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City of Durango dismisses citations against homeless protesters

Trespassing tickets were issued for challenging city’s camping ban
Mildred Sanders and Rick Bowhay talk earlier this year about being homeless in Durango. The city of Durango has dropped citations against eight homeless residents accused of trespassing for refusing to dismantle their tents at a temporary homeless camp.

Durango prosecutors have dismissed charges against eight homeless people who were cited with trespassing on public property during a protest they held Aug. 24 opposing the city’s camping ban.

The dismissal of charges comes after last month’s decision by the 9th U.S. Circuit Court of Appeals that found it unconstitutional to prosecute people for sleeping or resting on public property when there is no shelter available.

In emails to the city, the American Civil Liberties Union urged Durango officials to dismiss the trespassing citations issued to anyone after its homeless camp closed Aug. 24 near Greenmount Cemetery. The correspondence between the ACLU and the city began when the ACLU sent a letter to Durango city officials Aug. 24 urging the city to stop enforcing its camping ban. The emails were obtained by The Durango Herald through an open records request.

The emails show a brief exchange between City Attorney Dirk Nelson and ACLU staff attorney Rebecca Wallace about the city’s ordinance banning sleeping or camping on city property.

In one email, Nelson summarizes a phone conversation he had with Wallace, in which he assured the ACLU the city would not issue citations or take other measures against homeless people who camp out in city open spaces between sunset and sunrise if they do not have access to a shelter.

The city of Durango said last month it stopped issuing citations to people sleeping outside on public grounds, excluding parks and sidewalks. That decision came after the ACLU wrote a letter challenging the city’s position and the ruling from the 9th Circuit Court.

But Wallace was concerned the city rules weren’t defined well enough – for example, she asked what Nelson meant by “open space” in one of her emails. She also expressed concern that the city’s position on allowing people to camp at night in public spaces hadn’t been disseminated to law enforcement or the public in a timely manner.

“Even if it is true that, since the shut-down (of the Greenmount Cemetery camp), the city has been following an internal directive to cease issuing tickets in open spaces, no one knew of the city’s directive,” Wallace wrote in an email to Nelson. “The ACLU, people experiencing homelessness and their advocates were wholly unaware that there was a temporary moratorium.

“No one should be penalized for failing to follow the city’s new and temporary rules when the city did nothing to convey those new rules to the public,” Wallace wrote.

The eight individuals cited Aug. 24 by the Durango Police Department had been protesting a city ban against sleeping on public property after Durango closed a camp near Greenmount Cemetery. The eight people refused to take down their tents after sunrise. Each of them were cited for trespassing, two of whom were charged twice, records show.

All of those cases were dismissed Sept. 12, records show.

David Liberman, a city prosecutor, said the decision to dismiss the 10 charges was made because the city’s camping ban was temporary, as was the camp itself. By the time the homeless residents were to appear in court, it was “moot to pursue” the issue, he said.

“These are homeless people who, by and large, are on tough times, and it didn’t make sense to fine them or sentence them to community service because they had their hands full,” Liberman said. “It (the trespassing) was a one-time occurrence, and it can’t happen again.”

Durango defense attorney Brian Schowalter, who represented the eight residents experiencing homelessness pro bono, said it’s unconstitutional to criminalize sleeping outdoors when there are no alternatives – the same argument made by a three jurist panel for the 9th Circuit Court, which found that enforcement of sleeping bans without alternatives violates the Constitution’s ban on cruel and unusual punishment.

The citations were dismissed before the case went to trial, meaning Schowalter didn’t make his arguments before the court.

“I really do appreciate the homeless people who stood up for that issue,” Schowalter said. “It would be easy to say, ‘Whatever, I’ll leave.’ It’s good to see kind of everybody take a stand together.”

Richard Bowhay, a homeless man who has lived in Durango for about three years, said he and his partner, Mildred Sanders, stood in protest of the city’s decision to cite people for sleeping on public grounds because “it just wasn’t right.”

In an interview this week with the Herald, Bowhay said he hasn’t noticed the homeless community being “harassed” as it had been before the citations were dismissed. But he said that he still doesn’t feel like he’s part of the greater community. There’s a stigma against homeless people, he said, and it is something that’s made him feel ostracized in Durango.

Bowhay said he is willing to file a lawsuit against the city if it were to enforce rules against sleeping on public property when there are no alternatives.

“If there were a case with Mildred and my name on it, there would be no renumeration,” Bowhay said. “We don’t want money, we want decency.”

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