COVER STORY Denver homeless campaign ban 300 trash

People clear trash and belongings from a makeshift homesless camp near the Denver Rescue Mission on March 8, 2016, ahead of a city eviction of people living on the street in the area.

The Denver City Attorney’s Office on Monday filed an appeal against Friday’s ruling that the city’s controversial camping ban is unconstitutional, and calls for a delay in carrying out the court order.

The ban was struck down by Denver County Court Judge Johnny Barajas, citing the Eighth Amendment, which prohibits “cruel and unusual punishment,” along with the 14th Amendment’s equal protection clause, due process clause and the Americans with Disabilities Act.

Denver's controversial urban camping ban ruled unconstitutional
Denver urban camping ban in judge’s hands
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“The trial court erred by holding that no conceivable set of circumstances exist under which enforcement of [the camping ban] would not violate the Eighth Amendment prohibition against cruel and unusual punishment,” the notice of appeal stated.

The appeal also states that the court’s decision is “not binding authority,” citing numerous cases and requested a stay of execution of the court order.

“Because the opinion may be construed as persuasive authority, the City is requesting a stay of executing of the Court’s holding that [the camping ban] is unconstitutional,” according to the filing.

"We are still exploring our options and next steps, but it is important to remember that this is a narrow ruling on a criminal matter," said Ryan Luby, spokesman for the City Attorney's Office. "The city will continue to enforce its ordinances, including those necessary to protect public health and safety.”

"Denver’s approach to assist people living in homelessness — which is overwhelmingly supported by the public — is to address their needs indoors in a dignified and compassionate fashion," said Mike Strott, spokesman for the mayor's office. "We do not believe outdoor encampments are healthy or safe, and the unauthorized camping ordinance has proven to be an effective tool to connect people with services, including overnight shelter, of which there are typically a couple hundred vacant beds each night."

Meanwhile, homeless advocates across the city championed Barajas’ decision.

“The Colorado Coalition for the Homeless opposed the ban in 2012 and continues to oppose it today,” spokeswoman Cathy Alderman wrote in a statement. “It has never been the solution for homelessness in Denver and, in fact, only makes that experience more difficult and unworkable for thousands of people who are forced to sleep unsheltered in our community.”

The homeless coalition is urging the city to work toward solutions “rather than continue to defend an unconstitutional ordinance.”

“The City must not spend more resources to defend an unconstitutional strategy that robs people of sleep,” said Ean Tafoya, a spokesman for Denver Initiative 300, which would have given residents the right to rest and shelter in public places throughout the city, but failed by a wide margin earlier this year.

“I look forward to City Council repealing the law immediately,” he said. “It’s time to fund proven solutions like public restrooms, waste collection and housing first.”

On Dec. 27, City Councilwoman Candi CdeBaca wrote on Twitter, “Now that the judicial branch has determined we are enforcing cruel and unusual punishment, seems like a good time to repeal?” and tagged her fellow council members.

As first reported by The Denver Post, Denver police have stopped enforcing the camping ban as of Friday, pending "further guidance" from the city attorney's office. 

Jerry Burton, who has experienced homelessness off and on in Denver for years, challenged the ban after being ticketed after he set up camp in late April near 29th Street and Arkins Court close to the North Platte River. His claim sparked a series of hearings before Barajas, which began in mid-October.

Burton was represented by Andy McNulty of the powerhouse civil liberties firm Killmer, Lane & Newman.

"Citing the fact that the homeless are a powerless group who have been subject to a long history of discrimination both in Denver and Colorado, and that homeless individuals in Denver cannot meaningfully access adequate shelter, the court held that the urban camping ban violates the 8th Amendment’s prohibition against cruel and unusual punishment because it criminalizes homeless individuals, who have nowhere to go, for simply attempting to survive on Denver’s streets," McNulty said in an email Friday.

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