DENVER – The Denver District Court affirmed a lower court ruling finding Denver’s park exclusion directive unconstitutional because it denies fundamental due process rights.

In a decision filed Wednesday, the court upheld a complete dismissal of criminal 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 ACLU of Colorado Legal Director Mark Silverstein. “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. However, 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 came back to the park.

ACLU of Colorado filed a motion to dismiss on Holm’s behalf in December, challenging the constitutionality of the charges and the directive. In February, the County Court ruled the directive unconstitutional and dismissed the charges. The City then appealed to the District Court.

In Wednesday’s ruling, the court said that the use of public facilities such as parks is a “fundamental” right that can be outweighed only by “compelling governmental interests.” In this case, the court said, Denver abridged a “natural, essential and inalienable right” to be present in public spaces, without notice and an opportunity to be heard.

“Denver’s policy of banishing people from public places on the spot was an unconstitutional violation of Mr. Holm’s civil rights,” said ACLU of Colorado cooperating attorney Adam Frank, who represented Holm in court. “The ruling of the appeals court affirms that Denver cannot criminalize people’s daily existence and violate their rights with impunity.”

“The temporary park banishment directive expired in February,” Silverstein said. “Denver officials have said that they plan to propose a permanent rule with the same provisions. Hopefully, this ruling will persuade Denver to abandon its unconstitutional plan.”

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