DENVER – A county court judge ruled this morning that Denver’s park exclusion directive is unconstitutional because it denies fundamental rights to due process.  The court dismissed all charges against Troy Holm, an ACLU of Colorado client who faced a year in jail for entering a park after he was banned under the directive.

“By authorizing police to issue so-called suspension notices that immediately made it a crime to enter a public park, Denver attempted an end-run around the Constitution and the Bill of Rights,” said Mark Silverstein, ACLU Legal Director.  “The court’s ruling affirms a bedrock principle of due process: the government cannot take away our rights without first providing, at a minimum, notice of the accusation and a fair opportunity to defend against it.”

The temporary exclusion directive was initiated by the Parks Department without an ordinance or vote of the City Council on September 1, 2016.  It authorized police to summarily banish people from city parks without a hearing, conviction, or other due process, based on mere suspicion of illegal drug activity.  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.

Denver officials justified the directive 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 in the first five months of the directive revealed that expulsions primarily targeted persons experiencing homelessness who were suspected of simple consumption or possession of marijuana.  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.

On October 14, a police officer handed Troy Holm a suspension notice based on suspicion of marijuana use. Two days later, he was charged with a misdemeanor for violating the notice and for trespassing simply because he re-entered the same park.  The ACLU of Colorado filed a motion to dismiss on Holm’s behalf in December, challenging the constitutionality of the charges and the directive.

In siding with the ACLU of Colorado and dismissing the charges, the Court ruled today that, “As the park suspensions under Temporary Directive 2016-1 take effect immediately, within the pure unchecked discretion of any police officer on the scene, and with a complete lack of pre-deprivation Due Process, the suspensions violate procedural Due Process protections and are found unconstitutional for this reason.”

“As the court’s dismissal recognizes, Denver’s policy of banishing people from public places on the spot was an unconstitutional violation of Denver residents’ rights,” said ACLU of Colorado cooperating attorney Adam Frank, who represented Holm in court. “The judge’s order sends a strong message to the City of Denver that it cannot violate people’s rights with impunity.”

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