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Is taking part in the Naked Pumpkin Run a crime?

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During an interview for last week's blog about criticism of the Boulder Police Department's efforts to squelch a revival of the Boulder Mall Crawl this Halloween, Judd Golden, chapter chair of the Boulder County American Civil Liberties Union, mentioned another event expected to bust out that night: the annual Naked Pumpkin Run. Golden suggested that the BPD's pledge to arrest participants was over the top given that Boulder District Attorney Stan Garnett "said he's not going to charge them. We had a public forum on this, and he said putting pranksters on the sex-offender registry will just confuse people, because putting a pumpkin on your head and getting crazy isn't a sex crime."

So... is Garnett refusing to prosecute any of the pumpkin runners the BPD has said they'll round up? Not quite -- but he's hoping to find a punishment more appropriate to the offense.

"I did speak at a forum about nudity at the CU law school," Garnett confirms. "They had speakers pro and con, and I guess I was in the uncomfortable position of being anti-nudity." After a chuckle, he adds, "We want to back up the police, who are in the difficult position of deciding what to ticket people for and how to maintain order on Halloween. So we will do as we always do, which is look at everything on a case-by-case basis -- review the facts and decide what can be prosecuted.

"But having said that, I've been on my soapbox for a while about how Colorado's statutory scheme doesn't fit very well for things like the Pumpkin Run," he goes on. "I've encouraged the Boulder City Council to pass a simple public-nudity ordinance, because that's really what would fit the situation -- a low-level municipal law that says you have to keep your clothes on in public, and if you don't, you get a ticket and a small fine. The Council hasn't gotten that passed yet, and I think there's a split over whether it's a good idea. But in the meantime, there are problems with each of the current charges."

According to Garnett, "There are three things we can charge people with: indecent exposure, public indecency and disorderly conduct. And indecent exposure is a statute really drafted for people like flashers -- guys walking around in a raincoat exposing their genitalia to shock people and get some kind of sexual arousal. And the Naked Pumpkin Run doesn't really fit that. It's just people running around with a pumpkin on their head and acting like idiots. And the same is true of the second charge, public indecency. That's written for people who commit sex acts in public: masturbation, having intercourse in a public place. That doesn't fit very well, either. And disorderly conduct is more for people who are drunk in bars and are trying to start fights."

Which of these options is least bad? "Here's what happened last year," Garnett offers. "I wasn't DA, but I was consulted on this. The police ticketed for indecent exposure, and each of the people ticketed were offered an opportunity to pleased to a deferred on disorderly conduct. I think that's fair. It's a very low-level offense -- kind of a nick -- and it avoids putting anyone on the sex-offender registry. Considering the alternatives, I think that's a reasonable way to approach it, unless there are other circumstances, like a fact pattern that made indecent exposure provable -- where someone really was affronted and shocked in the way that statute was written for."

Whatever happens is unlikely to impact a huge number of people; Garnett thinks only about a dozen Runners went through the system last year. Moreover, he can't pretend that it's the most pressing subject he's dealing with these days.

"I'm always a little surprised at how worked up the ACLU gets about this event," he says. "I'm a member of the ACLU and I have great respect for its ability to fight for civil rights. I just have trouble understanding the constitutional significance of running around naked with a pumpkin on your head."

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