Losing Streak

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

No, I don’t mean the lack of posts here in the past few months.

Today we have a newly elected District Attorney in my home town. Today, too, we have a new group of happy-go-lucky Boulder citizens whose luck ran out Halloween night, when they put pumpkins on their heads, and took off everything else. They did that for Boulder’s 10th annual Naked Pumpkin Run. The Run was written about well in advance in our local paper, the Daily Camera. The Camera even helpfully offered an “If You Go” pointer to the what, when, and where of it. It would have been hard for people offended by such sights to have been caught by surprise, hard somehow not to have planned to be on the Pearl Street Mall when they all streaked by.

Yet the police, while publicly telling the Camera they planned no arrests, somehow contrived to be waiting at the end of the run by the old county courthouse. Police arrested 12 people and nearly incited a riot – not by the runners but by the crowd who joyfully watched them go by.

There’s no joy for the arrested runners. Every one of them is charged with indecent exposure, which under Colorado’s flawed statute means that if they are convicted – or even accept a plea to a non-sexual offense with a deferred sentence – then they will be required to register as sex offenders. They will carry that label the rest of their lives. These people – scientists, a doctoral candidate, a Fiske Planetarium docent, CU students, a cook, and more – the Dirty Dozen?

Never mind that the police are guilty of selective enforcement: 12 of more than 200 pumpkin runners were culled from the patch, and in nine previous years no arrests were made.

Never mind that the indecent exposure law itself says nothing about indecency, unless you’re of the mind that human genitals are in themselves indecent, a view that bodes ill for survival of the race.

Never mind that the law is probably unconstitutionally broad and vague: you only have to cause affront or alarm to the other guy who can’t tear his gaze from your g’s. If I’ve been blessed with sizeable feet and not-so-sizeable other body parts, I may well be alarmed to discover that others are blessed so in reverse. If you have a Star of David tattooed somewhere south of your belly button, you’ve probably affronted the entire Aryan Nation.

It is certainly true that there is something very naked about people who put on Jack-O-Lantern masks and nothing else for a Halloween entertainment (and if you don’t think it was entertaining ask yourself why everyone there was crowding to see the runners, and no one fleeing the legally horrific sight.)

But it could be considered even remotely sexual only by a sentient pumpkin.

Our new District Attorney campaigned to be tough on crime, and at the same time pledged “being tough on crime also means being smart on crime.” Our new District Attorney could help us out here: labeling these people as sexual offenders isn’t being smart on crime or anything else. These charges should be dismissed, and the Halloween runners shouldn’t have to pay lawyers like me a dime defending their so-called indecent exposure.

This particular Dirty Dozen should be released back into the community to continue their young and productive lives. And let’s throw in that poor kid who ran naked across the Boulder High School football field, for good (and decent) measure.

Our new District Attorney faces a choice: We can get tough on crime, or we can get tough on pumpkins.

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