A Denver ordinance that even some judges say is too "rigid" could soon get an update. City Attorney Kristin Bronson says her office is revising Denver's nuisance abatement ordinance and will submit its final draft to a Denver City Council committee for consideration sometime mid-March.
"It is an ordinance, of course, that we use and refer to on a regular basis, and what our prosecution team has heard was a fair amount of frustration on the part of people involved in the process — prosecutors themselves and some of our county court judges," Bronson says.
The ordinance lays out the circumstances in which property that police think facilitated a nuisance — everything from a dirty pool to solicitation — can be seized. Suspects don't need to be found guilty for their property to be taken, and culpability isn't necessarily based on whoever committed the nuisance; registered owners of the property — a car in which a drug deal occurred, for example — are subject to the penalties, which include mandatory minimum fines.
In 2017, 1,781 nuisance cases made their way through Denver's courts, up from about 1,300 in 2012. Fees collected from nuisance cases go to the city's general fund.
Cars are the most commonly seized property, and impound fees can add up fast. On top of the tow fee, which is $130, every day a car is in an impound lot costs the owner $20. The car could be auctioned off through a settlement with the city or if the owner simply can't afford to get their car out.
That can create a snowball effect, according to ACLU of Colorado attorney Sara Neel. "It gives Denver police the authority to impound and auction Denver residents' automobiles for minor offenses," she says. "That's what people need to take their kids to school and go to work."
And the impound process may not end once the owner is cleared of wrongdoing. "Somebody might get picked up for prostitution, and let's say their car gets impounded," Neel explains. "Civil action is taken against the car, but that solicitation charge might get dismissed. Why should the city have the power to take away that person's car?"
Neel thinks the ordinance goes beyond rigid. "I'd probably use draconian... and unnecessarily complicated," she says. "I've tried to read it, and I literally need a flow chart to figure out what happens. And I'm a lawyer."
About a year ago, Bronson says, Mayor Michael Hancock asked her office to take up certain criminal justice reform efforts, including a review of the nuisance abatement ordinance. While she stops short of describing exactly how the ordinance might change — the draft is still confidential — the mandatory minimum fees are being reconsidered.
"We are taking a fresh look at the ordinance," Bronson explains, "and making sure, are we really treating the participants in this process fairly? Have we built enough opportunities for due process and for flexibility to be afforded based on the unique circumstances in each case?"
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As Bronson's office considered the ordinance, it was also monitoring a case that eventually landed in the U.S. Supreme Court involving civil forfeiture, in which the State of Indiana took a plaintiff's $42,000 Land Rover after he pleaded guilty to selling a small amount of heroin to undercover officers in the car. All nine justices sided with the plaintiff, and in her opinion, Justice Ruth Bader Ginsburg said the "forfeiture of the Land Rover...would be grossly disproportionate to the gravity of [the plaintiff's] offense, hence unconstitutional under the Eighth Amendment's Excessive Fines Clause."
Even in light of the Supreme Court decision, Bronson maintains that the city's nuisance abatement ordinance as it stands is constitutional, since Indiana's civil forfeiture law allows any fees collected to go directly to police departments. "No one gets bonuses or incentives or pats on the back for having raised those monies," she says of Denver's ordinance. "The police department doesn't get more money in its budget as a result, which was the kinds of incentives that Justice Ginsburg expressed concern with in her opinion."
Still, the upgrade is necessary, she says: "I think you will find that the steps that we're going to propose making are very progressive for a city attorney's office to be making proactively, and not under threat of litigation or not because anyone’s demanding it or forcing it upon us."
Update: This post has clarified the process by which a car may be auctioned and the tow fee.