Give It a Rest

Advocate for the homeless Richard Troxell, shown in 1997 protesting the original camping ban ordinance (Photo By Jana Birchum)

Why are Austin's homeless being ticketed under the camping-ban ordinance when in fact they're only sleeping? That's the question homeless advocate Richard Troxell set out to answer recently, and he was "flabbergasted" to learn that little has changed in the two years since the City Council struck the "sleeping" references from the ordinance. The local law, which specifically targets homeless men and women, has been on the books since 1996, although it arrived there by a slim City Council margin and after much public protest. The council tweaked the ordinance accordingly in 2000 after a Travis Co. magistrate found some sections unconstitutional.

Fast-forward to 2002, and Troxell, who fought against the ordinance at every step, is ready go to the mat again. As president of House the Homeless Inc., a nonprofit advocacy group, Troxell says his organization will take legal action if the city continues ticketing -- and sometimes prosecuting -- "sleepers" under the camping ordinance, a Class C misdemeanor offense. Three such cases are scheduled for trial in November, he said.

"We are not pointing fingers right now -- we're more or less fact-finding and asking for the process to stop," said Troxell, who is also director of Legal Aid for the Homeless. In a Sept. 13 letter to Austin Assistant Police Chief James Fealy, he asks for three things: a moratorium on writing camping-ban tickets; formal notification to all police, park officers, and Downtown Rangers that sleeping is no longer an offense, except when a person is blocking a sidewalk or in a park during curfew hours; and training for officers regarding the difference between "camping" and "sleeping." According to the city ordinance, camping violations are identified by campfires, cooking activities, "any digging or earth breaking," or using some form of shelter, such as a tent or vehicle for a "living accommodation."

Troxell believes police are issuing tickets based on the original ordinance, which then included sleeping as an offense, as such: "Sleeping or making preparations to sleep, including the laying down of bedding for the purpose of sleeping." Officers are apparently still relying on that passage, he says, based on the written descriptions they provide on their tickets. In reviewing a sampling of 453 camping tickets written since the council revised the ordinance, Troxell found that 195 of them were issued to individuals who were sleeping on some form of bedding. For example, a 51-year-old woman cited under the camping ordinance in the 900 block of San Antonio Street. "used bedding and used bed roll for sleeping," according to the citation.

Fealy reviewed Troxell's findings and, in a written response, pointed out that only one of those tickets had been issued by an APD officer; the rest were from Parks and Recreation Dept. officers. But Fealy agreed that the one ticket issued by the APD officer was indeed in error, and he assured Troxell that he would inform the officer of the mistake and issue reminder notices to the rest of the force. Fealy has also asked PARD Police Chief Darrell Lewis to the view the material "and respond in a similar manner if he determines that tickets issued by his officers were in error." As Troxell sees it, "even one [APD] ticket is outrageous. If the officer doesn't know better, then it's clearly a failure of the city."

As it turned out, park police didn't know any better either. But PARD spokesman Victor Ovalle said the ticket-writing problem was resolved in July, when the city's legal department brought the matter to their attention, and a number of tickets were dismissed.

By and large, most of these cases don't go to trial, and sometimes the officer never submits the ticket for processing or doesn't appear in court on the hearing date, leading to an automatic dismissal. The cases that remain in the system are either processed through the city's Municipal Court, or the Community Court if the alleged offense occurred downtown. Defendants may either contest the ticket, or plead guilty and pay a fine (up to $500) or perform some type of community service. Community Court also steers defendants into social service programs if substance abuse or mental illness is a factor. In Municipal Court, Assistant City Attorney Bill Baker estimates that only about 10 camping-ban cases per year ever see trial. "That's not many at all," he said, compared "to the number of driving without insurance tickets we get, which is phenomenal, or the number of barking dog cases."

While some police officers may see the tickets as little more than friendly warnings, homeless advocates regard them as sheer harassment. "The whole process is inappropriate and effectively blames the victim," Troxell said.

APD spokesman Paul Flaningan agreed that "sleeping is not necessarily a crime" unless the individual is on private property or blocking a doorway or sidewalk. "In most cases, [the officers] will try to alleviate the situation without writing a citation," Flaningan said. "We definitely don't want to be perceived as harassing the homeless." He said the matter would likely be resolved once officers are made aware of the problem. "I think it's more of a communication issue, and letting our patrol officers know what our stance is," he said.

The "hows" and "whys" of a police communication lapse that spanned two full years might well remain unanswered, but Troxell offers a solution to preventing similar problems in the future: Abolish the ordinance in one clean sweep.