Two civil rights groups took issue Friday with the city of Durango’s proposed rules for camping in city limits in a tersely worded letter, saying the proposed rules violate federal laws.
The American Civil Liberties Union and the National Law Center on Homelessness and Poverty urged city councilors to abandon a proposed policy that would allow people without a home to shelter overnight on public land, but only with consent from the city manager and only between the hours of sunset and sunrise.
The ACLU and NLCHP said in an eight-page letter that Durango’s proposed rules violate the Eighth Amendment, which guarantees the right against cruel and unusual punishment; the 14th Amendment, which guarantees the right to due process; and the Americans with Disabilities Act, which prohibits discrimination based on disability. The proposed rules are “putting the city at risk of legal liability,” Trista Bauman, senior attorney with NLCHP, and Rebecca Wallace, staff attorney with the ACLU, wrote to the City Council.
Mayor Sweetie Marbury, who is named in the letter, said Friday afternoon that she had not seen the letter and declined to comment. City Councilor Dick White also declined to comment, saying he’d rather rely on advice from the city attorney.
City Attorney Dirk Nelson said the proposed code is going though a public process by which new rules on camping will be decided.
“This is going to go through the normal process, certainly nothing has been adopted at this point,” he said. “I can simply say I disagree (with the ACLU and NLCHP).”
The city’s proposed rules give the city manager, or an “other designated official,” the authority to determine if “adequate overnight sheltering” is available, according to the proposed code. If it is determined there is nowhere else to sleep, the city manager or another designated official may provide “written action” to allow people to sleep in public open spaces, excluding parks and sidewalks, and only between the hours of sunset and sunrise, the proposed code says.
“Authorizing areas where unhoused people can sleep overnight is (a) legally necessary step in the right direction, but it does not go far enough to address the problem facing Durango,” Bauman and Wallace wrote.
The ACLU and NLCHP argue that the city would be breaking federal rules if it adopted the proposed policy. The proposed city rules define “camping” versus “sheltering,” outlawing the former on all city property and permitting the latter with “written action” from the city manager or a designated official. But the ACLU and NLCHP say this rule is a facade for criminalizing homelessness.
“The city cannot circumvent this principle by nominally criminalizing the ‘act’ of sheltering oneself in public as a proxy for criminalizing the status of homelessness outright,” Bauman and Wallace wrote.
The proposed rules may also violate the right to due process, the ACLU and NLCHP said. Vesting the power to determine if “adequate overnight sheltering” is available in a city manager raises questions not addressed by the proposed policy, the nonprofits said:
What if someone isn’t allowed in a shelter because she or he has a pet, a partner or problems with addiction? What if the close quarters in a shelter exacerbate someone’s mental illness and he or she cannot stay there? How is an officer supposed to know if someone has access to “adequate overnight sheltering”? “The proposed amendments do not set forth any standards for evaluating the adequacy or availability of alternative shelter, leaving the city manager and law enforcement officials to make this determination on a daily or nightly basis while unhoused people must guess as to whether ‘sheltering’ in the city will subject them to being ticketed,” Bauman and Wallace wrote.
Requiring someone to take down their shelter and remove personal belongings every morning is onerous for people with disabilities, the lawyers said.
“Because homeless people with disabilities in Durango are less able to comply with the proposed camping restriction and are thus at greater risk of liability, enforcement of the ordinance raises serious questions about the city’s compliance with the Americans with Disabilities Act,” Bauman and Wallace wrote.
Durango residents want real solutions to homelessness, they said. Without sustainable solutions to homelessness, the issue will only get worse, Bauman and Wallace write.
“Durango deserves real solutions that will end outdoor camping and its associated risks to life, health and public space” Bauman and Wallace wrote. “The city should abandon its proposed camping rules that do nothing to address the root causes of homelessness while putting the city at risk of legal liability.”