Catch 22 in the People's Republic
Thursday, June 2, 2011 at 03:52PM 
“I have to sleep. I go where no one sees me. I get up before it’s light. I do the best I can not to be a violator. But if I choose to stay here, I have to break the law.”
—Mike Fitzgerald, homeless recipient of six camping tickets
By Tom deMers
When you ask Boulder city councilwoman KC Becker about the tickets given to Boulder’s outdoor residents, aka rough sleepers, she mentions the 10-year plan to end homelessness. It’s a kind of mantra for city officials. Becker calls it a “systemic solution for the long term.” Okay, but what about years 1-9? How about tonight? “We have a camping ordinance because we have to decide on the best use of our resources,” she says, “in order to keep the city successful. You can be led by your compassionate part or you can focus on permanent housing solutions like Housing First.”
Listening to Becker at the University of Colorado’s law school one evening in April, I wondered why we couldn’t do both. Why we insist on waking rough sleepers with a flashlight and a $100 ticket, all the while planning for Nirvana down the road? Some strange disconnect between the punitive present and the redemptive future. Why not, I wondered, phase the 10-year plan in now as Boulder shelters are closing for the season and a few hundred men and women are forced to sleep rough and break the law? In total, according to the most recent Point in Time survey conducted in Boulder, there are 914 homeless men, women and children in Boulder county on any given night. Where are they all supposed to go?
These questions were up for many at the meeting, an annual gathering sponsored by the American Civil Liberties Union where Becker and City Attorney Tom Carr appeared to discuss the no-camping law. It’s become a hot topic since attorney David Harrison started representing homeless sleepers in court, forcing the issue into the public eye. That eye blinked and went about its business, pretty much the response nationwide to a problem that smooth sleepers see as a bad dream they want to forget.
On May 5th, one of Harrison’s early cases—the conviction of David Lee Madison in November 2009—was appealed to the Colorado Supreme Court after the conviction was upheld in district court. Absurdities cling to the case like tar balls on a Louisiana flip-flop. Madison would have been exonerated had he not used a sleeping bag. Why? Because under the law sleeping in a bag is not sleeping, it’s “camping,” camping defined as using “shelter,” shelter defined “without limitation” to be anything other than the clothes on your back. In common parlance a blanket is not camping, nor is a sleeping bag a “camping” bag, nor do a pillow or a ground cloth constitute “camping.” But it’s guilt by association if you sleep using any of these items. The temperature dropped to 11 degrees that night, and frost coated his bag. Madison might have died without it. The law asks people to risk their lives.
As we discussed in an earlier column (June 2010), real sleep in heavy clothes, even when temperatures are in the middle 40s, is impossible. Survival is possible, but sleep, the experience of deep rest that humans require in order to live, is not. Night after night rough sleepers have the same needs as smooth sleepers. This law criminalizes a fundamental human need.
Another absurd aspect of the ordinance is that it cannot be obeyed. By definition a person who is homeless must sleep outside, and for about half the year no beds or shelters are available in the city. Carr pointed out that people can sleep legally during the day. That may work for bats, but people are hardwired to sleep at night, and despite what some may think, the homeless are people. The ACLU brief argues that because of its breadth the Boulder law criminalizes a status (homelessness), something the U.S. Supreme Court has often ruled against. Clinging to its biased definition, the city claims the law targets not a status, but the behavior of camping. The Colorado high court must rule on whether to take the case.
At the ACLU meeting Carr and Becker defended the law, claiming it actually benefits the homeless. Their arguments revealed Boulder stuck on the horns of a dilemma that many cities face. Carr described the court as an agent of change, police officers sweeping up the homeless (on average 394 tickets issued annually in the last four years) and the court funneling these folks toward housing through the probation system. He mixed in descriptions of a program he created in Seattle, which apparently did this, but in fact no such program exists in the Boulder municipal court, and overworked probation officers rarely divert anyone from the street. Becker emphasized the $2.5 million Boulder spends on homelessness, claiming the city allocates three times per capita what any other city in Colorado spends. None of these arguments, even if true, deal with the absurdities mentioned above or the Constitutional issues argued by Harrison and the ACLU. Becker’s and Carr’s arguments merely rationalize a law that runs contrary to Boulder’s generally compassionate public policies. That is perhaps the most contradictory aspect of the situation, a city that feeds and houses its homeless people, finds many of them housing each year, allocates considerable resources to their safety, but must harass them nightly for doing what they cannot help but do. Huh?
The law’s real intent? Aesthetics and commerce. No town in America wants a lot of grungy forms crashed out on its manicured lawns. Bad for business and tourism and definitely pisses off joggers. A more accurate law would target “scenic endangerment,” but good luck with those issues. As a member of HOME, a group that supports homeless rights, I urge the designation of a public area in the summer where homeless people can sleep legally, with portable toilets and police patrols. An area managed primarily by the homeless themselves.
C’mon Boulder, be a Republic for all the people.
There will be a “Sleep-in for Homeless Justice” on June 11 in Boulder at Canyon Blvd. and Broadway, on the grass south of the Municipal Building.
The public is invited to join homeless people in a protest of Boulder’s no camping ordinance, which criminalizes sleep. Potluck at 6:30 P.M., open mike at 7:30 P.M., bed down at 8:30 to 9 P.M. People may come for a symbolic hour or two or stay the night.
ACLU, Boulder, HOME, Tom deMers, camping, camping ordinance, discrimination, homeless in Opinion
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