Banning Homelessness in Colorado

It appears a sad new trend in Colorado is to create policies or laws, treating homelessness as a criminal condition.

A new report, “No Right to Rest: Criminalizing Homelessness in Colorado” which details the efforts cities and municipalities have gone to in an apparent attempt to discourage homeless people from coming to the area.  “No Right to Rest” (the full report can be seen below) is a collaboration between Tony Robinson, PHD and Allison Sickels of the University of Colorado at Denver and the local advocacy group Denver Homeless Out Loud.

The timing of the report coincides with the recent development the City of Denver uses potentially unconstitutional area bans against people it deems as nuisances.1 Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.

Denver City and County Building -- Photo Taken by CoCommonLaw
Denver City and County Building — Photo Taken by CoCommonLaw

The report surveyed 441 homeless individuals from across Colorado.  Questions in the survey touched on: interactions with police and private security, quality of life for homeless people, and the likelihood they would remain homeless.

Lack of Affordable Housing

In March 2015, the Denver Post stated apartment prices across the Denver Metro area are triple the national average.2 Aldo Svaldi, Apartment Dwellers in Metro Area Getting Priced Out, Pushed Out, Denver Post, available at: http://www.denverpost.com/business/ci_27709567/apartment-dwellers-metro-denver-getting-priced-out-pushed.   The article attributes the sky high prices to the population growing faster than the supply of housing.3 Aldo Svaldi, Apartment Dwellers in Metro Area Getting Priced Out, Pushed Out, Denver Post, available at: http://www.denverpost.com/business/ci_27709567/apartment-dwellers-metro-denver-getting-priced-out-pushed. About 4 percent of rental units in Denver are affordable to households making 30 percent or less of the area median income,” Ismael Guerrero, Executive Director of the Denver Housing Authority told the Denver Post.4 Aldo Svaldi, Apartment Dwellers in Metro Area Getting Priced Out, Pushed Out, Denver Post, available at: http://www.denverpost.com/business/ci_27709567/apartment-dwellers-metro-denver-getting-priced-out-pushed.

The lack of affordable housing is at least part of the issue of homelessness, according to the report. However, instead of addressing the problem, cities like Denver try to criminalize the behavior, according to the report.

I want to get them off of our Main Street, and the 16th
Street Mall is our Main Street…We have to stand up for our businesses downtown and our women and children who are afraid to go downtown. Are we supposed to just give in? — Denver Councilman Charlie Brown, as Denver’s 2012 camping ban was first being considered.5 Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 18; Jeremy P. Meyer, Denver May Puruse Law Cracking Down on Homeless on 16th Street Mall, Denver Post, available at: http://www.denverpost.com/breakingnews/ci_19160158.

Colorado Municipal Codes Discriminates Against Homelessness
Intentional discrimination is especially hard to prove when the government entity engaged in discrimination or targeting is careful to cover its tracks. Few municipalities today would admit that they are intentionally discriminating against the homeless.
Discrimination can and does happen when intent is not indicated through disparate impact.6 Joe Thomas, Theories of Discrimination, AzCommonlaw, available at: http://azcommonlaw.com/2014/03/theories-of-discrimination-law/. Disparate impact focuses on the effect of an action or policy.  The party claiming a disparate impact needs to establish that a facially neutral act or policy has an adverse effect in significant numbers.
This section does not intend to be an all encompassing view of municipal codes, in cities throughout Colorado.  It is rather a small sampling of laws meant to illustrate some of the current municipal codes that can and probably do disparately impact the homeless.
Denver’s Measures
  • Unauthorized Camping on Public or Private Property7 Denver Municipal Code § 28-86.2.
  • Unlawful to Sit or Lay in the Downtown Denver Business Improvement District8 Denver Municipal Code § 38.86.1 (stating “[i]t shall be unlawful for any person to knowingly sit or lie down in the Downtown Denver Business Improvement District upon the surface of any public right-of-way or upon any bedding, chair, stool, or any other object placed upon the surface of the public right-of-way between the hours of 7:00 a.m. and 9:00 p.m.“)
  • Area Restrictions (banning people from 16th Street Mall)9 Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.
  • Prohibition of Discriminatory Practices in Public Accommodations (does not include homeless) 10 Denver Municipal Code § 28-96 (stating it is prohibited to discriminate against “ race, color, religion, national origin, gender, age, sexual orientation, gender variance, marital status, military status or physical or mental disability of any individual“).

Boulder’s Measures

  • Camping or Lodging on Property Without Consent11 Boulder Municipal Code § 5-6-10.
  • Unlawful Conduct on Public Property (in part prohibiting “general nuisance[s]”)12 Boulder Municipal Code § 5-5-20.
  • Discrimination in Public Accommodations Prohibited (does not include homelessness) 13 Boulder Municipal Code § 12-1-4 (stating it is prohibited to discriminate against “race, creed, color, sex, sexual orientation, gender variance, genetic characteristics, marital status, religion, national origin, ancestry or mental or physical disability of such individual or such individual’s friends or associates”).
Reported Survey Results Among Colorado’s Homeless

There are some very interesting statistics in “No Right to Rest: Criminalizing Homelessness in Colorado” through the survey of Colorado’s homeless.  Here I will highlight some of the survey’s results.

  • 70% while sleeping in public reported being ticketed, arrested or harassed14 Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 12.
  • 64% while sitting on a sidewalk or street reported being ticketed arrested or harassed.15 Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 12.

These two were the most cited activities.  Loitering and panhandling received far fewer results.

  • 45% have been jailed because of a lack of income to pay bail or a ticket for a minor infraction.16 Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 12.

Colorado apparently allows debtor’s prisons to exist.17 Arthur Delaney, Debtors’ Prison: Jobless Woman Jailed For Unpaid Traffic Fines, Huffington Post, available at: http://www.huffingtonpost.com/2011/06/20/debtors-prison-jail-for-a_n_880321.html (noting the woman was from Westminster, Colorado).

  • 63% have been unable to access water because he/she was homeless.18 Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 12.

Read the report below and visit Denver Homeless Out Loud.  It is well worth your time.

 

References   [ + ]

1, 9. Joe Thomas, Denver Attempts to Ban People Deemed Nuisances, available at: http://cocommonlaw.com/2015/04/denver-attempts-ban-people-deemed-nuisances/.
2, 3, 4. Aldo Svaldi, Apartment Dwellers in Metro Area Getting Priced Out, Pushed Out, Denver Post, available at: http://www.denverpost.com/business/ci_27709567/apartment-dwellers-metro-denver-getting-priced-out-pushed.
5. Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 18; Jeremy P. Meyer, Denver May Puruse Law Cracking Down on Homeless on 16th Street Mall, Denver Post, available at: http://www.denverpost.com/breakingnews/ci_19160158.
6. Joe Thomas, Theories of Discrimination, AzCommonlaw, available at: http://azcommonlaw.com/2014/03/theories-of-discrimination-law/.
7. Denver Municipal Code § 28-86.2.
8. Denver Municipal Code § 38.86.1 (stating “[i]t shall be unlawful for any person to knowingly sit or lie down in the Downtown Denver Business Improvement District upon the surface of any public right-of-way or upon any bedding, chair, stool, or any other object placed upon the surface of the public right-of-way between the hours of 7:00 a.m. and 9:00 p.m.“)
10. Denver Municipal Code § 28-96 (stating it is prohibited to discriminate against “ race, color, religion, national origin, gender, age, sexual orientation, gender variance, marital status, military status or physical or mental disability of any individual“).
11. Boulder Municipal Code § 5-6-10.
12. Boulder Municipal Code § 5-5-20.
13. Boulder Municipal Code § 12-1-4 (stating it is prohibited to discriminate against “race, creed, color, sex, sexual orientation, gender variance, genetic characteristics, marital status, religion, national origin, ancestry or mental or physical disability of such individual or such individual’s friends or associates”).
14, 15, 16, 18. Tony Robinson and Allison Sickels, No Right to Rest: Criminalizing Homelessness in Colorado, at 12.
17. Arthur Delaney, Debtors’ Prison: Jobless Woman Jailed For Unpaid Traffic Fines, Huffington Post, available at: http://www.huffingtonpost.com/2011/06/20/debtors-prison-jail-for-a_n_880321.html (noting the woman was from Westminster, Colorado).

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