Denver judge upholds ruling that directive banning drug users from parks is unconstitutional

DENVER – A Denver District Court judge on Wednesday upheld a county court ruling that found a directive issued last September, which allowed officers to cite and temporarily ban drug users caught using in city parks or on the Cherry Creek trail, was unconstitutional.

But the city says a new directive is in the works.

Judge William D. Robbins ruled that the city and county did not give Troy Holm due process after he was caught allegedly smoking marijuana at Commons Park last October 14.

He was among at least 23 people who were banned from city parks for 90 days in the month-and-a-half after the directive went into effect on Sept. 1, 2016.

Under the directive, Denver Police Department officers were allowed to bar entry to any city park and the Cherry Creek trail for up to 90 days if they were accused of using illegal drugs in a park or on a trail. The directive was in place from Sept. 1 to Feb. 26 of this year.

The directive went into effect after a series of overdoses in parks and along the trail. A subsequent cleanup netted more than 3,000 needles, according to the city.

There were set guidelines by which someone accused under the directive could appeal their suspension.

In Holm’s case, he was cited for using marijuana in a park, which was not part of the directive in the first place, according to a record in the case.

Three days after he was cited, another officer found Holm back at Commons Park, allegedly in violation of his suspension. He was charged with trespass after that incident, and filed a motion to dismiss all the charges in late December.

After replies to the motion from both parties, a county court judge in February dismissed the charges and ruled the city’s directive was unconstitutional because it violated Holm’s due process rights.

The city appealed the case to Denver District Court.

Attorneys for the city and county argued that the county court didn’t have jurisdiction to hear a challenge of the directive, saying that the Parks and Recreation Department was the department that would handle appeals.

But Judge Robbins wrote in his decision that the city’s own charter allows county courts to decide such matters, and he said that the process by which Holm and others could appeal “would deter all but the most insistent of appellants, and the time constraints imposed by the process make the process even more likely to be left incomplete.”

He said the directive’s suspension of Holm’s right to enter a public violated the Colorado Constitution, which allows people to enter parks as a “natural, essential and inalienable right.”

The Colorado Supreme Court has similarly said having access to public parks is a “fundamental” right, the judge wrote.

“The directive provides no guidelines for DPD’s enforcement of the directive, the suspension is enforced at the unilateral discretion of DPD, and there is no consideration of evidentiary requirements,” he added.

“Holm’s private interest and the substantial risk of erroneous deprivation outweigh the slight governmental interests asserted by Denver,” the judge continued. “Therefore, under the Matthews test, the directive constitutes a due process violation.”

Holm was represented by lawyers for the American Civil Liberties Union of Colorado.

“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.”

Silverstein added that city officials had planned to propose a final, permanent rule with similar provisions, and said he hopes that the city “abandon[s] its unconstitutional plan.”

Cyndi Karvaski with Denver Parks and Recreation confirmed the department had already started the process to modify the directive, and to “make adjustments to enact a permanent rule and regulation that allows suspensions in parks for drug related activity,” she said.

“We have committed to creating a Park Suspension Stakeholder Group to provide input on the policy and we are in the process of putting that group together now,” Karvaski added.