Last spring, Jerry Burton was sleeping on the streets when a series of camping ban enforcements forced him and others in his encampment to move. They went from holding a stable spot on 27th and Arapahoe streets in Five Points to moving four times over the course of nine days to avoid citations. On the fourth move, they landed at a place along the Platte River in RiNo. About 15 tents were set up; it was cold. The police came by again.
“I was just fed up,” says Burton, a Marine Corps veteran. “So I just said, ‘Give me the ticket. Give me the ticket so I can fight it.’”
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That’s what happened. Burton received a ticket for violating Denver’s camping ban in April, and within a couple months, he was working with Andy McNulty, a civil rights lawyer with Killmer, Lane & Newman, to challenge the constitutionality of the unauthorized camping ordinance in court.
In December, the Denver County judge assigned to Burton’s case ruled that Denver’s camping ban is unconstitutional, putting the controversial ordinance (which will be eight years old this May) at the center of a legal, political, and ideological tug of war.
City officials, including Mayor Michael Hancock, are defending the ordinance’s constitutionality as the Denver City Attorney’s office appeals the lower court’s decision. After suspending enforcement for about two weeks around the New Year, Denver Police are back to giving move-on orders to unauthorized campers who are almost always homeless. They’re trying to avoid issuing tickets, but that isn’t anything new—we’ll get to that.
But first, let’s back up to look at what the camping ban is, how it came to be, and why so much controversy surrounds it.
What Is Denver’s Urban Camping Ban?
Locate Article IV of Denver’s municipal code and you’ll soon find the text of the unauthorized camping ordinance. That’s right: It’s technically not an outright ban on camping in Denver—it just outlaws unauthorized camping on both public and private property. This means if someone has permission to camp—from the owner of private property, or the officer or agency that is responsible for, say, a public park—they aren’t in violation of the camping ban.
But, thus far, the city doesn’t authorize camping in any public places. If you suddenly find yourself without a place to stay and can’t reach a homeless shelter before it closes or fills up for the night, your best bet for an undisturbed night’s sleep is to find a friendly stranger and ask to camp out in their backyard. Pitch your tent in public space, and you’re likely to be awakened and forced to pack up and move, according to Terese Howard, an organizer for Denver Homeless Out Loud (DHOL), which advocates for the rights of homeless people.
The unauthorized camping ordinance was passed in May 2012, sponsored by former City Council member Albus Brooks (who lost his seat last summer) and supported by Mayor Hancock and the Downtown Denver Partnership (DDP), a nonprofit business organization that advocates for city planning and policies that impact downtown businesses. According to Councilwoman At Large Robin Kniech, DDP had been pushing City Council to pass something along the lines of a camping ban for a while. (The sit and lie ordinance, which outlaws people sitting or lying down in the public right of way, was already in place.)
Kniech believes the Occupy Denver Movement, which sought to draw attention to wealth disparities allegedly caused by economic and political corruption, unintentionally catalyzed political support for the ban. Occupy protesters were camping in Civic Center Park in the fall of 2011, and Kniech remembers an incident of vandalism at the Greek amphitheatre that sparked new energy in City Council members regarding the proposed camping ban.
“In my opinion, if it had not been for Occupy Denver, we would not have a camping ban today,” she says. “You had what I consider to be a political movement that, with good intentions, wanted to highlight the plight of those experiencing homelessness, but it backfired.”
The ordinance passed on May 14, 2012, with a vote of 9 to 4. Kniech was one of the Council members who opposed the ban, and she coordinated four amendments that she and her colleagues attempted to add to the bill. “None of them would have made it OK, but … they tried to weaken the ban,” she says. None of the amendments passed.
What Counts as Camping?
Howard from Denver Homeless Out Loud was one of the Occupy Denver protesters. She says the movement was where she got “broken in” on issues impacting homeless people. After the camping ban passed, she started DHOL with a few other individuals. “Our first project was to do a survey of over 500 people on the streets about the effects of the camping ban,” she says.
The ordinance defines “camp” as “to reside or dwell temporarily in a place, with shelter.” It further defines “shelter” to include not only tents, tarps, and lean-tos, but also sleeping bags, blankets, and “any form of cover or protection from the elements other than clothing.” Eating falls under the definition of “reside or dwell.”
So why haven’t Denver Police approached citizens for breaking the ordinance by eating a sandwich or taking a nap on a blanket at City Park?
Sergeant Brian Conover, head of DPD’s Homeless Outreach Team, says his team looks for a sense of permanence. Yes, if they see a homeless person on a bench wrapped in blankets, they’ll check on that person to see if they can help at all, but when it comes to the camping ban, they’re looking for some sort of structure that implies permanence. “This is someone,” he says in terms of a person putting up a tent, “who’s establishing almost residency in that location.”
What Does Enforcement Look Like?
When Denver Police receive complaints about possible unauthorized camping—or while patrolling, happen upon an encampment—they’re supposed to follow the same uniform protocol: First, they should enforce any other law violations they observe on the site, and evaluate whether or not there’s a need for medical, detox, or mental health services or if there are any outstanding warrants for the individuals in question.
If those steps are followed and other enforcement or services aren’t needed, then the officer determines whether or not the camping ordinance is being violated. If there’s a violation, the officer informs the individuals of the ordinance and asks them to comply, in other words to pack up their things and leave. According to Conover, issuing a ticket is a last resort, done only when individuals refuse to comply.
According to DPD’s statistics, only 33 tickets were handed out from when the ordinance passed in 2012 through the end of 2019, and just four over the course of last year. In the meantime, the number of engagements with people related to the camping ban is in the tens of thousands—4,637 in 2019 alone. There’s no police data for how many times warnings, also known as move-on orders, have caused people on the streets to pick up their stuff and move somewhere else, but advocates for the homeless say that’s where the true impact of the ban lies. Every time someone is asked to pack up their tent and move at night, their sleep is disrupted.
“Whether they give you a ticket or not, they still are displacing you,” says Burton, the plaintiff in the case against the ordinance. “They still are wearing you out. They still are messing with you mentally and physically.”
Police may offer transportation to a shelter, but shelters aren’t always a feasible option due to lack of handicap accessibility, closed doors to pets or couples, and the inability for some people to bring all of their belongings, among other reasons. Many people, then, will turn down the offer and instead look for a different place to set up camp, risking the possibility that they’ll be asked to move again.
Why People Oppose the Ban
Does a camping ban actually prevent the homeless from camping? Advocates and service providers for the homeless say it doesn’t. In fact, DHOL’s report on the camping ban’s impact—based on surveys of those on the street done four and five months after the ordinance first passed—found that rather than bringing more people inside, the ban caused people to leave well-lit parts of the city where they felt safe (e.g., Civic Center Park and 16th Street Mall) and disperse throughout the city to darker, less-patrolled places.
This makes it harder for service providers (not to mention DPD’s homeless outreach team) to find people who need help, contradicting the idea touted by the Mayor’s Office that the ban helps the city connect the homeless with services.
“The ban has not reduced homelessness, it has not reduced camping,” Kniech says. “It has increased impacts in more areas … and it has created a cycle of move-along discussions between law enforcement and individuals.”
Proponents of the ban point out that encampments can pose public health risks via human waste and rat infestations, but Howard counters that human waste could be addressed by installing and maintaining porta-potties and providing trash services to properly dispose of food that may attract rodents. Plus, recent closures like that of Liberty Park were done through other ordinances, not the camping ban.
The Legal Case Against Denver’s Camping Ban
Challenges to Denver’s camping ban gained strength in December with the success of Burton’s case. McNulty, Burton’s lawyer, presented two challenges to the ordinance’s constitutionality. They claimed that in most applications, the ordinance violates the equal protection clause in the Fourteenth Amendment by targeting homeless people and violates the Eighth Amendment’s prohibition against cruel and unusual punishment by criminalizing homelessness.
“If you criminalize someone who can’t access shelter—and if everyone showed up tomorrow and tried to access shelter, they couldn’t—that facially violates the Eighth Amendment,” McNulty says.
The case was heard in Denver County Court, and on Friday, December 27, Judge Johnny C. Barajas upheld the Eighth Amendment challenge, citing a decision from the 9th U.S. Circuit of Appeals that struck down a similar law in Boise, Idaho. The ordinance, by Barajas’ ruling, is now considered unconstitutional.
But that’s not the end of it.
What’s Happening Now
Immediately after the judge’s ruling, the city suspended enforcement of the ordinance and tents popped up in places like Civic Center Park. On December 30, the city filed its notice of appeal.
“The city has been of the position from the very beginning, since 2012, that our ordinance is well-grounded and constitutional,” says Ryan Luby, public information officer for the Denver City Attorney’s Office.
According to Luby, the county court ruling doesn’t overturn the ordinance. In other words, the city isn’t required to stop enforcing the law in response to the county court’s decision. However, he says, “the City Attorney’s Office, under the requirements of city charter, is obligated to defend the city on constitutional challenges of its rules and regulations and ordinances.”
There’s no telling how long the appeal process could take, but McNulty expects at least a year. In the meantime, members of City Council—led by Candi CdeBaca, the woman who defeated Albus Brooks in the summer of 2019 to become the City Council member for District 9—have discussed the possibility of repealing the ban altogether. Halfway through January, the city resumed enforcement of the camping ban.
Camping ban or no camping ban, Denver will still grapple with homelessness. The 2019 Point in Time Report on the City and County of Denver—considered an undercount by service providers—found 3,943 homeless people on one night last January. The Colorado Coalition for the Homeless generally multiplies that number by 2.5 for a more accurate estimate, meaning about 10,000 people in Denver don’t have a place to call home. (At the same time, the report says there’s a total of 3,932 beds available in safe havens, emergency shelters, and transitional housing—clearly not enough to meet the need.)
In the meantime, while city officials and the public argue and fight about the camping ban, advocates are concerned that the needs of the homeless community continue to be unaddressed.
“Repealing the camping ban houses no one,” Kniech says. “It has been unfortunate to see the amount of resources in our communal debate about it, rather than our communal debate being focused on immediate solutions.”