HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 058 - Pl's Response To City's Motion To DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:21-cv-02306-RM-KLM
Robert-Lawrence: Perry, Plaintiff
v.
Each 'STATE OF COLORADO' Individual employee,
executive officer, and/or administrative official acting
personally, individually, and/or in combination namely,
Alita King, Thomas Lynch, and Daniel McDonald, and
each 'doe' administrator, agent, and/or executive, and
Steven Vasconcellos, and 'doe' judicial administrators;
and,
The 'CITY OF FORT COLLINS', et. al., including each
Individual administrative official, agent, employee and
or executive officer, acting personally, individually, and
or together, including each individual member of the city
council and Mayor, the City Attorney, the City Manager,
Darin Atteberry, Ross Cunniff, Gerry Horak, Ray Martinez,
Kristin Stephens, Ken Summers, Wade Troxell, including
'doe' agents, administrators, executives, officers and / or
each 'doe' appointee administrator, agent, police officer,
official, and 'City' employees, namely, Brandi Lynn Neito,
Dan Callahan, Jill Hueser, and Ryan Westlind;
and,
CSU BOARD OF GOVERNORS, for 'CSU', and each
individual member of the 'CSU Board of Governors', for
'COLORADO STATE UNIVERSITY' and each 'doe' and
or named administrators, agents, employees or officials
acting personally, individually, and or together, namely,
Scott Harris, Jeff Goetz, Jesse Ihnen, Michael Lohman,
Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and
Nic Olsen, and each heir appointee and/or official; each
Individual Jointly and Severally Liable as Co-Defendants;
and,
Larimer County Board of Governors, and each individual
member personally and in his/her official capacity, and all
doe administrators, agents, employees, and officials acting
individually or together personally or in their official capacity.
1
RESPONSE TO CITY MOTION TO DISMISS
NOTICE OF INTENT TO AMEND COMPLAINT
As a preliminary matter, Petitioner has contacted legal counsel for Defendants
and informed each of them that he intends to file a second motion to amend Second
Amended Complaint to eliminate allegations of criminal misconduct, and amend the
allegations to eliminate claims of his unlawful arrest, unlawful conviction and unlawful
imprisonment. Defendant's arguments regarding these claims, including arguments of
immunity, application of the Rooker-Feldman doctrine, and failure to state a claim for
these allegations will not apply, so these arguments will become irrelevant and moot.
Notably, none of the Defendants have responded or objected to further amendment of
the Complaint to eliminate allegations of misconduct.
Petitioner seeks declaratory and injunctive relief by Court decision whether:
a.Colorado State University 'exclusionary order' policy is unconstitutional; and,
b.Whether CSU permanent 'exclusionary orders' are unconstitutional; and,
c.Whether C.R.S. § 18-9-109 (1) prohibits exclusion from CSU campus; and,
d.Whether the City trespass ordinance applies to state property like CSU; and
e.Whether F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional as applied; and,
f.Whether Fort Collins 'camping' ordinances are facially unconstitutional; and,
g.Whether C.R.S. § 18-4-201(1) exempts public property from trespass laws.
Petitioner is not seeking relief to invalidate his arrest, prosecution, conviction or
imprisonment. Petitioner simply seeks declaratory and injunctive relief so that he may
'conduct activities of daily living', and have equal access to public property.
2
RESPONSE TO CITY MOTION TO DISMISS
BACKGROUND AND SYNOPSIS
The City of Fort Collins, by and through agents, employed officers, and elected
officials are engaged in a campaign against 'homeless' people. The City Council has
enacted ordinances against 'camping' and 'trespass' that are selectively enforced just
against people in the community that are assumed to be 'homeless' or 'indigent'. The
campaign includes police officers issuing verbal orders permanently banning anyone
suspected as 'homeless', using the over-broad and vague powers granted by the City
'camping' and 'trespass' ordinances.
For their part, CSU administrative and executive officials adopted and enforced
the 'exclusionary order' policy challenged as unconstitutional. CSU police enforce the
'exclusionary orders' with trespass citations exercising the broad discretion afforded by
the trespass ordinance, and state statute, by presuming that 'exclusionary orders' are
lawful, as was presumed by the Larimer County Judge in Plaintiff's trespass case.
CSU police 'exclusionary order' policy cites C.R.S. 18-9-109 as legal authority
that 'authorizes' police to issue an 'exclusionary order' form, that were issued against
Plaintiff solely on the basis of allegedly 'feeding squirrels'. C.R.S. 18-9-109(2),(3) set
expressly conditional authority to temporarily remove someone from campus only for
committing acts, which 'disrupt, impair, interfere with, or obstruct the lawful missions,
processes, procedures, or functions of the institution '. CSU 'exclusionary order' policy
allows CSU campus police to permanently exclude anyone for any reason, in this case
for “feeding squirrels”, and deny Plaintiff due process and equal protection of the law.
3
RESPONSE TO CITY MOTION TO DISMISS
In Colorado, Plaintiff would be granted mandatory parole in one year if he were
convicted of a class 6 felony ; yet, the exclusionary order policy allows CSU Chief of
police to decide (IF) exclusionary orders will ever be lifted, otherwise, the exclusionary
order is permanent; a life sentence, punishment for allegedly 'feeding squirrels'.
Counsel for City Defendants argues the 'City' is entitled to a form of 'sovereign
immunity' because the City made a charter, authorized under the Colorado 'home-rule'
Amendment XX; so, that they can enact and enforce the ordinances against 'camping'
and 'trespass' without regard to the constitution, nor in compliance with state law.
So, the City has enacted two ordinances against 'camping' on public or private
property. Fort Collins Municipal Code (F.C.M.C.) Sec. 17-181 defines 'camping' as: “to
spend the night, reside or dwell temporarily with or without bedding or other camping
gear and with or without shelter, or conduct activities of daily living such as eating or
sleeping.” F.C.M.C. Sec. 17-182 prohibits “camping” on private property using the
same definition of 'camping' except restricting enforcement against those people who
'conduct activities of daily living' more than (2) weeks a calendar year ; the other (50)
weeks of the year, people living in Fort Collins are 'camping' and subject to (6) months
in jail and/or fines of $3000. However, the City ordinances prohibiting 'camping' are
only enforced against 'homeless' people, such as Plaintiff. Plaintiff asserts claims that
the City 'camping' and 'trespass' ordinances as written and applied are unconstitutional
as over-broad and vague, and they inflict cruel and unusual punishment, and that they
deny Plaintiff's right to live and equal right of access and use of public property .
4
RESPONSE TO CITY MOTION TO DISMISS
SUMMARY ARGUMENT
Plaintiff's claims are grounded upon his Fourteenth Amendment rights; that: “No
state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws .”
Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§
1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of
law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access
and use of CSU campus by issuing unconstitutional 'exclusionary orders' in violation of
C.R.S. § 18-9-109(1). Defendant's have not denied that CSU is public property.
C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully"
or "remains unlawfully", and states: “A person who, regardless of his or her intent,
enters or remains in or upon premises that are at the time open to the public does
so with license and privilege unless the person defies a lawful order not to enter or
remain, personally communicated to him or her by the owner of the premises or some
other authorized person.”
Because C.R.S. § 18-4-201 states that the public have license and privilege to
enter and remain on property open to the public . Also, the municipal court issued a
judgment and sentencing order that stated Plaintiff was prohibited from going to CSU for
one year from December 1, 2020. Thus, Plaintiff asserts that the statute of limitations
extended to December 1, 2022; so, the Court does have subject matter jurisdiction to
grant relief under Title 42 U.S Code §§ 1981, 1983, 1985, and 1986.
5
RESPONSE TO CITY MOTION TO DISMISS
Petitioner brings suit against numerous Fort Collins and Colorado authorities in
their official and personal capacities for violating his constitutional, civil and inalienable
rights. Petitioner alleges that CSU police, with authorization of CSU administrators, and
with knowledge and/or with authorization of CSU Board of Governors, did permanently
ban Petitioner from all CSU property by issuing a 'exclusionary order, thereby denying
access to all public accommodations, including access to public transportation . CSU
police 'exclusionary order' policy is enforced with trespass citations under Fort Collins
'trespass' ordinance that grants police dictatorial discretion to permanently ban anyone
from public property for any reason or no reason whatsoever . Petitioner was banned
from CSU for allegedly 'feeding squirrels' and issued (3) three 'trespass' citations for
exercising his right of access to public facilities, including the public bus transportation
terminal on CSU property. Petitioner challenges whether the City 'trespass' ordinance
may be enforced on Colorado property , particularly public property, such as CSU, and
especially when the City 'trespass' ordinance equally enforced would necessarily mean
that it would be enforced against all Colorado residents and out-of-state students and
visitors to CSU and Fort Collins, including CSU 'exclusionary orders' that deny public
access to CSU property in violation of Colorado law, specifically C.R.S. 18-9-109.
Petitioner asserts that he is entitled to equal access and use of public property,
and the City 'trespass' ordinance infringes upon that right. The City claims home-rule
status allows the City to just disregard the fact that C.R.S. § 18-4-201 states the public
have license and privilege to enter and remain on public property .
6
RESPONSE TO CITY MOTION TO DISMISS
Without addressing the Defendant's arguments regarding claims and allegations
of Defendant's unlawful conduct and not including Petitioner's allegations and claims of
unlawful arrest, unlawful conviction, and unlawful imprisonment, Petitioner's arguments
are limited to just questions of law: a) the constitutionality of CSU exclusionary orders,
and the CSU policy that provides for its use; b) proper application and interpretation of:
C.R.S. § 18-9-109 (1), C.R.S. § 18-4-201(1), and c) whether the Fort Collins trespass
ordinance definitions F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional, and applicable
to public property, such as CSU, and d) whether the Fort Collins 'camping' ordinances
are facially unconstitutional.
Petitioner argues that equal enforcement of the City ordinance against 'camping'
on public property would necessarily mean enforcement against all Colorado residents
and out-of-state students and visitors to Fort Collins. So, the City 'camping' ordinance,
applied equally to everyone who visits Fort Collins, who “spends the night, resides or
dwells temporarily, or conducts activities of daily living, like eating or sleeping ”,
would be subject to arrest. Equal enforcement of the City 'camping' ordinance affects
all Colorado residents and out-of-state visitors, so the City cannot claim that home-rule
status applies, since enforcement of the ordinance affects more than just Fort Collins
residents. The City claims that home-rule status entitles them to enact ordinances that,
equal enforcement would necessarily affect Colorado residents and out-of-state visitors
who enter city limits. The City claims the authority to deny anyone the right to conduct
activities of daily living, and deny equal access to public property.
7
RESPONSE TO CITY MOTION TO DISMISS
ARGUMENT
The Court does have subject matter jurisdiction to grant the relief requested .
This action arises under the Constitution and laws of the United States under 42
U.S. Code § 1983. This Court has subject matter jurisdiction pursuant to 28 U.S. Code
§§ 1331 and 1343. This Court has jurisdiction to issue the declaratory relief requested
pursuant to the Declaratory Relief Act, Title 28 U.S. Code §§ 2201, 2202. Furthermore,
Petitioner requests a three-judge panel pursuant to 28 U.S.C. § 2284. Despite the fact
that Petitioner included this jurisdictional statement on page 2 of the Second Amended
Petition for Relief, the City disingenuously denies that it is sufficient.
ARGUMENT
Petitioner does have 'standing' for declaratory and injunctive relief .
The City argues that Petitioner lacks standing for relief. Yet, Petitioner continues
to suffer an injury in fact that can be redressed by this Court.
To demonstrate Article III standing, Plaintiff must make three showings:
First, that Plaintiff has suffered an injury in fact which is concrete and particularized,
and actual or imminent; Second, that there is a causal connection between the injury
and the challenged conduct ; and third, that the injury is likely to be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992). To establish standing to seek prospective relief, a
plaintiff must show a continuing injury ; standing for retrospective relief can be
based on past injuries. Rasmussen, 298 F.3d at 1202.
8
RESPONSE TO CITY MOTION TO DISMISS
The argument propounded by the City seems to be based upon the presumption
that 'Petitioner lacks standing because he failed to state a claim upon which relief may
be granted, because: a) Petitioner's claims are barred by statute of limitations, and b)
the City has home-rule status, and c) City officials are immune from suit, and d) any
claims for unlawful arrest, unlawful prosecution, and unlawful conviction are barred.'
First of all, Petitioner is withdrawing all allegations and claims of unlawful arrest,
unlawful prosecution, and unlawful conviction. Therefore, all arguments by Defendants
regarding these claims are irrelevant and moot, including all the assertions of immunity
from suit, and the Rooker-Feldman doctrine and Heck v. Humphrey.
Second, the City assertion of home-rule status does not affect Petitioner's claim
for relief or relevant to the adequacy of his factual pleadings, nor is it relevant to support
an argument that Petitioner lacks standing, or whether the Court has jurisdiction.
Finally, regarding statute of limitations for Petitioner's claims :
The City has made it abundantly clear that they refuse to acknowledge that the
'camping' ordinances and the City trespass ordinance are unconstitutional, or subject to
limitations of state law, and they will continue to be enforced in the same manner that
they have in this case, this means that the City has admitted that they intend to deny
Petitioner the right to 'conduct activities of daily living' (defined as 'camping') on public
and private property, and deny Petitioner the right of equal access to public property.
Thereby, the City has admitted that Petitioner will continue to be subject to prosecution
and imprisonment as long as Petitioner lives in Fort Collins.
9
RESPONSE TO CITY MOTION TO DISMISS
Petitioner has absolutely no intention of being driven out of Fort Collins, a place
where he has established personal connections. Though the City 'camping' ordinance
prohibits “conducting activities of daily living”, and selectively punishes individuals, like
Petitioner, for 'residing' or 'dwelling', even on private property. Also, the City ordinance
against trespass allows police officers to permanently ban individuals, like Petitioner, for
any reason, like 'feeding squirrels', as in this case, or for no reason whatsoever.
CSU police officers issued an 'exclusionary order' form that permanently banned
Petitioner from all CSU property. Further, CSU police officer Derek Smith entered into
the CCIC criminal database that there is a permanent criminal restraining order against
Petitioner, although, in fact, no judge issued any such restraining order . However, what
this means is that Petitioner will be subject to arrest, prosecution, and imprisonment if
Petitioner ever sets foot on CSU property. CSU owns numerous residential properties
throughout Fort Collins that Petitioner is banned from. In fact, Petitioner was issued a
City 'camping' citation just for parking at one of these CSU residential properties while
he visited with a friend.
Notably, CSU campus is centrally located in Fort Collins. The Fort Collins bus
terminal on campus services most of Fort Collins; the Max Transfort route runs North
and South through CSU. What this means is that it is impossible for Petitioner to use
the Fort Collins public transportation. As long as Petitioner is permanently banned from
CSU property and subject to enforcement of the City 'trespass' ordinance for being on
public property, Petitioner will suffer an injury in fact and have standing.
10
RESPONSE TO CITY MOTION TO DISMISS
ARGUMENT
Defendant's cannot legally “trespass” (banish) anyone from public property .
City Defendant's assert that the 'trespass' ordinance may be applied to public
property to permanently ban anyone; similarly, State Defendant's assert that the state
trespass statute may be applied to public property to permanently ban anyone ; these
assertions presume that banishment is lawful, which is proven false by these cases:
People v. Blakeman, 170 Cal. App. 2d 596, 339 P.2d 202 (Dist. Ct. App. 1959);
the California Court of Appeals overturned the county court order probation revocation
based upon violation of a district court order of banishment as a condition of probation.
The district court order of probation on condition of banishment was determined to be
void citing: In re Scarborough, 76 Cal.App.2d 648 [ 173 P.2d 825], an order suspending
sentence on a condition of banishment for two years was deemed the granting of
probation upon a void condition.
Said the court: "The same principle which prohibits the banishment of a criminal
from a state or from the United States applies with equal force to a county or city .
The old Roman custom of ostracizing a citizen has not been adopted in the United
States. The so-called `floating sentence,' [‘suspended sentence or ‘deferred judgment’]
too frequently resorted to in some inferior courts, falls in the same category. There is
no statute in California authorizing such judgments." (P. 650. See also the authorities
cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law, § 453.)
Ex parte Scarborough, 76 Cal. App. 2d 648, 173 P.2d 825 (Dist. Ct. App. 1946);
The probation condition contained in the judgment that it would be suspended in part if
the defendant left Stockton and San Joaquin County and remained away for two years,
is, in effect, an unlawful increase of punishment by banishment not provided by statute,
and therefore void. (People v. Baum, 251 Mich. 187 [ 231 N.W. 95, 70 A.L.R. 98]; Ex
parte Sheehan, 100 Mont. 244 [ 49 P.2d 438, 442]; People v. Lopez, 81 Cal. App. 199,
203 [ 253 P. 169]; 24 C.J.S. § 1991, p. 1216.) In holding that a condition of a judgment
requiring banishment from the state is illegal and void, the court said in the Baum case,
supra, that: "To permit one state to dump its convict criminals into another would entitle
the state believing itself injured thereby to exercise its police and military power, in the
interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to
incite dissension, provoke retaliation, and disturb that fundamental equality of political
rights among the several states which is the basis of the Union itself. Such a method of
punishment is not authorized by statute, and is impliedly prohibited by public policy."
Banishment is not acknowledged as lawful punishment in any state.
11
RESPONSE TO CITY MOTION TO DISMISS
The City enforced CSU 'exclusionary orders' applying the trespass ordinance to
public property under presumption that CSU has the authority to deny access to anyone
for any reason, such as: 'feeding squirrels'. The United States District Court issued the
following opinion over 50 years ago in Dunkel v. Elkins, 325 F. Supp. 1235 (1971).
“Defendants urge that plaintiff's use of public land and property is a "privilege
withdrawable by the State at any time for any reason." We do not agree. While the
State undoubtedly possesses power to control the use made of its premises, it cannot
do so without regard to the Constitution.”
Also, this point of law was specifically addressed in Watson v. Board of Regents
of University of Colorado 512 P.2d 1162 , when the Colorado Supreme Court issued
the opinion that:
“The Colorado Supreme Court has labeled the access and use of public facilities,
such as parks, as a “fundamental” right.
The University of Colorado opened its doors to the public. Accordingly, on this
basis, we hold that a non-student's right to access to University functions and
facilities, which are open to the public at-large, cannot be permanently denied
without due process of law under the Fourteenth Amendment...” Adding:
“Plaintiff urges that the University's exclusion order was void because it
issued without procedural due process, i.e., a hearing was not afforded plaintiff
prior to his exclusion from University property. We agree .” This was the opinion in
People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989).
This case was cited in a 2017 Colorado District Court case:
The City and County of Denver Parks and Recreation Department implemented a
temporary policy, to ban someone for up to (90) days for using drugs in Denver parks.
Denver Police used this city parks directive to issue an exclusionary order banning the
defendant for smoking marijuana in Denver's City park. The court ruled in favor of
the defendant's individual interests in access and use of public property .
12
RESPONSE TO CITY MOTION TO DISMISS
ARGUMENT
'Home-rule status' does not afford immunity to City Defendants .
City Defendant's assert that the City and all administrative, executive and judicial
employees and officials are entitled to immunity from all claims of unconstitutional acts
and even violations of federal and state criminal statutes simply by asserting that they
claim 'Home-rule status'; that the Colorado Constitution authorized them to disregard
the United States Constitution and Colorado law; that City ordinances even supersedes
state law. This conflict between the City home-rule ordinances and Colorado statutes
was resolved in favor of Colorado law in numerous case precedents.
“In matters of mixed local and state concern, a home rule municipal ordinance
may coexist with a state statute as long as there is no conflict between the ordinance
and the statute, but, in the event of a conflict, the state statute supersedes the
conflicting provisions of the ordinance.” Voss v. Lundvall Brothers, Inc., 830 P.2d 1061
(Colo. 1992) “The test to determine whether a conflict exists is whether a home-rule
city’s ordinance authorizes what state statute forbids , or forbids what state statute
authorizes.” Webb, 295 P.3d at 492. “An ordinance may be preempted by express
statutory language, or by implicit legislative intent, or where its operational effect
would conflict with the application of state law. Ibarra, 62 P.3d at 165 (Coats, J.,
dissenting) (citing Board. of County Comm’rs v. Bowen/Edwards Assoc., Inc., 830 P.2d
1045, 1056–57 (Colo. 1992)). “The city ordinance and state law impermissibly
conflict if they ‘contain either express or implied conditions which are inconsistent and
irreconcilable with each other.’” Colo. Min. Ass’n v. Bd. of Cnty. Comm’rs of Summit
Cnty., 199 P.3d 718, 725 (Colo. 2009) (quoting Ray v. City & Cnty. of Denver, 121 P.2d
886, 888 (Colo. 1942)). Bowen/Edwards Assoc., 830 P.2d at 1059 Operational conflict
can also exist “where the effectuation of a local interest would materially impede or
destroy the state interest. Under such circumstances, these local regulations may be
partially or totally preempted to the extent that they conflict with the achievement of the
state interest.” See also City of Commerce City v. State, 40 P.3d 1273, 1279 (Colo.
2002). “If the matter is one of local or mixed concern, the second question for the Court
is, “does a state statute conflict with the [City’s] local ordinances or charters.” Id. If a
home-rule ordinance conflicts with state law, as in this case, then, state law supersedes
the home-rule provision.
13
RESPONSE TO CITY MOTION TO DISMISS
ARGUMENT
The City trespass ordinance is unconstitutional .
Plaintiff asserts that the City trespass ordinance (F.C.M.C.) 17-40(a) cannot be
legally applicable to public property since C.R.S. § 18-4-201 C.R.S. states: “A person
who, regardless of his or her intent, enters or remains in or upon premises that are...
open to the public does so with license and privilege...”.
Fort Collins Municipal Code (F.C.M.C.) section 17-40(a) for trespass applies the
definition of “Enter or remain unlawfully” defined by F.C.M.C. Section 17-1. In 2018,
City officials intentionally deleted the reference to public property from F.C.M.C. Sec.
17-1. Before July 2018, the City code definition of “enter or remain unlawfully” read:
F.C.M.C. Section 17-1 “Enter or remain unlawfully” shall mean:
(1) To enter or remain in or upon public or privately owned property when not
licensed, invited, privileged or otherwise authorized to do so;
Since July 2018, the City code definition of “enter or remain unlawfully” reads:
F.C.M.C. Section 17-1 “Enter or remain unlawfully” shall mean:
(1) To enter or remain in or upon privately owned property when not licensed,
invited, privileged or otherwise authorized to do so;
The intentional amendment and deletion of reference to public property and the
acknowledged right of the public with license and privilege to enter or remain on public
property coincided with other acts by the City to violate Plaintiff's constitutional rights.
Contemporaneous with Plaintiff being issued a trespass citation, the City amended the
City charter and 'trespass' ordinance, and hired private attorneys to act as judge and
prosecutor in Plaintiff's trespass case, thus proving a § 1985 conspiracy.
14
RESPONSE TO CITY MOTION TO DISMISS
Plaintiff asserts that the City trespass ordinance cannot lawfully apply to public
property, like CSU campus because it unconstitutionally denies Plaintiff's right to equal
protection of the law (C.R.S. § 18-4-201) which provides that the public have license
and privilege of access and use of public property, and that the trespass ordinance is
unconstitutionally over-broad and vague by granting police unlimited dictatorial power
and discretion to seize control over public property to permanently deny anyone access
and use of public property for any reason or for no reason whatsoever . F.C.M.C. Sec.
17-1 (3) allows anyone in 'lawful control' over public property to exclude anyone; except,
it is not defined as to what constitutes 'lawful control', so it is over-broad and vague. To
the extent that the City trespass ordinance grants police 'lawful control' over all public
property, Plaintiff asserts that such control constitutes a taking under Article II Section
15 of the Colorado Constitution, which entitles Plaintiff to compensation.
The definition of “enters or remains unlawfully” used in F.C.M.C. Sec. 17-1(3) is
unconstitutionally over-broad and vague on its face; it intentionally omits reference to
the public right of access and use of places of public accommodation, allowing officers
to discriminate against individuals whoever the officer chooses completely disregarding
the public right of access and use of public property contained in C.R.S. § 18-4-201 (3).
The definition of “enters or remains unlawfully” provided by F.C.M.C. Sec. 17-1(3) is
blatantly unlawful, especially as applied in Plaintiff's case because it allowed CSU police
officers to violate the law, specifically, C.R.S. § 18-9-109 (1), that prohibits anyone from
denying assess and use of educational institutions.
15
RESPONSE TO CITY MOTION TO DISMISS
ARGUMENT
The City ordinances prohibiting 'camping' in the City are unconstitutional .
Plaintiff asserts claims that the City ordinances prohibiting 'camping' on public or
private property are both unconstitutionally vague and over-broad on their face, and as
applied in this case, since they generally prohibit living in Fort Collins . Also, Plaintiff
asserts that the City ordinances prohibiting 'camping' are discriminatory because they
are only enforced upon 'homeless' people, like Plaintiff , as part of a City policy to rid
Fort Collins of 'homeless' people. Plaintiff asserts that the City ordinances prohibiting
'camping' are unconstitutional because they impose cruel and unusual punishment of
excessive fines or (6) six months in jail for conducting activities of daily living.
THE FORT COLLINS ORDINANCE AGAINST CAMPING
Fort Collins Municipal Code (F.C.M.C.) Sec.17-181 states:
“It shall be unlawful for any person to camp or pitch a tent, or knowingly permit
any person to camp or pitch a tent, on public property within the City. Camping, for the
purposes of this Section, shall mean to sleep, spend the night, reside or dwell
temporarily with or without bedding or other camping gear and with or without
shelter, or to conduct activities of daily living such as eating or sleeping , in such
place unless such person is camping in compliance with Chapter 23 in a natural or
recreation area. Camping shall not include incidental napping or picnicking .”
(Code 1972, § 60-22; Ord. No. 28, 1999, § 2, 3-2-99; Ord. No. 199, 2006 § 1, 1-16-07)
Now, City defense counsel argues that: “By its plain language, the City prohibits
sleeping, spending the night, residing, dwelling, and conducting activities of daily living
(i.e., eating and sleeping) on public property in the City. There is nothing vague about
“activities of daily living” because everyone, by virtue of being alive , understands what
this phrase entails.”
16
RESPONSE TO CITY MOTION TO DISMISS
Plaintiff does not challenge the 'City' 'camping' ordinances as vague since they
prohibit conducting activities of daily living ; instead, Plaintiff challenges the ordinances
as being over-broad since they prohibit living in Fort Collins on either public or private
property. Compare City of Fort Collins ordinance prohibiting 'camping' with the City of
Pompano Beach v. Capalbo, 455 So.2d 468 (Fla.Dist.Ct.App.1984), which prohibited
lodging or sleeping in an automobile on public property. The court there concluded that
it was void for vagueness because the prohibition against sleeping subjected a wide
range of persons to enforcement, it left in the "unbridled discretion of the police officer
whether or not to arrest one asleep in a motor vehicle on public property."
Plaintiff was charged (7) seven times with 'camping'; most recently, Plaintiff was
cited with 'camping'; Municipal Court Case: FC-20-4935-MD, which was dismissed on
September 17, 2020; therefore, the statute of limitation has not expired.
The City of Fort Collins ordinance prohibiting “camping” is over-broad and vague
due the lack of guidance in the enforcement that grants police unlimited discretion to
use it to discriminate against 'homeless' people, such as Plaintiff . The Fort Collins city
ordinances against 'camping' on public or private property effectively renders everyone
subject to criminal penalties for living in Fort Collins . Yet, the City ordinance against
'camping' is applied exclusively against indigent, 'homeless' people, such as Plaintiff.
Since Plaintiff intends to continue to live in Fort Collins, he is subjected to continual
threat of being jailed for exercising his equal and fundamental right to live and be in
public places. Thus, Plaintiff has 'standing' to assert his 14th Amendment rights.
17
RESPONSE TO CITY MOTION TO DISMISS
The United States Supreme Court has stated the void-for-vagueness doctrine
requires that the penal statute (ordinance) define the offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461
U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).
Plaintiff relies upon Robinson, and Pottinger v. City of Miami, 810 F.Supp. 1551
(S.D.Fla.1992), where the district court held that the City practice of arresting homeless
individuals for such basic activities as sleeping and eating in public places constitutes
cruel and unusual punishment in violation of the Eighth Amendment . See also Johnson
v. City of Dallas, 860 F.Supp. 344, 350 (N.D.Tex.1994) (holding that "sleeping in public
ordinance as applied against the homeless is unconstitutional").
The 8th Amendment states: "Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. Amend. VIII.
In addition to "limit[ing] the kinds of punishment that can be imposed on those convicted
of crimes," and "proscrib[ing] punishment grossly disproportionate to the severity of the
crime," the Eighth Amendment also "imposes substantive limits on what can be made
criminal and punished as such." Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401,
1410, 51 L.Ed.2d 711 (1977) (internal citations omitted). A distinction exists between
applying criminal laws to punish conduct, which is constitutionally permissible, and use
of the law by applying them to punish status, which is not. See Robinson v. California,
370 U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962)
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RESPONSE TO CITY MOTION TO DISMISS
CONSTITUTIONAL REVIEW STANDARD
The United States Constitution Amendment XIV, Section 1 states:
“No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”
The Mathews balancing test requires balancing the Right, Liberty or Interest in
property, and the probability of erroneous deprivation of that interest, compared with a
legitimate public interest that government seeks to serve by such action or policy that
deprives the Liberty, Rights or property Interests of such individuals by such action or
policy. See Mathews v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18 (1976).
Plaintiff submits these issues, including whether CSU 'exclusionary order' policy,
Fort Collins 'camping' and 'trespass' ordinances, as written and applied, are lawful:
Whether CSU 'exclusionary orders', City 'camping' and 'trespass' ordinances, as
written and/or applied, denies, substantially or unreasonably interferes with Plaintiff in
the practical exercise of his rights guaranteed by the U.S. Constitution.
Whether the challenged exclusionary order and ordinances as written or applied
are not reasonably related to achieving a legitimate public interest, or disproportionately
severe in relation to the affect of denying or impairing Plaintiff's constitutional rights.
Whether the challenged exclusionary order and City ordinances as written or
applied denies, impairs or fundamentally infringes upon Plaintiff's constitutional rights or
His Inalienable Personal Interests in 'conducting activities of daily living', and whether
such infringement of His Constitutional and Inalienable Rights constitutes a 'Taking'.
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RESPONSE TO CITY MOTION TO DISMISS
SUMMARY CONCLUSION
Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§
1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of
law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access
and use of CSU campus by issuing 'exclusionary orders' ruled unconstitutional over 50
years ago by the Colorado Supreme Court in Watson v. Board of Regents of University
of Colorado 512 P.2d 1162, and by the United States District Court in Dunkel v. Elkins,
325 F. Supp. 1235 (1971). Such denial of equal access to university property is also
considered a violation of C.R.S. § 18-9-109(1).
CSU police enforced the permanent 'exclusionary order' with 'trespass' citations
under C.R.S. § 18-4-504, though C.R.S. § 18-4-201 states that the public has license
and privilege to enter and remain on property open to the public . Further, CSU police
cited Petitioner with 'trespass' under the City ordinance that grants police authority to
permanently deny access to public property, which conflicts with C.R.S. § 18-4-201, so
the City is not entitled to assert home-rule status. Petitioner continues to be subject to
permanent exclusion from CSU, therefore, he is entitled to prospective relief.
Wherefore,
Petitioner respectfully requests the Court deny the City's Motion to Dismiss.
Dated: This 27th day of June 2022.
Signed by: s/s: Robert-Lawrence: Perry, Man
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RESPONSE TO CITY MOTION TO DISMISS
CERTIFICATE OF SERVICE
I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct
and true copy of the foregoing Response to City Motion to Dismiss addressed to each
Attorney of Record for all Defendants by first-class U.S. Mail, postage pre-paid, and/or
by emailing documents, such as agreed by consent to the following:
Attorneys for Defendants,
The City of Fort Collins, et al.Colorado State University, et, al.
Darin Atteberry, City Manager Attn.: Jannine Mohr, Attorney
300 La Porte Ave., (City Hall)1300 Broadway, 10th Floor
Fort Collins, CO 80522 Denver, Colorado 80203
Phone: (970) 221-6520 Phone: (720) 508-6000
hoffmank@hallevans.com Skip.Spear@coag.gov
ratnerm@hallevans.com Allison.Ailer@coag.gov
The State of Colorado, et. al.CSU Board of Governors, for:
for: Steven Vasconcellos Colorado State University, et al.
1300 Broadway, 10th Floor 555 seventeenth St., Suite 1000
Denver, Colorado 80203 Denver, Colorado 80201
Phone: (720) 508-6000 Phone: (970) 491-6425
Carman.VanPelt@coag.gov Denise.Munger@coag.gov
Dated this: June 27, 2022
Signed pursuant to C.R.S. 4-3-402 by, /s/ Robert-Lawrence: Perry, Man
Robert-Lawrence: Perry, Trustee for:
4786 McMurry Ave., Unit 242 ROBERT LAWRENCE PERRY, Person
Fort Collins, Colorado 80525
fort_scout@yahoo.com
Phone: (970) 980-1849
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RESPONSE TO CITY MOTION TO DISMISS