John Carlson: The right to rest

(This guest column originally appeared in the Boulder Daily Camera. It was written by a Boulder County ACLU Chapter Board member.)

By John Carlson

Homelessness is not a crime. It's a status, the product of poverty. Or mental illness. Or sudden misfortune, like a big medical bill that leads to a foreclosure. It's generally acquired innocently or involuntarily, and sleeping on streets or parks is its inevitable consequence. That's because human beings are biologically compelled to rest, whether by sitting, lying, or sleeping. And given that shelter is unavailable to many of the homeless — the Boulder shelter currently offers just 60 beds in the summer, more in the winter but still fewer than needed — it's not clear what choice homeless people have but to sleep in parks or streets.
Yet in response to this involuntary act, Boulder, like other cities, has turned many of the homeless into criminals, including those who have been denied beds at public shelters. The city's no-camping law, as it is known, is as absurd as it is cruel. It prohibits sleeping outside with "shelter," defined as any protection from the elements other than clothing. So merely sleeping outside is not "camping," but sleeping while using a blanket or sleeping bag is a crime. A few years ago, the Colorado Supreme Court refused to hear a case brought by the ACLU challenging the ordinance. David Madison was charged as an illegal "camper" after he slept outside in a sleeping bag, on a night when temperatures dropped to 11 degrees.
Madison had sought refuge at a homeless shelter earlier that evening, but there was no space for him. He was found guilty based on the trial court's ruling that his frost-covered sleeping bag constituted shelter. Had he jettisoned the sleeping bag he would have suffered frostbite or hypothermia, or worse, but he wouldn't have been a criminal.
A bill wending its way through the Colorado legislature aims at repealing no-camping ordinances like Boulder's. Dubbed the Right to Rest Act (House Bill 15-1264), it is set for a hearing on April 15 before the Senate Veterans and Military Affairs Committee. It would protect the right of all people to rest or sleep in public places without discrimination; to eat and share food there; to have privacy in one's belongings; and to occupy one's legally parked vehicle. It would not stop police from intervening to prevent criminal activity, like trespassing, obstructing sidewalks, or aggressive panhandling.
The bill's sponsors point to data showing that significant numbers of homeless people in Colorado have been ticketed or arrested for sleeping, sitting, or lying down in public areas. The sponsors also highlight the illusory appeal of criminal laws targeting the homeless. Jailing a few illegal campers doesn't make them disappear. They just migrate to other cities, which in turn enact and enforce their own criminal bans.
The Boulder County ACLU supports the Right to Rest Act. It's a protest against the immorality of criminalizing rather than confronting the problems of homelessness. If enacted, and we hope it is, it will tell cities struggling to deal with their homeless populations to do more than simply shift the problem from streets to jails. If it is defeated, the punitive approach favored by Boulder will continue to expand, eventually spreading criminal bans to all regions of the state and beyond, at which point a public that has steadfastly refused to build housing for its homeless populations will be forced to build new jails for all the criminals it has created.
If anything, the Right to Rest Act does not go far enough. It does not specifically repeal local laws banning sleeping in public places. Instead it guarantees the right to rest in public spaces "without discrimination based on housing status," defining "discrimination" as any action resulting in disproportionate effects on the homeless. We fear that cities bent on defending their punitive policies will not bow to the clear intent of the law, convinced they don't discriminate against anybody (who thinks otherwise?) and confident they can resist a legal test requiring proof of disproportionate effects. We want a state law that encourages clever solutions to the crisis of homelessness, not one that encourages clever legal arguments.
Granted, there may be valid environmental and sanitary reasons for a municipality to balk at an unqualified right to camp in all public spaces. The ACLU would not oppose reasonable restraints on that right. But these restrictions should be narrow in scope and should never be used to target, harass, and criminalize people who have no other options and nowhere else to go.
John Carlson is on the board of the Boulder County chapter of the ACLU.