Denver District Court Judge Rules Part of Initiative 303 Unlawful

A district court judge just carved out part of Initiative 303.
A district court judge just carved out part of Initiative 303. Michael Emery Hecker
With the November 2 election a day away, a Denver District Court judge has thrown out a key section of Initiative 303, a ballot measure that seeks to amend the Denver camping ban and create a private enforcement mechanism.

Just after 9 p.m. on October 31, Judge Darryl F. Shockley of the Denver District Court released his decision that the section of Initiative 303 that requires enforcement of the camping ban within 72 hours of a citizen complaint and gives the complainant the right to sue the City of Denver if the deadline is not met is unlawful, since it violates Denver's administrative authority. Shockley's ruling essentially eliminates that section from I-303, so if voters approve the measure, those aspects will not be codified into Denver law.

The initiative also places a cap of four on the number of safe-camping sites that the city can allow on public property. That section will still take effect if Initiative 303 passes, as the City of Denver did not challenge it in the lawsuit it filed against the measure's proponent, Denver Republican Party chair Garrett Flicker, on October 15.

"We are pleased with the judge’s decision. Denver has great respect for the voter initiative process, but this process is not without its limits, and it must be lawful. Subsection (c) of Initiative 303 was an unconstitutional exercise of the voter initiative process, because it infringed on Denver’s ability to administer its unauthorized camping ordinance," says Jacqlin Davis, a spokesperson for the Denver City Attorney's Office.

"It is unfortunate that the City of Denver would go to these lengths to avoid enforcing its own ordinances," counters Flicker. "We’re trying to obtain some fairness for Denver residents and property owners who have been saddled with the City’s failures to address the homeless crisis. We believe this measure will pass tomorrow, and when it does, we are ready to appeal – and let the will of Denver voters be heard."

Davis notes that Shockley's ruling "does not impact the voting process. Voters should be confident that their ballots will be received and processed as usual. Once a ballot is cast, it cannot be revoted. Voters who have filled out their ballot but have yet to cast it may appear at any Voter Service and Polling Center and obtain a replacement ballot."

In the run-up to the election, the City of Denver has expressed significant concerns over the potential effects of Initiative 303.

“At this time, the city is unable to estimate the potential litigation costs the city may encounter if the 72-hour enforcement period is implemented,” reads a section on the financial impact of Initiative 303 in the Denver Elections Division ballot guide. In other words, the city has been worried that it could get hit with lawsuits both for enforcing the 72-hour rule and for not enforcing it.

Currently, Denver must abide by both a federal court settlement and a federal court order that require the city to provide a week's notice before sweeping an encampment.

"Mandatory enforcement of the [unauthorized camping ordinance] based solely upon complaint impinges on the necessary discretion entrusted to law enforcement to ensure that suspects are afforded constitutional protections and the [unauthorized camping ordinance] remains constitutional as applied," Shockley wrote in his ruling.

Typically at odds over the camping ban, the City of Denver and homeless-rights advocates both oppose  Initiative 303. Advocates have raised concerns that I-303 could further criminalize homelessness, and the cap on safe-camping sites would harm "our vision to expand," says Cole Chandler, executive director of the Colorado Village Collaborative, which has been pushing the safe-camping site program.

Read the full ruling here.
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Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.