Denver’s urban camping ban, found unconstitutional in 2019, has win in appeals court
Denver city attorneys emerged victorious last week after appealing a county court judge’s ruling that the city’s controversial urban camping ban was unconstitutional and amounted to cruel and unusual punishment.
The original ruling, from Judge Johnny C. Barajas in December 2019, called the city’s camping ban into question. Police briefly paused enforcement of the ban but resumed as city attorneys appealed the decision to Denver District Court.
Denver District Court Judge J. Eric Elliff on Thursday reversed Barajas’ ruling and remanded the case back to Denver County Court, said Ryan Luby, spokesperson for the Denver City Attorney’s Office.
The decision came as a disappointment, said Andy McNulty, the lawyer who filed the case on behalf of Jerry Burton, who received a ticket from Denver police for violating the city’s urban camping ban at a site commonly known as Jerr-E-ville.
McNulty said he will ask the Colorado Supreme Court to take up the case. If it does not, the case will be settled with a jury trial in Denver County Court, he said.
Should the Supreme Court take up the case and rule in Burton’s favor, McNulty said, it would spell doom not only for Denver’s camping ban but also for similar bans places like Colorado Springs, Boulder, Fort Collins, Durango and more.
“It would have some serious consequences statewide,” McNulty said.
In his ruling, Barajas cited a 2018 decision from the 9th U.S. Circuit Court of Appeals striking down a camping ban in Boise, Idaho. The U.S. Supreme Court declined to review that ruling, letting it stand.
However, Elliff agreed with Denver attorneys’ contention that the precedent set in the Boise lawsuit was not applicable in Burton’s case, Luby said.
“In its enforcement of the Ordinance, the City was not motivated by a discriminatory purpose nor a desire to harm a ‘politically unpopular group,’ and thus there was no ‘animus’ on the part of the City,” Elliff wrote in his decision. “The City does not have a custom and practice of arresting, harassing and otherwise interfering with homeless people for engaging in basic activities of daily life.”
Denver’s urban camping ban is enforced compassionately and with an emphasis on providing services and shelter to those who need them, Luby said in a statement.
However, city officials have also come under fire this year for large-scale cleanups — colloquially known as “sweeps” — of homeless encampments. Those sweeps have been used to clear out encampments without leaning on the camping ban and, some say, without proper justification.
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