Based on a ruling from the 9th U.S. Circuit Court of Appeals that said prosecuting homeless people for sleeping on public property when there is no shelter available violates the Constitution’s ban on cruel and unusual punishment, the city of Durango, Colorado, at the request of the ACLU, has stopped issuing citations to people who camp overnight in public open spaces, excluding parks and sidewalks, city officials said, and as reported by the Durango Herald. The decision did not specifically address homeless RV dwellers, but it would appear that the decision would apply to them as well, so long as they followed city ordinances.
A panel of three judges for the 9th Circuit Court opined Sept. 4 that “a municipality cannot criminalize such behavior consistently with the Eighth Amendment when no sleeping space is practically available in any shelter.”
The ACLU sent a letter to Durango in late August urging the city to suspend enforcement of its camping ban after the city closed a temporary campground. The city approved opening a campground near the Durango Dog Park but later abandoned those plans.
The city reached an agreement with the ACLU earlier this month to stop enforcing its camping ban between dusk and dawn in public open space, as long as those who camp follow city ordinances protecting the safety, health and welfare of all residents, Assistant City Manager Amber Blake said. That includes bans against open flames, aggressive panhandling and keeping a shelter up during daylight hours.
City staff is looking at amending its rules banning camping on public grounds to make it more specific, Blake said. The city is also evaluating whether the 9th Circuit Court decision has any bearing on the way the city operates, she said.
While Durango is not in the 9th judicial circuit – Colorado is in the 10th judicial circuit – the ruling does have “persuasive authority” there, setting a precedent that can be used as case law in courts across the country, said Mark Silverstein, legal director with the ACLU of Colorado.
Blake said homeless people are welcome to participate in a public process that will occur once a revised ordinance is presented to the City Council.
