Denver Attempts to Ban People Deemed Nuisances

The City of Denver is working on banning people it considers nuisances from high traffic areas.  And does not appear there is much concern in the community about the practice.

Well, I have a big problem with the practice and I will argue the practice is facially unconstitutional.

The policy — little-known outside law enforcement and the courthouse — raises questions about the balance between public safety and civil rights, and the effectiveness of banning drug addicts, shoplifters and general troublemakers from one area of the city.” Reported the Denver Post.1 Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court. Removing undesirables from public “right-of-ways ” is a practice by used Denver Law Enforcement, sanctioned by the courts, and given the stamp of approval by the Denver Post Editorial Board.2 See Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool.

no nuisance

— Photo Credit – m.a.r.c., Flickr.

Apparently, the city is concerned about its image because banning “vagrants, ruffians and no-goodniks3 Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool. number one tourist attraction, 16th Street Mall (which is a public right-of-way),4 Michael Roberts, Denver’s Top 12 Tourist Attractions, Westword, available at: http://www.westword.com/news/photos-denvers-top-twelve-tourist-attractions-5880242. for no reasonable reason.

Are Ad Hoc Bans Arbitrary?

I have combed through the Denver Municipal Ordinances, and the cases named by those from the Denver Post as banned from 16th Street Mall.   I have not been able to find an ordinance or official policy of any sort of when people are banned from 16th Street Mall.

It appears Denver law enforcement is asking the court on a case-by-case basis to impose some sort of injunction/restraining order from the 16th Street Mall, instead of using the legal backing of a law.

As far as constitutional rights are concerned, there can be a difference whether an injunction or a law imposes the ban.  If a law imposes a ban, it is a legislative action regarding the promotion of social interests.  If an injunction is used, it is a judicial remedy mandating action or inaction. “[T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally.” Madsen v. Women’s Health Center, Inc., 512 US 753, 764 (1994) (quoting Railway Express Agency, Inc. v. New York, 336 US 106, 112 (1949)).  For laws to be just, they ought to be applied across the board.  Injunctions inherently are not applied across the board.

But, [i]njunctions, of course, have some advantages over generally applicable statutes in that they can be tailored by a trial judge to afford more precise relief than a statute where a violation of the law has already occurred.” Madsen v. Women’s Health Center, Inc., 512 US 753, 765 (1994).

I would argue that for an injunction to provide more precise relief than a statute, the judicially mandated relief must be substantially related to the unlawful conduct.  That does not appear to be the case with these area bans.

  • “Authorities do not track area restrictions or study their effectiveness,”5 Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court. so no one knows whether the bans whether it is working, how often it is used, or even if it is being abused. 
  • An area ban is not tailored to fit the crimes.  The area ban is applied to perceived nuisances (scarring customers, shouting threats, throwing a chair at an officer, etc).6 Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court.   It is unclear to me how banning an individual from an area helps with any of these problems — seems like a poor man’s incarceration.
  • How is this even enforced?  It isn’t like people are carded before they enter 16th Street Mall.
Potential Time, Place and Manner Violation

As indicated above, there are constitutional concerns.  Perhaps the main constitutional concern is a potential First Amendment violation.  “[A]ny permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.”  Forsyth County v. Nationalist Movement, 505 US 123, 130 (1992).

The content of the message is clearly being targeted on a case-by-case basis with these area bans being suggested by the Denver City Attorney and the Denver Sheriff.  Anything they arbitrarily deem as a nuisance can receive a ban.

A content neutral time, place and manner restriction looks like the photo below.  The police moved everyone onto the public sidewalks, regardless of the content of their speech, and made the street safe for passage by President Barack Obama.

Proper time, place and manner restrictions.  Waiting for a presidential motorcade in Phoenix, Arizona.  Photo taken by AzCommonLaw.com
Proper time, place and manner restrictions. Crowd control before a presidential motorcade. Photo taken by AzCommonLaw.com

References   [ + ]

1, 5. Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court.
2. See Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool.
3. Denver Post Editorial Board, 16th Street Mall Ban is a Legitimate Tool, Denver Post, available at: http://www.denverpost.com/editorials/ci_27598284/16th-street-mall-ban-is-legitimate-tool.
4. Michael Roberts, Denver’s Top 12 Tourist Attractions, Westword, available at: http://www.westword.com/news/photos-denvers-top-twelve-tourist-attractions-5880242.
6. Jennifer Brown, Banned From 16th Street Mall: Dozens Ordered By Court To Stay Away, Denver Post, available at: http://www.denverpost.com/news/ci_27575680/banned-from-16th-street-dozens-ordered-by-court.

2 thoughts on “Denver Attempts to Ban People Deemed Nuisances

  1. Unfortunately, there is no constitutional consideration when it comes to enacting ordinances and statutes and codes. US citizens have few rights in the eyes of the government – they are “subject” to the laws – constitutional or not. Furthermore, anyone who doesn’t excerise their rights – has none. It is unlikely that some starving, homeless guy will engage the lawless government regarding his God-given rights protected by the Constitution. Sad but true.

    All of that to say that there is nothing that stops us from speaking on behalf of those powerless to speak for themselves.

  2. I agree with what your comments. Additionally, I find it sad the Denver Post Editorial Board accepts this practice that likely violates First Amendment rights. The Denver Post fights hard in court to protect its First Amendment rights. It is sad, it is so willing to let others same rights be trampled.

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