HomeMy WebLinkAbout2019CV30889 - Adam Wiemold V. City Of Fort Collins - 014 - Opening Brief1
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 THE STATE OF COLORADO,
Plaintiff-Appellee,
v.
Adam Wiemold,
Defendant-Appellant
Adam Frank, #38979
FRANK & SALAHUDDIN LLC
1741 High Street
Denver, CO 80218
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
OPENING BRIEF
ISSUES PRESENTED
Whether citing, prosecuting, convicting, and sentencing a homeless person for sleeping in his
truck in a rest area, in violation of a Fort Collins “camping ban” ordinance, when no indoor shelter
is available to him, violates the ban on cruel and unusual punishment contained in the Eighth
Amendment and article II, § 20 of the Colorado Constitution.
DATE FILED: March 30, 2020 10:14 AM
FILING ID: 76CC0C1BBBCAA
CASE NUMBER: 2019CV30889
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Whether, by issuing “camping ban” citations only to people suspected of being homeless
who are sleeping in their vehicles and not to truckers sleeping in their trucks at the same rest area,
Fort Collins Police Services engaged in selective enforcement, in violation of the Fourteenth
Amendment.
STATEMENT OF THE CASE
In the early morning of September 11, 2018, Fort Collins Police Services (FCPS) officers
went to the Colorado Department of Transportation (CDOT) Poudre rest area, located at East
Prospect Road and I-25, with the goal of issuing tickets to people who were sleeping in their cars,
for alleged violations of Fort Collins Municipal Ordinance 17-181, which is titled “Camping on
public property – restricted.”1 Mr. Wiemold received such a summons. CF p. 633.2
On March 22, 2019, Mr. Wiemold filed a motion to dismiss the charge against him,
advancing two arguments: (1) that summonsing and prosecuting Mr. Wiemold for sleeping on public
property when he was homeless and could not stay at any Fort Collins shelter violated the Eighth
Amendment and article II, section 20 of the Colorado Constitution, and (2) that FCPS’s
enforcement of Ordinance 17-181 on that day constituted selective enforcement, in violation of the
Fourteenth Amendment, because the ordinance was enforced only against people thought to be
homeless and not against truckers engaged in the same activity at the same rest area. CF p. 499-523.
1 Fort Collins Municipal Ordinance 17-181, titled “Camping on public property—restricted,” 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.” F.C.M.O. § 17-181.
2 Throughout this Opening Brief, Mr. Wiemold refers to pages from the record in this manner, including pages from
various transcripts that are included in the digital court file the municipal court uploaded in this case. He does not refer to
pages in transcripts by their page number in the transcript; instead, he refers to pages in transcripts by their page number
in the record. He does so to make it easier for this Court to find the cited pages in the court file; if the Court goes to the
page number of the relevant pdf listed in Mr. Wiemold’s citation, the cited material will be on that page.
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The City filed a response, CF p. 451-98, and Mr. Wiemold filed a reply. CF p. 419-49. On
May 7, 2019, the municipal court conducted an evidentiary hearing on Mr. Wiemold’s motion. CF p.
21-173. In lieu of argument, Mr. Wiemold filed a hearing brief, CF 389-403, the City filed a response
CF 357-78, and Mr. Wiemold filed a reply. CF 295-355. On May 30, 2019, the municipal court
issued its order. CF p. 291-93. In that order, the municipal court denied Mr. Wiemold’s Eighth
Amendment argument as not yet ripe. It denied Mr. Wiemold’s Fourteenth Amendment selective
enforcement argument on the merits. In making its ruling, the municipal court did not make specific
factual findings or engage in significant legal reasoning to support its ruling. CF p. 291-93.
On August 7, 2019, the case proceeded to a court trial. CF p. 277-79; 175-85. On August 9,
the municipal court entered an order finding Mr. Wiemold guilty of violating Fort Collins Municipal
Ordinance 17-181, “Camping on public property – restricted.” CF p. 221-23.
In response to the municipal court’s May 30 order denying Mr. Wiemold’s Eighth
Amendment argument as not yet ripe, after he was found guilty Mr. Wiemold filed a motion to
vacate his conviction and enjoin the imposition of any punishment. CF p. 231-75. Mr. Wiemold also
filed a supplemental brief to address an error in this motion. CF p. 215-20. The City filed a response,
CF p. 205-213, and Mr. Wiemold filed a reply. CF p. 203-04. On September 6, 2019, the municipal
court issued its order denying Mr. Wiemold’s motion. CF p. 199-201. Again, the municipal court did
not make specific factual findings or engage in significant legal reasoning to support its ruling. CF p.
199-201. Mr. Wiemold timely filed his notice of appeal, and this appeal follows.
STATEMENT OF FACTS
On September 11, 2018, Mr. Wiemold was homeless. CF p. 46:2-5. Although he worked a
full-time job as the supervisor of the homeless shelter at Catholic Charities, one of the two main
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homeless shelters in Fort Collins, Mr. Wiemold had, for some time, been unable to afford a place to
stay. CF p. 47:13-25.
As the shelter supervisor at Catholic Charities, Mr. Wiemold managed shelter staff and
interacted with the homeless individuals staying at the shelter. CF p. 48:1-5. This involved managing
the daily operations of the shelter, making sure the clients who used the shelter followed the
shelter’s rules, enforcing the rules at the shelter, which included suspending people from the shelter
for rule violations, and enforcing any suspensions. CF p. 48:1-23.
As a shelter employee, Mr. Wiemold could not stay at a homeless shelter in Fort Collins. CF
p. 49:13-50:6. There are two shelters in Fort Collins that provide overnight shelter for single men
like Mr. Wiemold, Catholic Charities and the Fort Collins Rescue Mission. CF p. 29:9-24; 49:13-50:6.
Mr. Wiemold was not eligible to stay at Catholic Charities because Catholic Charities shelter policies
prohibit staff from receiving services at the shelter. CF p. 34:21-35:4; CF v2 p. 73; CF p. 35:16-25;
49:13-50:6; 75:2-9. Mr. Wiemold was unable to stay at either Catholic Charities or the Rescue
Mission because Catholic Charities policies also barred staff from having outside contact with shelter
clients. CF v2 p. 82; CF p. 49:13-50:6; 75:2-9. The two shelters’ populations overlap, as many
homeless individuals will stay at either shelter depending on availability. CF p. 29:9-24; 49:13-50:6;
75:2-9. Additionally, staying at the Rescue Mission would mean staying with his erstwhile clients,
including clients whom Mr. Wiemold may have disciplined or removed from Catholic Charities,
which would have been unsafe for Mr. Wiemold. CF p. 49:13-50:6; 75:2-9. Further facts detailing
why Mr. Wiemold was not able to stay at any shelter in Fort Collins are discussed in greater detail
below in part II.B.1.
Even if Mr. Wiemold’s job did not prevent him from staying at a shelter, there were no open
beds in any shelter Mr. Wiemold could have stayed at in Fort Collins on the night of September 10,
2018. CF v2 p. 151; CF p. 36:1-37:19; 38:18-21; 43:18-45:4. Catholic Charities had reached capacity
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and had turned away one person seeking shelter. Fort Collins Rescue Mission was also full. CF v2 p.
151; CF p. 36:1-37:19; 38:18-21; 43:18-45:4. See also part II.B.2, supra.
Without a home or available indoor shelter, on the night of September 10, 2018, Mr.
Wiemold drove to the Poudre rest area. CF p. 48:24-49:1; 58:10-11. Once there, he used the public
restroom and settled down inside of his vehicle to get some sleep. CF p. 58:17-19. Mr. Wiemold was
asleep in his truck when, in the early morning of September 11, Fort Collins Police Services (FCPS)
woke him up around 6am and cited him for an alleged violation of Fort Collins Municipal
Ordinance 17-181, titled “Camping on public property—restricted.” CF p. 633; CF v2 p. 159.3
The Poudre rest area is located at East Prospect Road and I-25. It is operated by the
Colorado Department of Transportation. CF p. 76:18-77:13. The rest area has two parking lots
adjacent to one another; one lot is designed for commercial trucks, the other for passenger vehicles.
CF p. 50:9-11; 150:7-14. People regularly sleep and rest overnight in their vehicles in both lots. CF p.
50 12-19. Truckers slept in their trucks in the truck lot every night. CF p. 90:11-91:3.
FCPS officers issued a summons to Mr. Wiemold that morning as part of an enforcement
action at the Poudre rest area designed to ticket people believed to be homeless. CF p. 80:2-14; 81:9-
82:5; 122:17-123:9; 130:22-24; 136:17-137:5. FCPS officers explicitly chose not to contact truckers
who were sleeping at the same rest area in their commercial trucks. CF p. 136:17-137:5. Prior to the
planned enforcement action, FCPS Officer Chip Avinger communicated via text message with
CDOT employee Wes Mansfield regarding homeless people at the rest area. CF v2 p. 1-45. Mr.
Mansfield complained that homeless people were at the rest area and sent Officer Avinger pictures
of cars parked at the rest area that he claimed belonged to homeless individuals. CF v2 p. 1-45. He
repeatedly asked Officer Avinger to force homeless individuals to leave the rest area permanently.
CF v2 p. 1-45. Specific to the FCPS enforcement action that resulted in Mr. Wiemold receiving a
3 The “Z” in the time listed in CF v2 p. 159 stands for Zulu time, which is 6 hours ahead of Mountain time.
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summons, on August 28, 2018, Mr. Mansfield told Officer Avinger via text message that they
“need[ed] to make a plan to meet at the rest area between 530 and 6 AM [because] we had 12 the
[sic] 15 Homeless there this morning.” CF v2 p. 37. Officer Avinger responded that he would
arrange it and, on September 4 and 5, confirmed that officers would be coming to the rest area on
the following Tuesday, which was September 11. CF v2 p. 37-41.
In the early morning hours of September 11, 2018, FCPS officers arrived at the rest area. CF
p. 134:3-5. There were trucks parked in the truck parking lot at the same hour that were clearly
visible from the passenger parking lot. CF v2 p. 155-61; CF p. 51:3-56:13. Inside the trucks there
were truckers inside engaged in the same behavior (sleeping) for which Mr. Wiemold was cited. CF
p. 391-92; 134:22-135:24; 51:3-56:13. Officers did not approach any trucks. CF p. 136:23-137:1;
145:7-9; 146:20-21. Instead, FCPS officers enforced the camping ordinance only against homeless
individuals.
SUMMARY OF ARGUMENT
Summonsing, prosecuting, convicting, and punishing Mr. Wiemold, a homeless man, for
sleeping in his vehicle at a public highway rest area when he had no indoor place to sleep violates the
prohibition on cruel and unusual punishment contained in the Eighth Amendment and article II, §
20 of the Colorado Constitution. On the night of September 10, 2018, into the morning of
September 11, 2018, Mr. Wiemold was homeless and could not have spent the night in any of Fort
Collins’s homeless shelters. Under those circumstances, prosecuting, convicting, and punishing Mr.
Wiemold for sleeping in his car on public property is unconstitutional.
Mr. Wiemold’s citation and prosecution were conducted as a part of a scheme of selective
enforcement by the Fort Collins Police Service (FCPS) that violated the Fourteenth Amendment.
On September 11, 2018, FCPS officers went to a highway rest area where truckers were sleeping in
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the cabs of their trucks and people believed to be homeless were sleeping in their vehicles. The
officers went with the specific plan of only contacting and summonsing people suspected of being
homeless; similarly situated truckers who were engaged in identical activity (sleeping in a vehicle)
were left alone. This disparate treatment of similarly situated individuals bore no rational basis to any
legitimate government interest and was therefore unconstitutional.
For both these reasons, this Court should reverse the order of the municipal court denying
Mr. Wiemold’s motions to dismiss and remand the case with instructions to vacate Mr. Wiemold’s
conviction and dismiss the charge against him.
ARGUMENT
I. Standards of review
Because the two issues presented in this appeal are constitutional questions, this Court’s
review of each is de novo. This Court’s de novo review includes reviewing factual determinations.
As the Colorado Supreme Court holds,
[A]s we recently clarified in People v. Matheny, 46 P.3d 453 (Colo. 2002), the appellate courts
have an enhanced role in examining a trial court’s application of law to fact, particularly in
the arena of constitutional rights. Id. at 461-62. After acknowledging the traditional
deference afforded a trial court on purely factual issues, see People v. Quezada, 731 P.2d 730,
732 (Colo. 1987), we ruled in Matheny that the application of the legal standard to the facts,
an exercise that resolves the “ultimate constitutional question,” merits de novo
review. Matheny, 46 P.3d at 462. Thus, where the historical facts are supported by competent
evidence in the record, we will not disturb them. But interpreting the significance of those
facts to resolve the constitutional question at hand we undertake as if for the first time. See
id.
People v. Al-Yousif, 49 P.3d 1165, 1169 (Colo. 2002); see also People v. Foster, 2013 COA 85, ¶ 74 (citing
Al-Yousif for the proposition that “[T]he application of the legal standard to the facts, an exercise
that resolves the ‘ultimate constitutional question,’ merits de novo review.”); People v. Wingfield, 2014
COA 173, ¶ 13 (constitutional questions require de novo review).
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II. Summonsing, prosecuting, convicting, and punishing Mr. Wiemold for sleeping on
public property when he was homeless and could not stay at any shelter violates the
Eighth Amendment and article II, § 20 of the Colorado Constitution
When Mr. Wiemold was cited for sleeping in his vehicle at the rest area, he could not stay at
a shelter. He had no choice but to sleep outdoors. Summonsing, prosecuting, convicting, and
punishing Mr. Wiemold under these circumstances violates the Eighth Amendment and article II, §
20 of the Colorado Constitution.
A. The Eighth Amendment and article II, § 20 of the Colorado Constitution
prohibit the government from criminalizing sleeping outdoors when the
person is sleeping outdoors involuntarily because the person is homeless
The Eighth Amendment and article II, § 20 of the Colorado Constitution prohibit the
infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; Colo. Const. art. II, § 20.
This clause “imposes substantive limits on what can be made criminal and punished as such.”
Ingraham v. Wright, 430 U.S. 651, 667 (1977). In Robinson v. California, the Supreme Court held that the
Eighth Amendment barred the imposition of punishment on someone because of his or her
involuntary status. 370 U.S. 660, 666 (1962) (finding a law that criminalized addiction to narcotics
unconstitutional because it punished a person for the involuntary status of being addicted to
narcotics); accord Powell v. Texas, 392 U.S. 514, 548 (1968) (White, J., concurring in the judgment)
(finding Eighth Amendment bars criminalization of involuntary conduct related to a condition or
status).
Reasoning from decisions grounded in Robinson and Powell, the municipal court for the City
of Denver recently ruled Denver’s camping ban ordinance unconstitutional. People v. Burton,
19GS004399, slip op. at 8-9 (Denver Mun. Ct. Dec. 27, 2019) (attached as Exhibit A). Furthermore,
all other courts to address the issue have followed Robinson and Powell to find that it is
unconstitutional to punish homeless individuals for sleeping outdoors when they cannot access
shelter. See, e.g., Martin v. City of Boise, 902 F.3d 1031, 1048 (9th Cir. 2018), cert. denied, 140 S. Ct. 674
9
(2019) (finding that “the Eighth Amendment prohibits the imposition of criminal penalties for
sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain
shelter,” including people who cannot access shelter for reasons aside from shelter capacity); Cobine
v. City of Eureka, No. C16-02239 JSW, 2016 U.S. Dist. LEXIS 58228 at *8 (N.D. Cal. Apr. 25, 2017)
(denying a motion to dismiss plaintiffs’ claim that a law banning camping violated the Eighth
Amendment because “[t]he Court finds persuasive those courts that have recognized a basis for an
Eighth Amendment challenge to an ordinance proscribing conduct that may be involuntary”);
Anderson v. City of Portland, No. 08-1447-AA, 2009 U.S. Dist. LEXIS 67519 at *17-18 (D. Or. 2009)
(denying a motion to dismiss plaintiff’s claim that a law banning camping and temporary structures
was unconstitutional because plaintiffs “allege that the City’s enforcement of the anti-camping and
temporary structure ordinances criminalizes them for being homeless and engaging in the
involuntary and innocent conduct of sleeping on public property”); Jones v. City of Los Angeles, 444
F.3d 1118 (9th Cir. 2006) (upholding a challenge to a law that banned “sitting, lying, or sleeping on
public streets and sidewalks” because “the conduct at issue . . . is involuntary and inseparable from
status” and “by criminalizing sitting, lying, and sleeping, the City is in fact criminalizing Appellants’
status as homeless individuals”), vacated due to settlement, Jones v. City of Los Angeles, 505 F.3d 1006 (9th
Cir. 2006); Pottinger v. Miami, 810 F. Supp. 1551, 1562 (S.D. Fla. 1992) (finding for the homeless
plaintiffs in their challenge to Miami’s policy and practice of arresting homeless individuals for
“basic activities of daily life” conducted outdoors because it was impossible for such individuals to
refrain from the violative conduct and the conduct was not harmful to themselves or others); Johnson
v. City of Dallas, 860 F. Supp. 344, 351 (N.D. Tex. 1994), (noting that “as long as the homeless have
no other place to be, they may not be prevented from sleeping in public”), rev’d on other grounds,
Johnson v. City of Dallas, 61 F.3d 442 (5th Cir. 1995) (reversing and vacating the preliminary injunction
because appellees did not have standing). Because homeless individuals are forced to live outdoors,
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criminalizing sleeping on public property criminalizes their status as homeless individuals. Johnson,
860 F. Supp. at 350 (“Because being does not exist without sleeping, criminalizing the latter
necessarily punishes the homeless for their status as homeless, a status forcing them to be in
public”). As the above cases have universally held, this is unconstitutional. This Court should follow
that clear line of persuasive precedent.
Under this line of precedent, to determine whether enforcement of such ordinances is
unconstitutional as applied to a particular person, courts have looked at two factors: (1) whether the
individual is forced to be outdoors and (2) whether the conduct taking place outside is involuntary.
See, e.g., Cobine, 2016 U.S. Dist. LEXIS 58228, at *7. If the individual is forced to be outdoors
because they are homeless, it is unconstitutional to criminalize his or her involuntary conduct. The
first prong of this test involves looking to the facts related to the person challenging the
constitutionality of the ordinance as applied to that person; Mr. Wiemold addresses that prong
below. Regarding the second prong, there can be no question that the act of sleeping represents
involuntary conduct.
Sleeping is quintessential involuntary conduct. As the Ninth Circuit has recently stated,
“[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and
unavoidable consequences of being human.” Martin, 902 F.3d at 1048; see also Pottinger, 810 F. Supp.
at 1563 (describing sleeping as a “harmless, involuntary, life-sustaining act[]”); Anderson, 2009 U.S.
Dist. LEXIS 67519, at *17 (finding that plaintiffs’ sleeping on public property was “involuntary and
innocent” behavior). “[A]s 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.” Martin, 902 F.3d at 1048 (9th Cir. 2018); see also Jones, 444 F.3d at
1136 (noting that “[i]t is undisputed that, for homeless individuals in Skid Row who have no access
to private spaces, these acts can only be done in public”). Sleeping is “a biologic process that is
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essential for life and optimal health” that humans plainly cannot avoid. Goran Medic et al., Short- and
long-term health consequences of sleep disruption, 9 Nat. & Sci. Sleep 151–61 (May 2017),
https://www.dovepress.com/short--and-long-term-health-consequences-of-sleep-disruption-peer-
reviewed-article-NSS. Sleeping is involuntary conduct.
B. When Mr. Wiemold was cited on September 11, 2018, he was homeless and
had no choice but to sleep outdoors
It is undisputed that on September 11, 2018, Mr. Wiemold was homeless. CF p. 46:2-5. In
addition to being homeless, Mr. Wiemold could not stay at any of the Fort Collins homeless shelters.
First, Mr. Wiemold’s job as the shelter supervisor at Catholic Charities prevented him from staying
at either of the two homeless shelters in Fort Collins that accepted single men. Second, even if that
were not the case, Fort Collins’ two shelters that accept single men were full that evening and early
morning. Like the plaintiffs in Martin, Mr. Wiemold was homeless and had no choice but to sleep
outdoors on the night he was ticketed. See Martin, 902 F.3d at 1037-38.
1. Mr. Wiemold could not stay in a shelter in Fort Collins because of his
employment at Catholic Charities.
Based on his employment at the Catholic Charities homeless shelter, Mr. Wiemold was
unable to stay in either of the two homeless shelters in Fort Collins that accept single men. See CF p.
29:13-23 (Catholic Charities and Rescue Mission were only two homeless shelters in Fort Collins
that accepted single males). Mr. Wiemold could not stay at the Catholic Charities shelter because of
his position as the shelter supervisor there. First, Catholic Charities prohibits staff from receiving
services at the shelter. CF p. 34:21-35:4; CF v2 p. 73; CF p. 35:16-25; 49:13-50:6; 75:2-9. Second,
sheltering with his clients would also have violated Catholic Charities’ policies limiting outside
interactions between shelter staff and homeless clients. It would also have undermined Mr.
Wiemold’s authority in the eyes of his clients. CF v2 p. 82; CF p. 49:13-50:6; 75:2-9. Third, staying at
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a shelter with his clients would breach professional boundaries and hamper Mr. Wiemold’s ability to
manage clients and enforce shelter policies. CF p. 49:16-22.
Furthermore, Mr. Wiemold could not stay at the Rescue Mission, the only other homeless
shelter in Fort Collins that accepted single males. See CF p. 29:13-23. The populations of the two
shelters overlap, both as availability fluctuates and as each shelter temporarily bars individuals for
rule violations. CF p. 29:9-24; 49:13-50:6; 75:2-9. Sheltering at the Rescue Mission would have meant
staying with Catholic Charities clients. CF p. 49:13-50:6; 75:2-9. Sheltering with clients, especially
those who may have been suspended by Mr. Wiemold, would endanger his safety. CF p. 49:13-50:6;
75:2-9. Mr. Wiemold would have had to stay in unmonitored rooms with people whom he might
have removed from the Catholic Charities shelter and who may be angry with or violent towards
him. CF p. 49:13-50:6; 75:2-9. Additionally, sheltering with clients at Rescue Mission would create
conflicts of interest for Mr. Wiemold that would make it impossible for him to do his job at Catholic
Charities. Mr. Wiemold is responsible for enforcing shelter rules at Catholic Charities and
disciplining and suspending guests when necessary. CF p. 48:1-23. If Mr. Wiemold removed a client
from Catholic Charities, the client would need to seek services at the Rescue Mission, where he
would stay with Mr. Wiemold. CF p. 29:9-24; 49:13-50:6; 75:2-9. Such conflicts of interest would be
untenable.
2. Even if Mr. Wiemold were not a shelter employee, both of the Fort
Collins shelters that accept single men were full.
When it comes to determining whether a person was sleeping outside voluntarily, the
pertinent fact regarding shelters is the number of available beds, i.e., beds in which the individual
could have slept that night. Martin, 902 F.3d at 1048. If there was no available bed, an individual
could not have slept there, regardless of whether the individual went to the shelter to request a bed.
No shelter was “practically available” for Mr. Wiemold on the morning of September 11. Id. at 1049.
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On the night of September 10 into the morning of September 11, 2018, the two shelters in
Fort Collins which accept single men were both full. CF v2 p. 151; CF p. 36:1-37:19; 38:18-21;
43:18-45:4. Catholic Charities had reached capacity and had turned away one person seeking shelter.
CF v2 p. 151; CF p. 36:1-37:19; 38:18-21; 43:18-45:4. Fort Collins Rescue Mission was also full. CF
v2 p. 151; CF p. 36:1-37:19; 38:18-21; 43:18-45:4.
When a city does not have enough shelter beds for its homeless population, it “cannot argue
persuasively that the homeless have made a deliberate choice to live in public places or that their
decision to sleep in the park as opposed to some other exposed place is a volitional act.” Pottinger,
810 F. Supp. at 1563. On September 11, 2018, Fort Collins did not have enough shelter capacity to
accommodate its single male homeless population and, specifically, was unable to accommodate Mr.
Wiemold. Without the option of a shelter, Mr. Wiemold had no choice but to sleep outdoors.
Based on the foregoing, this Court should find that citing Mr. Wiemold for sleeping on
public property when he had no other place to go violated the Eighth Amendment and article II, §
20. Because of the unavailability of shelter, Mr. Wiemold was forced to engage in the “involuntary,
life-sustaining activit[y]” of sleeping at the public rest area. Pottinger, 810 F. Supp. at 1564. Citing,
prosecuting, convicting, and punishing Mr. Wiemold for this is cruel and unusual such that it
violates the Eighth Amendment and article II, § 20 of the Colorado Constitution.
C. This Court’s inquiry into whether a person had a choice to sleep outside must
focus only on whether the person could have been staying at a shelter the
night/early morning he was ticketed.
To determine whether an individual has access to inside sleeping space, courts have looked
only to whether that individual was able to stay in a shelter bed on the evening in question. Martin,
902 F.3d at 1042. As the Martin court made clear, an open shelter bed does not necessarily equate
with an “available” shelter bed. Id. Even if a city has enough shelter beds to accommodate its entire
homeless population, there are other reasons for which a shelter bed may be “unavailable” to a
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homeless individual. Id. Compliance with the Eighth Amendment and article II, § 20 requires
consideration of whether shelter was available for the particular individual who is challenging the
application of the ordinance to him. Id. at 1046.
In Martin, homeless individuals sued the City of Boise for enforcing two ordinances
restricting camping in public against unhoused people who slept or rested outside when they had
nowhere else to go. 902 F.3d 1031. Boise police had “enforced the ordinance against homeless
individuals who [had] take[n] the most rudimentary precautions to protect themselves from the
elements,” including wrapping themselves in blankets and sleeping in public bathrooms. Id. at 1049.
However, Boise shelters were not available to all of the city’s homeless population—one homeless
plaintiff had been unable to stay in a shelter because of the shelter’s religious programming; another
had been refused entry because he had exceeded the number of days a person could stay at the
shelter; a third was unable to be admitted at one shelter and, by the time he arrived at the other
shelter, had missed the entry window. Id. at 1041-42. Shelter could also be unavailable for other
reasons, including policies forbidding reentry if a person voluntarily left the facility for any reason.
Id. at 1041. Although Boise had amended its policies to limit enforcement to nights when there were
open shelter beds, the court found that Boise’s policies were still unconstitutionally cruel as applied
to the city’s homeless residents who could not access those open beds. Id. at 1046. If a homeless
individual is denied entry to a shelter, then “as a practical matter, no shelter is available.” Id. at 1041-
42. It makes no difference that, theoretically, a different homeless individual could have stayed in a
shelter bed that night.
Under Martin and similar cases, courts have conducted a two-pronged inquiry to determine
whether the individual’s conduct was involuntary. See, e.g., Cobine v. City of Eureka, 250 F. Supp. 3d
423, 431 (N.D. Cal. 2017). First, they have looked at whether the conduct for which the individual
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was cited was benign, necessary conduct;4
second, they have looked at whether shelter space was
unavailable, forcing the individual to be in a public space. Id. None of the courts to hear this issue
have required examining the reasons for which the individual became homeless. See Martin, 902 F.3d
1031; Cobine, 250 F. Supp. 3d 423; Johnson, 860 F. Supp. 344; Pottinger, 810 F. Supp. 1551.
Instead, courts’ inquiry into the voluntariness of the individual’s situation concerns the
availability of shelter space. See, e.g., Martin, 902 F.3d at 1049 (“We conclude that a municipality
cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space
is practically available in any shelter”); Johnson, 860 F. Supp. at 350 (finding that “at any given time
there are persons in Dallas who have no place to go, who could not find shelter even if they wanted
to—and many of them do want to—and who would be turned away from shelters for a variety of
reasons”). In Pottinger, the court specifically rejected the city of Miami’s suggestion that “even if
homelessness is an involuntary condition in that most persons would not consciously choose to live
on the streets, ‘it is not involuntary in the sense of a situation over which the individual has
absolutely no control such as a natural disaster.’” 810 F. Supp. at 1564. The court found that,
because “the City does not have enough shelter to house Miami’s homeless residents, . . . [it] cannot
argue persuasively that the homeless have made a deliberate choice to live in public places or that
their decision to sleep in the park as opposed to some other exposed place is a volitional act.” Id. at
1564-65. This Court should follow these well-reasoned arguments.
III. FCPS’ enforcement of Ordinance 17-181 at the Poudre Rest Area on September 11
constituted selective enforcement in violation of the Fourteenth Amendment.
FCPS’ enforcement of Ordinance 17-181 at the Poudre rest area on the morning of
September 11, 2018 violated the Fourteenth Amendment, because FCPS officers intentionally
targeted and enforced the ordinance against only homeless individuals and chose not to enforce
4 In Martin, the Ninth Circuit explicitly limited its holding to “sitting, lying, or sleeping”—the conduct in which Mr.
Wiemold was engaged when ticketed. 2019 U.S. App. LEXIS 9453 at *41.
16
against presumably housed truckers engaged in the same activity of sleeping. The Equal Protection
clause mandates that “the decision to prosecute [or enforce] may not be based on an unjustifiable
standard such as race, religion, or other arbitrary classification.” United States v. Armstrong, 517 U.S.
456, 464 (1996) (citing Oyler v. Boies, 368 U.S. 448, 456 (1962)).5 Enforcement against people
experiencing homelessness who have no choice but to sleep in their vehicle but not against truckers
engaged in the same activity at the same time in the same rest areas is a quintessential arbitrary
classification. To succeed on a selective enforcement claim regarding enforcement of a facially
neutral statute, a defendant “must show both that the enforcement had a discriminatory effect and
that it was motivated by a discriminatory intent.” People v. Valencia-Alvarez, 101 P.3d 1112, 1116
(Colo. App. 2004) (citing Armstrong, 517 U.S. at 465).
A. FCPS officers’ enforcement at the rest area had a discriminatory effect
because officers enforced only against homeless people and not against
similarly situated truck drivers present at the rest area that morning.
To demonstrate a discriminatory effect, Mr. Wiemold must show “that a similarly situated
individual . . . could have been subjected to the same law enforcement action as the defendant, but
was not.” Id. at 1116. The facts bear out that this is exactly what happened.
FCPS officers arrived at the rest stop at approximately 6AM on September 11. CF p. 134:3-
5; 633. At the time, there were several semi-trucks parked in an adjacent parking lot clearly visible
from the area where FCPS officers were enforcing the ordinance against homeless individuals. CF
v2 p. 155-61; CF p. 51:3-56:13. Given the early hour and federal and state regulations requiring
eight-hour rest periods between long driving stints, it is almost certain that at least some of the
drivers of the trucks present at the rest area were “spending the night” in their vehicle in violation of
Ordinance 17-181. See, e.g., Dep’t of Pub. Safety, Colo. State Patrol, Hours of Service (FMCSR Part
5 Despite being two distinct claims, selective enforcement and selective prosecution claims “are generally evaluated
under the same two-part test.” United States v. Washington, 869 F.3d 193, 214 (3d Cir. 2017).
17
395), https://www.colorado.gov/pacific/csp/hours-service-fmcsr-part-395. Truckers slept in that
lot every day. CF p. 90:11-91:3. When FCPS cited Mr. Wiemold, there were trucks that contained
sleeping truckers parked at the rest area that could have been, but were not, subjected to
enforcement under Ordinance 17-181. CF p. 391-92; 134:22-135:24; 51:3-56:13; 136:23-137:1; 145:7-
9; 146:20-21.
Fort Collins Municipal Ordinance 17-181 applies to all individuals within Fort Collins city
limits. Any person who “sleep[s], spend[s] the night, reside[s] or dwell[s] temporarily with or without
bedding or other camping gear and with or without shelter, or . . . conduct[s] activities of daily
living” on public property violates the ordinance. Fort Collins, Colo., Mun. Ord. 17-181. When
FCPS officers arrived at the rest area, the truck drivers in the truck lot were similarly situated to Mr.
Wiemold (and the four other homeless individuals who received citations)—they were parked and
remaining inside of their vehicles. This constituted unconstitutional selective enforcement.
Unlike selective enforcement claims that rest on statistical evidence (which typically struggle
to prove the existence of similarly-situated individuals), the claim in this case rests on an “easily
identified and limited class” of similarly-situated individuals—the truck drivers. United States v. Duque-
Nava, 315 F. Supp. 2d 1144, 1156 (D. Kan. 2004) (noting the issues with selective enforcement
claims that rest on statistical evidence because of the difficulty of using statistics to prove the
existence of such a similarly-situated class at the time of enforcement). Yick Wo v. Hopkins is an
instructive parallel. In Yick Wo, San Francisco had denied all 200 license applications by Chinese-
owned laundries, while granting 89 out of 90 licenses applications by white-owned laundries. 118
U.S. 356 (1886). The Court held that San Francisco’s actions constituted unconstitutional selective
enforcement because the petitioners had complied with every regulation and there was no non-
discriminatory reason to deny the license. The Supreme Court found that this pattern of
enforcement showed a discriminatory effect. Id. at 374.
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Like Yick Wo, where all Chinese applicants were denied, this is not a case that requires line-
drawing to determine whether enforcement was lopsided enough to be discriminatory. Officers
issued citations only to homeless individuals and did not enforce at all against non-homeless
individuals who were similarly situated and parked at the rest area on September 11. Like the white
laundry owners in Yick Wo v. Hopkins, the truck drivers were excused from enforcement because
they did not belong to the targeted class. Id. By issuing citations only to homeless individuals when
there were other individuals present and engaging in the same behavior as the homeless individuals,
FCPS officers’ enforcement had a plainly discriminatory effect on Mr. Wiemold.
B. FCPS officers had the discriminatory intent of enforcing Ordinance 17-181
only against homeless people at the rest area on September 11, 2018.
To demonstrate a discriminatory intent, Mr. Wiemold must show that the challenged
enforcement action constitutes “intentional and purposeful discrimination.” May v. People, 636 P.2d
672, 681-82 (Colo. 1981). Such intent implies that “the decisionmaker . . . selected or reaffirmed a
particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects
upon an identifiable group.” Wayte v. United States, 470 U.S. 598, 610 (1985) (quoting Pers. Adm’r of
Mass. v. Feeney, 442 U.S. 256, 279 (1979)). Evidence of discriminatory intent may be direct or
circumstantial. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1264 (10th Cir. 2006).
There is strong evidence that FCPS officers went to the rest area on September 11 with the
intent of enforcing the camping ordinance solely against homeless individuals. First, FCPS Officer
Chip Avinger’s communications with CDOT employee Wes Mansfield evidence an intent to enforce
only against homeless individuals on September 11. CF v2 p. 1-45. On August 28, 2018, Mr.
Mansfield sent a text message to Officer Avinger stating: “FYI, Chip we need to make a plan to
meet at the rest area between 530 and 6 AM we had 12 the [sic] 15 Homeless there this morning
here are some pics, let me know what you think.” CF v2 p. 37. The reference to “pics” referred to
photos of vehicles parked at the rest area that Mansfield believed belonged to homeless persons. CF
19
v2 p. 31-37. Officer Avinger responded: “Yeah, that’s a great idea. I’ll set that up and let you know.”
CF v2 p. 37. On September 4, 2018, Officer Avinger sent a message to Mr. Mansfield stating: “I’m
setting it up for next Tuesday morning,” which was the morning of September 11, 2018. CF v2 p.
41. These text messages show that Officer Avinger arranged the enforcement on September 11
because of a message from Mr. Mansfield stating that there were homeless people present at the rest
area and showing pictures of vehicles allegedly belonging to homeless individuals. In his text
message on August 28, Mr. Mansfield did not make any allegations of camping, behaviors that
would otherwise violate Ordinance 17-181, or any other problems at the rest stop—just that the
there were homeless people present and he wanted them gone.
In addition to the above messages, Mr. Mansfield referred to homeless individuals in other
messages to Officer Avinger, making it clear that he is asking for enforcement against them. On
August 21, 2018, Mr. Mansfield sent Officer Avinger a message saying that there were homeless
individuals parked in the passenger parking lot. CF v2 p. 15-17. These communications show that
FCPS planned enforcement at the rest area because homeless individuals were present there, solely
based on information that they were homeless. The entirety of the correspondence between CDOT
employee Mansfield and Officer Avinger consists of Mansfield asking Avinger to run off people
Mansfield believes are homeless. Officer Avinger complies whenever he is able. CF v2 p. 1-47. This
is enforcement “‘because of,’ not merely ‘in spite of’” their homeless status. Wayte, 470 U.S. at 610.
Additionally, FCPS officers’ actions at the rest area reflected a planned enforcement action
intentionally aimed solely against homeless individuals. FCPS officers did not enter the truck lot,
even though several trucks were present and clearly visible from the passenger car lot. CF v2 p. 155-
61; CF p. 51:3-56:13. Text messages from Mr. Mansfield to Officer Avinger complained of homeless
individuals parking in the passenger lot. CF v2 p. 37-41. Based on this information, FCPS officers
20
targeted the portion of the lot most likely to contain homeless individuals and did not approach
anyone in the truck parking lot. CF p. 136:17-137:5.
Based on the foregoing, it is clear that FCPS enforced Ordinance 17-181 “because of, not in
spite of” Mr. Wiemold’s homeless status. Id. By choosing not to enforce against similarly situated
truck drivers, and instead planning and executing the enforcement as a means of targeting homeless
individuals, FCPS showed discriminatory intent and selectively enforced Ordinance 17-181 against
Mr. Wiemold as a homeless individual.
C. There is no rational basis for FCPS’ discrimination against Mr. Wiemold for
being homeless.
Selective enforcement based on arbitrary classifications, like housing status, that “do[] not
impact a traditionally suspect class or implicate a fundamental right” are subject to rational basis
review. Dean v. People, 366 P.3d 593, 597 (Colo. 2016). Under rational basis review, Mr. Wiemold
“must prove that the statute’s classification bears no rational relationship to a legitimate legislative
purpose or government objective, or that the classification is otherwise unreasonable, arbitrary, or
capricious.” Id.
There is no rational basis for enforcement against homeless individuals sleeping in their
vehicle, but not against the truck drivers engaged in the same activity in the same location at the
same time. When FCPS officers arrived at the rest area on September 11, Mr. Wiemold was in the
same position as the truck drivers—inside his lawfully-parked vehicle. There is no evidence in the
record that FCPS had ever received any complaints regarding Mr. Wiemold’s car or his actions. Any
legitimate interest that the City had in keeping Mr. Wiemold from resting inside of his vehicle at the
rest area applied equally to truck drivers in their vehicles. Yet FCPS did not attempt to enforce
against truck drivers. FCPS officers engaged in selective enforcement against Mr. Wiemold that was
not rationally related to any legitimate government interest. By selectively enforcing Ordinance 17-
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181 only against homeless people and specifically against Mr. Wiemold, FCPS officers violated the
Fourteenth Amendment.
CONCLUSION
For the above reasons, Mr. Wiemold requests that this Honorable Court reverse the orders
of the municipal court and remand to the municipal court with instructions to vacate Mr. Wiemold’s
conviction and dismiss the charge against him.
__________________________________
Adam Frank, #38979
Frank & Salahuddin LLC
In cooperation with the ACLU Foundation of Colorado
Dated: March 30, 2020
__________________________________
Mark Silverstein, #26979
ACLU Foundation of Colorado
Dated: March 30, 2020
__________________________________
Rebecca Wallace, #39606
ACLU Foundation of Colorado
Dated: March 30, 2020
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Certificate of Service
I hereby certify that on March 30, 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:
Jill Hueser
For Collins City Attorney
jhueser@fcgov.com
______________________
Adam Frank
FRANK AND SALAHUDDIN LLC
Attorney for Mr. Wiemold