Judge hears arguments in lawsuit over homeless camp ballot measure

11.1D Court hearing

Several tents used by the homeless sit along a berm at the corner of 10th Avenue and Corona Street in the Capitol Hill neighborhood. (BusinessDen file)

Update (10:30 a.m. Nov. 1): Denver County District Court Judge Darryl F. Shockley ruled late Sunday night that the section of Initiative 303 that, if it passes, would require the city to respond to complaints of homeless encampments within 72 hours is unlawful.

The judge said that even if Initiative 303 passes, the section Denver city attorneys challenged cannot become law.

Shockley said the portion of the ballot question the city challenged “mandates enforcement action within a certain period of hours without regard to concerns involving the nature of the complaint or whether resources should be expended to address such a complaint.”

“Mandatory enforcement of the unauthorized camping ordinance based solely upon complaint impinges on the necessary discretion entrusted to law enforcement to ensure that suspects are afforded constitutional protections and the (ordinance) remains constitutional as applied,” the judge wrote.

Original story: A Denver County District Court judge heard arguments Friday over whether a portion of a measure on Tuesday’s ballot, Initiative 303, can become law if passed.

Judge Darryl F. Shockley initially said he would issue a ruling on Sunday, but no ruling had been issued as of 8 p.m.

The hearing was in response to a lawsuit the city of Denver filed in mid-October, asking a judge to nullify a portion of the ballot measure that would require Denver to respond to encampment complaints within 72 hours. The measure states that, if there is no response, the city could be sued by the person who filed the complaint.

Denver city attorneys argued that the ballot initiative would damage the city’s ability to respond to complaints and that enforcement officers need more time to assess complaints.

The section the city challenges “also mandates enforcement action without regard to the source of the complaint, whether there is probable cause for enforcement activity, whether there are health and safety concerns in the area, or whether resources should be expended to address such a complaint,” according to the lawsuit.

The author of the ballot measure is Denver GOP Chairman Garrett Flicker. His attorney, Suzanne Taheri, argued that the city should have raised the question sooner, noting the ballot measure language was certified months ago and people have already voted.

“Here we are arguing about something that is going to be decided in a few days … It is not right,” Taheri said.

Denver attorney Kristin Bronson said bringing the lawsuit before the election is over was appropriate because of its possible ramifications.

“I think it is really an important point to note that voters … do not realize this is an unlawful ordinance to begin with. I think it’s a bit of a bait and switch,” Bronson said.

In a proclamation passed Oct. 4, opposing Initiative 303, the Denver City Council noted unauthorized camping is already illegal in Denver and said the 72-hour requirement would go against a settlement the city entered into in connection with a federal lawsuit. That settlement requires the city to provide seven days’ notice of a “large-scale” homeless encampment cleanup.

On Friday, Taheri argued Initiative 303 offers a broad response, meaning it wouldn’t have to be police officers but just the city in general to respond to an encampment.

The first two sections of the initiative — which are not being contested in court by the city — ask voters whether or not to require the city to enforce its ban on unauthorized camping on private and public property. The second section also asks voters to limit the number of sanctioned homeless encampments, also called “safe outdoor spaces,” on public property to four.

Denver currently has two in operation at a church in Park Hill and at the Regis University campus, neither of which are on public property.

Flicker told BusinessDen last week that the reason the initiative would restrict the number of sanctioned campsites to four is because that’s all he thinks the city can manage at this time.

“The current (homeless) situation, they can barely manage,” Flicker said. “We’re making sure the unhoused population is treated with compassion and humanely. We want to make sure the city can do it responsibly, and four is a good number.”

Flicker also got another question on the ballot. Initiative 304 would cap Denver’s sales and use taxes to 4.5 percent across the board. The City Council also passed a proclamation in opposition to that.

11.1D Court hearing

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