Loading...
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) 18 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'. 19 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 20 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 21 RESPONSE TO CITY MOTION TO DISMISS