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.
Garrett Flicker, chairman of the Denver Republican Party, spearheaded the effort to get Initiative 303 on the ballot. He told BusinessDen Monday he was “disappointed” with the judge’s decision, but confident voters will approve the rest of his measure.
Flicker said he expects Initiative 303 to pass with more than 70 percent of the vote approving it, even without the portion that the judge struck down.
“When this ultimately passes, and we believe it will, we’re going to file an appeal,” Flicker said. “I’ve never seen a city work so hard so that they don’t have to do the work. That’s what’s disturbing to me in this situation. They’re willing to circumvent the will of the voters so they don’t have to be accountable to enforcing their own law.”
The first two sections of Initiative 303 ask voters whether 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 outdoor camping sites 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 public property.
Polls close at 7 p.m. Tuesday, and Flicker’s attorney Suzanne Taheri argued that the city’s lawsuit, filed just 18 days before the election, would affect the result of the vote.
“Here we are arguing about something that is going to be decided in a few days … It is not right,” Taheri said at the Friday hearing.
The section of the ballot initiative the city challenged also stated that if there is no response within 72 hours of a complaint, the city could be sued by the person who filed the complaint.
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 at the Friday hearing.
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.
Denver reached a settlement in January in a federal lawsuit, agreeing the city must post a notice seven days before it conducts a cleanup of a homeless encampment, even though a city ordinance prohibits unsanctioned camping.
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 the settlement.