Activists rallied near the State Capitol today, December 20, to urge Denver courts to follow a ruling in the 9th Circuit Court of Appeals and deem the city's urban camping ban unconstitutional. A case challenging the constitutionality of the camping ban in municipal court is currently awaiting a ruling from Judge Johnny Barajas.
On Monday, December 16, the U.S. Supreme Court declined to hear Martin v. Boise, a case concerning a Boise, Idaho, law preventing people from sleeping and camping in public. The case started in 2009, when eleven homeless people sued the city of Boise over the law, which is akin to Denver’s camping ban. The decision by the Supreme Court means the 9th Circuit Court of Appeal’s 2017 ruling stands. That ruling held that Boise's camping ban unconstitutionally criminalized involuntary conduct, violating the Eighth Amendment’s prohibitions against cruel and unusual punishment.
“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 they had a choice in the matter,” reads a written opinion by 9th Circuit Judge Marsha Berzon.
To show support for that ruling and urge Denver courts to follow suit, Denver Homeless Out Loud organized a noon rally in front of the State Capitol. Just over a dozen activists attended to display signs to drivers on Broadway and hear the opinions of activists and David Lane, a partner in the civil-rights firm Killmer, Lane & Newman.
“Since this 9th Circuit opinion came down, Los Angeles, San Francisco and Seattle are teeming with people without homes. There are these camps that just go on and on and on. All these places had, as the solution to the problem, thrown them all in jail, beat them, moved them along, and they can't do that anymore,” he told Westword before the rally. The court’s ruling is “now forcing these cities to come to terms with how they intend to humanely address these issues.”
In August, the city of Boise asked the U.S. Supreme Court to hear the case. Lane said its refusal to do so may indicate that the Supreme Court is waiting to see how similar laws play out in other lower courts before making a decision. The case Lane’s firm is fighting in Denver could play a key role.
In September, Andy McNulty, an attorney at Killmer, Lane & Newman, filed a motion to dismiss camping ban charges against Jerry Burton, who had been ticketed after he refused to move his camp, known as Jerr-E-Ville, in April 2019.
McNulty argued not only that the camping ban violates the Eighth Amendment, but also the Fourteenth Amendment’s Equal Protection Clause, by discriminantly targeting people experiencing homelessness. Over a four-day hearing in October, people who were currently or had previously experienced homelessness hashed out the specifics of the camping ban in court, with academic experts also testifying for Burton and city officials and police officers testifying for the camping ban.
The case is still awaiting a ruling. Colorado is not in the 9th Circuit (according to some estimates, the nine states in the Ninth Circuit hold almost two-thirds of the country’s unsheltered homeless population), so it is not directly affected by the court’s decision. But Lane says the decision gives Barajas a template for a favorable ruling, and sets a framework for a similar battle of appeals to play out. Depending on the ruling, either party (the city or Burton) may appeal the case to district court, then the Colorado Supreme Court, and eventually the U.S. Supreme Court.
Lane told the group of activists that he was hopeful Burton’s case would turn out in their favor. “This judge is taking a long time. It doesn't take a long time to simply say the statute is in fact constitutional, and you lose,” he said. “When you're a Denver county court judge and all the powers-that-be — the cops, the city council, everybody in the community — are looking at you, if you're going to throw out a law that was just approved by 80 percent of the public in a referendum, you'd better write something that's pretty damn profound.”
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At the rally, Denver Homeless Out Loud activist Terese Howard also called for city council to repeal the camping ban, which the body approved in 2012. Denver voters upheld the camping ban when they overwhelmingly turned down the Right to Survive Initiative in May 2019, but Howard pointed out that Right to Survive was broader than just the camping ban, and that the initiative had faced significant spending from its opposition, including the Downtown Denver Partnership and other businesses. Howard added, “The majority of voters are not always right.”
Burton, the defendant in the current case, called out the city at the rally as well, using the current nativity scene display outside the City and County Building as an example. “If you walk down there to the City and County Building, they got Jesus locked up sleeping in a manger. That's illegal. Mary and Joseph would be getting tickets today,” he said.
“No one is above the U.S. Constitution,” he continued. Fitting for Burton's reference to the impeachment proceedings against President Donald Trump, the Trump administration is currently threatening to issue an executive order cracking down on homelessness, funding police departments that will remove homeless encampments and possibly stripping housing funds from cities that tolerate them.
Lane called for anyone who has been harassed or is subject to arrest under the camping ban to contact his firm, which may also look to sue the city over it in federal court.