The following is a letter from Richard R. Troxell, president of House the Homeless, to the members of the Austin City Council Health and Human Services Committee, informing them that the “No Sit/No Lie” ordinance violates the Americans with Disabilities Act.
First, I would like to thank the Health and Human Services Committee and Chief Art Acevedo for all of your hard work on the No Sit/No Lie Ordinance. One of our collective goals has been to bring the Austin No Sit/No lie Ordinance in compliance with the Americans with Disabilities Act (law).
Newly proposed city ordinance language requires that anyone who sits or lies down as the result of a physical manifestation of a disability, not limited to visual observation, is in violation of the ordinance and the offender must create an affirmative defense to prosecution.
Two comments. First, we believe the word “physical” should simply be omitted as it is confusing and suggests…that it refers to a physical condition as opposed to a mental condition. The Americans with Disabilities Act is not the Americans with Physical Disabilities Act… it is simply the Americans with Disabilities Act.
The second issue concerns the requirement that the accused present an affirmative defense. I repeat the unanswered question posed by City Council Member Laura Morrison at the last H&HS Committee meeting. When her husband, Phillip, sits down in response to his diabetes stating he feels woozy, and when his response is found to be unacceptable to a police officer because he did not see a physical manifestation, and a ticket is issued, how will he affirmatively prove to a judge that he was feeling woozy? That’s a simple question. It needs to be asked and answered. Or for the person experiencing schizophrenia, having visions and hearing voices, how will he/she create an affirmative defense four days or (more likely) four weeks after the event? Even if he could recall the event, what evidence will he produce (not to show that he is mentally disabled but rather) to show he felt woozy at that earlier time. So just answer this one question along with who is going to provide (and pay for) legal counsel for these folk sand we’ll call it a day.
By the way it would seem that we, the down-trodden, the disabled, the mentally ill are expected to affirmatively defend ourselves just because you can’t figure out how to prosecute us? The burden of proof, as with every other alleged violation in the ordinance, should remain with the state.
The “affirmative defense” language needs to be struck. There is no need to attack the mentally ill homeless and clearly, that is what this approach amounts to.
Richard R. Troxell
House the Homeless