A Denver County Court judge ruled on Friday that Denver’s ordinance banning urban camping violates the Eighth Amendment.
In his opinion, Judge Johnny C. Barajas wrote that the ordinance specifically violates the Cruel and Unusual Punishments Clause, which “imposes substantive limits on what can be made criminal and punished as such.” The court cited a recent decision from the Ninth Circuit, Martin v. City of Boise, which states that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”
While the Martin court limited its holding to individuals who were not able to access shelter, Barajas expands the ruling by stating that the decision is based on whether, as a practical matter, shelter was available. In this case, there was testimony stating that individuals were turned away from homeless shelters due to a lack of beds to accommodate Denver’s homeless population and due to curfew rules.
Although Barajas granted a motion to dismiss based on the Eighth Amendment, the decision denied other dismissals based on the Fourteenth Amendment’s Equal Protection and Due Process Clauses. The court rejected arguments that Denver was engaged in selective enforcement of the urban camping ban. Though thirty of the thirty-one citations written for urban camping since 2011 have been to homeless individuals, the motion was dismissed because “the conscious exercise of selectivity in the enforcement of laws is not in itself a constitutional violation.”
The Denver City Attorney’s Office stated on Friday that they “disagree with the ruling and plan to appeal to the District Court.”