Original Body
pstrongStaff writer Ken Moshesh Wins a precedent setting ruling for Homeless citizens/strong/p
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pby Fiona Gow and Ken Moshesh/PNN /p
p Activists and advocates from Berkeley's Building Opportunities for Self Sufficiency,(BOSS) the Homeless Action Center, and POOR Magazine gathered at the Berkeley Municipal Court last Thursday hoping to witness a long-awaited ruling. They were there to see if California Code 647(j), the law that makes "lodging" on property without the owner's permission illegal, would be found unconstitutional./p
pJudge Brosnahan ruled that in Ken Moshesh's case, use of Code 647(j) was unconstitutional and that it could not be applied to him. She stated that she, "did not find the code facially invalid, but that it was sufficiently ambiguous and as it applied to Ken's conduct, the statute was not constitutional. ì/p
pIt had been no short battle for Moshesh to get to the point where his case was actually being heard. In October, 2000 Moshesh was issued a citation for sleeping outside, which police said violated Code 647(j). On January 18, 2001 he was arrested because his citation had gone to warrant. He decided to petition for a revocation of probation and to challenge the constitutionality of the code. /p
pCivil Rights attorney Osha Neuman, of Community Defense Incorporated, said this is a very exciting ruling. ìSince this law is only applied to homeless people, it means that it canít be used to criminalize them.î He went on to say that, ìIf the prosecution appeals the case and the decision is upheld in appeals then the decision would apply throughout Berkeley, Oakland, and Alameda and could set a precedent for the state.î If the decision is appealed, it would also be an opportunity for the defense to argue the constitutionality of the code./p
pSyren said he didnít think the DA would appeal the decision, since the judge did not rule that the code was unconstitutional on its face, which would have had more resounding consequences. But, in effect it will make it illegal for police to cite any homeless people for violating Code 647(j). According to Syren, ìThere was nothing unusual in its application in Ken's case, and therefore others who are in similar situations will find protection from the ruling in Mosheshís case. "Though the judge didnít technically say this in her ruling, Syren said another reason for the judgment was the question of equal protection for homeless people, since, "No one else gets arrested for this."/p
pMoshesh's case was originally placed on the Consent Calendar for cases to be heard on April 17, 2001, but was continued. In response to the postponement 100 homeless people and advocates stormed the Berkeley City Council, demanding that Berkeley deprioritize enforcing Code 647(j). Ken, along with Lisa Gray-Garcia of POOR Magazine, led the fight that resulted in the courts deprioritizing the enforcement of Code 647(j). Since this ruling, Syren said that he had noticed a dramatic decline in the number of people booked and charged with violating 647(j). He was not willing to say if this was a direct cause of the deprioritization decision, but he said it could well be./p
pSyren's arguments in Kenís defense included an impassioned statement criticizing Code 647(j). Syren argued that the law was vague facially and on application, because it was unclear what the term "lodging" really meant. He asked, "Did the legislature really mean putting a sleeping bag down for one night was 'lodging' or did they mean something more permanent?" He made the comment that if they did mean one night of resting your body, then the literary legend Jack Kerouc would have found himself in violation of the code on many occasions. He said such a code makes homelessness and poverty a crime./p
pDeputy District Attorney Lance Kubo then made his very professional argument in defense of Code 647(j). He claimed that the law had been on the books since 1872 and was not written with the intent of invidiously going after homeless people. He went on to say that the fact that this law was impacting homeless people was incidental. The judge contradicted him strongly on this last point. /p
pKubo continued his defense of code 647(j) by saying that if its constitutionality was to be questioned, then it would have to go through the strict process of being challenged either as it was applied or facially. It could not be challenged as applied he said, because there had to be a conviction first. A facial challenge would rest on examining the text of the statute according to previous or current authority. The judge did not seem swayed by Kubo's arguments and challenged him on several occasions, displaying an obvious interest in seeing that the DA defended his opinions./p
pUnfortunately, the judge, in her decision stated that there were other options for prosecuting cases like Ken's. Code 602(l) is a law which states that if a person goes onto property that is clearly marked with a "No Trespassing" sign then it would constitute a violation. Syren said the thing to be on the lookout for now would be increased bookings of people under the 602(l) trespassing law. /p
pThe judge's ruling was a great success for Ken and all of his supporters and opens the doors for further challenging laws that unfairly target homeless people. ìWhat this case shows us is that the challenge was worthy of a decision, either way.î When asked if he thought he was a visionary, Ken Moshesh replied, No, this has always been the vision of people who have come to this country, all of whom were homeless.î His main hope is that this decision will, ìhelp other homeless people to live with themselves and their situation to the point where they are able to protest and have expectations./p
pbDECRIMINALIZING HOMELESSNESSbr /
br /BY KEN MOSHESH/b/p
pON THE F0URTH OF JULY 2001, THE NATION WENT THROUGH ITS USUAL RITUALS CELEBRATING ITS NATIONAL INDEPENDENCE DAY --BARBECUE PICNICS, FIREWORKS, BASEBALL AND OTHER HOLIDAY ACTIVITIES. /p
pWE HOMELESS PERSONS ALSO PERFORMED OUR USUAL HOLIDAY RITES OF LOOKING FOR REPLACEMENT SERVICES [(ESPECIALLY FOOD), SINCE OUR USUAL PROVIDERS OFTEN CLOSE FOR THE OCCASION] BEFORE THE NIGHTLY SEARCH FOR A PLACE TO SLEEP OUTSIDE, AMIDST THE FESTIVITIES./p
pAN UNCONFIRMED RUMOR THAT A MEAL WILL BE SERVED AT PEOPLES PARK IN BERKELEY REMINDS ME THAT I COULDN’T ATTEND ANYWAY BECAUSE OF MY STAYAWAY ORDER FROM ALL UC PROPERTY AS A RESULT OF MY ARREST FOR SLEEPING HOMELESSLY OUTSIDE ON CAMPUS AT NIGHT./p
pTHE RUMOR ALSO SERVES TO EMPHASIZE THE POSSIBILITY OF SERVING MORE JAILTIME (45 DAYS FOR PROBATION VIOLATION) FOR BEING CITED AGAIN FOR SLEEPING HOMELESSLY OUTSIDE, IF MY CHALLENGE TO THE 647J LODGING LAW UNDER WHICH I WAS ARRESTED IS DENIED./p
pON THE 12TH OF JULY, HAVING ENDURED ANOTHER "HOLLOWDAY ‘, I AM THE FIRST TO ARRIVE UPSTAIRS IN FRONT OF DEPT 201, BERKELEY COURTHOUSE TO LEARN THE FATE OF MY REVOCATION OF PROBATION PETITION AND CHALLENGE TO THE CONSTITUTIONALITY OF 647J LODGING LAW (FOR WHICH I WAS PLACED ON PROBATION FOR VIOLATING BY SLEEPING OUTSIDE)./p
pMY NOW ACCUSTOMED ( OFTEN DESIRED) ALONENESS IS PIERCED BY A SALUTATION FROM A NEWLY ASSIGNED FELLOW POOR MAGAZINE REPORTER IN THE MIDST OF OTHER SUMMONED SEMI-VISIBLE PERSONS THERE TO LEARN THEIR COURTROOM FATES./p
pWE ARE JOINED BY MANY OF THE CONCERNED PERSONS WHO HAD ENDURED THE COURT PROCEDINGS AND CONTINUATIONS FROM FEBRUARY 21, PRESIDED OVER BY THE HONORABLE JUDGE CAROL BROSNAHAN AND ADVOCATED ON MY BEHALF BY ALAMEDA COUNTY PUBLIC DEFENDER, GREGORY A. SYREN. THEY INCLUDED MICHAEL DIEHL AND DARREN NOY OF BOSS, PATRICIA WALL OF HAC, ALDO ARTURO DELLA MAGGIORA,VIDEOGRAPHER AND OTHERS. /p
pIN THE COURTROOM, AFTER QUICKLY AND QUIETLY RELATING THE PREVIOUS ACTIONS AND CURRENT ISSUES TO MY NEW POOR MAGAZINE COLLEAGUE, FIONA GOW, THE QUICK DISPOSTION OF THE CASES AHEAD OF OURS BEGINS TO SLOWLY REMOVE THE LEARNED EXPECTANCY OF YET ANOTHER CONTINUANCE./p
pTHE SCHIZOPRENIA OF THE SITUATION SURREALLY EMERGES AS JOURNALISTIC THOUGHTS AND WORDS SUBMERGE INTO INCARCERATION POSSIBILITIES FOR HOMELESS NECESITIES AS THE JUDGE CALLS FOR "THE MATTER OF KEN MOSHESH"...FOR HAVING TO SLEEP OUTSIDE../p
pINSIDE, AS THE DAPPER D.A. PROFESSIONALLY PRESSES THE POLICE POSITION TO FURTHER INCARCERATE ME, THE EIGHT YEARS OF HOMELESS DICHOTOMIES MINGLE WITH A PERSISTENT AWKWARD REALIZATION: THE POLICE DEPARTMENT SHOULD NOT BE ERRONEOUSLY CALLED UPON TO SOLVE HOMELESS MATTERS IN THE FIRST PLACE./p
pTHIS INCREASINGLY AMERICAN OVER DEPENDENCE ON FUTILE, EXACERBATING INCARCERATION PROCEDURES SHOULD ACTUALLY BE REPLACED BY JOINT RESOLUTIONS BY THE PARTIES MOST DIRECTLYAND ADVERSARILY INVOLVED, HOMELESS AND POLICE COMMUNITIES (WHOSE SOLITARY PATHS OFTEN CROSS DURING THE UNCERTAINTIES OF NIGHT)./p
pTHEY SHOULD BOTH BE REDIRECTING HOMELESS COMPLAINTS BY THE BUSINESS AND PROPERTY OWNING/ DWELLING COMMUNITY TO THE GOVERNING COMMUNITY OF THE RICHEST COUNTRY IN THE WORLD TO CREATE SUFFICIENT AFFORDABLE HOUSING AND/OR LIVEABLE WAGES FOR "ALL THE PEOPLE"...THERBY MAKING LODGING LAWS MOOT./p
pIN FACT, AS THE MOST SUCCESSFUL LEADER OF THE FREE DEMOCRATIC WORLD WE SHOULD BE ENGAGED IN MODELING THE EFFICACY AND SINCERITY OF OUR STATED WAY OF LIFE FOR" ALL THE PEOPLE" BY EMBARKING UPON A CONSTITUTIONAL, TIME- DESIGNATED PLAN FOR ELIMINATING POVERTY(AND ITS RELATED ABUSES) FROM THE LAND, RATHER THAN "BAND-AIDING" ICE-BERGISH MANIFESTATIONS, LIKE CRIMINALIZING HOMELESSNESS. /p
pTHE ELOQUENCE AND SINCERITY OF THE PUBLIC DEFENDER’S PRESENTATION QUELLS ALL IN SUSPENDED SILENCE AS "THE MATTER OF KEN MOSHESH", ALLEGED HOMELESS LODGER, PERMEATES THE COURTROOM AND INVADES THE OVERLY MATERIALIZED SOUL OF AMERICA, AND THE HOMELESSLY ALMOST- NUMBED SOUL OF MINE./p
pbTHE FINAL DECISION, METICULOUSLY AND THOUGHTFULLY DELIVERED BY THE CHARISMATIC PRESIDING JUDGE, WAS ESSENTIALLY AS FOLLOWS: THE 647J LODGING WAS FOUND TO BE CONSTITUTIONAL FACIALLY, BUT IT WAS FOUND TO BE UNCONSTITUTIONAL AS TO ITS APPLICATION (SPECIFICALLY TO HOMELESS FOLKS), SO MY REVOCATION OF PROBATION CHARGED WAS DISMISSED./b/p
pALTHOUGH APPEALS TO THE CONSTITUTIONAL ISSUES ARE PROBABLY LIKELY FROM BOTH SIDES, AND THERE ARE OTHER LESS VAGUE STATUES BEING USED TO REMOVE THE HOMELESS), THE 647J METHOD OF CRIMINALLY CITING AND ARRESTING HOMELESS PERSONS FOR JUST SLEEPING IS NOW NULL AND VOID IN BERKELEY./p
pMORE IMPORTANTLY, A PRECEDENT HAS BEEN SET TO LEGALLY DETERMINE AND POLITICALLY QUESTION THE NATURE OF ACTIVITIES DESIGNED TO REMOVE THE HOMELESS THAT OSCILLATES FAR BEYOND BERKELEY, AS MOST THINGS ORGINATING HERE USUALLY DO.br /
IT MOVES US CLOSER TO NATIONALLY ACCEPTING THE SERIOUSNESS AND PREVALENCE OF HOMELESSNESS, AND DEVELOPING A PLAN FOR ITS RESOLUTION, AS WE HOPEFULLY MOVE TOWARDS ELIMINATING POVERTY ITSELF./p
pMOST IMPORTANTLY, HOMELESS CITIZENS HAVE BEEN GIVEN ANOTHER ( THE APRIL 24 BERKELEY CITY COUNCIL DEPRIORITIZATION OF HOMELESS ARRESTS IS ANOTHER) REASON NOT TO GIVE UP ON THEMSELVES BECAUSE OF THEIR CURRENTLY DEPRESSINGLY DESIGNED HOMELESS EXISTENCE. /p
pTHERE IS POSSIBILITY AND HOPE FOR SOMETHING BETTER AS WE CONTINUE TO STRUGGLE WITH A PLACE TO SLEEP EACH NIGHT. /p
pA PLACE TO HOME/p
pOH SAY CAN YOU SEEbr /
br /SPARKLESbr /
br /FLARESbr /
br /BOMBS BURSTING AT NIGHT/p
pGLEAMS OF GLEEbr /
br /BUT NONE INSIDE FOR ME/p
pSTARING UPbr /
br /PRICED OUT.......SIDEbr /
br /SCARRED BY STARLIGHTbr /
br /SEARCHED BY FLASHLIGHTbr /
br /ARRESTED SLEEPbr /
br /DETAINEDbr /
br /DEFAMEDbr /
br /CLAIMS TO FREEDOMSbr /
br /TO BLAME?/p
pJUDGE CALLS MY NAMEbr /
br /LAWYERS REFRAINbr /
br /VERBIAGE RAINSbr /
br /ON MY SLEEP- SEEKING BAGbr /
br /ALREADY WET, WITH YEARS OF TEARSbr /
br /OF STRUGGLEbr /
br /FOR PLACES TO GObr /
br /NOT INSANEbr /
br /BUT INSIDEbr /
br / OR AT LEAST NOT IN VIEWbr /
br /JUST TO SLEEP/p
pJUDGE DISMISSES THIER CLAIMbr /
br /PERHAPS, NO MOREbr /
br /MAYBE SOONbr /
br /A PLACE TO HOME/p
pKEN MOSHESH 7/01br /
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