Denver Ordinance Prohibiting Camping Withstands District Court Scrutiny

Denver Ordinance Prohibiting Camping Withstands District Court Scrutiny

The question of whether camping ordinances violate an individual’s right to be free from cruel and unusual punishment under the Eighth Amendment has resurfaced, this time in Denver. While the decision landed in favor of Denver’s ordinance, the question remains: will the Colorado Supreme Court weigh in on this topic du jour?

In this case, the Denver Police Department cited a man experiencing homelessness for camping on public property after the man rejected an offer for a bed at a homeless shelter. The man sued, arguing inter alia that the Denver ordinance (provided below) violated the Eighth Amendment’s prohibition against cruel and unusual punishment, facially and as applied.

The district court summarily reversed a December, 2019 ruling by a Denver County Court judge and held that the ordinance was not unconstitutional, facially or as applied. Facially, the court determined the ordinance neither distinguished based on status nor criminalized status. The court held that the ordinance was not directed to homelessness, but rather was directed to an activity that is often associated with homelessness. As applied, the record showed that the police did not target the defendant based on his status and that the police offered shelter, which he refused. The court held the ordinance constitutional as applied in this case because the evidence showed the police were not “motivated by a discriminatory purpose nor a desire to harm a ‘politically unpopular group,’ and thus there was no ‘animus’” on the part of the police.

In its deliberation throughout the opinion the district court addressed the 9th Circuit opinion on this topic, Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019), which held that the imposition of criminal penalties for sitting, sleeping, or lying on public property on homeless individuals who could not obtain shelter violated the Eight Amendment. The district court in the Denver case distinguished Martin  because the Denver officers offered shelter, which the defendant refused, before citing the defendant.

The district court decision mirrors a case originating from Boulder. Madison v. City of Boulder, 2011 WL 4017910 (Colo. 2011). In Madison, the Boulder police department cited a man experiencing homelessness for camping without a permit when officers found him sleeping on public property. The Boulder District Court held that the Boulder ordinance banning camping on public property did not violate the state and federal constitutional prohibitions against cruel and unusual punishments, among other things. The case was appealed directly to the Colorado Supreme Court by the American Civil Liberties Union (ACLU), who denied certiorari in a split decision.

Attorney’s for the defendant in the Denver case have indicated that they again intend to seek supreme court review; however, as of the date of this writing, a petition for certiorari has not been filed by the defendant. The district court opinion may be read here.

The text of the ordinance used in the citation states, in pertinent part:

Sec. 38-86.2. - Unauthorized camping on public or private property prohibited.

(a) It shall be unlawful for any person to camp upon any private property without the express written consent of the property owner or the owner's agent, and only in such locations where camping may be conducted in accordance with any other applicable city law.

(b) It shall be unlawful for any person to camp upon any public property except in any location where camping has been expressly allowed by the officer or agency having the control, management and supervision of the public property in question.

(c) No law enforcement officer shall issue a citation, make an arrest or otherwise enforce this section against any person unless:

(1) The officer orally requests or orders the person to refrain from the alleged violation of this section and, if the person fails to comply after receiving the oral request or order, the officer tenders a written request or order to the person warning that if the person fails to comply the person may be cited or arrested for a violation of this section; and

(2) The officer attempts to ascertain whether the person is in need of medical or human services assistance, including, but not limited, to mental health treatment, drug or alcohol rehabilitation, or homeless services assistance. If the officer determines that the person may be in need of medical or human services assistance, the officer shall make reasonable efforts to contact and obtain the assistance of a designated human service outreach worker, who in turn shall assess the needs of the person and, if warranted, direct the person to an appropriate provider of medical or human services assistance in lieu of the person being cited or arrested for a violation of this section. If the officer is unable to obtain the assistance of a human services outreach worker, if the human services outreach worker determines that the person is not in need of medical or human services assistance, or if the person refuses to cooperate with the direction of the human services outreach worker, the officer may proceed to cite or arrest the person for a violation of this section so long as the warnings required by paragraph (1) of this subsection have been previously given.

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