Unavoidable Acts of Survival
Wednesday, June 2, 2010 at 04:48PM By Tom deMers
;)
The headline on the morning paper read, “Man [with] panties on his head picked up for begging nude” (Daily Camera 5/14/10).
Impressive. BP spends millions to punch a hole in the ocean floor and gets big publicity from an oil spill, but here is a homeless guy making a splash of his own with nothing but a pair of women’s thong underwear, earning a buck. In Boulder, even the homeless share in the creativity and entrepreneurial zing.
And they do it on very little sleep. That’s the reason I was heading to Boulder that same day, joining a homeless sleep out smack in the middle of town on May 15, right next to city council headquarters, the same headquarters that had outlawed sleep on city property. Sleep during the day, okay. Sleep at night, no way.
City officials would disagree. Sleep is fine, they say; camping is the problem. Camping with tents, sleeping bags, blankets, ground cloths, anything that could be construed as “shelter;” shelter defined in the municipal ordinance to include, “without limitation, any cover or protection from elements other than clothing.”
Sleep? No problem. Just wear three pairs of pants. But don’t lie on a plastic sheet or section of cardboard. And, please, no umbrellas. And not under any overhanging shelter, as in a doorway when it rains. This is shelter “without limitation.”
Oh, and camping includes “the activities of daily living, such as eating or sleeping” or brushing teeth or carrying the items necessary for those activities. Please none of that. Just the clothes on your back. Hey, if you’re homeless, what more do you need?
I wondered about that. Was it possible to get a reasonable night’s sleep with several layers of clothing? I wanted to test the law’s viability along with whomever else might show up, certainly the members of HOME (Homeless Organization for More Equality), sponsors of the sleep out, and perhaps some of the homeless who currently populate Boulder’s streets, especially since the regular shelter and the overflow shelters had closed for the season. According to the most recent point in time survey, approximately 1,000 people are homeless in Boulder County. Estimates of the number of homeless in the city of Boulder range from 200 to 600. Regardless of the number, the majority of Boulder’s homeless, except for those in the shelter’s transitional program, were shelter-less that night.
HOME believes the Boulder ordinance is unconstitutional, a violation of the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Attorney David Harrison agrees. Earlier this year he represented a homeless man on a camping ticket. Mr. Madison was sleeping on the ground before dawn on November 24, 2009, when a police officer woke him up. Madison was in a sleeping bag. The officer learned he had been turned away at the homeless shelter the prior evening. She issued a camping ticket, which carries a $100 penalty, and he appealed through the pro bono services of attorney Harrison.
At trial Harrison argued that the no camping ordinance criminalized “a necessary and unavoidable act that every person must perform to survive,” thereby criminalizing Madison’s “status” of being homeless.
Municipal Judge Jeffrey Cahn disagreed. He ruled the Boulder ordinance targets the “behavior of camping rather than the status of being homeless.” Cahn went on to defend the law. “In fact, the ordinance allows sleeping on public property at any time,” he wrote, “merely limiting the use of shelter at night;” it even “allows the use of shelter for daytime napping.”
The city appears to believe the homeless can serve a kind of graveyard shift, sleeping during the day and walking around like the undead at night. Harrison also told me the city attorney argued that rough sleepers could leave Boulder and camp in the county, something Harrison calls the “get out of town at sundown” exception. Judge Cahn rejected that idea. But he didn’t see Madison in any imminent danger that night had he slept without a sleeping bag. After all, the temperature didn’t drop below 25 degrees, the trigger temperature to open the overflow facilities, which were closed that night.
As we all know, homeless folks can handle cold temps, sometimes even panhandling nude to flaunt the fact. Madison, however, was too well covered. He testified that there was frost on his sleeping bag that morning; he feared hypothermia. But with no specific temps entered in evidence, Judge Cahn wrote, “the generalized assertions” of the defendant were insufficient “to find a causal connection between the ‘cold’ weather and the potential for … frostbite or hypothermia.”
How cold did it get? The Colorado Climate Center at Colorado State University recorded the 7 A.M. temperature on 11/24 as 14.3°F. (recorded at 63rd and Jay Road in Boulder). Madison’s sleeping bag was his survival.
Last weekend several people joined the homeless sleep out near the library. We wanted to see if we were as tough as the homeless. We prepared for temps dipping into the high 30s. I had four layers on top, thermals, hiking boots, heavy socks and gloves, a hat of course. I wasn’t that cold, but had an insatiable desire to pull a blanket over me, to rest my head on a pillow. I felt profoundly exposed and knew I would never relax enough to sleep. I bailed at 11:15 P.M. Carolyn Bninski, a key spokesperson for HOME, went home at 3 A.M. Neither of us made the cut. Hardier homeless souls like Mike Fitzgerald and Kevin Hornbaker were there the next morning. They had no place else to go.
On the Tuesday after the sleep out, council members affirmed their faith in a regional 10-year plan to end homelessness, a plan that will lay these matters to rest. That means no rest for homeless folks this summer.
When I asked city communications manager Patrick von Keyserling whether Boulder might allow one of its parks or some of its 45,000 acres of open space to be used for public camping this summer, there was a long silence before he repeated that the city is “not currently in a position to provide that.”
To be fair, Housing First, a common component of 10-year plans, could be a big part of the solution, but as Arnie Carter, a homeless advocate who works in Denver, told me, the housing is simply not available. Boulder appears to be stuck in a role that this city council will not accept. They bow out because, as councilman Ken Wilson puts it, “Every dollar is in contention.” But there are cheaper, more unconventional solutions the council is unwilling to consider. Where is the creativity and heart that Boulder is known for? What will motivate the council to act?
Maybe an army of naked panhandlers. •
Boulder, Sleep, Tom deMers, camping, homeless, no camping, punitive law, sleeping in Opinion
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