High Crimes and Hijinks

So below this little intro is a conversation i had with my lawyer, kinda; some stuff i wrote to explain myself to her, and have since edited into near unrecognizability. Had i been able to clarify the whole bit better before the trial things may have been different, but probably not.  When i was first arrested in Colorado Springs on 18 October of 2011 for the heinous crime of camping on public property, i figured lawyers from the ACLU or something would swarm me like rats on a dying prisoner in the Bastille. I mean, really-- advocates for the homeless have been up in arms for years over these no-camping ordinances, and i did the thing as an “Occupier,” rendering the political motivation for my act as obvious as a drag queen’s Adam’s apple. I thought hard about doing the thing pro se, but when i’ve taken that course in the past i wound up trapped in a paper maze of procedure. So i contacted the National Lawyer’s Guild, (NLG), and they connected me with the one attorney in Colorado Springs hot to take an Occupy case pro bono, Patty Perello.

Almost all the Occupiers involved have argued passionately that our actions, including my setting up a tent in specific violation of Colorado Springs’s “no-camping” ordinance, were protected by our First Amendment free-speech rights. I knew this was futile since the U.S. Supreme Court has already shot that line of thought down, and sorry, but i agree with their reasoning. Though other U.S. municipalities experienced more direct 1st Amendment oppression, we were always free to stand around with signs in Colorado Springs, as the argument goes. Occupying, camping, and even merely sleeping on public land are activities that cut much closer to the quick, as it were, boring through several layers of political patina to make painful and deeply suppressed connections in people’s consciousness, and in some ways tying the bulk of the Occupy message into a tight package.

The business of land use and ownership has been high on my list for years and, i think, key to much of what grieves us.It’s why i write about Henry George sometimes.  I hoped to get this point across to Perello, but none of this was ever heard by the jury. Also critical is the troublesome 8th Amendment angle. More stuff silenced by Spottswood Williams.

Anyhow, i’m about to start to say again what i only meant to introduce. Below this is some stuff i wrote to explain myself to Ms. Perello. It’s the gist of what i actually wanted to say in court, but was barred from so doing. I can still explain myself on a street corner or here online if i want to, but not in a courtroom:


With a seemingly inexorable inevitability homelessness--poverty-- is becoming criminalized in the United States of America. The phenomenon of Occupy protests brought to light in lurid, graphic terms the country’s sensitivities concerning land use, civil disobedience, liberty, and ideas and expression that make us uncomfortable or seem to threaten our aesthetic and ethical sensibilities. The widespread and oppressive action against Occupy encampments by law enforcement was necessary to maintain the prevailing political logic because it was simply an extension of currently habitual oppression directed toward the very poor, i.e. homeless people. There can be no Occupy permitted, because our “aesthetic”  experience may be sullied by those wretches that will surely coattail upon any license to physically occupy public space in such an objectionable manner. This may be the essence of why the homeless population is both integral to and alienated from the Occupy phenomenon worldwide, since even many participants don’t get the connection.

The past several years have seen a proliferation of categorical laws designed to harass the homeless. The National Coalition for the Homeless, The National Law Center on Homelessness & Poverty, and The National Homeless Civil Rights Project have produced reports that thoroughly document the national trend to discriminatory law-making, selective enforcement, and generally mean-spirited gestures toward those at the bottom end of society’s economic scoresheet. We assert that  the attached reports provide an apt description of exactly the sort of directed antagonism toward the very poor embraced by the City of Colorado Springs when it so carefully worded its ordinance to allow the pursuit of the homeless while slithering around the spirit of the Constitution. While we understand that protestation and occupation are not necessarily the same, the congruences with the Occupy protests rendered problems with the City’s “no-camping ordinance” germane, and are simply too pointed to allow full separation of the two matters. Bad law put in place as a means to directly truncate the liberties of a particular class of people was brought to bear on another distinct but overlapping set of political protesters engaging in behavior included in the previously established ordinances, resulting in still further loss of natural rights by everyone.

We recognize that no-camping ordinances in general and Colorado Springs’s in particular have been thoughtfully crafted to avoid curtailing First Amendment rights. As has been observed, i have every right to express political views at the spot i was arrested for camping, (although the City’s implication that one ought engage in such expression  without provision for safety or comfort is of as suspicious motivation as the suggestion that no-camping ordinances apply to all and not merely to those whom they are likely to affect). We argue that nonetheless the no-camping ordinance is unconstitutional because of its inherently discriminatory nature, and contrary to the spirit of American foundational principles, as well as modern ethics.

M.J. and Dan, (the CSPD “Homeless Outreach Team” cops that actually arrested me), have both characterized the City’s ordinance as an important if not now tending toward indispensible “tool” for dealing with the “homeless problem.” The fact that they express their sense of the ordinance’s purpose and use thusly is really just sort of a semantic Freudian slip, but it derives from the same mindset i found at the planning meetings i attended at the United Way wherein “The Homeless” are a problem, rather than “homelessness.” The no-camping ordinance was conceived as and is now being utilized by the C.S.P.D. as a specific means to move the visibly homeless from the aesthetically offended public eye. Although cities including Colorado Springs have avoided utilizing terms such as, “homeless,” that would reveal the unconstitutionally discriminatory nature of similar ordinances, it remains that laws banning necessary, life-sustaining behavior such as sleeping, eating, bathing or storing belongings in public are likely to affect only those members of an economic class that finds itself forced into the targeted behaviors by circumstance. I observed and participated in the process of development when this ordinance was under consideration, and if anyone wants to get up and say it is not aimed directly at the homeless, i’ll stand in open court to call them a liar.

It remains that whether or not one possesses the means to do otherwise, a camping restriction places constraints on a heretofore traditional civil liberty that had been closely entwined with a central thread of American foundational principles. I wrote previously about my perception of the rights involved with camping ordinances as proto-constitutional. A homeless camper’s pursuit of life, liberty, and happiness are at stake in opposition to any restriction, and have been found weightless in the face of public demand for “aesthetic” sophistication, [Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000), cert. denied, 149 L.Ed.2d 480   (2001). Can’t find a free link to this one; it’s summarized here]. We don’t deny that a legitimate tension may exist between societal quality-of-life preferences, (I suspect in these instances this amounts mostly to the quality of perceptions held by the business associations that invariably champion anti-poor-folk laws), but we assert that those ought not carry so much weight as to eliminate the very last of life’s options for those with no other. While it is true that the physical presence of a camper diminishes the ability of others to enjoy the specific space he utilizes, the same is true for any park user at any time given the restrictions of physics. Parks are “first come first served,” to the limits of available space at all times. So, the primacy of uncomfortable business advocates is dubious

If i have a house i can set up a tent in the yard and spend the weekend screwing around out there with my kids. If i have no house i may not do so, not even to stave off frostbite, hypothermia or death, and certainly not as an expression of political sentiment. Ahem. The right to “aesthetic” comfort for the business class currently trumps the rights of the very poor to simply exist. They are required by  law to be very poor somewhere out of the line of sight of sensitive society.
If, as is the case with Colorado Springs’s ordinance and others i can’t decline, being forced into “shelter” is the same as incarceration. To further bolster this perspective, the conditions at partially available shelters in Colorado Springs are awfully reminiscent of those at any jail or prison, if not worse by some measures. Also, because i lack the ability to pay a fine, i and others in the same circumstance face incarceration anyhow. All sorts of similar ordinances criminalize necessary behavior. We argue that incarceration or any sort of punishment for carrying out necessary activities where necessary is “cruel and unusual,” and violates the Eighth Amendment to the Constitution. [e.g. State v. Folks.  No. 96-19569 MM (Fla-Cir. Ct., Duval County, Nov. 21, 1996)]

The cynical establishment response to the 8th Amendment argument has been to assert that ordinances with provision for forced sheltering and the like cannot be unconstitutional since the force takes place prior to conviction of any crime, i.e., it is not punishment. That gimmick is such bullshit that i had to pause for a toke after writing that last sentence to keep my head from exploding! Unlike the 1st Amendment argument, this one is both more pertinent, (IMHO), and not entirely settled. Although the ridiculous semantic tango above has emanated from courtrooms, delivered with straight faces no less, some adjudicators have called a duck a duck, so higher courts may well be influenced against some lower decisions in the future. [State v. Folks, linked above].

Anyway, the deed is done and i am a convicted camper, as we expected from the City court. I have a month from last Friday to file an appeal, which can yet afford hope for change. It remains to be seen how much support exists for this cause. I don’t think i can pursue the thing alone.

Finally, i've made suggestions above that i have yet to really substantiate. I've been quiet a while, sorting things a bit, but this stuff in my head deserves an explanation. Expect more.