The U.S. Supreme Court’s monumental decision in Grants Pass, Oregon v. Johnson that ruled municipalities can fine and jail homeless people for sleeping or camping in public spaces, even when they have nowhere else to go, has Durango’s homeless on edge.
The court’s majority opinion, written by Justice Neil Gorsuch, discarded a six-year-old precedent established by the U.S. Court of Appeals for the Ninth Circuit’s 2018 decision in Martin v. Boise that cities cannot enforce bans against sleeping or camping on public property if there are not adequate shelters or other alternatives in place.
The Ninth Circuit found camping bans on public property without alternative places for the unhoused to stay violate the U.S. Constitution’s Eighth Amendment clause outlawing cruel and unusual punishment. But the Supreme Court found the Ninth Circuit’s ruling was flawed.
Durango City Attorney Mark Morgan said the Supreme Court’s ruling “fundamentally changes the law” and how law enforcement can wield it.
But just because the ruling gives cities and law enforcement more leeway doesn’t mean every city will take it, he said.
Morgan said some communities deployed police to clear out homeless camps and arrest people camping in public spaces on Day One after the Supreme Court’s ruling on June 28.
“I don’t see that happening in Durango,” he said. “I think our approach is much more balanced.”
Still, uncertainty abounds in Durango. Antonio Espinoza, an advisory board member with Lived Experience, a community-formed group working on housing and food-access issues, said the Supreme Court’s ruling comes as no surprise. All the same, it stands to worsen the cyclical nature of homelessness, citations and jail time.
Kimberly, who declined to share her last name, is another Lived Experience advisory board member and has been in and out of homelessness. She and her daughters just scored a room at a shelter in town.
She said people have the perception that homelessness is a choice. But for many of the unhoused, that is not the case.
“I don’t choose to not have somewhere to lay my head with my children, and having the implication of possibly being incarcerated over it puts so much more stress in what we already do,” she said.
Brian Schowalter, a private defense attorney in Durango who has represented homeless residents in court free of charge, said “there’s no doubt” the Supreme Court’s decision takes power away from the people and gives it to the government.
He said the ruling allows the city to pursue illegal camping more aggressively than it already has.
While it lasted, the precedent established in Martin v. Boise was binding to states within the Ninth Circuit. Although Colorado resides in the 10th Circuit Court of Appeals’ jurisdiction, the precedent still carried weight across the nation and in Durango.
“This case isn’t going to change how we focus on crime,” Durango Police Chief Brice Current said.
He said a Denver-based judge previously cited Martin v. Boise’s conclusion that camping bans without alternatives is cruel and unusual punishment, and Durango Police Department based its enforcement on that decision.
“We’re going to continue to balance compassion and accountability,” he said. “… You have too much compassion, you have chaos. You have too much accountability, you have tyranny.”
He said over his tenure with DPD, he’s seen community organizations such as Manna soup kitchen, local shelters and more recently Community Compassion Outreach that were once disconnected from the city and each other come closer together in a collaborative effort.
Shelters inform DPD of available spaces twice daily by email. Officers check with local shelters for availability before enforcing camping restrictions, which requires time from officers and people running the shelters, Current said. But he could not recall a single instance where a homeless person took officers up on an offer for a shelter space to sleep.
He said just because the law allows officers to issue citations or make arrests doesn’t mean officers must do so. Consistency, balanced with treating every case individually based on its circumstances, is DPD’s approach.
“If you’re in a neighborhood and the neighborhood is completely sick and tired of it and they don’t feel safe … there may be a crime occurring,” he said. “And we’re able to look at those criminal events singularly and make those decisions.”
The Supreme Court upheld Grants Pass’ laws prohibiting the homeless from using blankets, cardboard boxes or other items while sleeping on public land. It also determined that the law applies to everyone, not just the homeless.
Some of the arguments and elements of the Supreme Court’s majority and dissenting opinions bear striking similarities to Durango’s conversation about homelessness.
One argument relevant to the Grants Pass case is whether camping bans should apply to someone who has “nowhere else to go,” yet has public land on which to sleep.
In Grants Pass, a charity-run shelter required residents to abstain from smoking and to attend religious services, according to the Supreme Court case.
DPD Code Enforcement Officer Steve Barkley said shelters often come with caveats that inhabitants must be sober or lack felony records. Some shelters simply won’t admit people who don’t meet those standards.
“That’s one of our difficult points to get past,” he said.
Espinoza, with Lived Experience, said shelters typically work for the first six months someone experiences homelessness. But no matter what, if a person remains homeless long enough, they’re going to catch charges, get convicted and possibly end up in jail or prison.
“You’re now ineligible for like 80% of the support things in any systems that are out there to try and help you get housing if you’re a felon,” he said. “… Anything that has restrictions because of legal priors – I think that’s absolutely heinous. That should not be a judgment factor.”
The American Civil Liberties Union had Durango in its sights last year for enforcing camping bans while lacking what the ACLU considers adequate shelter or alternatives to camping.
Annie Kurtz, an ACLU Colorado attorney who visited Durango last spring to survey the state of the unhoused community, said the city was vulnerable to a lawsuit because of its enforcement of camping bans without providing alternative shelter or places to go – the same argument addressed by the Ninth Circuit’s ruling in Martin v. Boise and slapped down by the Supreme Court.
“It’s essentially a directive to leave town. That’s not legal,” she said in April 2023.
Six of the nine justices on the Supreme Court, divided squarely along ideological lines, disagreed in June. The conservative majority held that enforcing camping bans on public property is not cruel and unusual punishment, even if there is nowhere else for the homeless to go.
But the ruling doesn’t say anything about how Colorado courts should interpret the Colorado Constitution, ACLU Colorado Legal Director Tim Macdonald said on Friday.
“The state courts interpret their own constitution, and ultimately, that will be a question for the Colorado courts to interpret,” he said.
He said Colorado courts ought to interpret the Colorado Constitution consistent with the state’s Western values. Using tents and sleeping outside has been a long-standing tradition in the state dating back to Indigenous populations, the Lewis and Clark Expedition of the early 1800s and mining camps of Colorado’s past.
Macdonald said the ACLU does not have pending legislation against the city of Durango at this time. But it is paying attention to community conversations and stands “ready to make sure that Durango complies with the state and federal law and federal constitutions.”
The Supreme Court decision has been described by Schowalter and others as allowing cities to “criminalize homelessness.”
In her dissenting opinion, Justice Sonia Sotomayor said the Supreme Court’s ruling leaves homeless residents across the country with just two choices: “Either stay awake or be arrested.”
Sotomayor also referenced a Grants Pass City Council meeting in which councilors discussed how to drive the homeless out of the city after attempts to buy bus passes for homeless people and drop homeless people off in other jurisdictions proved futile.
The Grants Pass City Council president is quoted in Sotomayor’s dissenting opinion saying, “(T)he point is to make it uncomfortable enough for (homeless people) in our city so they will want to move on down the road.”
Espinoza said people in positions of power aren’t ignorant to the cyclical reality of homelessness.
“It does have its cyclical negative implications for the impoverished,” he said. “They know it and they don’t care. And that’s the root of the problem.”
The court’s ruling confirms cities can impose fines and arrest people for violating public camping laws at their discretion, Schowalter said.
“They could just start arresting people, just start arresting and putting them in jail for, you know, trespassing, for camping, despite all the evidence that has shown that criminalizing homelessness does not solve the problem,” he said.
Schowalter said in a typical case he might take, his client is someone cited for sleeping or camping on public property.
“Police roll up on them at night, cite them for trespass,” he said. “They find me, we go to municipal court and let the prosecutor know we don’t want to plea bargain this. ‘We feel like this is unconstitutional.’ We set it for trial.”
He said the Supreme Court’s ruling that ticketing and arresting homeless campers despite a lack of adequate shelter not amounting to cruel and unusual punishment spoils one argument he often uses to defend his clients.
But that was just one of several ways to approach a case, he said.
For example, the Equal Protection Clause in the 14th Amendment, which requires the law to be applied equally to people in similar situations, is still a viable defense.
“I’ve still got the Fifth Amendment. I’ve still got the 14th Amendment,” he said.
cburney@durangoherald.com
