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That's what she said

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Choice of Evils


Boulder County Justice Center

“I always think that he was once somebody’s baby boy. Really, I do. I think he was once somebody’s baby boy, and he had a mother and a father who loved him, and now there he is, half dead on a park bench, and where are his mother or his father, all his uncles now?”  ‘Ann’ in the 1974 movie, The Conversation

I was summoned to serve on a municipal court jury last Thursday (July 7, 2011).   Of about 30 people who were summoned to appear that morning, three of us were selected to serve on the jury.  The other two jurors were a Ph.D. physicist and a Ph.D. sociologist.

The Trial

The defendant was a clean-shaven, middle-aged man in a dark polo shirt.  The charge against him was camping on Boulder Open Space.

The prosecution called three witnesses, “Ranger Rick,” the OSMP ranger who found the defendant sleeping in a sleeping bag near a social trail on the Mt. Sanitas Open Space; another ranger who testified about the potential for camping in the nearby Roosevelt National Forest; and an employee of the Boulder Shelter for the Homeless.

Ranger Rick testified that he found the defendant asleep with his dog at about 6:15 a.m. on April 13.  The ranger checked the area for other campers and took some photos before waking the defendant.  The defendant was cooperative and his campsite was tidy.  According to the ranger, the defendant admitted to spending two nights in his sleeping bag at the site.  Photos that the ranger had taken were offered by the prosecution as exhibits.  They showed pretty much what you would expect:  a man in a sleeping bag; even so, I found the pictures affecting.  Maybe I was embarrassed and sad for him — the jury, the defendant, the judge, and everyone else in the courtroom were witness to his diminished dignity.

The other ranger, whose name I don’t recall, testified under questioning that a person could camp legally for a limited number of days in the Roosevelt National Forest, about 4 miles up the canyon from the Justice Center, as long as the camp site was a certain distance from the road.

The homeless shelter employee testified about the rules of stay at the shelter and told us that the defendant had been barred from the shelter on January 17 for ninety days due to a violation of the rules the night before.  We never learned what the violation was.  We did learn that the defendant had applied to enroll in a program to help him get back on his feet, but that the incident at the shelter had derailed that project.

The defense called the defendant, who didn’t dispute any of the evidence presented.  His testimony was matter-of-fact and unemotional.  It was delivered with no guile that I could detect – no pathos and no calculation.  It was just as though this kind of life is the new normal for him.  He testified that his home was foreclosed upon in 2009 and that he was a welder by trade.  He was diabetic and had dyslexia. He had received some clothes from the Deacon’s Closet and a sleeping bag from Boulder County Cares.  
Since his ejection from the homeless shelter, he had been spending nights in shelters provided by the Boulder Outreach for Homeless Overflow (BOHO) but BOHO wasn’t available on the night of April 12th because of a rule that they provide shelter only on nights when the temperature drops below 32 degrees F.  The defendant testified that it was about 34 degrees F that night.  He called his sister in Golden but she wouldn’t put him up because of her roommate.  He had $14 in his pocket and could have taken a bus to a Denver or Ft. Collins shelter but he didn’t have a crate for his dog —  a requirement of RTD — and he was apprehensive about conditions at the Denver shelter.  He could have walked to the national forest to camp but didn’t.  He has difficulty with his knee.

So, he walked up into open space and found a spot that was sheltered on two sides and out of sight.  He testified that he didn’t want people to see him and be disturbed by the sight of him.

The defendant was found with some possessions in a bag.  When asked about the contents of the bag, he testified that he kept some clean socks and underwear in it.  He said that he tried to look respectable.  There were no questions about, or evidence of, substance abuse.

The Ordinance

The judge gave us instructions and explained the elements of the ordinance.  The text of the ordinance is provided below.  Certainly, by the letter of the ordinance, the defendant was guilty, there was no way around it and nobody disputed it.  If the defendant slept in a sleeping bag on open space, he broke the law.  However, in this case (but not all camping cases), an affirmative defense was allowed.  The text of the affirmative defense is provided below, under “Choice of Evils.”

The summary remarks of the prosecuting and defense attorneys centered on this affirmative defense.  According to the prosecutor, the key phrase in the affirmative defense was “…a situation occasioned or developed through no conduct of the actor…” arguing that, in fact, it was through the defendant’s own conduct that he was in that situation.  He had got himself barred from the homeless shelter and he hadn’t tried all the alternatives to camping on open space so therefore the choice of evils defense didn’t apply.

The defense attorney used the affirmative defense in a more immediate sense, focusing on the conditions that night.  Did the conditions justify the defendant’s decision to “slip into a sleeping bag” such that if he hadn’t, the injury to him would have been worse than the injury to open space?  In the words of the affirmative defense text, did “the desirability and urgency of avoiding the injury clearly and convincingly outweigh the desirability of avoiding the injury sought to be prevented by the code section or ordinance…”?

5-6-10 Camping or Lodging on Property Without Consent.

(a) No person shall camp within any park, parkway, recreation area, open space or other city property.

(b) No person shall camp within any public property other than city property or any private property without first having obtained:

(1) Permission of the authorized officer of such public property; or

(2) Permission of the owner of private property.

(c) This section does not apply to any “dwelling” in the city, as defined by section 5-1-1, “Definitions,” B.R.C. 1981.

(d) For purposes of this section “camp” means to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place. But the term does not include napping during the day or picnicking. The term “shelter” includes, without limitation, any cover or protection from the elements other than clothing. The phrase “during the day” means from one hour after “sunrise” until “sunset”, as those terms are defined in chapter 7-1, “Definitions,” B.R.C. 1981.

(e) Testimony by an agent of the persons specified in subsection (b) of this section that such agent is the person who grants permission to camp or lodge upon such property, or that in the course of such agent’s duties such agent would be aware of permission and that no such permission was given, is prima facie evidence of that fact.


5-2-15 Choice of Evils.

(a) Conduct that would otherwise constitute a violation is justifiable and not criminal when it is unavoidably necessary as an emergency measure to avoid imminent public or private physical injury that is about to occur by reason of a situation occasioned or developed through no conduct of the actor and that is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly and convincingly outweigh the desirability of avoiding the injury sought to be prevented by the code section or ordinance defining the violation at issue.

The Deliberations

We were sent to the jury room to come up with a verdict, guilty or not guilty.  Just as in the attorneys’ closing arguments, our deliberations centered on the affirmative defense.  Should we take the broad view presented by the prosecution that looked at the defendant’s conduct on January 16 and his lack of pursuit of alternatives on April 12, or should we take the narrower view presented by the defense and look at the defendant’s decision to use a sleeping bag on April 12 as one made to survive weather conditions that were beyond his control?  We ultimately settled on the latter and found the defendant not guilty.

If this all strikes you as somewhat absurd, then I’m glad, because it certainly did me.  Here was a person who, through bad luck and bad decisions, was in a situation you wouldn’t wish on your worst enemy.  We were supposed to consider the alternatives open to this person as though they were real choices that anybody should be expected to make.  As jurors, we all agreed that camping in the national forest as an alternative to camping on open space is not much of an alternative.  How about abandoning his dog to take a bus to a Denver shelter?  Is the intention of the ordinance really to ship our homeless to Denver?  Are they expected to spend every dollar, give up their companions, or risk their lives to the elements?  If we’re going to enforce this ordinance, we need to balance it by making sure that people like the person on trial last Thursday have a real place to go and not some false alternative that strips them of everything.

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