By Tom deMers
In journalism school they teach you to hang with a story like a dog on a bone. Persist, dig in. I never went to “J school,” but I like to pretend, so this month let’s connect some past columns to more recent developments.
Boulder has a no camping ordinance. No camping on city property or on private property unless you have the owner’s permission. Fair enough. Nobody wants tents obscuring the Starbucks. But tents are not the issue. Camping is defined as the use of “shelter,” and shelter is defined as anything other than the clothes on your back. No blankets or pillows. Not even a layer of newspapers between you and the cold ground. Police were ticketing rough sleepers at 3 A.M. and ordering them to move along. Unable to pay the tickets, sleepers served jail time or worked it off as community service.
This all seemed a tad unfair to attorney David Harrison, especially since there were insufficient beds in town for all the homeless who needed them. Harrison started representing illegal campers in court, testing the law, probing for the ludicrous heart of the matter. No protection from the elements? He argued it was cruel and unusual punishment, a violation of the Constitution’s Eighth Amendment. Objection overruled. He presented the “choice of evils defense,” the notion that people can act to ensure their survival when faced with a dire circumstance. Should you get into a sleeping bag to avoid freezing to death? Objection overruled. In one case David Madison was in a sleeping bag at 7 A.M. It was November 2009 with the mercury at 11 degrees. He had been turned away at the shelter the night before. Guilty as charged. This case is under appeal by the American Civil Liberties Union. I wrote about these issues in “Unavoidable Acts of Survival” (June 2010).
To bring this story current, one of the many absurdities surrounding prosecutions of the ordinance surfaced in a December 17, 2010 decision. The defendant, Mr. Lacassagne, was awakened while sleeping, a T-shirt over his feet and a backpack under his head. The officer charged him with using the backpack and T-shirt as shelter. But the judge acquitted the man, finding the T-shirt was “clothing” rather than shelter, since the ordinance does not specify that the clothing must be worn. The judge further found that the backpack was not shelter but used for “comfort.”
Harrison called it a “great ruling for us” and urged homeless people to pile on the clothing. In fact, as homeless offenders line up at his door, Harrison is enlisting law students from CU’s Legal Aid office to help with the case load. As the fledgling lawyers argue cases, they are forcing the city to consider how long the great T-shirt debate should continue. Harrison’s participation is giving this matter the critical attention it deserves.
April was certainly the cruelest month of 2010. An explosion at the Upper Big Branch Mine on April 5 killed 29 miners but was soon eclipsed by the explosion of the Deepwater Horizon on April 20, a drill rig in the Gulf of Mexico. The Denver VOICE covered both events in “Environmental Karma,” (July 2010). The oil spill was a scene stealer for months, but the Upper Big Branch was the latest in a 200 year history of mining deaths and flagrant safety violations.
At the time I pointed the finger at Massey CEO Don Blankenship. I wrote, “Blankenship swore up and down that he was the archangel of safety until a reporter found a 2005 memo he’d written: ‘If any of you have been asked by your group presidents, your supervisors, engineers, or anyone else to do anything other than run coal, you need to ignore them and run coal.’” Also mentioned was Michael Shnayerson’s article in Vanity Fair. Shnayerson described management philosophy at the UBB in the chilling words of one miner: “A man is like a tool. If it’s bent or broke, get rid of it or get you a new one.”
On January 19 The Charleston Gazette reported on a new development in this story—a meeting between families of the 29 dead miners and officials of the Mine Safety and Health Administration in West Virginia. MSHA inspectors reported on numerous tests run and inspections conducted. The Gazette reporter wrote, “MSHA investigators believe that they have pieced together very strong evidence that inadequate “rock dusting” allowed explosive coal dust to build up in the Upper Big Branch Mine … what would have been a small ignition turned into a major explosion.”
Another piece on the same date by NPR reporter Howard Berkes gave more detail. A massive coal digging machine called a “shearer” hit a harder sandstone seam and threw a lot of sparks, more than normal because the shearer’s carbide teeth had worn down to steel. The sparks ignited a methane burst, not uncommon in gassy coal mines like the UBB. Such a fire could have been doused in 10-15 seconds, but water sprayers designed to minimize coal dust malfunctioned, allowing the methane burst to touch off an explosion that killed along a two mile underground path.
“Officials stopped short of blaming Massey Energy, Berkes wrote, “but said the mine was ‘noncompliant’ in multiple ways.” MHSA’s findings will be made public in the next few months. The Justice Department has an ongoing criminal investigation.
In “Free Speech Under Attack,” I condemned hate speech and warned that it would create “a climate of disrespect in which violence creeps toward respectability,” (November 2009).
This recent came to the forfront of the newsmedia on January 8th of this year, when Representative Gabrielle Giffords of Arizona was shot by a 22 year-old ne’er do well. The responsible limits of free speech were breeched daily in 2010; the result was tragedy. The comments of Pima County Sheriff Clarence Dupnik deserve the last word: “I think the vitriolic rhetoric that we hear day in and day out from people in the radio business and some people in the TV business, and what (we) see on TV and how our youngsters are being raised, that this has not become the nice United States of America that most of us grew up in. And I think it’s time that we do [some] soul-searching. ... It may be free speech, but it does not come without consequences. Arizona has become the mecca of prejudice and bigotry.”
Amen.
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.” ;)
;)