Denver County Court Judge Johnny Barajas struck down Denver's controversial urban camping ban today, December 27, as unconstitutional under the Eighth Amendment. The case may face an appeal from the city, but it's being celebrated by activists as a victory that could have resounding implications for overturning the camping ban in Denver and beyond.
"The judge’s order really recognized the humanity of everyone involved in this. He issued a ruling that for the first time in a lot of folks’...lives, makes them feel seen," says attorney Andy McNulty, who fought the case on behalf of Jerry Burton.
The ruling comes after the U.S. Supreme Court earlier this month refused to hear a similar case stemming from a Boise, Idaho, law against sleeping in public, opening the door for battles against camping bans in lower courts. Barajas quoted the Ninth Circuit Court of Appeals' ruling in the Boise case in his decision regarding Denver's ban: "As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise that they had a choice in the matter."
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Burton, an activist who until recently was homeless, was facing camping-ban charges after police officers ticketed him when he refused to move his tent in April. Andy McNulty, an attorney at the civil-rights firm Killmer, Lane & Newman, filed a motion to dismiss Burton's charges, arguing that the camping ban was unconstitutional under the Eighth and Fourteenth Amendments.
The challenge to the camping ban resulted in a four-day hearing over the law's constitutional grounding. Dr. Tony Robinson, a professor of political science at CU Denver, and Dr. Amy Ruan, a law professor at the University of Denver, as well as four currently or formerly unhoused people, testified for Burton. Several city officials, including a police officer, a health inspector and Chris Conner, director of Denver's Road Home (the city's agency in charge of overseeing shelters, now folded into the Department of Housing Stability), testified for the city.
Much of the testimony centered on the question of whether Denver has adequate shelter space. Although the Denver shelters operate below capacity on almost any given night, there is not adequate space for every single unsheltered person to use them on a single night, and not everyone experiencing homelessness can access them equally.
Specifically, the ruling states that "men with children, individuals with serious mental illnesses, persons banned from shelters, unaccompanied homeless youth, individuals with pets, LGBT individuals, and same sex partners have limited access to shelter. ... unless accompanied by a Denver police officer persons with swing shift jobs and other persons who seek shelter after curfew are also turned away because of shelter curfews." McNulty argued that because of these restrictions, sleeping on the streets cannot be considered a voluntary act, and thus should not be punished with police harassment, tickets and possible jail time.
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Barajas denied Burton's claims that centered on several Fourteenth Amendment concerns, including the right to due process and the right to bodily integrity. He gave some credence to, but ultimately dismissed, McNulty's argument that the camping ban violated the Equal Protection Clause, unfairly targeting a discrete group. However, the judge did agree with McNulty that "the homeless have historically been subjected to discrimination, that the homeless have a transitory trait that is highly visible, that given their lack of income and lack of a permanent shelter, they have been disadvantaged historically."
Denver Homeless Out Loud activist Terese Howard says she hopes the city will heed the ruling. "It sends a good message, but folks on the streets aren't going to be affected by that in any sort of way until it results in repealing the camping ban," Howard says.
Westword reached out to the city attorney's office for comment, and will update this post if and when they get back to us. The full copy of the ruling is attached below.