Editor’s note: Since publication of this column, the city of Durango has disputed some of the assertions herein. A review is underway and an update will be forthcoming.
Durangoans were outraged by the actions of ICE agents last fall – agents who operated in our community while masked and displaying no identification, detaining a father and his two children facing deportation. In response, a citizens’ group followed city rules and gathered 1,700 signatures authorizing a special election to set new policing standards. The ballot question would have asked voters to decide on a proposed city ordinance to prohibit all law enforcement from wearing masks and require that they display identification. The proposal might have won, or it might have lost.
But Durango city leaders decided the voters shouldn’t get to find out. They denied citizens the right to vote – and a district court judge provided cover with a ruling that doesn't hold up to scrutiny.
Here’s why that decision is a blow to Durango residents.
Councilors followed the advice of the city attorney, who advised the council to reject the proposal on the grounds that it was “administrative” in nature rather than “legislative” – and thus not eligible for a citizen vote. To help parse that distinction, the city paid $20,000 to Denver law firm Holland & Hart for an independent legal analysis.
Much of H&H’s five-page memo is dense legalese. But buried in plain language are statements that undercut the city attorney’s position. H&H wrote that application of the legislative/administrative distinction is “elusive” – hardly a ringing endorsement of the city’s legal footing. More directly, the memo stated that “the proposed Ordinance may be better characterized as legislative, rather than administrative.”
And from the memo’s final paragraph: “ … courts will interpret the scope of the people’s initiative power very broadly … existing authority leans slightly in favor of classifying the Proposed Ordinance as legislative.”
The city paid $20,000 for the outside opinion – and that opinion leaned against them. That memo was available to every council member before the vote. It’s worth asking why they used the city attorney’s interpretation to, effectively, put duct tape over voters’ mouths.
H&H also cited a 2013 Colorado Supreme Court case with striking parallels to ours. The memo quoted former Chief Justice Nathan B. Coats, who dissented from that ruling, warning that the majority’s reasoning was “little more than a license to judicially nullify popularly initiated measures at will.” That dissent should have given council members pause. Did they even read it?
The district court judge who reviewed the matter ruled for the city, but his reasoning is thin. After surveying case law, he concluded that because the city already had policies governing officer uniforms, the proposed ordinance amounted to little more than a request for cops to dress differently – and therefore “administrative.” That reasoning reduces a civil liberties question to a dress code dispute. Citizens who gathered 1,700 signatures deserve better than that.
What I haven’t mentioned until now: City staff members alarmed the council by warning that passing the ordinance could jeopardize transportation, airport and other federal funding. That money was even part of this conversation is shameful. It should not have been allowed to influence a question of fundamental democratic rights.
Other states have shown what courage looks like when federal pressure is on the line. New York Gov. Kathy Hochul recently announced a ban on law enforcement – including ICE – from wearing masks during ordinary operations, as part of a broader set of immigration protections. California and New Jersey passed similar bans. A federal judge struck down California’s law, ruling it unlawfully discriminated against federal officers – and the Trump administration will almost certainly challenge New York’s as well. These states knew the fight was coming. They moved forward anyway, because some questions are worth answering in public, on the record, at the ballot box.
Durango’s city leaders chose differently. They took the easy way out – canceling a vote that, for all we know, the citizens themselves might have rejected.
Durango, we have been silenced.
Joe Lewandowski is a 50-year resident of Colorado and a 21-year resident of Durango.
