HomeMy WebLinkAbout2019CV30889 - ADAM WIEMOLD V. CITY OF FORT COLLINS - 022 - REPLY 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 CITY OF FORT COLLINS,
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
REPLY BRIEF
SUMMARY OF REPLY ARGUMENT
Mr. Wiemold’s appeal asks this court to make a simple, narrow, and plainly righteous
holding: it violated the Eighth Amendment to impose a criminal sanction on Mr. Wiemold, a
homeless person, for sleeping in his vehicle at a public rest area when no alternative shelter was
available. It was cruel and unusual to punish him with a criminal conviction for sleeping outdoors
when he had no indoor place to sleep.
2
A homeless person must sleep. And if a person has no home and cannot stay in a shelter,
making it criminal for that person to sleep outside criminalizes that person’s existence. Doing so is a
cruel and unusual punishment that violates the Eighth Amendment. This was the Ninth Circuit’s
holding in Martin v. City of Boise, and it is what this Court should hold here. 920 F.3d 584, 604 (9th
Cir. 2019) (holding “that an ordinance violates the Eighth Amendment insofar as it imposes criminal
sanctions against homeless individuals for sleeping outdoors, on public property, when no
alternative shelter is available to them.”).
The Fort Collins “camping” ordinance is violated when a person merely sleeps in a vehicle
that is parked on public property. Contrary to the City’s assertion, see Answer Brief at 19, Mr.
Wiemold’s stated correctly in his Opening Brief that all courts to address this issue have held that it
is unconstitutional to impose a criminal sanction on a homeless person for sleeping on public
property when the person could not access shelter. Each of the City’s cited cases is distinguishable in
one of two important ways: it either did not reach the merits of the question this case presents and is
therefore inapposite, or it addressed an ordinance that, unlike the Fort Collins ordinance, did not
prohibit mere sleeping, but instead prohibited camping-adjacent conduct like setting up a tent.
Importantly, by spotlighting cases that uphold ordinances prohibiting conduct closely related to
sleep but that is not involuntary, the City accidentally demonstrated that this Court should have no
fear from its slippery slope argument. The only issue before this Court, and the only issue this
Court’s ruling will apply to, is whether it is unconstitutionally cruel to make it criminal for a
homeless person to sleep outdoors when that person has no option to shelter indoors. There is no
question it is. This Court must reverse the municipal court’s order and remand the case with
instructions to vacate Mr. Wiemold’s conviction and dismiss the charge against him.
3
REPLY ARGUMENT
I. Mr. Wiemold’s Eighth Amendment claim is not a facial challenge.
The City’s argument that Mr. Wiemold’s Eighth Amendment claim represents a facial
challenge is wrong. In its brief, the City admits that “Appellant is not arguing the ordinance itself is
unconstitutional but that it is unconstitutional as applied in Mr. Wiemold’s circumstances.”
Appellee’s Responsive Brief, p. 28. Mr. Wiemold could not have said it better himself. Mr. Wiemold
asserts that, under his particular circumstances, where (1) he was homeless, (2) he worked at one of
the two homeless shelters in Fort Collins that accepted single males, and (3) the shelter where he
worked had policies forbidding him from staying in a homeless shelter such that there was no shelter
available to him in Fort Collins, it is unconstitutional to impose a criminal sanction on him for
sleeping in his vehicle at a rest area. He does not assert that the ordinance is always unconstitutional,
or even that it is often unconstitutional. He is likely the only homeless shelter employee in Fort
Collins who was also homeless, such that this Court’s ruling will apply only to him. He seeks no
relief beyond the vacatur of his conviction and sentence. His Eighth Amendment challenge is an as-
applied challenge.
II. Mr. Wiemold’s statement of facts in the issues presented is accurate, and those facts
mandate granting him relief.
Under Mr. Wiemold’s specific circumstances, he was homeless and not able to stay in any of
the homeless shelters in Fort Collins. Further, at the time he was cited, he did not make enough
money to both pay his bills and afford a home. CF p. 64:24-25. As correctly stated in the issue
presented, Mr. Wiemold had no indoor shelter available to him.1
1 The parties have debated how this Court should determine whether a person had a choice whether to sleep outside,
and in the event this Court finds that line of reasoning relevant to its decision, Mr. Wiemold responds to the City’s
arguments below. However, given Mr. Wiemold’s employment at the Catholic Charities shelter and that shelter’s policies
that forbade him from sheltering at either Catholic Charities or the Fort Collins Rescue Mission, this Court can put off
the delineation of that test for another day. Based on employment conditions specific to Mr. Wiemold, it is beyond
debate that he could not stay at any shelter in Fort Collins. That is sufficient to settle the question of whether Mr.
Wiemold had an option to shelter indoors in Fort Collins.
4
It is no answer to tell Mr. Wiemold that he could have left Fort Collins and sought shelter
elsewhere. The City’s proposal that Mr. Wiemold leave city limits each night, see Answer Brief, at 12
& 29, under threat of citation for sleeping violates his right to travel under the U.S. and Colorado
Constitutions. The right to travel is a fundamental right guaranteed by the Fourteenth Amendment
and article II, section 3 of the Colorado Constitution. Kolender v. Lawson, 461 U.S. 352, 385 (1983)
(finding that a criminal loitering statute implicated the right to freedom of movement); In Re J.M.,
768 P.2d 219, 221 (Colo. 1989) (noting that “the rights of freedom of movement and to use the
public streets and facilities in a manner that does not interfere with the liberty of others are basic
values inherent in a free society and are thus protected by article II, section 3 of the Colorado
Constitution and the due process clause of the fourteenth amendment to the United States
Constitution”). The City’s suggestion that Mr. Wiemold exile himself from Fort Collins each night
because he cannot access shelter in the City would be a gross infringement on Mr. Wiemold’s right
to travel within Colorado, equivalent to banishment from Fort Collins for being homeless. This is a
perverse suggestion that has not been given any weight by any court to hear similar issues.2
Contrary to the City’s assertion (see Answer Brief, at 11), Mr. Wiemold’s presentation of the
selective enforcement issue is also accurate. At a motions hearing in a criminal case, the party with
the burden of proof must establish the facts needed to meet the party’s burden by a preponderance
of the evidence. See, e.g., People v. Travis, 2016 COA 88, ¶ 31; People v. Gennings, 808 P.2d 839, 847
(Colo. 1991). As with all presentations of evidence, the party may accomplish this with both direct
and circumstantial evidence, as well as reasonable inferences from that evidence. Cf. COLJI D:01
(direct and circumstantial evidence – no distinction); COLJI D:11 (inferences – general). Because the
2 Additionally, while many cities have struggled to accommodate their homeless residents, allowing them to banish
homeless individuals across city limits would permit the worst actors to address the presence of homeless residents by
ejecting them onto neighboring towns. As long as a city’s policies were harsher than its neighbors, it could defend laws
criminalizing homelessness by arguing that homeless individuals could escape citation by leaving town. This would
incentivize cities bouncing their homeless individuals from town to town as governments competed to pass the most
stringent laws against homeless individuals.
5
municipal court did not make any findings of fact to support its ruling, it is unfortunately incumbent
on this Court to review the record in this case for the relevant facts. Mr. Wiemold’s statements
concerning the facts in this case are firmly grounded in the record and reasonable inferences
therefrom. For example, this Court would have to bury its head in the sand to conclude it is more
likely than not that there were no truckers sleeping at the rest area when Mr. Wiemold was cited.
While the City is free to argue for a different interpretation of the facts presented, its ad hominem
attacks on counsel are misplaced.
III. Martin v. City of Boise was correctly decided, and this Court should follow it.
The City’s analysis of Martin does nothing more than repeat the argument of the Martin
dissenters. The City’s position lost in the Martin decision, Martin v. City of Boise, 902 F.3d 1031, 1046-
50 (9th Cir. 2018), modified at 920 F.3d 584, 615-18 (9th Cir. 2019), lost at the denial of en banc
rehearing, 920 F.3d 584, 588 (9th Cir. 2019), and lost at the Supreme Court, City of Boise v. Martin,
140 S. Ct. 674 (2019). The City’s argument has lost at every level because it is unpersuasive. This
Court should follow the compelling reasoning of the Martin majority opinion. Rather than attempt
to paraphrase it, Mr. Wiemold will quote it at length:
The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. The Cruel
and Unusual Punishments Clause “circumscribes the criminal process in three
ways.” Ingraham, 430 U.S. at 667. First, it limits the type of punishment the government may
impose; second, it proscribes punishment “grossly disproportionate” to the severity of the
crime; and third, it places substantive limits on what the government may criminalize. Id. It is
the third limitation that is pertinent here.
“Even one day in prison would be a cruel and unusual punishment for the ‘crime’ of having
a common cold.” Robinson v. California, 370 U.S. 660, 667 (1962). Cases construing
substantive limits as to what the government may criminalize are rare, however, and for
good reason — the Cruel and Unusual Punishments Clause’s third limitation is “one to be
applied sparingly.” Ingraham, 430 U.S. at 667.
Robinson, the seminal case in this branch of Eighth Amendment jurisprudence, held a
California statute that “ma[de] the ‘status’ of narcotic addiction a criminal offense” invalid
under the Cruel and Unusual Punishments Clause. 370 U.S. at 666. The California law at
issue in Robinson was “not one which punishe[d] a person for the use of narcotics, for their
6
purchase, sale or possession, or for antisocial or disorderly behavior resulting from their
administration”; it punished addiction itself. Id. Recognizing narcotics addiction as an illness
or disease — “apparently an illness which may be contracted innocently or involuntarily” —
and observing that a “law which made a criminal offense of . . . a disease would doubtless be
universally thought to be an infliction of cruel and unusual punishment,” Robinson held the
challenged statute a violation of the Eighth Amendment. Id. at 666-67.
As Jones [v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006)] observed, Robinson did not
explain at length the principles underpinning its holding. See Jones, 444 F.3d at 1133. In Powell
v. Texas, 392 U.S. 514, 88 S. Ct. 2145 (1968), however, the Court elaborated on the principle
first articulated in Robinson.
Powell concerned the constitutionality of a Texas law making public drunkenness a criminal
offense. Justice Marshall, writing for a plurality of the Court, distinguished the Texas statute
from the law at issue in Robinson on the ground that the Texas statute made criminal not
alcoholism but conduct — appearing in public while intoxicated. “[A]ppellant was convicted,
not for being a chronic alcoholic, but for being in public while drunk on a particular
occasion. The State of Texas thus has not sought to punish a mere status, as California did
in Robinson; nor has it attempted to regulate appellant's behavior in the privacy of his own
home.” Id. at 532 (plurality opinion).
The Powell plurality opinion went on to interpret Robinson as precluding only the
criminalization of “status,” not of “involuntary” conduct. “The entire thrust of Robinson’s
interpretation of the Cruel and Unusual Punishment Clause is that criminal penalties may be
inflicted only if the accused has committed some act, has engaged in some behavior, which
society has an interest in preventing, or perhaps in historical common law terms, has
committed some actus reus. It thus does not deal with the question of whether certain
conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary’ . . .
.” Id. at 533.
Four Justices dissented from the Court’s holding in Powell; Justice White concurred in the
result alone. Notably, Justice White noted that many chronic alcoholics are also homeless,
and that for those individuals, public drunkenness may be unavoidable as a practical
matter. “For all practical purposes the public streets may be home for these unfortunates,
not because their disease compels them to be there, but because, drunk or sober, they have
no place else to go and no place else to be when they are drinking. . . . For some of these
alcoholics I would think a showing could be made that resisting drunkenness is impossible
and that avoiding public places when intoxicated is also impossible. As applied to them this
statute is in effect a law which bans a single act for which they may not be convicted under
the Eighth Amendment — the act of getting drunk.” Id. at 551 (White, J., concurring in the
judgment).
The four dissenting Justices adopted a position consistent with that taken by Justice White:
that under Robinson, “criminal penalties may not be inflicted upon a person for being in a
condition he is powerless to change,” and that the defendant, “once intoxicated, . . . could
not prevent himself from appearing in public places.” Id. at 567 (Fortas, J., dissenting). Thus,
five Justices gleaned from Robinson the principle that “that the Eighth Amendment prohibits
the state from punishing an involuntary act or condition if it is the unavoidable consequence
of one’s status or being.” Jones, 444 F.3d at 1135; see also United States v. Robertson, 875 F.3d
1281, 1291 (9th Cir. 2017).
7
This principle compels the conclusion 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. As Jones reasoned, “[w]hether sitting, lying, and
sleeping are defined as acts or conditions, they are universal and unavoidable consequences
of being human.” Jones, 444 F.3d at 1136. Moreover, any “conduct at issue here is
involuntary and inseparable from status — they are one and the same, given that human
beings are biologically compelled to rest, whether by sitting, lying, or sleeping.” Id. As a
result, just as the state may not criminalize the state of being “homeless in public places,” the
state may not “criminalize conduct that is an unavoidable consequence of being homeless —
namely sitting, lying, or sleeping on the streets.” Id. at 1137.
Our holding is a narrow one. Like the Jones panel, “we in no way dictate to the City that it
must provide sufficient shelter for the homeless, or allow anyone who wishes to sit, lie, or
sleep on the streets . . . at any time and at any place.” Id. at 1138. 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.” Id. 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.
We are not alone in reaching this conclusion. As one court has observed, “resisting the need
to eat, sleep or engage in other life-sustaining activities is impossible. Avoiding public places
when engaging in this otherwise innocent conduct is also impossible. . . . As long as the
homeless plaintiffs do not have a single place where they can lawfully be, the challenged
ordinances, as applied to them, effectively punish them for something for which they may
not be convicted under the [E]ighth [A]mendment — sleeping, eating and other innocent
conduct.” Pottinger v. City of Miami, 810 F. Supp. 1551, 1565 (S.D. Fla. 1992); see also Johnson v.
City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (holding that a “sleeping in public
ordinance as applied against the homeless is unconstitutional”), rev’d on other grounds, 61 F.3d
442 (5th Cir. 1995).
Martin v. City of Boise, 920 F.3d 584, 615-18 (9th Cir. 2019) (emphasis added; duplicative citations
truncated). This Court should interpret Robinson and Powell as the Martin court did and follow the
well-reasoned, narrow holding of Martin: Under the Eighth Amendment, “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 617. It is unconstitutionally cruel to criminalize a homeless person for
sleeping on public property when the person cannot stay in a shelter. This Court should recognize
that fundamental constitutional truth.
8
As further support for the Martin court’s reasoning, the City’s argument for its interpretation
of Robinson and Powell also lost in Manning v. Caldwell, 930 F.3d 264 (4th Cir. 2019). The City argues,
as did the dissenters in each stage of Martin, that pursuant to Marks v. United States, 430 U.S. 188
(1977), Justice White’s opinion in Powell can set no precedent. Answer Brief, at 15. In Manning, the
Fourth Circuit rejected this argument, just as the Ninth Circuit in Martin. Manning, 930 F.3d at 281
n.13 (“Under the rule set forth in Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260
(1977), Justice White’s opinion constitutes the holding of the Court.”).
In Manning, the Fourth Circuit analyzed the Supreme Court’s decisions in Robinson and Powell
and came to the same conclusion as the Martin court about their meaning. Manning addressed a law
that “criminalizes the possession, purchase, or consumption of alcohol” by someone who had been
found to be a “habitual drunkard” or has been convicted of driving while intoxicated. 930 F.3d at
268. The plaintiffs, homeless individuals suffering from alcoholism, argued that the law violated the
Eighth Amendment prohibition on cruel and unusual punishment by criminalizing their status as
alcoholics. Id. at 269. The Manning court held that the plaintiffs had stated a claim that the law
violated the Eighth Amendment. In reaching this holding, the Fourth Circuit found that under
Marks v. United States, 430 U.S. 188 (1977), Justice White’s concurrence was the holding of Powell v.
Texas, agreeing with the Ninth Circuit in Martin. Manning, 930 F.3d at 281 n.13.3
Furthermore, prior to his appointment to the United States Supreme Court, now-Justice
Kavanaugh similarly wrote that, to interpret a divided Supreme Court decision, lower courts must
follow any dictates of a majority of Supreme Court justices, regardless of whether the individual
opinions were written in concurrence or dissent. United States v. Duvall, 740 F.3d 604, 616 (D.C. Cir.
3 As the Manning court stated, “The Marks rule teaches that ‘[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.’ Id. at 193 (internal quotation
marks and alterations omitted); cf. Hughes v. United States, 138 S. Ct. 1765, 1771-72 (2018). . . . [T]his rule requires us to
treat Justice White’s concurrence, the narrowest ground supporting the Court’s judgment, as ‘the holding of the
Court.’ Marks, 430 U.S. at 193.” Manning, 930 F.3d at 280 n.13 (internal citations truncated).
9
2013). This is what the Ninth Circuit properly did in Martin, and what the Fourth Circuit properly
did in Manning. As then-Judge Kavanaugh wrote:
The core of the Marks principle cannot be sidestepped simply because the multiple opinions
supporting the Supreme Court’s judgment did not produce a single narrowest opinion for all
future cases. As explained above, in those rare no-narrowest-opinion cases, the lower court
still must strive to reach the result that a majority of the Supreme Court would have
reached in the current case, if such a result can be ascertained. The simplest way to do that,
again, is to run the facts and circumstances of the current case through the various tests
articulated by the Supreme Court in the binding case. Using that approach, lower courts can
still reach a result consistent with the decision of a majority of the Supreme Court. That is
what Marks, common sense, and vertical stare decisis all require.
Duvall, 740 F.3d at 616 (italicized emphasis in original; underlined emphasis added). This Court
should follow common sense, stare decisis, and the reasoning of Martin, Manning, and now-Justice
Kavanagh in Duvall. Justice White’s opinion is the holding of Powell.
IV. All Courts to consider the issue have held it is unconstitutional to punish a homeless
person for sleeping on public property when the person could not access shelter.
There is a crucial fact present in each of the cases the City has cited in its attempts to argue
that ordinances such as Fort Collins’s have been upheld: each of those cases addressed an ordinance
that did not criminalize mere sleeping on public property, or it did not reach the merits of the
question presented here and is therefore irrelevant. Mr. Wiemold first addresses the City’s cited cases
that criminalized conduct beyond mere sleeping.
Where courts have considered the application of ordinances that prohibit mere sleeping on
public property (such as Fort Collins’s) to homeless people, they have found them unconstitutional
as applied. See, e.g., Martin, 920 F.3d at 615-18. Where courts have considered ordinances that
prohibit voluntary conduct that is related to sleeping but not sleeping itself, they have often upheld
the ordinance as applied. This important distinction makes two points relevant to this appeal: First,
granting Mr. Wiemold’s appeal will place this Court in line with every other court to consider the
specific issue presented: the constitutionality of an ordinance that bans mere sleeping on public
property as applied to a homeless person who could not otherwise access shelter. Second, because
10
ordinances such as those at issue in the cases the City has cited have been held constitutional even as
applied to a homeless person, ruling for Mr. Wiemold will not substantially impact the City’s ability
to enact and enforce common municipal ordinances. The City’s own cited cases demonstrate the
failure of its slippery slope argument.
What makes Fort Collins’s ordinance different from those at issue in the cases the City cited
is that Fort Collins’s ordinance criminalizes mere sleeping on public property. Under Fort Collins
Municipal Ordinance 17-181, “It shall be unlawful for any person to camp . . . on public property
within the City. Camping, for the purposes of this Section, shall mean to sleep [or] spend the night .
. . .” F.C.M.O. § 17-181 (emphasis added). It criminalizes mere sleeping on public property.
The cases the City cites involved ordinances that criminalized conduct adjacent to sleeping,
but not mere sleeping itself. In People v. Madison, 10CV716, the Boulder ordinance at issue prohibited
camping on public property, but defined camping very differently from the Fort Collins ordinance.
There, the relevant ordinance defined “camp” as “to reside or dwell temporarily in a place, with
shelter, and conduct activities of daily living, such as eating or sleeping, in such place. . . . The term
‘shelter’ includes, without limitation, any cover or protection from the elements other than
clothing.” B.C.M.O. § 5-6-10 (2009) (attached as Exhibit 1) (emphasis added). The ordinance thus
did not criminalize the involuntary act of mere sleeping. It criminalized setting up a shelter on public
property and sleeping in that shelter. The ordinances at issue in Kohr v. City of Houston, 2017 U.S.
Dist. LEXIS 212428 (S.D. Tex. 2017)4 and Allen v. City of Sacramento, 183 Cal. Rptr. 3d 654 (Cal. Ct.
4 Kohr concerned Houston Code of Ordinances §§ 21-61 to 21-62. Under § 21-62, “Encampment in a public place in
the city is unlawful.” Under § 21-61, “Encampment means any one or more of the following: (a) The unauthorized use
of fabric, metal, cardboard, or other materials as a tent or other temporary structure for living accommodation
purposes or human habitation; or (b) The unauthorized use of a heating device; or (c) The unauthorized
accumulation of personal property (other than durable medical equipment) that would not fit in a container three
feet high, three feet wide, and three feet deep.” The Kohr court based its ruling on this distinction, reasoning, “Thus,
the ordinance does not criminalize ‘homeless’ status but rather prohibits obstructions that hinder the City from
preserving public property for its intended purpose.” Kohr, 2017 U.S. Dist. LEXIS 212428, at *9.
11
App. 2015)5 each also prohibited acts adjacent to sleeping on public property, but not mere sleeping.
Thus, far from assisting the City’s argument, Madison, Kohr, and Allen demonstrate that ruling in Mr.
Wiemold’s favor will not open the floodgates to lawlessness among the City’s homeless population.
The Eleventh Circuit’s holding in Joel v. City of Orlando, 232 F.3d 1353 (11th Cir. 2000) is
easily distinguishable from Mr. Wiemold’s case. There, the court concluded that “the availability of
shelter space means that Joel had an opportunity to comply with the ordinance,” and that as a result,
his act of sleeping outside was not involuntary. Id. at 1362. As Mr. Wiemold did not have an
opportunity to comply with the ordinance, the holding of Joel is not germane. Furthermore, Joel is
not contrary to the limited holding of Martin: it is unconstitutional to make it criminal to engage in
the involuntary act of sleep in a public place when there are no non-public places available.6 Joel
provides no reason for this Court to rule against Mr. Wiemold.
In a similar vein, granting Mr. Wiemold relief will have no effect on the City’s ability to bar
public urination, defecation, or bathing. First, because Mr. Wiemold’s case presents an as-applied
challenge to the enforcement of one statute against one person at one point in time, granting Mr.
Wiemold relief will have no effect on Fort Collins’s general ability to enforce ordinances. Second,
given that publicly accessible bathrooms exist throughout Fort Collins – including at the Poudre rest
area – urination or defecation outside such bathrooms would not be involuntary. As for bathing, it
plainly does not present the same urgency as sleep and can be accommodated in myriad ways. See,
5 Allen concerned Sacramento City Code §§ 12.52.020 and 12.52.030. Under § 12.52.030, “it is unlawful and a public
nuisance for any person to camp, occupy camp facilities, or use camp paraphernalia . . . .” Under § 12.52.020, “‘Camp’
means to place, pitch or occupy camp facilities; to live temporarily in a camp facility or outdoors; to use camp
paraphernalia. ‘Camp facilities’ include, but are not limited to, tents, huts, vehicles, vehicle camping outfits or temporary
shelter. ‘Camp paraphernalia’ includes, but is not limited to, bedrolls, tarpaulins, cots, beds, sleeping bags, hammocks or
cooking facilities and similar equipment.” Like in Madison and Kohr, the ordinance does not prohibit mere sleeping; it
prohibits putting up a shelter or fully living on public property. This fact was outcome-determinative for the case: the
plaintiffs in that case lost because “Sacramento’s ordinance punishes the acts of camping, occupying camp facilities, and
using camp paraphernalia, not homelessness.” Allen, 183 Cal. Rptr. 3d at 670.
6 Regarding the Joel court’s engagement with the meaning of Powell, the Eleventh Circuit in Joel gave it three sentences.
Joel, 232 F.3d at 1362. This led the Fourth Circuit in Manning to deride Joel as “cursory and unpersuasive” regarding the
proper interpretation of Powell. Manning, 930 F.3d at 281 n.17. This Court should take the same approach.
12
e.g., CF, p. 65:22-66:2 (describing how Mr. Wiemold bathed while homeless). These hypotheticals are
red herrings designed to scare this Court with an imagined parade of horribles that a ruling for Mr.
Wiemold would in no way permit.7
As for Tobe v. City of Santa Ana, 982 P.2d 1145 (Cal. 1995) and State v. Barrett, 460 P.3d 93
(Or. App. 2020), these cases explicitly declined to address the question in front of this Court and are
therefore not relevant. In Tobe, the court construed the case as presenting only a facial challenge to
the city’s ordinance, not an as-applied challenge.8 The Tobe court therefore did not discuss whether
the ordinance at issue could be constitutionally applied to a homeless person sleeping outside who
could not access shelter.9 Similarly, in Barrett, the court “refrains from addressing whether
enforcement of [the relevant ordinance] could violate the Eighth Amendment on an as-applied basis
in the absence of a factual record needed to properly present that question. By refraining from
addressing that question, we do not imply an answer.”10 460 P.3d at 94. While the City tells this
7 The City’s discussion of United States v. Sirois, 898 F.3d 134, 138 (1st Cir. 2018) and United States v. Black, 116 F.3d 198,
200-01 (7th Cir. 1997) demonstrate the degree to which the City is grasping at straws in its attempt to persuade this
Court that anarchy somehow waits around the corner if this Court were to rule for Mr. Wiemold. Sirois and Black stand
for the unremarkable propositions that the government may punish people for drug use and the possession of child
pornography. Mr. Wiemold agrees. Such conduct is not involuntary. The issue presented here is whether mere sleeping is
involuntary. It clearly is, and the City has presented no authority that suggests otherwise.
8 Tobe, 982 P.2d at 1152 & 1158 (“We also conclude that, if the Tobe petition sought to mount an as applied challenge to
the ordinance, if failed to perfect that type of challenge.” As a result, “[t]his court’s consideration will, therefore, be
limited to the facial validity of the ordinance.”).
9 Tobe, 982 P.2d at 1104 n.19 (“The court [of Appeal] assumed that an involuntarily homeless person who involuntarily
camps on public property may be convicted or punished under the ordinance. That question, which the Court of Appeal
and the dissent address, and which might be raised in an as applied challenge to the ordinance, is not before us because
plaintiffs offered no evidence that the ordinance was being applied in that manner. We express no opinion on the proper
construction of the ordinance, in particular on whether the conduct it prohibits must be ‘willful,’ or on whether or in
what circumstances a necessity defense is available.”)
10 In Barrett, like in Mr. Wiemold’s case, the defendant filed a motion before her trial arguing that because she was
homeless, it violated the Eighth Amendment to punish her for violating Portland’s anti-camping ordinance. However,
unlike in Mr. Wiemold’s case, Ms. Barrett’s counsel failed to secure an evidentiary hearing for her to present evidence
concerning Ms. Barrett’s circumstances that would render her conviction for violating the ordinance unconstitutional.
This lack of a factual record was what caused the Barrett court to not address Ms. Barrett’s as-applied challenge. Barrett,
460 P.3d at 95-98. As the court stated, “We begin and end with the recognition that, with her pretrial motion, defendant
did not develop a factual record that was sufficient to permit the court to determine whether conviction of the
defendant under [the relevant statute] would violate the Eighth Amendment as applied to her. . . . The record was
devoid of general information about the availability of shelter and devoid of any personal information about defendant’s
attempts to be among those sheltered. In short, the record did not indicate whether defendant’s acts of camping were
involuntary acts. . . . [As a result, w]e need not, and we do not, address the Eighth Amendment – either directly or
13
Court that Barrett rejected the defendant’s challenge on the merits of her as-applied Eighth
Amendment challenge, the Barrett court’s explicit language disclaims any such holding.
Finally, Anderson v. City of Portland, 2011 U.S. Dist. LEXIS 140728 (D. Or. Dec. 7, 2011) is
equally unhelpful to the City. There, homeless plaintiffs brought an Eighth Amendment challenge to
the enforcement of an anti-camping ordinance against them. At the outset of the case, the court
denied the city’s motion to dismiss, finding that based on the plaintiffs’ complaint, they had plausibly
alleged a constitutional violation, because “it seems a reasonable proposition under the Eighth
Amendment that homeless persons should not be subject to criminal prosecution for merely
sleeping in public at any time of day.” Anderson v. City of Portland, No. 08-1447-AA, ECF No. 16, slip
op. at 15 (D. Or. July 31, 2009) (attached as Exhibit 2). Later, when the plaintiffs moved for
summary judgment, the court found that they “[did] not submit evidence of the specific manner in
which the ordinances are enforced or the specific conduct which led to the enforcement actions”
against them, and that therefore they were not entitled to summary judgment. Anderson v. City of
Portland, 2011 U.S. Dist. LEXIS 140728, at *5-*9 (D. Or. Dec. 7, 2011). In short, somewhat parallel
to Barrett, the party challenging the enforcement of the camping ordinance against homeless people
did not present the court with evidence concerning how the contested ordinance was being
enforced, and as a result the court could not definitively find a constitutional violation for the
purposes of summary judgment. This decision has no relevance to Mr. Wiemold’s case, which has
the necessary factual record that Barrett and Anderson lacked.
implicitly.” Given this lack of a factual record, it was appropriate for the Barrett court to avoid the constitutional question
presented; without the relevant facts, it had no way to do so. As Mr. Wiemold did present the necessary evidence at a
motions hearing, there are no grounds for this Court to avoid the constitutional question presented in this appeal.
14
V. Convicting and punishing Mr. Wiemold for sleeping on public property when he was
homeless and could not stay at a shelter violates the Eighth Amendment.
Under the Eighth Amendment, it is unconstitutional to prosecute a homeless person for
sleeping outside when he or she could not stay at a shelter. See Opening Brief, part II; parts III and
IV, infra. To determine whether a specific prosecution violates the Eighth Amendment, courts
consider: (1) whether the individual is forced to be without shelter and (2) whether the conduct
taking place outside is involuntary. See, e.g., Cobine v. City of Eureka, 250 F. Supp. 3d 423, 431 (N.D.
Cal. 2017). At the hearing, Mr. Wiemold met every requisite evidentiary burden for this argument: he
showed through undisputed evidence that he was homeless and was unable to stay at a shelter.
Mr. Wiemold could not stay at either of the two shelters in Fort Collins that house single
men, for several reasons. First, staying at Catholic Charities would have violated clear policy barring
staff from staying 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, as Mr. Wiemold would have done at either Catholic Charities or
the Rescue Mission since the two shelters’ populations overlap, would have violated the professional
boundaries Mr. Wiemold must maintain with his clients in order to effectively do his job as the
shelter supervisor. CF p. 29:9-24; 49:13-50:6; 75:2-9. Third, sleeping in an unmonitored room at
either shelter alongside people he may have suspended or disciplined would have posed serious
safety risks. CF p. 49:13-50:6; 75:2-9. For these reasons, each of which is sufficient standing alone,
Mr. Wiemold could not stay at either shelter. In addition, according to their own reporting, both
Catholic Charities and the Rescue Mission were full on the relevant night. CF v2 p. 151; CF p. 36:1-
37:19; 38:18-21; 43:18-45:4. Mr. Wiemold thus presented unrefuted evidence that he was homeless
and unable to stay in a shelter on the morning he was ticketed. Under these facts, prosecuting him
for sleeping outside violates the Eighth Amendment.
15
VI. This Court should reject the City’s unprecedented and unworkable proposed
voluntariness inquiry.
The City posits a novel Eighth Amendment inquiry into voluntariness that is unprecedented
and unworkable. Rather than asking whether Mr. Wiemold voluntarily rejected an available shelter
bed, as other courts have done, the City insists on a searching inquiry into whether Mr. Wiemold’s
homeless status itself could be considered “voluntary.” In doing so, the City apparently seeks to
establish that if he were “voluntarily” homeless, he would not merit Eighth Amendment protection.
The City’s proposed inquiry has no support in case law and has no logical stopping point.
A. No court to address the question whether a homeless person may be
prosecuted for sleeping outside when he has no place to go has considered
whether the person’s homeless status itself was voluntary.
Under the Eighth Amendment, the only relevant question regarding voluntariness is whether
a homeless individual turned down an available shelter bed and therefore voluntarily put himself in
public space. Martin, 920 F.3d at 618 (“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 v. City of Dallas, 860 F. Supp. 344, 350 (N.D. Tex. 1994) (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”) rev’d on other grounds, 61 F.3d 442 (5th Cir. 1995); Pottinger v. City of Miami, 810 F.
Supp. 1551, 1564-65 (S.D. Fla. 1992) (finding 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”)). No court has sought to ask or answer whether an
individual’s status as homeless was “voluntary.”
Despite a complete lack of legal foundation, at the evidentiary hearing in this case, the City
probed Mr. Wiemold’s life choices and financial circumstances and repeatedly implied that Mr.
16
Wiemold had voluntarily chosen to be homeless that evening, as if he had decided that morning that
it would be fun to sleep in his car instead of in a warm bed in a home. The City continues the same
offensive argument in this appeal. Specifically, the City asked at the hearing:
• What kind of debt Mr. Wiemold had;
• Whether he was working full time;
• How long he had been working full time;
• The amount of money he was making each month in 2018 prior to the enforcement;
• Whether he had done any work on his vehicle to allow him to sleep in it;
• How much that work had cost;
• Where he had showered while he was sleeping in his truck;
• When he got his dog;
• Whether and when he had looked for rooms to rent;
• Whether he had sought low-income housing assistance;
• Why he had not declared bankruptcy;
• Whether he had been evicted from where he was living;
• How he had been able to become housed in the months after receiving the citation in this
case, including:
o Details about his monetary distribution associated with his grandmother passing;
o Where his parents were living;
o Who owns the home in which he currently lives;
o When he became housed;
o How much rent he is currently paying; and
o Whether he can afford his current rent;
• How much debt he had paid off while sleeping in his vehicle, including a breakdown per
year of the amount of debt he had been able to pay; and
• Whether he had looked for a different job than his full-time job as a shelter supervisor.
CF p. 41-48. These questions were laden with subjective judgment regarding how Mr. Wiemold
should have managed his fundamental life choices and finances. See, e.g., CF p. 42:24-25 (“You made
the decision to forego renting a room or renting an apartment and instead live in the back of your
truck while you paid that off. Is that correct?”); CF p. 43:22-23 (“Rather than look for a room to
rent, you decided to pay down some credit card debt you had accrued during that time”). Following
this analysis to its logical end, the trial court would have had to make specific findings regarding the
voluntariness of Mr. Wiemold’s homeless status, such as whether he should have switched career
paths by leaving charitable work and moving to a job that paid more money; whether he should
17
have declared bankruptcy; and whether he should have assumed more debt in order to be housed,
even if that had forced him into a perpetual cycle of poverty. This invasive inquiry, meant to force
trial courts to make a subjective judgment of an individual’s life decisions that may have led to
homelessness, has no foundation in the Constitution or caselaw. It is a burdensome and unworkable
analysis that leaves trial courts with a job for which they are ill-suited: to stand in judgment regarding
the myriad life choices and financial decisions of homeless individuals who find themselves sleeping
outdoors. It is no wonder that courts have steered clear of this analysis.
Contrary to the City’s argument, Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006),
vacated due to settlement, 505 F.3d 1006 (9th Cir. 2006) says no different. The Jones court never
questioned or examined the voluntariness of any plaintiff’s status as homeless. While the
introductory portion of the opinion contained the basic facts of the case and general information
about each of the plaintiffs, including how they became homeless, whether they attempted to stay in
shelters, and how they received their citations, at no point did the court ask or discuss what any of
the plaintiffs’ expenses were, whether they had tried leaving town, or whether they could have spent
any income on a room on the night of enforcement. Id. at 1124-25. For example, the Jones court’s
introductory factual description of one plaintiff is as follows:
Stanley Barger suffered a brain injury in a car accident in 1998 and subsequently lost his
Social Security Disability Insurance. His total monthly income consists of food stamps and
$221 in welfare payments. According to Barger’s declaration, he “want[s] to be off the
street” but can only rarely afford shelter. At 5:00 a.m. on December 24, 2002, Barger was
sleeping on the sidewalk at Sixth and Towne when L.A.P.D. officers arrested him. Barger
was jailed, convicted of violating section 41.18(d), and sentenced to two days’ time served.
Id. This is the entirety of the factual recitation about Mr. Barger’s background and ticket. At no point
did the court rely on any of these facts to make an assessment regarding the voluntariness of Mr.
Barger’s status as homeless or suggest that such an inquiry would be appropriate. While Mr. Barger
plainly had income, the court never inquired how Mr. Barger was spending his money or asked
18
whether he could have made different life choices to avoid homelessness. Further, even knowing that
Mr. Barger sometimes had sufficient funds to pay for a hotel room, the court at no point evaluated whether he
could have afforded shelter on the night he was ticketed. Id.
B. An inquiry into a person’s financial and life decisions to determine the
voluntariness of their homeless status would have no logical stopping point.
Should this Court adopt the City’s novel and sweeping expansion of the voluntariness
inquiry, there would be no logical stopping point to the inquiry. For example, what is the relevant
time range for determining voluntariness of a persons’ status as homeless? At the evidentiary hearing
in this case, the City asked about Mr. Wiemold’s life choices and finances that spanned several years
prior to the citation and his homelessness. How far back must a trial look to determine if the
individual made a decision that resulted in homelessness? Does a decision to drop out of high
school, take on college debt, or invest in a failed business venture become fair game for determining
the voluntariness of homelessness that occurs years later?
The City attempts to mitigate the obvious problems with the sweeping voluntariness inquiry
it had proposed by suggesting, for the first time on appeal, that the inquiry could be limited to
whether the person had a choice on the day of the citation. This suggestion does nothing to blunt
the intrusiveness or impossibility of courts carrying out the City’s proposed inquiry. Even if the
inquiry were limited in time to the period surrounding the citation, what evidence would reflect a
voluntary choice to sleep outside rather than be sheltered in a home? Consider a homeless person
who could not sleep in any shelter but had enough money for a motel room for one night. Would
the City call his homelessness voluntary if he spent money on food, medicine, or treatment for
addiction instead of staying indoors for one night? Is an individual voluntarily sleeping outside if he
or she could have spent the day panhandling or selling plasma to afford a hotel room? How about a
person who was saving money to be able to eat until his or her next paycheck? Or a person who was
building up a fund for car repairs so that he or she could reliably get to work every day? The City’s
19
proposed voluntariness inquiry will pose these unanswerable questions to every municipal court
faced with the prosecution of a homeless person for sleeping outside. In addition to the
fundamental cruelness of telling a homeless person that he is “voluntarily” homeless because he
saved $30 for food for a week that he could have spent on one night at a motel, the City’s proposed
inquiry is unworkable. This Court must reject it.
C. Even if this Court broke from clear case law and adopted the City’s proposed
inquiry, Mr. Wiemold’s status as homeless was not voluntary.
As Mr. Wiemold has demonstrated above, the voluntariness of a person’s homeless status
has no place in case law or any logical test this Court could create. However, even if this Court were
to add such an inquiry into its analysis, Mr. Wiemold provided competent evidence at the hearing
that he was not voluntarily homeless.
Mr. Wiemold did not want to be homeless, as he clearly stated at the hearing. CF p. 54:18-
19. He “had no other option.” CF p. 53:14. The entire time that Mr. Wiemold was unhoused, he
worked consistently and diligently to become housed again. His debt was “a large burden” on him
and “was something important that [he] needed to take care of and get out of.” CF p. 54:16-17.
While he was homeless, he “worked to get out of debt so that [he] could afford to pay rent and pay
my bills at the same time.” CF p. 54:7-9. With his low credit score and high debt, “renting a room
would have just been maintaining the same cycle of debt and [he] would not have been able to get
out of that.” CF p. 43:24-44:1. Additionally, with his credit score, debt, and dog, Milo, “it was hard
to find a landlord that would rent to [him].” CF p. 54:24-55:1. Mr. Wiemold’s efforts to become
housed further demonstrate that he neither sought nor desired homelessness. While sleeping in his
vehicle, Mr. Wiemold worked diligently and efficiently to become housed, paying off approximately
$10,000 over one year, CF p. 48:13-14, resuscitating his credit score and making himself viable rental
applicant. Finally, as soon as his grandmother’s estate was processed, Mr. Wiemold became housed
20
and has not been homeless since. CF p. 28:8-10. Once he had a choice between a home and his
vehicle, he immediately chose a home.
Mr. Wiemold’s concerted efforts to pay his debts, work his way out of a financial crisis, and
become permanently housed—all while providing vital services to the City’s homeless population—
exemplify hard work and personal sacrifice. His homelessness was not enjoyed, convenient, or
wanted. Even if this Court diverges from established precedent and conducts the City’s proposed
voluntariness inquiry, the City’s prosecution and conviction of Mr. Wiemold still violates the Eighth
Amendment.
D. The City’s hypotheticals about millionaires and college students are easily
addressed by the Martin analysis Mr. Wiemold urges this Court to adopt.
The City’s argument that a ruling for Mr. Wiemold under the rationale of Martin would open
the floodgates to millionaires and college students asserting the Eighth Amendment as a defense to a
citation for sleeping in public is nonsensical. As the Martin court stated clearly, “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.” Martin, 920 F.3d at 617. Such a holding here
could not possibly affect the City’s ability to enforce an ordinance against millionaires sleeping on
public property in the ridiculously unlikely event that became a problem in Fort Collins.
VII. This Court’s sole consideration must be correctly applying the law
When the application of a statute potentially violates a person’s constitutional rights, it is the
job of courts to hear the issue and decide the case solely on the merits of the legal arguments
presented. Mr. Wiemold’s appeal presents a question about the meaning of the Eighth Amendment.
It is a legal question that, as the cases cited throughout this litigation demonstrate, is eminently
capable of and appropriate for resolution by courts. In part IV of its Responsive Brief, the City
suggests to this Court that, even if the City has violated Mr. Wiemold’s constitutional rights, this
21
Court should give Mr. Wiemold no remedy because Fort Collins voters and politicians would prefer
to see his rights violated rather than remedy the unconstitutional effects of their ordinance. This
authoritarian argument that Courts should not enforce constitutional rights when they are politically
unpopular is shocking, and this Court must not give it credence.
VIII. Based on reasonable inferences from the evidence, this Court should find that FCPS
engaged in selective enforcement against Mr. Wiemold
As detailed in part II, infra, at a motions hearing in a criminal case, the burden of proof for
the moving party is a preponderance of the evidence, and the factfinder may draw inferences from
the evidence presented in addition to relying on the evidence itself. The City’s Responsive Brief
attempts to raise Mr. Wiemold’s burden of proof to what this Court can know “for certain,”
Responsive Brief, at 36, but that is not the correct standard. Viewing the testimony from Officer
Avinger and CDOT employee Wes Mansfield as a whole, the only reasonable conclusion this Court
can draw is that on September 11, 2018, FCPS officers went to the Poudre rest area to enforce the
City’s camping ordinance against people they believed were homeless.
As the record demonstrates, CDOT employee Mansfield messaged Officer Avinger for
weeks, sending him picture after picture of cars Mr. Mansfield believed belonged to homeless people
and asking Officer Avinger to run them off. CF v2, p. 1-45. Officer Avinger complied with Mr.
Mansfield’s requests, including on the morning Mr. Wiemold was cited. CF v2, p. 37 & 41 & 45. The
agreement could not have been clearer. As they texted:
22
CF v2, p. 37 & 41 & 45. Mr. Mansfield was even clearer when he testified:
CF, p. 80. Officer Avinger confirmed that his purpose was the same as Mr. Mansfield’s:
CF, p. 130. Similarly, Officer Avinger testified:
CF p. 160. Mr. Mansfield asked Officer Avinger to run off the homeless people from the Poudre
rest area, so he did.
Similarly, this Court would have to ignore reality to review the record concerning whether
there were truckers sleeping in their trucks at the rest area and decide that there were none. Mr.
23
Mansfield testified that truck drivers slept at the rest area every day. CF p. 70:21-71:3. On the
morning Mr. Wiemold received a summons, there were many trucks parked at the rest area at dawn
when the police arrived. CF v2, p. 152, 155, 157, 159, 161. Officer Avinger presumed they had been
there all night and that there were at least some truckers who were sleeping there. CF p. 135:1-24.
CF p. 135:1-24. The City asks this Court to credit Officer Avinger’s verbal gymnastics. Mr. Wiemold
asks this Court to follow the plain truth of what happened. Mr. Wiemold established by a
preponderance of the evidence that the City had the discriminatory intent to enforce the camping
ordinance against only people the City believed were homeless and not against the similarly situated
truckers who were also sleeping in their vehicles at the Poudre rest area. They then followed through
on this discriminatory intent, creating a discriminatory effect by citing Mr. Wiemold based on
believing he was homeless and not citing any of the truckers. This was clear selective enforcement.
The City attempts to avoid this conclusion by asserting that Mr. Wiemold should have
presented the trial court with evidence it was plainly impossible to secure. How could Mr. Wiemold
find the housing status of the truckers who were present that morning when the City did not contact
them to record their names? See CF p. 158:12-15. How could Mr. Wiemold present the trial court
with definitive information about the housing status of the other people the City cited when their
identities are not in the police file provided? This is why the burden of proof is a preponderance and
not beyond a reasonable doubt, and this is why factfinders are allowed to draw inferences. Mr.
Wiemold established by a preponderance of the evidence that there was both a discriminatory intent
and a discriminatory effect in the City’s September 11, 2018 enforcement action.
24
IX. There was no rational basis for the City’s selective enforcement
The City’s rational basis argument is simple: (1) there were problems at the rest area; (2) the
City assumes without evidence that homeless people caused the problems; so (3) there is a rational
basis to only run them off and not the similarly situated truckers. This argument only works if the
Court shares the City’s unwarranted bias against people experiencing homelessness. The record
contains no evidence that any of the issues that existed at the rest area were caused by homeless
people. The question for this Court is whether, without basis, it is rational for the City to make that
assumption. Mr. Wiemold submits that it is not.
In 1969, Colorado’s federal district court addressed an Equal Protection Clause challenge to
a then-existing anti-vagrancy law. In so doing, it confronted the equal protection implications of
categorizing people as “vagrant” and then treating them differently based on that classification. As
the Court held:
The statute also violates the equal protection clause of the Fourteenth Amendment
prohibiting discrimination between classes of persons, and requiring . . . classifications to be
reasonable. To fulfill this demand a statute must include within the categories created all
persons similarly situated with respect to the purpose of the law. However rationalized, the
classification used in the Colorado vagrancy statute is arbitrary. It assumes that idleness and
poverty are invariably associated with criminality. In this leisure time-early retirement era, such an
assumption is patently unfounded. But assuming that some vagrants are criminals, the
classification is nevertheless unreasonable because it punishes all vagrants as future criminals
despite the fact that many never resort to criminality. It is also noteworthy that this vagrancy
statute, because of its vast scope, invites arbitrary enforcement. This makes selective
enforcement virtually inevitable. Certain sub-classes of individuals within the general
vagrancy statutes are certain to become the targets of selective enforcement. It is therefore
apparent that the Colorado vagrancy statute offends the equal protection clause of the
Fourteenth Amendment.
Goldman v. Knecht, 295 F. Supp. 897, 906-07 (D. Colo. 1969) (three-judge panel opinion) (internal
citations omitted) (emphasis added). This holding remains good law. See, e.g., State v. Adams, 91 So.
3d 724, 751 (Ala. Crim. App. 2010) (citing Goldman). While the Goldman Court confronted an anti-
vagrancy statute as opposed to discriminatory anti-“vagrant” enforcement of an otherwise-neutral
25
statute, the rationale of the Goldman Court’s holding applies equally to the arguments the City is
making. Just as the State did in 1969, the City asks this Court to falsely assume that homeless people
sleeping in their cars are criminals, dirty, and unhygienic – people who should properly be driven out
of town. That argument is just as wrong today as it was 60 years ago, and this Court must reject it.
Mr. Wiemold is not a criminal. He is not unhygienic. He did not litter or damage the rest
stop. He did not impair the aesthetic of the rest area (to the extent such a thing exists) by his
presence there. Enforcing the camping ordinance against him but not against others who were
present and engaged in the same forbidden behavior (sleeping) did not in any way serve any
legitimate government purpose.11 As the Colorado Supreme Court holds, “A reasonable and non-
arbitrary classification, [is one] based upon substantial differences which relate to a public purpose.”
Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 828 (Colo. 1982). As it relates to the any legitimate
government interests, there are no substantial differences between Mr. Wiemold and the truckers
whom the City did not cite. By classifying Mr. Wiemold as homeless and prosecuting him on that
basis, the City violated the Equal Protection Clause of the Fourteenth Amendment.
CONCLUSION
For the foregoing reasons as well as the reasons detailed in Mr. Wiemold’s Opening Brief,
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.
11 The City’s alternative argument in support of only enforcing against those experiencing homelessness is that the City
had previously conducted an enforcement action in the long-term parking lot against the homeless population that was
staying in their vehicles there, and that as a result of the prior enforcement action, these homeless individuals had begun
parking in the other part of the rest area. CF p. 147:8-149:14; 156:2-18. Thus, when the homeless people moved to a
different area, the City moved its enforcement to where they were. Far from helping the City, this demonstrates the
City’s discriminatory intent in its enforcement and shows that the City’s only basis for its enforcement is its biased
beliefs about people experiencing homelessness.
26
__________________________________
Adam Frank, #38979
Frank & Salahuddin LLC
In cooperation with the ACLU Foundation of Colorado
Dated: June 23, 2020
__________________________________
Mark Silverstein, #26979
ACLU Foundation of Colorado
Dated: June 23, 2020
__________________________________
Rebecca Wallace, #39606
ACLU Foundation of Colorado
Dated: June 23, 2020
27
Certificate of Service
I hereby certify that on June 23, 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
jhueser@fcgov.com
Andrew Ringel
ringela@hallevans.com
______________________
Adam Frank
FRANK AND SALAHUDDIN LLC
Attorney for Mr. Wiemold