HomeMy WebLinkAbout2019CV30889 - ADAM WIEMOLD V. CITY OF FORT COLLINS - 026A - EXHIBIT 1 - JERRY BURTON ORDER ON APPEALDISTRICT COURT, CITY AND COUNTY OF
DENVER, STATE OF COLORADO
520 West Colfax, Room 135
Denver, Colorado 80204
▲ COURT USE ONLY ▲
THE CITY AND COUNTY OF DENVER,
Plaintiff-Appellant,
v.
JERRY RODRICK BURTON,
Defendant-Appellee.
Case No.: 19CV34925
Courtroom: 4G
ORDER ON APPEAL
THIS MATTER comes before the Court on Plaintiff-Appellant City and County of
Denver’s (“City”) appeal from a ruling of the County Court that the City’s “camping ban”
ordinance, D.R.M.C. § 38-86.2(b) (the “Ordinance”) is unconstitutional. The appeal has been
fully briefed. Having reviewed the parties’ briefs, applicable case law, and the record below, the
Court now finds and orders as follows.
I. THE CASE BELOW
Defendant was cited for violation of the Ordinance on April 29, 2019. Defendant pleaded
not guilty and filed a motion to dismiss the citation. Defendant argued that the Ordinance
violated the Eighth and Fourteenth Amendments of the United States Constitution and Article II,
Section 20 of the Colorado Constitution both facially and as applied. (Court File “CF” p. 42.)
The trial court held an extensive hearing on the motion to dismiss which spanned four days and
included multiple witnesses and exhibits.
Following the hearing, the trial court issued its Order Concerning Motion to Dismiss.
(CF pp. 1206-1216.) In its order, the trial court made the following findings of fact:
Defendant was homeless when he was camping on public property. (CF
pp. 1206-07.)
Defendant was contacted by police and given the option of going to a
homeless shelter. (CF. p. 1207.)
DATE FILED: September 3, 2020 4:28 PM
CASE NUMBER: 2019CV34925
EXHIBIT 1
DATE FILED: September 10, 2020 9:34 AM
FILING ID: C4F9D954B99F1
CASE NUMBER: 2019CV30889
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Defendant received and offer of shelter, which he refused, and was
subsequently cited for violation of the Ordinance. (Id.; CF p. 1211.)
Defendant voluntarily took down his camp was therefore was not arrested.
(CF. p. 1207.)
Defendant, a homeless person, was not part of a suspect class because the
Denver homeless population does not lack effective representation in the
political process. (CF. p. 1210.)
The City, in enforcing the Ordinance, was not motivated by a
discriminatory purpose nor a desire to harm a “politically unpopular
group” and thus there was no “animus” on the part of the City. (CF. p.
1211.)
The City “has not had a custom, practice and policy of arresting, harassing
and otherwise interfering with homeless people for engaging in basic
activities of daily life.” (CF. p. 1212.)
Defendant “was not arrested and was allowed to load his possessions on a
flat bed [sic.] truck.” (Id.) The trial court thus concluded that Defendant
was not placed in a position of danger as a result of the Ordinance’s
enforcement. (Id.)
There was insufficient evidence presented at the hearing to conclude that
the Ordinance facially violated the Fourteenth Amendment’s right to
bodily integrity. (Id.)
There has been no shortage of homeless shelters in Denver since January
1, 2018, and the shelters operate at well below capacity on a nightly basis.
(CF. p. 1214.)
Each of these findings has ample support in the record. Despite these findings, the trial
court concluded that the Ordinance was facially unconstitutional under the Eighth Amendment of
the U.S. Constitution based almost entirely on the reasoning in Martin v. City of Boise, 920 F.3d
584 (9th Cir. 2019). The trial court dismissed the case. The City now appeals that ruling.
II. STANDARD OF REVIEW
Appeals from final judgment and decrees of the county courts are heard by the district
court based on the record made in the county court. C.R.S. § 13-6-310(1). In acting as an
appellate court, the function of a district court is the same whether the case originates in a
municipal court of record or county court, namely, to either review the decision on the record,
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remand the case for a new trial with instructions, or direct that a trial de novo be had before the
district court. People v. Anderson, 392 P.2d 844, 845 (Colo. 1972).
The district court, when it elects to act in its appellate authority, cannot alter or depart
from the county court’s findings of fact in any way. Bovard v. People, 99 P.3d 585, 589 (Colo.
2004). Further, if a district court reviews the case based on the county court record, its review is
limited to the sufficiency of the evidence. Water, Waste & Land, Inc. v. Lanham, 955 P.2d 997,
1002 (Colo. 1998). Consideration of the evidence presented to the lower court must be viewed
in the light most favorable to that court’s judgment. Schempp v. Lucre Management Group,
LLC., 75 P.3d 1157, 1161 (Colo. App. 2003). The interpretation of a statute is a question of law,
and the appellate court is not bound by the trial court’s interpretation. Pac. Life & Annuity Co. v.
Colo. Div. Of Ins., 140 P.3d 181, 183 (Colo. App. 2006).
III. THE LEGAL FRAMEWORK
Defendant argues that the Ordinance is facially unconstitutional because it is overbroad
and a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. In
short, Defendant argues that the Ordinance is directed at the homeless and designed essentially to
eradicate them from the streets of Denver. Defendant further argues that the Ordinance is
unconstitutional as applied to his specific circumstance (and the circumstances of other homeless
individuals).
A. Facial Challenge
“A facial challenge to a legislative [act] is, of course, the most difficult challenge to
mount successfully, since the challenger must establish that no set of circumstances exists under
which the [act] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Under a
facial challenge, a plaintiff must show, beyond a reasonable doubt, that a statute is
unconstitutional in all its applications. People v. Bondurant, 296 P.3d 200 (Colo. App. 2012)
citing People v. Shell, 148 P.3d 162, 172 (Colo.2006). If a statute is susceptible to alternate
constructions, one of which is constitutional and the other of which is not, then the court is
obligated to adopt the constitutional construction. People v. Iannicelli, 449 P.3d 387 (Colo
2019). Thus, if the Ordinance can be applied in a neutral manner in at least some circumstances,
it is facially constitutional.
B. As Applied Challenge
In contrast to a facial challenge, “an as-applied challenge alleges that the statute is
unconstitutional as to the specific circumstances under which a defendant acted.” People v. Ford,
232 P.3d 260, 263 (Colo. App. 2009) citing Sanger v. Dennis, 148 P.3d 404, 410-11 (Colo. App.
2006). Here, the pertinent examination is how the Ordinance was enforced against Defendant.
There is considerable scholarly debate as to whether there is a meaningful distinction between a
facial and an as-applied challenge, and the two tests seem to blur the more one thinks about
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them. See e.g., Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 Stan L.
Rev. 236 (1994). As will be seen, the trial court below seems to have conflated the two tests in
reaching his decision that the Ordinance was facially unconstitutional.
IV. ANALYSIS
A. The Ordinance is Facially Constitutional
The Eighth Amendment
circumscribes the criminal process in three ways: First, it limits the kinds of
punishment that can be imposed on those convicted of crimes; second, it
proscribes punishment grossly disproportionate to the severity of the crime; and
third, it imposes substantive limits on what can be made criminal and punished as
such, e. g., Robinson v. California, [370 U.S. 660 (1962).] We have recognized
the last limitation as one to be applied sparingly.
Ingraham v. Wright, 430 U.S. 651, 667 (1977) (some internal citations omitted). Defendant
argues that it is this third prohibition, the limitation on what can be criminalized, that applies
here. Defendant maintains that the Ordinance unconstitutionally punishes his status as a
homeless individual.
The Court is not persuaded for two reasons. First, the Ordinance is silent as to status.
The Ordinance facially applies to anyone, homeless or not, who might decide to camp on public
property within the City and County of Denver. Even if the Ordinance was passed expressly to
drive homeless individuals away from the city, this does not matter for the purposes of analyzing
its facial constitutionality. The trial court found that the Ordinance was facially neutral, and this
Court agrees.
Second, the Ordinance does not criminalize status. It criminalizes an activity. That the
activity is often engaged in by homeless individuals is beside the point. This is in contrast to the
law at issue in Robinson, which outlawed drug addiction (as opposed to drug use). Robinson v.
California, 370 U.S. 660, 666 (1962) (observing the law “is not one which punishes a person for
the use of narcotics, . . . or for antisocial or disorderly behavior,” but rather one that punishes
“status”). The Ordinance, on its face, is not directed to “homelessness.” Rather, it prohibits an
activity often associated with homelessness, just like a law prohibiting drug possession prohibits
an act often associated with addiction.
Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019) does not compel a contrary result.
To the extent Martin analyzed the facial unconstitutionality of the ordinance at issue there
(which is unclear), the holding was limited to those situations where there was no available
shelter for the cited individuals. As discussed above, Defendant was offered shelter and refused
it.
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B. The Ordinance is Constitutional as Applied to Defendant
In determining whether the Ordinance was unconstitutionally applied to Defendant, it is
helpful to revisit the trial court’s findings. (Citations for the following findings appear above and
will not be repeated here.) Defendant was homeless when he was camping on public property.
He was contacted by police and given the option of going to a homeless shelter. It was only after
he refused shelter that he received a citation for violation of the Ordinance. In its enforcement of
the Ordinance, the City was not motivated by a discriminatory purpose nor a desire to harm a
“politically unpopular group,” and thus there was no “animus” on the part of the City. The City
does not have a custom and practice of arresting, harassing and otherwise interfering with
homeless people for engaging in basic activities of daily life.
“A plaintiff bringing an ‘as-applied’ challenge contends that the statute would be
unconstitutional under the circumstances in which the plaintiff has acted or proposes to act.”
Sanger v. Dennis, 148 P.3d 404, 410 (Colo. App. 2006). The circumstances under which
Defendant was cited do not raise any constitutional infirmities based on the factual findings of
the trial court, which enjoy ample record support. The record reflects that Defendant was not
targeted based on his homeless status, and he was offered shelter which he refused. Only then
was he cited.
Martin v. City of Boise, supra, actually is consistent with this result. Martin repeatedly
emphasizes that its holding is limited to those situations where no alternative shelter is available.
We hold only that so long as there is a greater number of homeless individuals in
a jurisdiction than the number of available beds in shelters, the jurisdiction cannot
prosecute homeless individuals for “involuntarily sitting, lying, and sleeping in
public. That is, 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.
Martin, 920 F.3d at 671 (internal quote marks, brackets and citations omitted). In the instant
case, to repeat, Defendant was offered shelter, which was available to him, and he refused it.
Even if Martin is good law, its holding simply does not apply here.
V. CONCLUSION
Defendant invites the Court to review the record below and find the Ordinance
unconstitutional on numerous other grounds. The Court declines this invitation and limits its
holding to the reasoning and grounds articulated by the trial court.
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The trial court’s order dismissing the case is REVERSED. This matter is REMANDED
for trial on the merits.
ENTERED this 3d day of September, 2020.
BY THE COURT:
J. Eric Elliff
District Court Judge