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Is Durango denying civil rights to homeless?

Instead of citations, city issues warnings to homeless campers
Steve Barkley, code enforcement officer for the city of Durango, gathers information last week from Eric Mazock of Texas at his illegal campsite along the Animas River behind Walmart. Barkley informed Mazock, who had recently arrived in Durango, that he is not allowed to camp in the river corridor. Mazock got out of his hammock and began packing to leave the site.

The city of Durango outlawed camping on all city property earlier this year – a practice ruled unconstitutional by a federal appeals court when people have nowhere else to go.

In a legal workaround, the city says it allows “sheltering” in designated areas – meaning residents may sleep overnight in certain places. But the city has not yet designated a location where sheltering is allowed, despite having identified almost a dozen potential sites months ago. Each location has its problems, and city staff has used that as justification, in part, for not designating a place for people to sleep.

Instead, law and code enforcement officers issue warnings to homeless campers and ask them to move on without offering an alternative place for them to go. They don’t issue citations, saying that would be a violation of civil rights until a sheltering site can be identified.

“There’s nowhere for them to go,” said Kevin Hall, an assistant city manager spearheading issues related to homelessness. The decision about where people can sleep is one for the City Council, he said. The council met for the first time since elections in April to discuss a potential location Tuesday, but made no formal decisions.

The city’s camping/sheltering rules were drafted earlier this year, in part, to address a 9th U.S. Circuit Appeals Court opinion that found it unconstitutional to criminalize homelessness. Making it illegal for someone to sleep on public property when they have nowhere else to go is tantamount to cruel and unusual punishment, which is prohibited by the Eighth Amendment, the court found.

Since the city’s camping/sheltering ordinance was passed by the previous City Council, Durango park rangers and code enforcement officers have issued 50 written warnings for illegal camping telling people to abandon camp, according to an open records request submitted by The Durango Herald. Park rangers “tagged” at least 11 camps with violations and gave at least two verbal warnings in the past four months.

But issuing warnings and forcing residents to move with no other place to go is still a violation of civil liberties, according to the American Civil Liberties Union of Colorado. The nonprofit legal group has been watching Durango’s handling of the homeless situation and has written severalletters warning the city that it is in violation of federal law.

“Written warnings is still enforcement of the ban on people sleeping outdoors,” said Mark Silverstein, legal director of the Colorado ACLU. “It’s telling people they can’t do it under threat of prosecution. That’s still, in my mind, the enforcement that’s forbidden by the 9th Circuit Court of Appeals.”

Code Enforcement Officer Steve Barkley said issuing written warnings instead of citations is an attempt to keep campers out of the court system because it can cost them money and potential jail time that would force them to leave their belongings unguarded.

“We’re just trying to be as easy as possible on these folks,” he said.

‘Where can I sleep?’

City staff aren’t bothering people who sleep in open space, as long as they don’t violate other rules, Hall said. But if someone disturbs the earth, fells a tree or starts a fire, Hall said city staff members will move them along.

“If somebody is sleeping and they haven’t set up shop, we’re leaving them alone. They can do that from dusk to dawn,” Hall said. “But some of the citations ... people have set up shop long-term in the green turf and table parks, in places where it’s clearly not allowed.”

A popular camping spot near the Durango Tech Center called Hawk’s Nest has been the target of much law enforcement in recent months. La Plata County Sheriff Sean Smith, whose deputies have been enforcing no-camping rules near Hogsback, said a group of deputies went into the area last week and found 11 occupied camps and “several abandoned camps.”

Smith said his office has “never been able to mitigate neighborhood impacts or fire danger” posed near the Durango Tech Center. County commissioners don’t want people sleeping there, he said. Law enforcement tell people to move, but Smith said he doesn’t know what to tell his deputies to say when people ask: “Where can I sleep?”

Smith said he went to the La Plata County commissioners for an answer to the question, and county leaders suggested he direct them to open space near the Purple Cliffs. But the parcel identified happened to be city-owned property, and Hall, at a City Council study session organized to discuss the location, was quick to point out why the location wouldn’t work.

“The only thing good about this (property) is it’s not in my backyard,” City Councilor Dean Brookie joked at the meeting. Brookie could not be reached for comment.

The city of Durango identified 11 locations last year that might work as an overnight sheltering spot, but the former council abandoned plans to designate a location after closing a sanctioned area near Greenmount Cemetery.

“The city is not in the business of having a homeless shelter,” former Mayor Sweetie Marbury said at the time.

Steve Barkley, code enforcement officer for the city of Durango, takes photos and uses GPS to mark the location of an illegal campsite along the Animas River near the La Plata County Humane Society.

Officials have been telling people to abandon camp ever since, Barkley said. He’s spent one or two hours a day each week for the past four months “making contact with actual individuals at a camp, checking on potentials of camps, tagging camps, assisting park rangers with cleanup,” Barkley said.

So people move, bounced from one campsite to another in effort to abide by city rules or avoid contact with law enforcement. City and county officials said they’ve seen fewer people living without permanent residence camping in and around Durango. Some attribute the decline to an extended winter.

But homeless counts tell a different story.

The population

A survey of La Plata County homeless residents on a single day in January found 192 homeless people, with 110 of them living outdoors, according to a Colorado Coalition for the Homeless report. The last comparable survey done in 2017 found 35 people living outside.

Housing Solutions had significantly more help counting people this year than it has had in the past and that may have contributed to higher numbers than previous reports, said Brigid Korce, program development director for Housing Solutions at a meeting in May.

The homeless residents who are not living outside may be living in cars, shelters or other impermanent housing, like couch surfing or gathering money with friends to rent a hotel room.

Interviews with city and county officials – coupled with observations from the homeless and human service groups – suggest it may be impossible to know if the population is truly up, but it’s certainly more dispersed than it has been previously.

Barkley said he spends time addressing issues related to homelessness in “literally any open space or parks area.” He frequents open spaces near Walmart, an area just north of the walking bridge across the Animas River near the Powerhouse Science Center and a hillside along Roosa Avenue in west Durango.

Some people without permanent residence have hiked miles into the wilderness to set up camp, said Donna Mae Baukat, executive director of Community Compassion Outreach, a local nonprofit that helps individuals and families survive and exit homelessness.

Many campers don’t clean their camps and leave waste on city property, including human and dog feces that city workers have to bag and pack out, Barkley said.

Hall said it’s these activities, not the fact of sleeping, that city staff are trying to avoid when enforcing its camping ban.

“If someone is digging a hole, piling up trash, creating a nuisance with criminal activities, we have the ability to enforce those things,” Hall said. “We’ve taken a soft approach.”

Dispersion of the homeless into areas around town creates difficulty in understanding the population that is, in effect, out of sight and out of mind, Baukat said. Understanding the population, particularly their health needs, is crucial to addressing the problems associated with homelessness, she said.

A Eureka, California, grand jury earlier this year found “dispersing homeless encampments creates roadblocks to providing services by making it more difficult to reach the people in need of them.”

The cost

Parks and Recreation Director Cathy Metz said 11 part-time park rangers in the past four months have spent half of their time each week addressing issues related to homelessness. They’re picking up trash left behind in camps, rehabilitating parks and open space from the impacts of people living where they shouldn’t and working with police and code enforcement when they find an occupied camp, she said.

Rangers otherwise spend time patrolling the Animas River Trail and open space around town – looking for common violations like dogs off leash, public alcohol or cannabis consumption or educating people about how to best interact with the natural spaces the city maintains, Metz said. If they find the time, they’ll patrol city open space and trail networks to direct people to the right path.

A watermelon left at an illegal campsite along the Animas River near the La Plata County Humane Society can attract wildlife.

But, instead, park rangers have been spending a good part of their time in Overend Mountain Park, in the Hawk’s Nest area near the Durango Tech Center, around the Horse Gulch open space, along the Animas River Trail, behind Walmart and in Schneider Park addressing issues related to homelessness, Metz said.

“We are observing these areas because we’re out in the entire system and these are the areas we’re finding most activity,” she said.

Barkley said he’s spent about 10% of his time since the city’s camping/sheltering ordinance went into effect addressing issues related to homelessness. Code enforcement has two officers, and Barkley is the only one working full time.

He could spend time addressing “a little bit of everything.”

“There’s always plenty to do,” he said.

City Council budgeted $109,772 in regular salaries, not including overtime, for Code Enforcement in 2019. If the division keeps spending about 10% of its time addressing homelessness for the rest of the year, that amounts to about $11,000 worth of time spent telling people to move or clean up their trash.

Steve Barkley, code enforcement officer for the city of Durango, crawls through vegetation looking for illegal campsites along the Animas River near the La Plata County Humane Society.

“I wouldn’t say it’s detracting, it’s just part of my job,” Barkley said. “I just take care of it like any other service call. ... It’s part of the daily routine.”

Durango Police Department declined to give an estimate of resources spent addressing homeless-related issues.

But the department does get calls about people trespassing at night on private, public or restricted property, said Cmdr. Jacob Dunlop. The Durango post office this winter had people sleeping in its lobby almost every night of the week – activity that police had to handle.

“We do routinely respond to various private properties throughout the city,” Dunlop said. “I’m not saying that is highly frequent, but we do respond to requests from property owners or managers who locate people establishing themselves on private property against property owners’ wishes.

“That has occurred in privately owned residences up to (Durango School District) 9-R property or other governmental properties,” he said. “We will respond; we don’t often actively go out and seek opportunities to address that unless we’re receiving repeated complaints.”

A difficult issue

It’s unlikely Durango City Council or city staff will solve homelessness, but Barbara Noseworthy, a city councilor elected in April, said the city needs to do what it can to manage the situation. The City Council has a duty to designate a location for homeless residents to sleep, she said.

She was optimistic the council could come to a consensus on that issue Tuesday at a study session. But three of the five city councilors said it would be appropriate to wait until a commissioned report on how to address homelessness is finished in November. The city of Durango and La Plata County paid the Athena Group $70,000 to do the study.

Noseworthy said it makes sense to move forward with identifying a location, even if it’s ranking spots to find “what’s the least bad option.”

Councilor Chris Bettin, who voted to approve the ordinance that effectively prohibits camping, said he understood the camping/sheltering rules were intended to provide clarity to people sleeping outside and the residents affected by public camping issues. The city is seeing less conflict this year with the homeless, he said, but that information is anecdotal and may be attributed to a number of factors.

A notice placed a few days earlier at the site of an illegal campsite along the Animas River near the La Plata County Humane Society. The illegal camper left the site and his garbage.

“I think we have the right in our community to communicate the laws and they’re doing the right thing by not writing tickets,” Bettin said of city staff.

Mayor Melissa Youssef said she understands the camping/sheltering ordinance to mean “that we do not allow permanent structures to be put in place within city limits that are not in accordance with our land-use policies ...,” she wrote in an email statement.

“I think it is important to note that we are working to support Housing Solutions who has recently applied for a grant for Permanent Supportive Housing up on our social services campus next to the Hilltop House,” Youssef said. “It is this type of long-term housing solution, with access to services and mental health support, that we hope to provide in our community to address homelessness at the core of the issue.”

What could work?

Chris Zeller, a Durango native and former historic preservationist, has been homeless for three years. Zeller is a board member for Community Compassion Outreach.

He said the site near Purple Cliffs identified by the Sheriff’s Office has potential in his mind as an area for homeless campers to stay. It isn’t near other residential neighborhoods, reducing the chance of nuisance to city residents.

Smith said the temporary location for the homeless to legally sleep near the Purple Cliffs would meet constitutional standards.

Steve Barkley, code enforcement officer for the city of Durango, looks at a battery on Wednesday that was left behind at an illegal campsite along the Animas River near the La Plata County Humane Society. Durango Parks and Recreation rangers will clean campsite by disposing of the items left behind.

“If a fire did happen (at the Purple Cliffs site), there are not values of risk in terms of houses and people, no neighborhoods they’re transitioning through,” Smith said.

If a formal area was set up for homeless residents to camp, Zeller would like to see some basic rules enforced such as no weapons, no fighting and no unattended children. He would also like segregated spaces for men, women and families so campers feel safe.

“I love Durango and I want to help the homeless,” Zeller said.

Zeller also sees the need for a warm shelter in the winter. He once saw a homeless man get frostbite on his feet that resulted in partial amputation.

“We need a place to go where we are not freezing to death,” he said.

City councilors and staff said designating an area for the homeless to sleep comes with its own set of problems, like conflict between individuals, severe impact to neighborhoods and the need for resources to keep sites safe. Law enforcement have managed locations in the past, but city staff is adamant that police should not be directly involved – staff members already have enough to do.

“The bottom line on all of this is the camping issue is a symptom of other issues, mental health, physical problems, low wages and high cost of housing,” Hall said. “If we can deal with root causes, you will have far less people without shelter. They just don’t have the resources to do more.”

bhauff@durangoherald.com and mshinn@durangoherald.com

This story has been updated to correct the number of homeless residents counted in a survey in January and what geographical area those people were living.

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