Confusion Over Right to Survive Initiative Isn't Easily Put to Rest

Bright-yellow lawn signs dotted front yards in the Cherry Creek North neighborhood on Tuesday, March 26. “BALLOT INITIATIVE 300,” they proclaimed in bold lettering. “Meeting tonight, 7pm, Bromwell School.”

Nantiya Ruan noticed the signs, little neon flashes as she drove her car past on her way to the very event they advertised. This was not the University of Denver law professor’s first time speaking to a neighborhood group about Initiative 300, better known as the Right to Survive, and what it would change in the city if passed by Denver voters on May 7. But the meeting at Bromwell was easily the largest that Ruan had attended. More than a hundred community members showed up at the event organized by the Cherry Creek North Neighbors Association, everyone crowding around an elevated stage inside the school gymnasium. Ruan couldn’t help noticing that, as far as she could tell, she was the only non-white person in the entire room.

The initiative’s language promises to guarantee the rights of all people to sleep, rest, eat and share food in outdoor public spaces in Denver.

But the people on whom the initiative really focuses — as does much of the discussion of I-300 — are Denver’s homeless citizens. If it passes, I-300 would bolster protections for the city’s homeless and ultimately overturn Denver’s urban camping ban, a controversial ordinance that has been in effect since 2012 and has been used to force homeless individuals to “move on” in more than 12,000 instances, according to recent Denver Police Department statistics.

The ballot question being put to Denver voters next month is actually an adaptation of a proposal that homeless advocates tried, and failed, to pass at the Colorado Legislature, called the Right to Rest Act.

Tristia Bauman, a senior attorney at the Washington, D.C.-based National Law Center on Homelessness and Poverty, along with representatives from the Western Regional Advocacy Project, helped draft the initial Right to Rest legislation. “The Right to Rest Act was a model for advocates in Colorado running a state-level bill, as well as advocates in California and Oregon,” Bauman explains.

The Right to Rest Act was similar in many ways to what Denver residents will vote on in May; it would also have guaranteed the rights of all people to rest, sleep, eat and share food in public. But that bill was defeated in various committees at the Statehouse over four years — mostly along party lines, with Republicans opposing the measure. It failed in other states, too. After the Right to Rest Act’s most recent Colorado defeat, in 2018, the advocacy organization Denver Homeless Out Loud decided to tweak the proposed legislation and draft a local version that could be introduced as a citizen-led initiative.

“The process of coming up with the Right to Survive was based on street outreach,” explains DHOL’s Terese Howard. “This came from the streets. We didn’t write it until we had surveyed over 500 people about the effects of criminalization, police interactions and resources.

“The crux of it is that all of the rights that are protected in this initiative are activities that people who are homeless are being criminalized for right now in Colorado and in Denver, or are practices spreading across the nation,” she continues. “They are also acts of survival, things every person has to do, whether you live in a house, in a car or on the street.”

According to Howard, a lawyer with the Community Environmental Legal Defense Fund, a Pennsylvania-based nonprofit, helped adapt the Right to Rest bill into the Denver-specific Right to Survive initiative. After 10,000 signatures were gathered and submitted to the Denver Elections Division, the initiative was approved for the ballot in late October. Proponents said the initiative was unprecedented, and represented the first time in United States history that a city’s residents could, by way of a popular vote, overturn laws that target the homeless.
click to enlarge Terese Howard of Denver Homeless Out Loud is a principal backer of I-300. - ANTHONY CAMERA
Terese Howard of Denver Homeless Out Loud is a principal backer of I-300.
Anthony Camera
Other parties also saw the measure as unprecedented — but not in a good way. By early this year, opposition campaign Together Denver had registered with the Denver Elections Division and was collecting large checks from such organizations as the Colorado Association of Realtors, the Apartment Association of Metro Denver and the Downtown Denver Partnership. On its website and through social-media channels, Together Denver has made numerous charges about the negative effects that I-300 would have on park curfews and public health and safety.

In response, professor Ruan, who says she’s spent the past five years researching municipal and state ordinances that criminalize homelessness, entered the fray. To counter Together Denver’s messaging, she and Bauman drafted a legal FAQ on behalf of the Right to Survive campaign.

The FAQ didn’t do much to quell controversy, however. Community meetings have become increasingly hostile, Ruan says, and the Cherry Creek meeting was no exception. That the initiative was designed with the homeless in mind was not lost on anyone who came to the Bromwell gathering, and some used a question-and-answer period to make pronouncements rather than ask questions.

“The homeless are drug addicts!” one person said.

“They don’t need special rights!” said another.

Between such comments, though, some Cherry Creek residents did ask questions that reflected legitimate concerns about what guaranteeing peoples’ rights to rest and sleep in public would mean, and what that would look like in Denver. One person, for example, wondered whether people experiencing homelessness would be able to camp on the lawn in front of their homes, and asked what a homeowner would be allowed to do to remove unwanted campers.

Ruan, who was careful to note that she doesn’t speak on behalf of DU, tried to explain how the initiative’s legal language promises that campers can’t actually be on someone’s private front lawn, only on the sidewalk or potentially on a “tree lawn” — the city’s term for the strip of grass between the sidewalk and street in front of some homes — but even then the act of camping or resting must be done in a “non-obstructive” manner, meaning that it doesn’t prohibit anyone, including those with disabilities, such as wheelchair users, from passing through.

During all her years of homeless outreach, Howard added, she has never seen anyone camp on a tree lawn in front of an occupied home, even when it was legal to do so before the camping ban went into effect in 2012.

Yet Ruan’s and Howard’s responses were quickly countered by two others on the panel. A member of the Denver City Attorney’s Office said that if I-300 passes, the city could not guarantee the ability to remove unwanted campers in the hypothetical scenario. The city does not have a uniform rule for tree lawns, and so those strips of grass in front of homes would have to be evaluated on a parcel-by-parcel basis to determine if the tree lawns belonged to the homeowner, are a public right of way, or are city property.

The city’s response was followed by CRL Associates managing partner Roger Sherman, a lobbyist who’s a member of the opposition campaign, who declared in no uncertain terms that residents could do absolutely nothing to prevent camping in front of their homes if I-300 passes.

The three varying responses to the resident’s question reflect the confusion and contradictions around I-300, on track to become the focus of the most expensive ballot initiative fight in Denver’s election history. The opposition campaign, Together Denver, has raised over $600,000 (it was reporting $588,000 in contributions when its last campaign finance report was released in mid-February). Meanwhile, the Right to Survive campaign, spearheaded by Denver Homeless Out Loud, has raised over $50,000, mostly through small donations.

Both sides are using their cash to propagate starkly different narratives. The Right to Survive supporters claim the initiative is about guaranteeing equal rights and protecting Denver’s most vulnerable citizens from overbearing police enforcement. The Right to Survive opponents argue that the measure won’t do anything to solve homelessness, and say the initiative’s language is dangerously sweeping and vague, opening the city to all sorts of lawsuits.
click to enlarge Under the camping ban, encampments such as this one near Arkins Court are currently illegal. - BRANDON MARSHALL
Under the camping ban, encampments such as this one near Arkins Court are currently illegal.
Brandon Marshall
The effects of those dueling narratives can already be seen in polling. In late January, Together Denver commissioned a poll that showed 56 percent of potential voters were in favor of I-300 when they read only the text that will appear on the ballot that will be mailed out on April 15: “Shall the voters of the City and County of Denver adopt a measure that secures and enforces basic rights for all people within the jurisdiction of the City and County of Denver, including the right to rest and shelter oneself from the elements in a non-obstructive manner in outdoor public spaces, to eat, share accept or give free food in any public space where food is not prohibited, to occupy one’s own legally parked motor vehicle, or occupy a legally parked motor vehicle belonging to another, with the owner’s permission, and to have a right and expectation of privacy and safety of or in one’s person and property?”

Yet the poll also found that, when voters looked beyond the ballot text, support for I-300 dropped to 44 percent.

That’s because the Right to Survive would do much more than defang the city’s camping ban. But exactly how much the initiative would do, and in what manner, is the subject of heated debate, with many competing claims about the consequences of the initiative’s language. Would I-300 really eliminate all park curfews in Denver? Would it actually allow homeless people to occupy outdoor spaces like sidewalks indefinitely? Would it prevent police from investigating crimes or asking homeless people for identification? Would it allow for sprawling tent cities in parks and alleyways?

Complicating the matter further is that homeless-serving nonprofits are split on the question of I-300. Some advocates, like the National Law Center on Homelessness and Poverty, support the initiative. But others, like Denver’s Homeless Leadership Council (which has representation from prominent groups such as the Colorado Coalition for the Homeless and Denver Rescue Mission), are concerned that certain undefined parts of the initiative, including its protections against “harassment” or “intimidation,” could become the basis of lawsuits against their outreach workers if, in the normal course of their work, those workers are deemed to be “harassing” individuals experiencing homelessness.

With so much conflicting information, we set out to put to rest any confusion over the Right to Survive.

But that mission wasn’t as easy as anticipated.

Would Initiative 300 actually overturn Denver’s camping ban?

The most common assumption about I-300 is that it would automatically overturn the city’s camping ban. But the reality is more complicated. If I-300 passes, it would indeed appear to invalidate Denver’s restrictions on camping, but there would be two competing ordinances in the city’s municipal code until Denver City Council actually removes the camping-ban ordinance from the books.

At least that’s the understanding of the city attorney’s office. At the same time that Ruan and Bauman wrote their FAQ for the Right to Survive campaign, the city released its own legal-impact assessment, which had been requested by Mayor Michael Hancock.

Homeless advocates like DHOL’s Howard regard this assessment with skepticism. After all, they point out, the city attorney’s office falls under the executive branch of the government, and the Hancock administration was responsible for passing the camping ban in 2012 and carrying out large-scale encampment sweeps from 2015 through 2018. That makes the office anything but impartial.

But Melissa Drazen-Smith, the city attorney who led the assessment team, denies that her office had any agenda. “The mayor asked for an interpretation, but he did not tell us how to interpret it,” she says. “As a city, we don’t take a position either for or against citizen-led initiatives; that is not our function. We’re just trying to take a look at it and see: What does this affect, how would it be implemented, what are the traps that we might end up walking into as we look through this language?”

While the legal analysis by Ruan and Bauman on behalf of the Right to Survive campaign and the legal analysis by the city attorney’s office do not align on many points, there are some areas of agreement. For example, both the city attorney’s office and the Right to Survive legal team agree that the camping ban would only be struck from the municipal code if Denver City Council moves to do so.

Ruan says it’s her understanding that the camping ban would not disappear without an act of council, even if the Right to Survive ordinance supersedes it.

The Right to Survive language includes a legal device known as a “repealer,” Drazen-Smith notes. “It actually is not something we use here in Colorado, because courts disfavor them. What [the I-300 repealer] says is that all inconsistent provisions and prior laws adopted by the City and County of Denver are hereby repealed, so if this passes, the city attorney’s office would go through what we think are inconsistent provisions, and then we’d go to city council and let city council decide. We would have to move to get city council to repeal the things we think are inconsistent.”

Would I-300 eliminate curfews and allow for tent cities in parks?

The Together Denver campaign warns that the Right to Survive would “eliminate” all park curfews that currently close Denver parks between 11 p.m. and 5 a.m.

In the proponent’s legal FAQ, Ruan and Bauman note: “This initiative only allows non-obstructive resting in public space that is ‘accessible to the public.’ Parks that are closed overnight are not accessible to the public, and thus are not available for overnight resting activities. This is true for all public space that is closed to the general public.”

But while I-300 does define “rest,” “public space” and “motor vehicle,” among other things, the initiative’s language doesn’t provide definitions for such critical terms as “accessible.”

Although Drazen-Smith takes issue with Together Denver’s conclusion that park curfews will be “eliminated,” she hedges when considering what “accessible” might mean. “On whether people could be in parks all night, their answer is ‘No,’” she says of the I-300 supporters. “My answer is, ‘Maybe.’

“And what courts look at is the language of the law, not what the writers of the law thought they were doing or hoped to be doing,” Drazen-Smith explains.

So if I-300 passes, Denver City Council won’t just be required to deal with the camping ban. It will also have to define many of the terms in the ordinance, including “accessible.” Otherwise, a lawsuit could force a judge to make a determination based on statutory interpretation.

Would I-300 stop police officers or homeless-service providers from doing their jobs because they fear being sued for “harassing” or “terrorizing” the homeless?

A few other undefined terms in I-300 have raised concerns, including protections for all people exercising their rights as outlined in the ordinance from being harassed, terrorized, threatened or intimidated.

The lack of a definition for “harass” is particularly vexing for some parties, such as homeless-service providers and law enforcement agencies, which are concerned that they could be sued the moment a homeless person claims harassment, even during a routine interaction. Drazen-Smith points out that the initiative also requires the city to cover the costs of any litigation. “So there is an incentive for any attorney who wants to to bring a case on behalf on anybody,” she says.

Pressed for further explanation, Drazen-Smith says the city is less concerned about the panhandler on the street bringing suit than it is about the attorney who uses the panhandler as a conduit for litigation.

Ruan, however, aggressively pushes back against fears that terms like “harass” are not defined in I-300. She points out that Colorado already has a harassment statute, which spells out the criminal level of behavior a person must exhibit in order to reach the threshold of “harassing” activity.

Another state statute includes language that limits camping in one location to two weeks, which could potentially be used in Denver to regulate the duration that campers may stay in a single location.

“So when people are saying that the sky is falling, they’re not recognizing all of the limits that exist in state and municipal law that would still be enforced post-enactment of this initiative,” Ruan says. “If the police still have probable cause to believe that they need to ask for identification or they need to search a backpack because they think a crime has been committed, then they must do that. What this initiative says is that if they don’t have that [probable cause] and someone is in a space accessible to the public, then they’re allowed to rest there, rest there with a backpack, share food, etc. All this is doing is treating a homeless person the same as they would treat a housed person.”

Similarly, Ruan says, existing parking rules will remain in effect; while under the Right to Survive people would be allowed to sleep in their vehicles, they would still need to follow the city’s parking rules, including the stipulation that cars cannot stay parked in one spot on a public road for more than 72 hours.

State public health and safety laws would also still apply, Ruan adds. Those would counter Together Denver’s “no on 300” argument that law enforcement and public health officials would lose all ability to regulate environmental hazards, including unsanitary conditions like human excrement that could pile up around encampments.

click to enlarge I-300 could limit city sweeps of encampments such as this one on November 15, 2016. - BRANDON MARSHALL
I-300 could limit city sweeps of encampments such as this one on November 15, 2016.
Brandon Marshall

What’s most likely to happen if I-300 passes?

The Right to Survive includes language stipulating that if voters pass the initiative, it goes into effect immediately. That moves things along much faster than previous ordinances that Denver voters have passed recently.

The marijuana social consumption initiative approved in November 2016, for example, required businesses to go through a lengthy application process, and the Green Roof Initiative passed in November 2017 was written so that it did not go into effect until a couple of months after the election.

If the Right to Survive passes, Drazen-Smith predicts a period when the Denver City Attorney’s Office would be scrambling to make recommendations to Denver City Council on such issues as the “repealer” clause — whether the camping ban would need to be struck from the municipal code before I-300 takes effect — as well as advising law enforcement agencies as to how they might revise their policies to be in line with the new law.

“If it passes, we’re going to do it,” she says. “We’re going to give all the different agencies our evaluation of how we think this will roll out, and they will have to make their decisions. Though I think what will happen is that there will be a period where everybody is thoughtful about what we do and don’t do. There will probably be a period where enforcement of anything that might fall on the other side of this will have to stop until we can sit down and figure out how we’re going to advise law enforcement.”

But DHOL’s Terese Howard says the language requiring immediate implementation was quite intentional.

“The reason that this is written to go into effect immediately is because people’s lives are at stake,” she says. “Furthermore, by putting this into effect immediately, that enables us to have six whole months of watching this play out, seeing how rights are protected, and seeing how we may want to make any sort of tweaks to the language to further clarify anything with city council.”

Why six months? Under city charter, that’s the amount of time that must elapse before city council is allowed to amend the language of a citizen-approved initiative. Before that, council can pass additional ordinances to help define certain terms (such as “accessible” or “harassment”), as long as those additional ordinances do not go against the character or intent of the initiative.

Howard’s answer is telling, because it shows that proponents of the Right to Survive do anticipate some kind of council amendment if I-300 passes.

“Almost every citizen-initiated ballot measure has gone through some sort of revision process in city council after it passes,” Howard points out. “That is absolutely normal, and it shouldn’t be a shock to anybody or a reason to say that you can’t have an ordinance that you may think needs tweaks. That’s why that process is set up.”

Councilwoman Robin Kniech, who’s running for re-election, says she’s always been against the camping ban, and recently released some details of a homelessness plan that she wants to introduce rather than throw her support behind I-300. But as an attorney, Kniech is also familiar with what Denver City Council is likely to do in the event that I-300 is approved by voters.

“If it passes, I believe that we would likely form a working group,” she says. “I don’t know of any discussion about who would lead that. Some [working groups have] been led by the council, others by the administration, and sometimes we do them jointly. Our president would likely check in with the administration and figure that out. I would ask to be involved.”

Conspiracy or coincidence? Why are all the controversial Denver measures always named Initiative 300?

It may seem like the city slaps the number 300 on every controversial/and or confusing ballot measure, but Denver officials are just following the secretary of state’s rules: The first citizen initiative effort that turns in its petition signatures and is approved for the ballot gets the number 300.

In the past, the Initiative 300 label has been used on everything from Jeff Peckman’s “Safety Through Peace” proposal in 2003 to the social consumption ordinance in 2016 and the Green Roof Initiative in 2017.

Initiatives that are subsequently approved for the ballot are numbered sequentially. This year, for example, Denver voters will also be considering Initiative 301, which would make the adult possession and use of psilocybin mushrooms the lowest law enforcement priority in Denver, as another citizen initiative did for marijuana in 2005.

Ballots will be mailed out April 15.

Confusion over Initiative 300 is unlikely to clear up in the month before election day. But voters will have to make a decision nonetheless.

Howard and Bauman say that it’s time for Denver voters to listen to those who’ve been homeless. “The fears that are put out are so disconnected from reality on the streets,” Howard says. “They don’t take into consideration the human reasons that people move different places, stay different places and so on. No one is going to sleep on a sidewalk in front of your house just because it’s legal. The reality is that people gather certain places because of the resources there, because they’re accessible to their basic needs, because it’s quiet.”

Bauman, who did not write the specific language of the Right to Survive Initiative, only its legal analysis, acknowledges that it may be “an imperfect draft.”

“But I would encourage people not to concern themselves too much with the imperfect language,” she says.
“Ending criminalization practices does support housing goals. Ultimately it does help build up the type of trust that is often broken when you enforce criminalization laws, [like] constant displacement of people who are camping in one place or are sitting in one place. … Remember, this initiative is the result of homeless people, not policy experts.”

Yet even policy experts like Ruan are finding that, despite years of unfavorable messaging around Denver’s camping ban that has made that measure unpopular, the Right to Survive will have to survive other questions about its ambitious and sweeping language. Ruan saw that in Cherry Creek, where residents appeared to side against the Right to Survive; she says she noticed that community members nodded along with lobbyists from Together Denver who repeatedly stated that it was “un-empathetic” to allow the homeless to sleep outdoors.

“We only had about ten minutes to present our side before questions,” Ruan says. “It wasn’t even close to fair.”

But with polling so close, she plans to continue going head-to-head with the opposition campaign and the city attorney’s office at neighborhood meetings throughout the city. “This initiative is exactly what we need right now,” Ruan concludes, “to address the fact that the city council in Denver has not done anything about the fact that there are unconstitutional ordinances on the books that discriminate against people based on their housing status.”

She plans to put that to rest, but it won’t be easy.