The city of Durango has stopped issuing citations to people who camp overnight in public open spaces, excluding parks and sidewalks, city officials said.
The city stopped issuing the citations after receiving a letter from the American Civil Liberties Union admonishing the city for its practice and in the wake of a ruling from the 9th U.S. Circuit Court of Appeals that said prosecuting homeless people for sleeping on public property when there is no shelter available violates the Constitution’s ban on cruel and unusual punishment.
A panel of three judges for the 9th Circuit Court opined Sept. 4 that “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”
The city does not have a dedicated shelter for homeless people, although it is looking at options to build one near the Manna soup kitchen, said Assistant City Manager Amber Blake.
The ACLU sent a letter to Durango in late August urging the city to suspend enforcement of its camping ban after the city closed a temporary campground. The city approved opening a campground near the Durango Dog Park but later abandoned those plans.
The city reached an agreement with the ACLU earlier this month to stop enforcing its camping ban between dusk and dawn in public open space, as long as those who camp follow city ordinances protecting the safety, health and welfare of all residents, Blake said. That includes bans against open flames, aggressive panhandling and keeping a shelter up during daylight hours.
City staff is looking at amending its rules banning camping on public grounds to make it more specific, Blake said. The city is also evaluating whether the 9th Circuit Court decision has any bearing on the way the city operates, she said.
City Attorney Dirk Nelson said he is looking into whether the 9th Circuit Court decision has any impact on Durango but declined to comment further, citing the threat of litigation from the ACLU.
While Durango is not in the 9th judicial circuit – Colorado is in the 10th judicial circuit – the ruling does have “persuasive authority” here, setting a precedent that can be used as case law in courts across the country, said Mark Silverstein, legal director with the ACLU of Colorado.
“I think it (the 9th Circuit Court ruling) definitely puts a very dark cloud over the city’s ability to enforce that ordinance” against camping on public property, Silverstein said during an interview Wednesday with The Durango Herald.
Durango officials have yet to respond to a Herald request sent Wednesday for emails between the city and the ACLU.
La Plata County Sheriff Sean Smith stopped enforcing the county’s ban on sleeping on public property in May after a county homeless camp behind the Durango Tech Center closed. Smith has maintained an outright ban is unconstitutional for the same reason as stated by the 9th Circuit Court.
Donna Mae Baukat, co-founder and executive director of Community Compassion Outreach, a group that advocates for homeless residents and assists people experiencing homelessness, said at least 30 homeless people in Durango have expressed interest in suing the city over its ordinance.
While those individuals have not retained an attorney, local lawyer Brian Schowalter said he’s offered pro bono counsel to homeless people who’ve been charged with trespassing. But said he didn’t feel confident persuing civil rights litigation with the city.
“If there was somebody who is homeless who was ticketed with nowhere else to go, I would say call me,” Schowalter said.
Blake said homeless people are welcome to participate in a public process that will occur once a revised ordinance is presented to the City Council.
What will be in that ordinance, however, is unclear, she said.
“At this point in time, we’re gathering information, we’re looking at what other communities are doing across the nation, we’re doing our homework,” she said.
Local attorney Michael McLachlan, who has served as Colorado’s solicitor general in 1999 and 2000 and argued before the U.S. Supreme Court, said the 9th Circuit Court decision is an important one for Durango and the nation.
“I wouldn’t be surprised if this issue ends up in the Supreme Court,” McLachlan said.
bhauff@durangoherald.com
