DENVER – In a letter sent this morning, the ACLU of Colorado demanded that the Denver Parks Department stop enforcement of an unconstitutional and ineffective temporary directive authorizing police to banish people from city parks, without a hearing, conviction, or other due process, based on mere suspicion of illegal drug activity.

“Denver’s program of expelling persons from public parks is an end run around constitutional protections,” said ACLU of Colorado Legal Director Mark Silverstein. “Now that we have seen the program in operation, we also know that it has failed to target the dangerous and threatening behaviors that City officials cited to justify this drastic measure.”

The six-month program was initiated by the Parks Department without an ordinance or vote of the City Council on September 1, 2016. Although the temporary directive authorizing the program is set to expire at the end of February, the Parks Director stated it might then be adopted as a permanent rule.

The program gives police officers unilateral authority to ban persons suspected of “illegal drug activity” from city parks.  According to the directive, a person “need not be charged, tried or convicted of any crime, infraction, or administrative citation” for a suspension notice to be issued or effective. A ban lasts for 90 days and re-entry is punishable by up to a year in jail.

Denver officials justified the banishment program as necessary to combat what they characterized as a “huge epidemic of heroin use” and associated violent behavior in the parks, but an ACLU review of every suspension notice issued pursuant to the Directive shows that expulsions have primarily targeted persons experiencing homelessness who are suspected of simple consumption or possession of marijuana.

In fact, the majority of the 39 suspension notices have been for marijuana-related activities, while only 6 have been for suspected heroin use.  This despite a pledge in writing from the Denver City Attorney’s office to the ACLU that the “illegal drug activity” targeted by the program would not include marijuana.

The ACLU letter asserts that neither the Denver Charter nor Denver ordinances grant the Parks Department the legal authority to expel specific persons from public parks.  Even if the Department has such authority, the letter argues, banishment from public parks violates fundamental constitutional rights.  The ACLU also argues that expelling persons based on a police officer’s suspicion, without a hearing, violates due process.

Finally, the ACLU argues that the program “doesn’t come close to meeting the announced goal of expelling injection drug users or persons responsible for assaults and threatening behavior” and that “enforcement of the directive is consistent with a long line of efforts by the City to use aggressive policing to drive people experiencing homelessness – those who have nowhere else to go – out of public spaces in Denver.”

“These efforts are not only cruel, they are also ineffective.  For houseless park patrons, including those with drug addiction, banishment does absolutely nothing to address the underlying problem of homelessness or addiction.  Instead, banishment from a single City park simply shuffles people experiencing homelessness, and any drug use, from one public space to another.  Thus, enforcement of the Directive has trampled the fundamental rights of park goers to occupy public spaces without meaningfully advancing the City’s interest in increasing the safety and usability of its parks,” wrote Silverstein and ACLU of Colorado Staff Attorney Rebecca Wallace.

The ACLU is calling on Denver to immediately suspend enforcement of the directive, revoke any suspension notices currently in effect, and abandon any efforts to make the banishment program permanent in February.

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