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HomeMy WebLinkAbout2019CV30889 - Adam Wiemold V. City Of Fort Collins - 027 - Response To Notice Of Supplemental Authority1 District Court, Larimer County, Colorado 201 LaPorte Ave. Fort Collins, CO 80521  COURT USE ONLY  Appeal from the Fort Collins Municipal Court The Honorable Kathleen M. Lane Case No. 2018-0240752-MD PEOPLE OF CITY OF FORT COLLINS, Plaintiff-Appellee, v. Adam Wiemold, Defendant-Appellant Adam Frank, #38979 FRANK & SALAHUDDIN LLC 1133 N Pennsylvania St. Denver, CO 80203 Phone: (303) 974-1084 Fax: (303) 974-1085 E-mail: adam@fas-law.com In cooperation with the American Civil Liberties Union Foundation of Colorado Mark Silverstein, #26979 Rebecca Wallace, #39606 ACLU Foundation of Colorado 303 E. 17th Ave., Suite 350 Denver, CO 80203 Phone: (303) 777-5482 Fax: (303) 777-1773 Email: msilverstein@aclu-co.org rtwallace@aclu-co.org Case No. 2019 CV 30889 RESPONSE TO NOTICE OF SUPPLEMENTAL AUTHORITY Mr. Wiemold submits the following response to Fort Collins’s Notice of Supplemental Authority: The Denver District Court’s opinion in People v. Burton, 19CV34925 (Denver Dist. Ct. Sept. 6, 2020), in no way undermines any argument Mr. Wiemold has made to this Court. First, the bulk of the Burton appellate decision addresses Mr. Burton’s facial challenge to Denver’s municipal DATE FILED: September 14, 2020 12:26 PM FILING ID: FA74F5A375BAE CASE NUMBER: 2019CV30889 2 camping ban. Mr. Wiemold did not bring a facial challenge to the Fort Collins municipal camping ban. This portion of Burton is thus inapplicable to Mr. Wiemold’s appeal. Second, regarding Mr. Burton’s as-applied challenge, the facts of Mr. Burton’s case were materially different from those of Mr. Wiemold’s, in a way that requires a different outcome under the reasoning of Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). Mr. Burton “was contacted by police and given the option of going to a homeless shelter.” Burton, slip op. at 1. Mr. Burton was only cited under the Denver ordinance after he “received an offer of shelter, which he refused.” Id. at 2. In contrast, Mr. Wiemold had no indoor shelter available to him at the time he was cited. See Opening Brief, p. 8-15; Reply Brief, p. 3-4, 9-21. It is precisely because of the difference between him and Mr. Burton – the fact that Mr. Wiemold had no indoor shelter available to him – the Fort Collins ordinance is unconstitutional as applied to him. As Martin v. City of Boise holds, “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.” 920 F.3d at 617. Mr. Wiemold asks this court to follow the Martin court and recognize that under the principles of basic human decency embodied in the Eighth Amendment, it is cruel and unusual to punish him for sleeping in his vehicle at a Fort Collins rest area when he had no place to shelter indoors. Finally, the city’s statement that Mr. Wiemold “repeatedly relies” on the county court’s decision in People v. Burton, 19GS004399 (Denver Mun. Ct. Dec. 27, 2019) is incorrect. Mr. Wiemold mentioned the holding in that case once in his Opening Brief and never cited to or relied on the reasoning contained in that decision. See Opening Brief, at 8. __________________________________ Adam Frank, #38979 Frank & Salahuddin LLC 3 In cooperation with the ACLU Foundation of Colorado Dated: September 14, 2020 __________________________________ Mark Silverstein, #26979 ACLU Foundation of Colorado Dated: September 14, 2020 __________________________________ Rebecca Wallace, #39606 ACLU Foundation of Colorado Dated: September 14, 2020 4 Certificate of Service I hereby certify that on September 14, 2020, I served a true and correct copy of the foregoing electronically via the CCE e-filing system upon the following individuals, either through CCE: John Duval jduval@fcgov.com Andrew Ringel ringela@hallevans.com ______________________ Adam Frank FRANK AND SALAHUDDIN LLC Attorney for Mr. Wiemold