ACLU: Denver Parks' Temp Drug-User Ban Is Unconstitutional and We May Sue
Reports of rising heroin use and drug dealing at Denver parks and along the Cherry Creek Greenway are backed up by statistics. According to Denver Parks and Recreation, police have made 128 felony arrests along the Cherry Creek trail, mostly for drug-related offenses, and over the past year, an estimated 3,500 hypodermic needles have been collected.
To address the issue, Parks and Rec, in conjunction with the Denver Police Department, has announced a "temporary directive" that "suspends the right of a person engaged in illegal drug-related activity from accessing or using the park and/or Cherry Creek Greenway for a period of ninety days." Moreover, banned individuals who violate this suspension and fail to successfully appeal it are subject to a maximum fine of $999 and up to one year in jail.
No question the measure is tough. But Mark Silverstein, the ACLU of Colorado's legal director, says it's something else, too: blatantly illegal.
"This is an end run around the due-process clause in the Bill of Rights," Silverstein says. "Denver has it backwards: They're imposing punishment and then giving an individual the opportunity to object later."
Silverstein is referring to the laborious appeal process outlined in the Parks and Rec document shared below. Drug use is already illegal in Denver parks, and arrests can be made and citations issued under current law. But beginning today and lasting for the next six months, the new policy, issued by Allegra "Happy" Haynes, the department's director, empowers Denver police officers who believe someone has engaged in "the act of distributing, transferring, selling, sharing, buying, consuming, using or illegally possessing Illegal Drugs" to suspend "the right of the violator...from accessing or using City Parks or the Cherry Creek Greenway for ninety days."
Neither judge nor jury is needed for this sanction. "The person subject to the Suspension Notice need not be charged, tried or convicted of any crime, infraction, or administrative citation in order for the Suspension Notice to be issued or effective," the document states.
Each notice will include information about appealing the suspension. Alleged violators have ten days to deliver a physical or electronic notice of appeal to Parks and Rec or the civil division of the Denver Sheriff Department — and a mailing address and e-mail address must be provided for it to be considered valid. (These last requirements could prove problematic for those who are homeless.) Upon the appeal's receipt, Parks and Rec has twelve days to schedule a hearing to consider the appeal — meaning that even those who object to being banned from the parks and can prove that they were prohibited improperly could still lose access to them for multiple weeks.
The ACLU's Silverstein sees numerous problems with the directive.
"The mere accusation by a police officer gets you immediately banned from the parks for ninety days," he points out, "and during that time, your presence in a park is a crime that could land you in jail."
He also believes "it's a stretch for the city to assert that the Parks director has the authority to issue a directive like this. The city's memo cites authority for the director to issue a temporary directive that bans certain uses or activities in the parks, but the city presents no authority for asserting that the director can actually ban people."
The "public" in public parks is there for a reason, Silverstein stresses. "Everyone has a right to the public parks, and if there's some behavior that could legitimately cause somebody to be excluded from them, due process requires an accusation, an opportunity to rebut, an opportunity to explain. But here, Denver's saying, 'You're punished first, and if you want, you can write a letter that will function as some sort of appeal later on.' And that doesn't comport with constitutional protections."
Denver officials clearly disagree; along with Haynes, the policy is signed by Assistant City Attorney Patrick Wheeler, who's currently acting as city attorney.
For his part, Silverstein says, "We would certainly consider legal action" to stop the policy. To do so, however, "we'd need to speak to people who would be adversely affected by this new measure. If people are getting these suspension notices, they need to contact us, and at that time, we could look at doing something."
If that something involves legal action, Silverstein continues, "I'm confident this would not stand up in court. Imposing punishment first with an opportunity for a hearing later does not comply with the Constitution."
Here's the Parks and Rec temporary drug-ban policy.
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