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Durango rules on homelessness ‘starting a battle’

City proposes rules to allow sheltering with consent from city manager
La Plata County Sheriff’s Office deputies went to campsites behind the Durango Tech Center on Wednesday to notify people who are camped that they must vacate the area before this weekend.

Durango is starting a battle – at least that’s how Donna Mae Baukat, co-founder and executive director of Community Compassion Outreach Inc., sees it. The city’s adversary: people without homes. Its weapons: semantics and policy.

The city proposed rules this week to allow people without anywhere else to sleep to shelter in city open spaces, excluding sidewalks and parks, but only with written consent from the city manager and between sunset and sunrise.

The proposed rules, which are intended to replace a moratorium on the city’s camping ban, make a distinction between sheltering and camping, outlawing the latter on any city property. Sheltering is allowed only if people have nowhere else to go and if they have received permission from the city manager.

“All I know is it’s really creating a battle,” Baukat said of the proposed rules. “Psychologically, this is a method of chasing people out of here, and it’s not going to work.”

Community Compassion Outreach is a nonprofit that helps people without homes survive and exit homelessness.

ACLU letter
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Amber Blake, spokeswoman for the city of Durango, did not return phone calls Thursday or Friday seeking comment.

The proposed rules come after the 9th Judicial Circuit Court ruled that criminalizing sleeping on public property when people have nowhere else to rest is unconstitutional. Making it illegal to sleep when there aren’t alternatives violates the Eighth Amendment’s provision against cruel and unusual punishment, the 9th Circuit Court said.

While Colorado is in the 10th Judicial Circuit, the 9th Circuit Court decision has persuasive authority nationwide, meaning it could be used as case law to determine the outcome of similar cases, but judges are not required to apply the rules when reaching a conclusion.

Mark Silverstein, legal director with the American Civil Liberties Union of Colorado, said he doesn’t think the city’s proposed rules meet the standards required by the 9th Circuit Court. Where are people who can’t sleep in a shelter supposed to rest, he asked, and on what standards does the city manager judge whether people have a place to sleep?

“It would be disappointing if the city is on a course to figure out what is absolutely the minimal amount it can do to avoid conflicting with the 9th Circuit Court,” Silverstein said. “The city should be thinking about the fact that these people are residents.”

Durango issued a moratorium on its ban against sleeping on public property soon after the 9th Circuit Court made its ruling and soon after the ACLU sent a pointed letter to the city warning it against prosecuting people for trespassing when they had nowhere else to go.

ACLU letter
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City Attorney Dirk Nelson said city staff issued the moratorium with intent to change the city’s code to accommodate the 9th Circuit Court decision. That moratorium, which allows people to sleep in open spaces, excluding parks and sidewalks, between sunrise and sunset, will remain in effect until formal rules are adopted.

Some homeless residents have said they may sue the city if they are cited with trespassing when they have nowhere else to go.

The La Plata County Sheriff’s Office is relying on the city’s moratorium to justify its decision this week to evict about 40 people from a hillside west of Durango. There are posted “no-camping” signs on the county property, a popular mountain biking area. Camping on the hillside has always been illegal, said Sheriff Sean Smith.

“We’re saying, ‘You’re in a no-camping area, there are other places available to you,’” Smith said.


ACLU letter (PDF)

Nonprofit response to city (PDF)

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