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Convicted of public intoxication, Thomas Kellogg fought back with the novel argument that the law violates his constitutional rights because he’s a homeless, chronic alcoholic who cannot avoid being drunk in public. A sympathetic appeal court ruled against him 2-1 Thursday, but not before the lone dissenter pointed to issues and case law that could give Kellogg plenty of grist to mount an appeal to the California Supreme Court. “Because a person who is involuntarily homeless cannot avoid appearing in public,” Justice Alex McDonald of San Diego’s Fourth District Court of Appeal wrote in dissent, “that person should not be criminally liable for acts (e.g., such as being intoxicated) that, if done in private by others, are not considered criminal acts.” Kellogg was arrested on Jan. 10, 2002, after officers found him rocking back and forth and talking to himself in some bushes near a busy freeway in San Diego County. At trial, medical experts testified that Kellogg not only has severe alcohol dependence, but also suffers from extreme psychological disorders that make it impossible for him to overcome his problems and get off the street. As a result, Kellogg’s attorneys argued, the state’s public intoxication statute — Penal Code Section 647(f) — violates his Eighth Amendment and state constitutional rights against cruel and unusual punishment. Even though the Fourth District’s majority justices said they were “sympathetic to Kellogg’s plight,” they held the statute doesn’t punish the condition of homelessness but rather punishes conduct posing a safety risk. “The state has a legitimate need to control public drunkenness when it creates a safety hazard,” Justice Judith Haller wrote. “It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets and other such public areas where they could be trampled upon, tripped over or run over by cars.” Justice Judith McConnell concurred. In dissent, Justice McDonald insisted that Kellogg’s position is supported by former U.S. Supreme Court Justice Byron White’s concurring opinion in Powell v. Texas, 392 U.S. 514, a 1968 ruling permitting states to punish addicts whose conduct occurs in public areas. White questioned whether a conviction for public drunkenness would violate Eighth Amendment rights if the person were a homeless alcoholic. “Justice White’s concurring opinion in Powell,” McDonald wrote, “strongly suggests that he would have joined the four dissenting justices had the record in that case shown the defendant was a chronic alcoholic who was not homeless by choice and therefore could not have done his drinking in private or avoid being in public while intoxicated. “Justice White’s concurring opinion noted that many chronic alcoholics do not have homes.” McDonald noted that Kellogg’s case seems to be one of first impression for both state and federal appellate courts. Assistant City Attorney Susan Heath, one of the lawyers for San Diego, couldn’t be reached for comment Thursday. But San Diego County Deputy Public Defender Laura Arnold, who represented Kellogg, said she was disappointed. “This is a very important battle for individuals who, like Mr. Kellogg, find themselves homeless not because of any deficiency in character or any desire to be homeless,” she said, “but because they are truly unable to provide for their own basic needs, and there are no resources in this society to assist them effectively.” Arnold said she intends to petition the California Supreme Court for review. “I’m hopeful that the position that I’ve taken,” she said, “and the position that is articulated very well by Justice McDonald in the dissent will prevail.” The ruling is People v. Kellogg, 04 C.D.O.S. 5298.

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