Denver County Court, State of Colorado
80204

Phone Number: 720.337.0847

Court address: 520 West Colfax Ave, Denver, CO.

 

People of the City and County of Denver
VS.
Jerry R. Burton,

Defendant

COURT USE ONLY

A

 

Attorney or Party Without Attorney (Name and
Address):

Phone Number: 

FAX Number: Atty. Reg. 

 

Case Number:
19GSOO4399

Courtroom 4A

 

 

ORDER CONCERNING MOTION TO DISMISS

 

Defendant seeks dismissal of the above matter because Denver Revised Municipal

Code (DRMC) $384862 violates the 14m Amendment Equal Protection clause

(discrimination against a particular group, selective enforcement), Due Process clause

(right to travel, right to bodily integrity, right to privacy), the Eighth Amendment

prohibition against cruel and unusual punishment, and the Americans with Disabilities

Act. Having reviewed the pleadings concerning dismissal, having heard testimony and

argument this Court new acts.

I. Facts

The People have brought one charge arising from an alleged April 29, 2019

violation of DRMC ?38-86.2. Defendant was homeless when he was camping on

 

public property near 2?9til Street and Arkins Court near the North Platte River. When
the Police contacted the Defendant, he was given the option of going to a homeless
shelter. When Defendant refused, he was cited with the ordinance violation at issue.
Because Defendant voluntarily took down his camp after being ticketed, he was not
arrested.

DMC ?38?86.2 provides:

It shall be unlawful for any person to camp upon any private property without the express
written consent of the property owner or the owner's agent, and only in such locations where
camping may be conducted in accordance with any other applicable city law.

It shall be unlawful for any person to camp upon any public property except in any location
where camping has been expressly allowed by the officer or agency having the control,
management and supervision of the public property in question.

No law enforcement officer shall issue a citation, make an arrest or otherwise enforce this
section against any person unless:

(1) The of?cer orally requests or orders the person to refrain from the alleged violation of this
section and, if the person fails to comply after receiving the oral request or order, the officer
tenders a written request or order to the person warning that if the person fails to comply the
person may be cited or arrested for a violation of this section; and

(2) The of?cer attempts to ascertain whether the person is in need of medical or human
services assistance, including, but not limited, to mental health treatment, drug or alcohol
rehabilitation, or homeless services assistance. If the o?icer determines that the person may be
in need of medical or human services assistance, the of?cer shall make reasonable efforts to
contact and obtain the assistance of a designated human service outreach worker, who in turn
shall assess the needs of the person and, if warranted, direct the person to an appropriate
provider of medical or human services assistance in lieu of the person being cited or arrested
for a violation of this section. If the of?cer is unable to obtain the assistance of a human
services outreach worker, if the human services outreach worker determines that the person is
not in need of medical or human services assistance, or if the person refuses to cooperate with
the direction of the human services outreach worker, the of?cer may proceed to cite or arrest
the person for a violation of this section so long as the warnings required by paragraph (1) of
this subsection have been previously given.

For purposes of this section:

"Camp" means to reside or dwell temporarily in a place, with shelter. The term "shelter?
includes, without limitation, any tent, tarpaulin, lean-to, sleeping bag, bedroll, blankets, or any
form of cover or protection from the elements other than clothing. The term "reside or dwell?
includes, without limitation, conducting such activities as eating, sleeping, or the storage of
personal possessions.

(2) "Designated human service outreach worker" shall mean any person designated in writing
by the manager of the Denver Department of Human Services to assist law enforcement
officers as provided in subsection regardless of whether the person is an employee of the
department of human services.

(3) "Public property" means, by way of illustration, any street, alley, sidewalk, pedestrian or
transit mall, bike path, greenway, or any other structure or area encompassed within the public
right-of-way; any park, parkway, mountain park, or other recreation facility; or any other
grounds, buildings, or other facilities owned or leased by the city or by any other public owner,
regardless of whether such public property is vacant or occupied and actively used for any

public purpose.
ll- Constitutional Challenges

Ordinances are presumed to be constitutionally valid. See People v.
Schoondermark, 699 P. 2d 4] I, 4L5 (Colo. 1' 985). Colorado?s Supreme Court has held
that ?declaring a statute unconstitutional is one of the gravest duties impressed upon the
courts. To declare an act of the legislature unconstitutional is always a delicate duty, and
one which courts do not feel authorized to perform, unless the con?ict between the law
and constitution is clear and unmistakable.? Greenwood Viitage v. Petitioners for
Proposed City of Centennial, 3 P. 30' 42 7, 440 (Colo. 2000). The party challenging the
constitutionality of the Ordinance must prove beyond a reasonable doubt that the
ordinance is unconstitutional. People v. Gomez, 843 P. 2d 1321, [322 (Colo, i 993).

Defendant raises, primarily, a facial challenge to the constitutionality of DRMC ?38?86.2.
A statute is facially unconstitutional only if no conceivable set of circumstances exists under
which it may be applied in a constitutionally permissible manner. Reno v. Flores, 5 07 U.S. 292,
113 S. Ct. 1439, 123 L.Ed.2d i (1993) and People v. Ford 232, P.3d 260, 263 (Colo. App.
2009). To invalidate a statute, it must be suf?ciently in?rm so that no limiting construction
consistent with the legislature?s intent will preserve its constitutionality. People v. Hicbnon, 988
P201628, 634 (Colo. 1999) (citing Whirnbush v. People, 869 P. 2d 1245, 1248 (Colo. 1994)).

Fourteenth Amendment Equal Protection
Conceding that DRMC 38?862 is neutral on its face, Defendant argues that the
DRMC ?38-8&2 violates the Fourteenth Amendment of the United States Constitution

because its purpose is to harm a politically unpopular group. Defendant argues that

Denver is engaging in selective enforcement which has resulted in the subjugation and

removal of homeless individuals from Denver.

Equal protection under the U.S. and Colorado Constitutions requires equal
treatment of persons similarly situated. (Cfeburne v. Cleburnc Living Center, Inc. (1985)
423 US. 432. 439,871..Ed.2d313. 320, .105 S. 3249. Even when a law is
nondiscriminatory on its face. equal protection is violated if the law?s purpose is to
discriminate against a particular group. See, US. Dept. ongricuitm-e v. Moreno, 413 US.
528, 53 4535 the constitutional conception of ?equal protection of the laws?
means anything, it must at the very least mean that a bare desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.? Id.; Joyce v. City 
Cty. of S.F., 846 F. Supp. 343, 858 (ND. Cal. 1994) (?nding that ?a neutral law found to
have a disproportionately adverse effect upon a minority classi?cation will be deemed
unconstitutional only if that impact can be traced to a discriminatory purpose?) At least
one District Court has held that a complaint alleging selective enforcement of ordinances
against the homeless states an equal protection claim. See Ashbaucher v. City of Amara,
No. (NM, 2010 US. Dist. LEXIS 126621 ?47-50 (ND. Cal. Aug. 19,
201 0).

The People argue that this Court should apply the ?rationally relate ?test. A
party asserting a violation of equal protection ?inust ?rst demonstrate that a ?indamental
interest or suspect class is involved.? Lujon v. Colorado State Rd. (HEducn, 649 P.2d
1005-16 (Colo. 1982) (internal citations omitted). If ?no fundamental right, suspect
classi?cation, or gender classi?cation is involved [a court] will only inquire whether the
state action is rationally related to a legitimate state purpose.? 1d. at 1016. ?Under this
test, ?a statutory classi?cation is presumed constitutional and does not violate equal
protection unless it is proven beyond a reasonable doubt that the classi?cation does not
bear a rational relatiOnship to a legitimate legislative purpose.? Colorado Ins. Guar.
Ass 2016 COA 64 1  21 (quoting Pace Membership Warehouse, Div. of K?Mart Corp.
v. Axelson, 938 P.2d 504, 506 (Coir). 

Defendant, on the other hand. argues the ?strict scrutiny? test is appropriate. For

a court to apply strict scrutiny, the legislature must either have passed a law that infringes
upon a fundamental right or involves a suSpect classi?cation. Suspect classi?cation
refers to a class of individuals that have been historically subject to discrimination.
Under Equal Protection, when a statute discriminates against an individual based en

a suspect classi?cation, that statute will be subject to either strict scrutiny or intermediate
scrutiny. There are four generally agreed-upon suspect classi?cations: race, religion,

national origin, and alienage. However, this is not an inclusive list.

In determining whether someone deserves to be considered within a suspect classi?cation, a
court will look at whether the person is a "discrete and insular minority." See, United States v.
Carolene Products Co, 3 04 US. I44, 15 2 {1938). In determining whether someone is a discrete
and insular minority (and thus the person?s claim deserves strict scrutiny), courts will look at a
variety of factors, including whether the person belongs to a class historically Subjected to
discrimination, whether the person belongs to a class that has an inherent trait, whether the person?s
class has a trait that is highly visible, whether the person is part of a class which has been
disadvantaged historically, and whether the person is part of a group that has historically lacked
effective representation in the political process. See, United States v. Windsor, 699 F.3d 169, I81
(2d Cir. 201 2), q??d I33 8. Ct. 2675 (2013).

Based on the testimony heard, this Court ?nds that the homeless have historically been
subjected to discrimination, that the homeless have a transitory trait that is highly visible, that given
their lack of income and lack of a permanent shelter they have been disadvantaged historically. A
signi?cant barrier to their participation in the political process is that few are registered to vote.

See transcript of October 18, 2019 hearing at page 177. On the other hand, this Court (given the
testimony given at hearing) cannot ?nd that the homeless lack effective rcpresentation in the
political process. An ordinance was recently on the ballot to address the ef?cacy of the ?camping
ban? and City Council had members who vehemently opposed the passage of DRMC 38-86. 2.
Accordingly, this Court will apply the ?rationally related? test.

This Court 1? inds that 38-86. 2, as conceded by Defendant, is neutral on its face.
This Court finds that it is not based upon race, ethnicity, or on an unjusti?able arbitrary
classi?cation. This Court ?nds that under the Ordinance people are given a warning and the

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opportunity to seek resources before being ticketed. Concerning the resources offered in the matter

at hand Defendant received an offer to be taken to a shelter.

Concerning selective enforcement, based on the testimony heard at hearing, this Court finds
that since 20] l, thirty-one citations have been issued for violating DRMC ?38?86.2. Of those thirty
were written to people who were homeless. See transcript of October 18, 2019 hearing, page 38.
Of those arrested. this Court ?nds that all were homeless. ?The conscious exercise of selectivity in
the enforcement of laws is not in itself a constitutional violation." People v. Mac-farmed 540 P.2d
1023, 1025 (Colo. I 925). ?Equal protection is not denied absent a showing that a prosecutor has
exercised a policy of selectivity based upon an unjusti?able standard such as race, religion or any
other arbitrary classi?cation.? Id A ?defendant must show the selective prosecution had a
discriminatory effect and was motivated by a discriminatory purpose.? People v. urz, 84? P. 2d
194, I97 (Colo. App. 1992). The fact that some people escape prosecution under a statute is not a
denial of equal protection unless selective enforcement of the statute is intentional or purposeful.?
May v. People, 636 P.2d 6?2, 681.82 (Colo- ?On the few occasions where [courts have
struck down a policy as illegitimate under rational basis scrutiny], a common thread has been that
the laws at issue lack any purpose other than a ?bare desire to harm a politically unpopular
group-? Trump v. Hawaii. I38 S. Ct. 2392, 2420 (2018). Given the testimony heard at hearing this
Court is unable to ?nd animus on the part of Denver. Defendant?s motion to dismiss is denied.

1V. Fourteenth Amendment Due Process

Defendant argues that DRMC ?38?86.2 violates his right to travel, his right to bodily

integrity and his right to privacy in violation of the due process clause.
Right to Travel

The Supreme Court has held that any statute directly penalizing the exercise of the
right to travel from state to state should be invalidated if it does not pass a heightened
scrutiny satndard. Shapiro v. Thomson 394 US. 6H3, 634 (l969)(emphasis our own).
As of now the Supreme Court has not addressed whether the fundamental right to travel
includes intrastate movement. Defendant cites Pottinger v. ity of Miami. 810 F. Supp.
1551, 1554 (S. D. Fla. 1992), which found that the City of Miami had a ?custom, practice

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and policy of arresting, harassing and otherwise interfering with homeless people for
engaging in basic activities of daily life . .. in public places where they are forced to live.?
Defendant argues that Denver, like Miami, practices criminalizes homeless
individual's engagement in the most basic of life?s functions: eating, sleeping and
possessing property. The Po?inger court considered Miami?s lack of commitment to
ending poverty and homelessness as a factor in adj udicating the constitutionality of its
laws. Id at 1564-65. Based on the testimony heard at hearing, this Court ?nds that,
unlike Miami in Pottinger, Denver has not had a custom, practice and policy of arresting,
harassing and otherwise interfering with homeless people for engaging in basic activities
of daily life and that Denver has implemented programs to end homelessness. See
transcript of October 29, 2019 hearing at pages 3-7. There is also no Supreme Court
precedent concerning whether the fundamental right to travel includes intrastate
movement. Accordingly dismissal based on an infringement of the right to travel is
denied.
Right to Bodily Integrity
Defendant argues that DRMC ?38-86.2 violates the right to bodily integrity by
placing the homeless in a known danger with deliberate indifference to their personal,
physical safety. The Fourteenth Amendment right to bodily integrity protects the ?right
to be free from unj usti?ed intrusions on personal security? and ?encompass[es]
freedom from bodily restraint and punishment.? Ingaham v. Wright, 430 US. 65], 673-
74 (1977). Defendant contends that Denver?s enforcement of DRMC 3738-862
af?rmatively places the homeless in a position of danger. Speci?cally Defendant argues
that the danger of not using blankets, tents and other items to shelter compromises health.
This court ?nds, after hearing testimony, that Defendant was not arrested and was
allowed to load his posessions on a ?at bed truck. Given this, Defendant's bodily
integrity was not compromised- Defendant?s motion to dismiss on this as-applied basis is
denied. Concerning Defendant?s facial challenge this Court did not hear enough direct
testimony to ?nd DRMC ?38~86 2 violates the right to bodily integrity.
Right to Privacy
The Supreme Court ?rst recognized, in szv. United States7),

that Fourth Amendment protection against unreasonable searches and siezures could
extrand beyond traditional concepts of privacy. ?What a person knowingly exposes to the
public, even in his own home or of?ce, is not a subject of Fourth Amendment protection.
But who! he seeks to preserve as private, even in an area accessible to the public, may be
constitutionally protected.? 1d. at 351 (emphasis added). In a cencuning opinion a two
part teet, which has since become the prevailing standard, was set forth. ?[T]here is a two
fold requirement, ?rst that a person have exhibited an actual (subjective) expectation of
privacy and, second, that the expectation be one that society is prepared to recognize as
reasonable. Thus a man?s home is, for most purposes, a place where he expects privacy,
but objects, activities, and statements that he exposes to the plain view of outsiders are
not protected because no intention to keep them to himself has been exhibited.? Id. at
361. The right to privacy in public places has been extended to dressing rooms and
bathroom stalls. See, Kroehler v. Scott, 391' F. Supp. 1114, 1'11? (ED. Pa. 19175) and
State v. McDaniel, 337 NEZJ I 73, I 76, I 178 (Ohio Ct. App. 1975)- Concerning the
homeless, a lack of legal rights to ocCupy public or private property has resulted in
courts? ?nding a lack or privacy. See, Amezquita v. Hernandez-Colon, 518 F.2d 8, 9 
1975); UnitedSmres v. Ruckman, 806 F.2d 1471, 1472 (10" Cir. 1986) and Peepte
v. Thomas, 45 Cal. Rptr. 2d 610, 61142 (1995). This Court agrees with the above

precedent and denies Defendant?s motion to dismiss-

V. Eighth Amendment

?The Eigth Amendment of the United States Constitution prohibits cruel and
unusual punishment and ?guarantees individuals the right not to be subjected to excessive
sanctions.? People v. Valles. 201?3 COA 84, 1] The Cruel and Unusual Punishments
Clause ?circumscribes the criminal process in three ways: First it limits the kinds of
punishment that can be imposed on those convicted of crimes; secood it prescribes
punishment grossly disproportionate to the severity of the crime; and third, it imposes
substantive limits on what can be made criminal and punished as such.? Ingraham v.
Wright 430 US. 651, 66 7 (I 977). Defendant cites Martin v. City of Boise, 902 F.3d
1031, 1048 Cir. 2018) which initially found ?the Eight Amendment prohibits the

imposition of criminal penalties for sitting, sleeping, or lying outside on public property

for homeless individuals who cannot obtain shelter." The Martin court subsequently
ruled .. our holding does not cover individuals who do have access to adequate
temporary shelter, whether because they have the means to pay for it or because it is
realistically available to them for free, but who choose not to use it." Martin v. City of
Boise, 920 F.3d 61 7 n. 8 (2019), for! denied 589 US. (2019}. The Martin court on the
other hand distinguised those individuals from the city?s homeless who could not access
those open beds. id. at 1046. Martin ruled that if a homeless individual is denied entry
to a shelter, then ?as a practical matter, no shelter is available.? 1d. at 1041- 1042. In the
matter at hand this Court heard testimony that there has been no shortage of homeless
shelters in Denver since January 1, 2013 and that the shelters operate well below capacity
on a basis. See transcript of October 29, 2019 hearing pages 11-13. On the
other hand this Court heard testimony that if every single homeless person in Denver
attempted to access shelter, they could not do so under the current infrastructm'e. See
transcript of October 29, 2019 hearing at pages 99-100 and Defendant?s hearing exhibits
(The Denver Camping Ban Report'), and H. this Court also heard testimony that
men with children, individuals with serious mental illness, persons banned from shelters,
unaccompanied homeless youth, individuals with pets, LGBT individuals, and same sex
partners have limited access to adequate shelter. This Court also heard testimony that
unless accompanied by a Denver Police Of?cer persons with swing shift jobs and other
persons who seek shelter alter curfew are also turned away because of shelter curfews.
See transcript of October ll, 20l9 hearing at pages 25-26, transcript of October 1, 2019
hearing at pages 102 - 103 and transcript of October 28, 2019 hearing at page 125.

Based on the foregoing, DRMC ?38?86.2 facially violates the Eighth Amendment
and article 20. long as there is no option of sleeping indoors, the government
cannot criminaljze indigent, homeless people for sleeping outdoors, on public property,
on the false premise they had a choice in the matter.? Martin, 90.2 F3d at 1048.
Defendant?s motion to dismiss is granted.

 

in Time Report.

VI. American with Disabilities Act

Title II of the Americans with Disabilities Act (ADA) provides no quali?ed
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the bene?ts of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.? 42 U.S.C. ?12132.
Title applies to police interactions with disabled individuals. These include ?arrests;
investigations potentially involving an arrest .. and violent confrotations not technically
involving an Gohier v. Enright, 186 F. 3d 6, I20 r12 Cir. 1999);
Gnrman Bar-itch, 1'52 F.3d 907, 913; Sheehan v. City and County ofSun Francisco1232 (9?1 Cir. 2014). This Court has heard no testimony or received evidence
that Defendant is disabled. Furthermore, this Court ?nds (based on testimony at heari ng)
that Defendant was not arrested and that his encounter with the Police was not a violent
confrontation. Defendant?s motion to dismiss on this as-applied basis is denied.
Concerning Defendant?s facial challenge this Court did not hear enough direct testimony
to ?nd the Camping Ban in violation of the ADA.

VII. Other

Defendant has also made argument as it relates to women, disabled homeless
individuals and homeless individuals with animals. Defendant?s motion to dismiss on
this its?applied basis is denied. Defendant does not ?t any of those categories.
Concerning Defendant?s facial challenge on these points this Court did hear testimony
such persons have limited access to adequate shelter. Even so, this Court did not hear

enough testimony, on its own, to find a basis to dismiss on those grounds alone.

Dated: December 27, 2019

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Jo

By the Court,

arajas,

Judge

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