Homeless Advocates Challenging Denver’s Camping Ban

Jerry Burton is facing charges for violating Denver's camping ban, but his lawyer says the ban is unconstitutional.
Jerry Burton is facing charges for violating Denver's camping ban, but his lawyer says the ban is unconstitutional. Anthony Camera
The cluster of a few dozen tents that Jerry Burton proudly called “Jerr-E-Ville” in downtown Denver was not just a homeless encampment, he insists, but a community. Jerr-E-Ville residents made a concerted effort to reach out to the surrounding neighborhood, keep their camp clean, and support each other enough that they could work jobs during the day.

Jerr-E-Ville was everything to Burton. As much as it was a place for unhoused people to live peacefully and with integrity, it was also a protest camp in opposition to Denver’s camping ban. The “E” was capitalized to symbolize “emergency,” Burton says. “I was trying to show to the city and the powers that be are trying to force something that you not providing the answer to. That's almost like trying to take a headache pill when you've got an operation in store.”

On April 20 of this year, citing Denver’s controversial camping ban, police started putting pressure on Jerr-E-Ville to “move along.” After dispersing the camp already that day, police approached the area by the Platte River where campers had moved late one night and asked them to move again. Burton refused. After a heated exchange with officers, he ended up with a ticket for violating the camping ban.

Now, with the help of Andy McNulty, an attorney with the civil-rights firm Killmer, Lane & Newman, Burton is trying to dismiss his charges by challenging the camping ban itself. He's arguing that the camping ban, which Denver City Council passed 9 to 4 in 2012, is unconstitutional, primarily because it violates the Fourteenth Amendment’s equal-protection clause and the Eighth Amendment’s protection from cruel and unusual punishment.

McNulty’s motion to dismiss the charges has turned what might have been a straightforward municipal ordinance violation into a weeks-long series of tense hearings that have touched not only on the camping ban, but also the way that it fits into the structural cycles that have kept people chronically unhoused and in poverty.

A well-known and respected voice in Denver’s homeless community, Burton has been experiencing homelessness on and off since arriving in Denver in the ’90s. He used to stay in homeless shelters when he had nowhere else to go. While working as a cook at Samaritan House, he witnessed police taking people’s blankets and tents outside in an effort to get them to move along in a snowstorm — a practice that was challenged by a four-year class-action lawsuit that wrapped up last month. The sight pushed him to leave the shelter, move onto the streets with the community, and become an advocate.

Burton has housing now through the Department of Veterans Affairs, but he is still in touch with the homeless, many of whom have rallied to his support. The first of the hearings in his case was held on Friday, October 11, in which five witnesses who had experienced homelessness, including Burton, testified about their experiences. In the second, held on Friday, October 18, two witnesses who have conducted independent research on the effects of the camping ban — Dr. Tony Robinson, a professor of political science at CU Denver, and Dr. Amy Ruan, a law professor at the University of Denver — testified as experts for the defense.

On October 28, four city employees testified for the prosecution: Assistant Fire Chief Jeremy Vigil; Danica Lee, an investigator with the Department of Public Health and Environment; police officer Troy Smith, who was at the scene of Burton’s arrest; and police officer Alicia Harris, a member of DPD's Homeless Outreach Team. On October 29, Chris Conner, director of Denver’s Road Home — the city agency charged with overseeing homeless outreach, shelters and other services — testified about the city’s shelter system.

With initial testimony wrapped up, Judge Johnny Barajas will issue a written ruling in the coming weeks on whether the camping ban is constitutional, which could set the stage for a trial or an appeal to higher courts.

In the meantime, here's our rundown of the issues witnesses and attorneys hashed out in court, including some of the most important questions about Denver’s contentious camping ban and the crisis of homelessness.

What is the definition of homelessness?

City Attorney Eric Reece introduced that question through his cross-examinations of witnesses for the defense. McNulty is arguing that homeless individuals are an identifiable group, a “suspect or quasi-suspect class,” whom the camping ban was designed to target.

Homelessness has multiple definitions, both officially and according to people experiencing it themselves. One of the most commonly relied-upon tools to track homelessness is the U.S. Department of Housing and Urban Development’s Point in Time Survey.

The survey counts the number of people living in emergency shelters, transitional housing, and those who are “unsheltered" on the streets in a single night. Conner, Robinson and Ruan acknowledged that the Point in Time is an underestimate, since volunteers may not find every single homeless person on the streets, and it can't count others who could also be considered homeless, such as people sleeping on a friend’s couch, living in de facto transitional housing such as a motel, or those in hospitals or jails who would be homeless upon their release. And even the official definition of homelessness for that survey has changed: Before 2013, it also used to count people living in certain types of transitional housing that has since been eliminated from the definition.

“[Homelessness] is a fluid concept," Judge Barajas said. "I don't really think it is something that can be locked down, so to speak, in a precise way."

Witnesses with experience on the streets expressed various definitions of homelessness. Reece asked Mary Anna Thompson, who testified about her experience in and out of shelters and motels, how she defined homelessness. She replied, “It depends on the organization, it depends on how people look at you, how people define you. … But according to the broader definition, you’ve got to have that key to your own place and in your own name.”

Even without a strict definition of homelessness, McNulty’s argument that homeless people are a suspect class may hold up if the judge agrees that a class can be defined as having some immutable shared characteristic that affects its ability to operate in society, and as having experienced historical discrimination and political powerlessness.

“If homeless folk had political capital...we would not see this dramatic explosion of laws threatening their ability to exist,” Robinson testified.

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Do people who live on the streets have no choice but to do so?

“If the individual is forced to be outdoors because they are homeless, it is unconstitutional to criminalize his or her involuntary conduct,” McNulty wrote in his original motion. That’s key to his argument that the camping ban violates the Eighth Amendment: It would seem cruel to take away someone’s blanket on a winter night without giving them another place of shelter, especially if they were staying outside by obligation, not choice.

The city’s answer to that argument has typically been that people camping do have a choice, since there are available shelter beds that people can stay in. Conner testified that at no point in the past year had there been a night when the city’s beds reached capacity, and that he was confident that even if they did, the city could work with partners to provide emergency shelter for anyone who wanted it.

However, the 2019 Point in Time survey counted 554 unsheltered people in Denver on one night in January; on that same night there were only 193 unoccupied shelter beds. There were also 322 people in transitional housing.

While the city focused on the hard number of beds, the defense focused more on the type and accessibility of beds in Denver’s shelter system, arguing that it’s not adequate. Most shelters, Conner confirmed, host people on an open floor where mats are laid next to each other. Several witnesses testified to struggling with the lack of privacy in shelters, and to feeling unsafe and claustrophobic in a room packed closely with people they may not trust. “Forcing homeless individuals into shelters jeopardizes their health and safety," McNulty argued.

Thompson testified that the environment in Samaritan House, where she stayed in 2011, exacerbated PTSD symptoms from childhood trauma. “It’s complete chaos,” she said, describing an environment of conflict among both staff and guests, causing sleep deprivation and risk of sexual assault. “I felt completely unsafe.”

“When you’re out on the street, it's up to you,” Burton explained. “You’re more safe because you can allow people to come to your camp, whereas in a shelter they can take anybody and you don't have a say in it.”

Others had a difficult time getting into shelters with their pet or if they worked late hours. The same constraints can apply to people who are actively using substances or have a record.

“The bigger reason why people don’t get into the shelters isn’t just because they’re full,” Robinson explained during cross-examination. “There are many people who would like to have an indoor bed at night, but these beds do not fit their circumstances.”

What is the purpose of the camping ban?

McNulty argued in his motion that, from its drafting and enactment in 2012, the camping ban “specifically targeted homeless individuals and was aimed at pushing homeless individuals out of Denver.” However, Barajas has already ruled that the camping ban is “neutral on its face,” meaning that it does not appear to be discriminatory in the way that it is written. McNulty nonetheless maintains that the law was enacted to target individuals experiencing homelessness and is enforced in a way that negatively and disproportionately impacts them.

McNulty notes that the camping ban was partially inspired by a trip that then-city councilman Albus Brooks made to the 16th Street Mall, where he was shocked at the number of homeless people he counted. While debating it, city council heard narratives that the presence of homeless people harmed businesses. McNulty ripped that intention in his closing statement: “Housed folks don’t want to see the best evidence of our flawed economic system laying on the street next to where they go shopping,” he said. “That’s the purpose of the camping ban, and that’s not a valid purpose. That’s a discriminatory purpose.”

Reece argued to the contrary that the camping ban is “a tool that we use to help people at risk.” The city has consistently posed the camping ban as a “stick” that pushes people toward the “carrot” of shelter, services and eventually housing. “Sometimes a little bit of stick is necessary to get people to accept the carrot,” then-city council president Chris Nevitt said at the time of the camping ban's passing.

Reece also presented arguments that the camping ban is necessary to mitigate risks to public health and safety, and helps the city enforce other ordinances. The fire chief, police officers and public health investigator testified that they’ve seen homeless encampments with open flames, needles on the ground and human waste, which could jeopardize the people in those camps as well as passersby.

McNulty argued that any health problems were addressed by other city ordinances (though both Robinson and Ruan also testified that those ordinances, such as park curfews or bans on urinating in public, could have adversarial impacts on homeless populations). “We need to ask, ‘Whose public health and safety does the camping ban advance?’” McNulty said. “We’ve heard testimony from pretty much everyone that sleeping outside without shelter isn’t safer than sleeping outside with shelter. That’s for certain."

He argued that forcing people into shelters they may not be comfortable in jeopardizes homeless residents’ health and safety by exacerbating stress levels, worsening sleep cycles, and forcing them into hidden, more dangerous areas. Robinson testified that his 2018 report Unhealthy by Design, which surveyed hundreds of people living on the street in Denver, showed that people who self-reported moving frequently to avoid police contact were more likely to experience sexual assault, physical assault, robbery and violent threats.

That’s something that has activists for those on the streets questioning whether deploying police to stop urban camping is necessary to fulfill the purpose of helping the most vulnerable. “There’s a very deep question that someone needs to ask, if they think that the only way to get someone to accept services is with a cop with a badge and a gun,” says Terese Howard of Denver Homeless Out Loud.

click to enlarge Jordan has lived on Denver's streets for the past three years. - SARA FLEMING
Jordan has lived on Denver's streets for the past three years.
Sara Fleming
How is the camping ban enforced on the ground?

There was a complicated series of questions during the hearings about how the camping ban is supposed to be enforced and whether the procedure is followed consistently. DPD's training bulletin on the matter, last updated in February 2018, lays out steps that officers should follow when enforcing the camping ban. Giving out a ticket or arresting the suspect is a last resort, requiring the approval of a sergeant and a reasonable attempt to contact service providers or emergency services if needed. It’s been somewhat of a point of pride for Denver officials that there have only been 33 tickets issues or arrests made for violations of the camping ban since its passage.

“Most people are not being charged with crimes for camping,” Ruan argued. But she said that according to her research, the camping ban still criminalizes camping, since the camping ban is primarily enforced through written warnings or verbal warnings asking people to move along. Activists also refer to them as “move along orders.” Police made over 13,000 camping ban-related street checks since it was passed, and they gave move along orders to tens of thousands of people during many of those, with the threat of arrest or citation hanging over those who don’t comply.

McNulty also argued that officers don’t always follow the procedures exactly, and they’re not laid out in the ordinance. Police said they have wide discretion when deciding whether and how to enforce the camping ban; they’re not required or encouraged to approach every person sitting on a blanket in a park.

During cross-examination, Ruan testified that the camping ban results in police contacting homeless people because they are homeless and observed to be camping, and thus enforcing other laws disproportionately against them or arresting them for prior warrants. (According to police data, over 500 of those arrests have occurred since the camping ban has passed.) That exacerbates what Burton calls a vicious cycle: Regardless of whether homeless individuals are actually arrested for violating the camping ban, they are subjected to constant police harassment for doing so, increasing fear and distrust of the system that city officials say is meant to help them. 

McNulty maintained that the way the camping ban is enforced targets homeless people, pointing out that rarely are park picnickers using blankets — which is technically illegal — or people camping in line for festival tickets cited or asked to move along. According to police data, on average throughout the past seven years, 85 percent of camping ban contacts were with people labeled homeless or transient, though it is not clear how police define transience.

"The camping ban establishes a class system in the city of Denver," McNulty argued in his closing statement. "I believe it's not only unconstitutional, but immoral." 
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Sara Fleming is a freelance writer and formal editorial fellow at Westword. She covers a wide variety of stories about local politics and communities. A born-and-raised Coloradan, when she's not exploring Denver, she's on a mission to visit every mountain town in the state.
Contact: Sara Fleming