Bay Area InfraGard Chapter has been established in partnership with the FBI San Francisco Division. The San Francisco Bay Area InfraGard Chapter is one of 85 chapters in the FBI’s InfraGard network and a member of the InfraGard National Members Alliance. http://www.infragard.net http://www.sfbay-infragard.org/ The InfraGard secure membership vetting process is handled solely by the FBI. The San Francisco Bay Area InfraGard Members Alliance has no involvement in the membership approval process and does not have access to membership applications. Special Agent John Chesson Coordinator: San Francisco Bay InfraGard Chapter San Francisco FBI
Email: firstname.lastname@example.org Once submitted, your application will be processed by the FBI as quickly as possible. You will be notified of your InfraGard membership status when the FBI review process is completed and you will then be provided access to the InfraGard secure web site.” there is an attempt to flout the Fourth Amendment as these groups are not governmental but obviously defacto agents of the government and must subject to and restrained by constitutional limitations.
Another shadow agency is Stratfor : Stratfor, a consultancy based in Texas that specialises in foreign affairs and security issues. http://www.guardian.co.uk/technology/2012/jan/08/hackers-expose-defence-intelligence-officials. Stratfor describes itself as a provider of “strategic intelligence on global business, economic, security and geopolitical affairs”. Guardian analysis of records published after the original Anonymous attack revealed the email account details of 221 UK military staff and 242 Nato officials. WikiLeaks said the documents contained details of the inner workings of the private intelligence agency, links between government and private intelligence, and commentary on WikiLeaks itself. http://www.guardian.co.uk/media/2012/feb/27/wikileaks-publishes-stratfor-emails-anonymous
This cannot be allowed : IT IS NOT CONSTITUTIONAL TO LABEL ALL AMERICANS ENEMY AND NATIONALLY AND GLOBALLY COORDINATE INTELLIGENCE GATHERING AND COORDINATING ACTIONS AGAINST AMERICAN CITIZENS EXERCISING THEIR GUARANTEED CONSTITUTIONAL RIGHTS!
APPLIED AS TO CHILL FIRST AMENDMENT RIGHTS Cops toss sit-lie law at Occupy SF By: Dan Schreiber | 12/09/11 4:00 Am Sf Examiner Staff Writer MIKE KOOZMIN/THE SF EXAMINER Police are using the sit-lie ordinance as a tool against Occupy SF protesters.
Although San Francisco’s sit-lie law has been used only sparingly against the problematic vagrants who were its intended target, the regulation is now the latest police enforcement tool for dealing with the sidewalk dwellers of the Occupy SF movement. The law prohibits sitting or lying on The City’s public sidewalks between 7 a.m. and 11 p.m., with certain exceptions for First Amendment practices such as participating in a demonstration. But there is an exception to the exception.“Indefinite occupation of public space” isn’t on the list of permits one can apply for in San Francisco — so protesters don’t have one — and that leaves them subject to the sit-lie law when they go to sleep. After their Justin Herman Plaza tent city was cleared by police during an early morning raid Wednesday, occupiers returned to their original Market Street camp outside the Federal Reserve Bank and have since been sleeping on the sidewalk there. But Wednesday evening and Thursday morning, several sleeping protesters were rousted by officers and handed slips of paper informing them of the sit-lie law. http://www.sfexaminer.com/local/2011/12/cops-toss-sit-lie-law-occupy-sf#ixzz1nRPHk9Wt
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). 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) hydroterrorism, biotarrorism, social terrorism and Police Code 168 invalid on its face and as applied.
The final question is, therefore, is Occupying speech content in and of itself?
The First Amendment protects not only verbal speech, but also symbolic speech. Message content may be delivered by conduct that is intended to be communicative and, in context, would reasonably be understood by the viewer to be communicative. (Spence v. Washington (1974) 418 U.S. 405, 94); Tinker v. Des Moines School District (1969) 393 U.S. 503, 89) For instance, the U.S. Supreme Court has ruled that expenditure money is this kind of speech subject to strict scrutiny. Buckley v. Valeo (1976) 424 U.S. 1. In Buckley, the court held that money is speech because it engenders elements of “free association.”
In dictum, Clark recognizes that overnight sleeping, when connected with speech in a demonstration, is to receive some protection under the First Amendment. Although sitting or lying on a public sidewalk does not per se constitute expressive activity (Amster v. City of Tempe, 2001 U.S. App. LEXIS 9239 (9th Cir. 2001)), “overnight sleeping in connection with the demonstration is expressive conduct protected to some extent by the First Amendment.” (Clark, 468 U.S. 288, 293.) The high Court (apparently more concerned with Nat. Park Service’s continued smooth functioning per status quo) did not define the contours of the scope and terms of the protection which the First Amendment gives such symbolic speech The Supreme Court seems to have missed the point in Clark The camping was, in itself, the symbolic speech—i.e. the act of camping is the content and therefore should have been subject to strict scrutiny. To surmount the obstacle of the Clark decision, Occupying must emphasize that it is the act of Occupying, and its attendant association and education of the members of its movement, is pure symbolic speech. To regulate Occupying and General Assembly, which is a forum of many views, is to regulate the content of speech.
Occupiers were successful with this argument in a Federal District Court in Florida. In Occupy Fort Myers v. City of Fort Myers (M.D. Fla. November 11, 2011) 2011 WL 5554034, the court enjoined a city from enforcing a no camping ordinance much like Los Angeles’s, accepting the Occupier’s argument that camping was symbolic content. The court found the conduct of tenting and sleeping in the park was a communicative act that was understood by viewer as communication. Unfortunately, when the Occupiers made the same arguments in Occupy Sacramento v. City of Sacramento (E.D. Cal. November 4, 2011) 2011 WL 5374748, and, most recently, the court in Occupy Minneapolis v. County of Hennepin (D. Minn. November 23, 2011) —F.Supp.2d —-, 2011 WL 5878359, the courts did not distinguish Clark. Applying intermediate scrutiny, those courts upheld shutting down Occupations of traditional forums. While admitting that erecting tents and sleeping the night was protected symbolic speech, the court found the Clark case indistinguishable. (Note that in Waller v. City of New York (N.Y. Supp.November 15, 2011)— N.Y.S.2d —-, 2011 WL 5865256, a traditional public forum argument was not altogether applicable to actions of a private owner of Zucotti Park).
You ask if occupying is symbolic “content” of speech. I believe it is so when connected with the demonstration. Moreover, as in Occupy Fort Myers v. City of Fort Myers (M.D. Fla. November 11, 2011) 2011 WL 5554034, Occupy Los Angeles’s occupation is connected with their speech. (See Oct. 18, 2011 communique, Public Use of Public Space [“We, OccupyLA, agree that the legal state of affairs at many occupation sites is unacceptable. Mass arrests . . . are being used to suppress our first amendment rights to assemble for the purpose of peaceful public demonstration. These constitutional rights are guaranteed federally and must be respected above any local city code.”]. Occupy Los Angeles’s overnight camping also symbolizes the lifestyle of homeless individuals where the Occupiers’ have given foremost attention to the issue of local homelessness. See their Nov. 24, 2011 “Response,” ¶¶ 1 and 2 [stating outstanding “grievances,” i.e., home foreclosures and homelessness in Los Angeles].) “Occupation” warrants protection under the First Amendment. (See Clark, 468 U.S. at 293.) Moreover, “judged in relation to the statute’s plainly legitimate sweep” (Broadrick, 413 U.S at 615), 63.44’s proscription of such symbolic speech “suffices to invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.” (Id., at 613.)
However, there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law—particularly a law that reflects “legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.” (Broadrick, 413 U.S., at 615). For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do not swallow the social benefits of declaring a law “overbroad,” the Court has insisted that a law’s application to protected speech be “substantial,” not only in an absolute sense, but also relative to the scope of the law’s plainly legitimate applications, before applying the “strong medicine” of overbreadth invalidation. (Id., at 613).
The court in Davidovitch v. San Diego 2011 WL 6013010 (S.D. Cal. Dec. 1, 2011) threw out Occupy San Diego’s claims that a San Diego ordinance prohibiting placing stuff on public grounds was an unconstitutional restriction on content, unconstitutionally overbroad, and void for vagueness. Of course, the court cited the Clark decision and never mentioned Buckley v. Valeo.
VI- PROPOSED ORDER FRCP RULE 65
Writ of Mandamus by appropriate action or motion (FRCP 81(b)) and Other Potential Civil Remedies
Other potential federal civil remedies for infringement of the First Amendment right of free expression include both of the following: Actions for declaratory relief [see 28 U.S.C. §§ 2201, 2202; Fed. R. Civ. P., Rule 57; see also Golden v. Zwickler (1969) 394 U.S. 103, 108-110, 89 S. Ct. 956, 22 L. Ed. 2d 113 (requisite controversy did not exist; case involving distribution of handbills); see generally Moore's Federal Practice, Ch. 57 (3d ed. Matthew Bender); but see Samuels v. Mackell (1971) 401 U.S. 66, 73, 91 S. Ct. 764, 27 L. Ed. 2d 688 (federal declaratory relief ordinarily denied if injunctive relief is unavailable under 28 U.S.C. §2283, barring federal injunction of state court proceedings in absence of statute specifically authorizing such injunction)]; and Federal mandamus proceedings, if the case involves constitutional violations by an agency, officer, or employee of the United States [see 28 U.S.C. § 1361].
There is no other adequate means to attain the relief needed and Complainant-Petitioners will be damaged or prejudiced in a way that is not correctable, the laws on their face and/or as applied are clearly erroneous as a matter of law and raise new and important problems or issues of law of first impression.
Unless defendants are restrained by injunction, Compalainant-Petitioners will continue to suffer severe, irreparable harm in that the continued harrasment by arbitrary discretion is used to confiscate property, refuse the right to sit when necessary and the ability to maintain a free speech demonstration. Compalainant-Petitioners is informed and believes, and on that basis alleges, that unless the court grants injunctive relief, defendants will continue to prohibit plaintiff’s exercise of free speech, and plaintiff and the public will continue to suffer injury and chilling of exercise of their rights.
Compalianant-Petitioners have no adequate remedy at law because monetary damages will not afford adequate relief for the suppression of plaintiff’s message and the deprivation of plaintiff’s constitutional rights.
An actual controversy has arisen and now exists between Compalainant-Petitioners and defendants-respondents regarding their respective rights and duties in thatCompalianant-Petitioners contend that defendant-respondent’s rules, policies, and practices violate Compalianant-Petitioners rights of freedom of speech and freedom of assembly under the First and Fourteenth Amendments of United States Constitution and under the California Constitution, Article I, Section 2.
Compalianant-Petitioners desire a declaration as to the validity of defendant-respondent’s rules, policies, and practices, as described in this complaint, both on their face and as applied to Compalianant-Petitioners local participation in a national political movement. Unless the court issues an appropriate declaration of rights, the parties will not know whether defendants’ policies and procedures comply with the law, and there will continue to be disputes and controversy
WHEREFORE, plaintiff prays judgment against defendants, and each of them, as follows:
1. For a temporary restraining order, a preliminary injunction, and a permanent injunction, all enjoining defendant(s)-respondents and his/her/their/its agents, servants, and employees, and all such persons acting under, in concert with, or for him/her/them/it from denying Compalianant-Petitioners’s constitutional right to express his/her/its views and in particular :
DECLARE San Francisco Police Code 168 “SIT/LIE” AS A MATTER OF LAW IS VAGUE AND UNCONSTITUTIONAL.
DECLARE California Penal Code 647 “LODGING” AS A MATTER OF LAW IS VAGUE AND UNCONSTITUTIONAL.
DECLARE San Francisco Police Code 168 “SIT/LIE” AS APPLIED IS OVERBROAD AND UNCONSTITUTIONAL.
DECLARE California Penal Code 647 “LODGING” AS APPLIED IS OVERBROAD AND UNCONSTITUTIONAL.
ENJOIN ANY FURTHER ENFORCEMENT AND ALL PENDING CASES UNDER THIS San Francisco Police Code 168 DISMISSED. 28USC2204, 28USC2201
ENJOIN ANY FURTHER ENFORCEMENT AND ALL PENDING CASES UNDER THIS California Penal Code 647 DISMISSED. 28USC2204, 28USC2201
2. For a declaration by the court of the rights and duties of Compalianant-Petitioners herein, and specifically for a declaration that the policies and practices of defendant-respondentss are unconstitutional as a violation of Compalianant-Petitioners rights;
3. For reasonable attorney’s fees. For costs of suit herein incurred; and
5. For such other and further relief as the court may deem proper.
Karla Gottschalk Attorney for Compalianant-Petitioners
FRCP RULE 11
We, the undersigned Complainant-Petitioners verify under penalty of perjury that the foregoing allegations supporting this Complaint and Petition for Relief are true and correct to the best of each verifiers knowledge and belief.
We the undersigned, ____________________ [name], are the complainant-plaintiffs in the above-entitled action. I have read this complaint and know its contents. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ____________________ [date and place]
Dated ________________________ _____________________________________________
Dated ________________________ _____________________________________________
Dated ________________________ _____________________________________________
Dated ________________________ _____________________________________________
Dated ________________________ _____________________________________________
EXHIBIT 1 SAN FRANCISCO POLICE CODE 168
INTENT TO SELECTIVE ENFORCE
1. Sit/Lie Ordinance Text: Section 168 – Haight Ashbury Improvement …
Mar 22, 2010 – Sit/Lie Ordinance Text: Section 168 … Mayor Newsom’s proposed text, ” Prohibition on Sitting or Lying on Public Sidewalks,” is attached!
2 FRE cites done
3 supervisors resolution
RESOLUTION N0·465-11 [Expressing Support for Occupy Wall Street Protest Movement and the People's Right toPeaceful Assembly in San Francisco] http://www.sfbos.org/ftp/uploadedfiles/bdsupvrs/committees/materials/100233tdr.pdf4 bbc done
5 guardian done
6 street sheet
7 letter from suhr no enforcement of sit lie
8 SFPD 538 notice have
9 tickets, citations individuals
10 PROPOSED EXHIBITS FOR FULL HEARING-VIDEO