[Hpn] Public Sleeping Ban UNCONSTITUTIONAL - Judge rules in Austin, TX fwd

Tom Boland wgcp@earthlink.net
Wed, 17 May 2000 20:00:17 -0700 (PDT)

FWD  Austin American-Statesman / May 17, 2000


PHOTO by Deborah Cannon/AA-S
Dennis Downey, left, and some fellow supporters of repealing Austin's
camping ban cheer the announcement of Tuesday's ruling. A judge said
the part of the law targeting sleeping doesn't clearly distinguish
between camping and taking a nap in a public place.


By Leah Quin
American-Statesman Staff

A Travis County magistrate upheld most of Austin's no-camping ordinance Tuesday
but found that a key part of it, banning sleeping in public, is

Magistrate Jim Coronado's ruling means that police should probably not arrest
people simply for sleeping in parks or other public places, said Assistant City
Attorney Fred Hawkins. However, other parts of the ordinance that prohibit
camping-related activities, such as storing personal belongings or pitching
tents and other temporary shelters, can still be enforced.

Although it doesn't mention homeless people specifically, the no-camping
ordinance was created to address concerns about transients living in open areas
downtown and in parks and greenbelts.

The mixed ruling -- which may still be appealed or overruled -- initially drew
cheers from about 50 homeless people and their supporters who attended the
hearing, but later response was tempered.

"I feel like we're making inroads," said Christopher Standage, whose several
tickets for public camping were the basis of the court action. "It's a start.
It's understanding that this (sleeping) is a basic human need."

Richard Troxell, president of the advocacy group House the Homeless, was less

"We're elated," said Troxell, who pumped his fist in the air upon hearing
Coronado's decision. "The judge found the most damaging piece of this ordinance
is unconstitutional."

The findings come after nine months of weekly argument in the case, which
landed in Coronado's court after nearly four years of litigation at the
municipal, district and state appellate levels.

Standage and another homeless man, Christopher Lyons, were ticketed for
violating the city's ban on sleeping and living in doorways, alleys, streets or
parks. Before the City Council passed the controversial ban in 1996 with a 4-3
vote, opponents had argued that it violated constitutional rights -- an
argument that Cecilia Wood, a lawyer and an advocate for homeless people, took
up while representing Standage and Lyons.

Coronado -- appointed as district court magistrate in 1991 to handle
preliminary hearings, plea bargains, sentencings and other "nuts-and-bolts"
court proceedings -- has listened to hours of legal argument since last July,
after the Third Court of Appeals asked Travis County to conduct a full hearing
on the matter.

Tuesday, he said that arresting someone for sleeping violates a person's right
to due process because the wording is so vague it could encourage police to
enforce the law against only certain people.

"In particular, it fails to provide any standard for an officer to discern
whether one is camping in public or taking an innocent nap in a public place,"
Coronado said, reading his ruling aloud in court.

Hawkins and Travis County prosecutor Bryan Case, both of whom defended the
ordinance, said the judge's decision probably won't have much practical effect.
Most parks have nighttime curfews, and sleeping in the doorways of
privately-owned businesses or public thoroughfares would violate other laws.

Besides, Hawkins said, the ordinance asks police to consider all the
circumstances of a person living outdoors, which isn't restricted to sleeping.

"This just makes it clear that sleeping can't be considered by itself," Hawkins
said. He will talk with his superiors about future action, such as an appeal.

The ruling appears to put the ball back in the City Council's court, Troxell
said. After Tuesday's hearing, he stood outside the courthouse annex, inviting
all present to speak about the issue at Thursday's City Council meeting.

"We're hoping common sense will come to all lawmakers, and that they start
addressing the root causes of homelessness," Troxell said.

At least one council member said the decision means that the ordinance should
be re-examined.

"It raises a whole set of new questions," Council Member Beverly Griffith said.
"In light of this ruling, we are going to need to haul out the whole ordinance
with our legal staff advising us."


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