The National Law Center on Homelessness & Poverty (“Law Center”) supports the Right to Survive because it is a necessary step toward ending homelessness through housing, not handcuffs.
Affordable housing is out of reach for Denver’s poorest residents, with only 26 units available for every 100 poor households in need. Subsidized housing is similarly unavailable, as Denver County’s wait lists for Section 8 vouchers and public housing are closed. While some of Denver’s homeless population is able to access and use emergency shelters, many are turned away due to overcrowding. As a result, a growing number of homeless people are forced to struggle for survival in outdoor public space.
Despite the lack of options available to its homeless residents, Denver prohibits homeless persons’ life-sustaining activities in public space. Indeed, the City of Denver earned a spot on the Law Center’s Hall of Shame in our 2016 national report on the criminalization of homelessness, “ Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities , ” for its aggressive enforcement of its anti-camping law through tickets, threats, and encampment sweeps. Between 2012 and 2016, some 6,789 individuals and families were made to dismantle their camps, even during Denver’s frigid winter months. Since that time, Denver has continued to unfairly punish homelessness through its criminalization policies and destruction of homeless persons’ outdoor homes.
Punitive approaches to homelessness are harmful to homeless individuals and families, but also to the general public. Laws punishing homelessness wholly fail to address the underlying causes of homelessness, such as the severe lack of affordable and available housing. Instead, these policies worsen the crisis by making homelessness harder to exit. Arrests, unaffordable tickets, and the collateral consequences of criminal convictions make it more difficult for people to get back on their feet.
Punitive approaches to homelessness are also expensive and waste limited public resources on ineffective strategies for addressing homelessness. A growing body of research comparing the cost of homelessness--including the cost of criminalization--with the cost of providing housing to homeless people shows that ending homelessness through housing is the most effective and affordable option. To its credit, Denver currently is pursuing supportive housing solutions to homelessness. But, its ongoing criminalization of homeless people directly undermines those efforts by interrupting housing service efforts and by destroying trust between unhoused people and government. With state and local budgets stretched thin, rational, cost-effective policies are needed – not ineffective measures that waste precious taxpayer dollars.
Political pressure to “do something” about visible homelessness, along with general ignorance about the causes of homelessness and deep-seated prejudices against homeless people, have contributed to Denver’s ineffective, expensive, and sometimes unconstitutional approach to homelessness. It is time for a change to the status quo and it’s time to stop enabling elected officials – in Denver and elsewhere—to pretend they’re solving the challenge of homelessness by criminalization. If officials cannot sweep homelessness under the rug, they will have to start proposing adequate resources for housing, shelter, services, and outreach. Constructive change to the status quo is what the Right to Survive offers. The Right to Survive initiative prohibits Denver from punishing homeless people for surviving in public space so that the City can redirect its efforts and spending on the real solution to homelessness: housing for homeless people.
Nobody should have to live on the street. People should live in housing, as is their human right. Ending punitive approaches to homelessness is a necessary step toward achieving the goal of housing every individual, family, and child in need. We support the Right to Survive initiative, and we urge Denver residents to do the same.
Question Presented: Are service providers and others at risk of liability for performing outreach, emergency, and other services to people engaged in the exercise of their rights under the Initiative?
Short Answer: No, unless such services are done to “harass, terrorize, threaten, or intimidate” a person exercising their rights secured by the ordinance. It is important to note that harassment, terrorism, and certain threats and acts of intimidation are already illegal under existing law.
Answer: Under Section (d)(2), it is unlawful under the Initiative, “for any public law enforcement officer, private security employee or agent, corporation, business or other entities to violate the rights recognized and secured by this law.” Service providers are not the type of entities that have an specified obligation under the Initiative to refrain from violating the Initiative’s rights because those rights are secured against entities such as government agents, security personnel, and corporations. Moreover, service providers would not be violating the rights secured under the Initiative (resting in public spaces in non-obstructive manner, resting in lawfully parked cars, right to eat and share food in public, and right to privacy and safety in public spaces) when performing outreach or emergency services unless they do so in a harassing, terrorizing, threatening, or intimidating manner, which are described below.
Under Section (d)(3) it is unlawful under the Initiative, “for an employee or agent of any government agency, corporation, business, or other entity to harass, terrorize, threaten, or intimidate any natural person exercising the rights secured by this ordinance.” Service providers assisting people who are resting in public spaces in a non-obstructive manner would not be violating the Initiative unless they were engaging in harassment, terrorism, threats, or intimidation. While these terms are not defined in the Initiative, they are unlawful as defined by the Colorado Criminal Code and Colorado appellate courts.
Under the Colorado Revised Statutes, harassment is unlawful if a person acts with an intent to harass, annoy, or alarm another person, by: “(a) Strikes, shoves, kicks, or otherwise touches a person or subjects him to physical contact; or (b) In a public place directs obscene language or makes an obscene gesture to or at another person; or (c) Follows a person in or about a public place; or (e) Directly or indirectly initiates communication with a person or directs language toward another person, anonymously or otherwise, by telephone, telephone network, data network, text message, instant message, computer, computer network, computer system, or other interactive electronic medium in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, computer system, or other interactive electronic medium that is obscene; or (f) Makes a telephone call or causes a telephone to ring repeatedly, whether or not a conversation ensues, with no purpose of legitimate conversation; or (g) Makes repeated communications at inconvenient hours that invade the privacy of another and interfere in the use and enjoyment of another's home or private residence or other private property; or (h) Repeatedly insults, taunts, challenges, or makes communications in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.” [1]
With regard to threats, the Colorado Supreme Court recognizes a “threat” as “a statement of purpose or intent to cause injury or harm to the person, property, or rights of another, by the commission of an unlawful act.” [2]
With regard to intimidation, the Colorado Revised Statutes makes “menacing” a crime if “if, by any threat or physical action, he knowingly places or attempts to place another person in fear of imminent serious bodily injury.” [3]
[1] Colo. Rev. Stat. § 18-9-111 (2018).
[2] Schott v. People , 174 Colo. 15, 18, 482 P.2d 101, 102 (1971).
[3] Colo. Rev. Stat. § 18-3-206 (2018).
To whom it may concern:
As former and current Homeless Outreach workers in the city of Denver, we feel it is important to shed light on our experiences working alongside our unsheltered and un-housed community members regarding the need for ordinance 300 initiative (Right to Survive). We feel it is especially important to speak up as many of our current and former co-workers wholeheartedly support initiative 300 but are fearful of being reprimanded, potentially losing their jobs, or their organizations which do such incredible work for our communities, possibly losing funding from the city.
While we have been frustrated by many of the arguments that have come out against the Right to Survive, we would like to focus on putting faces on the ways that the current camping ban is affecting our clients and our ability to do our jobs right now. As outreach workers, we are in the streets every day building relationships, providing resources and helping our community members into housing. We are not “moving people along”, threatening people, or anything even remotely close to the term harassment.Below are three stories, with names changed to protect the clients, about how the criminalization of homelessness and poverty in Denver is affecting the lives of our neighbors, our sisters, our brothers, our friends, our coworkers, our students, our family, and our community.
Bill and Sue had met outreach workers and obtained socks and other hygiene items multiple times, but had not begun any meaningful work on housing until Sue found out that she was 3 months pregnant. They had avoided shelters because they were not considered a family unit because our family shelters do not consider expecting couples a family until after a child is birthed.They wanted to remain together. Even though they were often camping in hidden areas along the Platte, they would often return from work to find that their camp had been swept or things had been stolen. They lost their ID’s in a sweep, and after that had trouble finding work. When they found out that Sue was pregnant they reached out to an outreach worker so they could start to work on housing. It took awhile to get an established working relationship because they didn’t have a phone and they kept getting moved out of the areas where they were camping. The outreach worker had a lot of trouble finding them. Finally they found a place where they pitched their tent and did not have to move for nearly a week. By this time Sue was 6 months pregnant, and they were feeling desperate. They quickly started to collect the documents needed to obtain an ID, but on the day they were supposed to go to the DMV, park rangers and police showed up and told Bill and Sue to move along. Instead of going to the DMV that day to obtain an ID, which is vital to both housing and employment, they spent the day moving their camp. While they had planned to look for housing with their new ID’s, they instead spent the next month going to court and completing community service. When Sue had her baby, the couple, now a family of three, were still homeless. Most family shelters have wait lists that are 6 months long. DHS only offers a family temporary shelter for 14 days a year. These resources exhausted and their name still not called for shelter, the family continued to be transient. Had the couple been able to remain in a stable place without worry of their things getting swept, had they not had to take care of the tickets they kept getting every time a park ranger or police office saw them camping, had they been able to get their IDs and apply for housing and employment, this couple may have had an apartment to take their newborn baby and enough stability for Bill to find employment.
Trina is an extremely motivated and gifted adolescent female, surviving on the streets of Denver. Trina has two major barriers when trying to access traditional shelters, she has been traumatized in these spaces before and has recently has acquired a companion dog. Her dog provides her with emotional support, keeps her safe when she is forced into unsafe spaces, gives her joy and is part of her family. Like other younger females on the streets of Denver, the options for rest and safety are non existent. Nightly, Trina has to decide if she is safest sleeping near her friends while risking get moved two to three times a night and getting tickets she cannot pay, simply not sleeping and walking around all night, or potentially having to make ar risky decision staying at a strangers house to keep herself and pup warm. Through the stresses of not having a safe space to sleep at night I have witnessed Trina’s mental and physical health deteriorate. The reality of being a female on the streets is frightening, selling sex for a place to sleep, hanging out with people you don't know or like to try and stay safe and risking sleeping in abandoned buildings and dark alleys to avoid predators and abuse. When we give humans and animals opportunities to cover themselves up with blankets, when we offer them safe alternative public spaces to sleep, we offer them a chance at building trust with the community and healing the trauma that they have been exposed to so early in their lives. Working alongside of Trina has proven to be extremely challenging , not because of her own motivation but because she is extremely sleep deprived, moved from spot to spot daily and considered a criminal by our city because her situation does not allow her to stay in our city shelters.
One chilly November evening around 5pm, I was finishing my outreach on the 16th street mall when I came across a young mother and her newborn daughter. The baby was born only two days prior. The mother looked exhausted and forlorn as she begged me for assistance, “Please, please take me anywhere. I’ll go anywhere to keep my baby out of this cold!” I quickly rattled off the very short list of family sheltering options, “have you tried calling so and so at blank? Did you call blank to get put on the waitlist? Have you used all your Human services family motel voucher opportunities?” She cried to me, “yes, yes, I’ve done it all. I have been paying people all day to let me use their cell phones to call the shelters. Everywhere is full! Won’t you please help us! Even the social worker at the hospital couldn’t get us in a shelter” I immediately called all the family shelters, spoke with all my “special” service provider connections, and nothing. She was right. Every shelter was full. So full that one shelter even closed their waitlist. I had one last magic card in my pocket to pull out: I called an official at Denver’s Road Home and told them about the dire situation. The official had no solutions to offer. The official remarked that because it was so late in the day, nothing could be done. They then directed me to call a Denver Human Services worker in charge of administering family emergency motel vouchers. I had already called that DHS worker and was told no voucher could be given. At the Official’s recommendation I called the DHS worker again; Perhaps the clout of a Denver’s Road Home official could get this mother and newborn into a warm safe space for the night. Upon pleading with the DHS worker, I was told again that no voucher would be administered. I was then directed by an employee of the City of Denver , to go back to my office, pull a tent from my outreach supplies, transport the mother and her newborn daughter to the river, help them set up the tent and show her how to “safely” sleep outside! When I called the Denver’s Road home official to report what I was directed to do by the City worker, I was met with shrugged shoulders and reminded that the city has insufficient resources to shelter our houseless family members. With no other options, I did as I was directed to do by the City of Denver. I returned to the tent the following day and was told by a neighbor that the mother was too afraid to sleep in the tent because it was too far down the river. It something were to happen no one would hear her cries for help. I never made contact with the new mother again.
These stories illustrate the ways in which members of our community are dehumanized, kept from receiving services and are hurt. Although we do not agree with those who oppose Initiative 300, we do agree with their slogan, “we can do better”. But before we can do better, we need to lift some of the oppressive policies that are further marginalizing people in our city. We recognize that passing Initiative 300 will not solve homelessness, but hopefully it can begin to bring people together to solve the issue rather than continuing to push people who are poor and unhoused out of our city and into places where they truly can’t access services, receive life-saving care, or begin to work on solving the problems that have kept them un-housed.
The criminalization of homelessness does not encourage people to seek services. It marginalizes people and keeps them away from the services that they need. Time and time again, as illustrated above, outreach workers have seen the ways that the criminalization of homelessness has kept people from moving into housing, obtaining employment, getting medical or mental health care, or just in general, feeling as though they have worth in society. Tickets and sweeps cost the city a lot of money that could be put in to housing and other sustainable solutions. We can do better. We can offer people basic human rights and dignity, and the first step is passing Initiative 300.
Sophia Lawson, former Homeless Outreach Worker
Together with two anonymous Homeless Outreach Workers
See our guest post in the Colorado Independent: https://www.coloradoindependent.com/2019/04/26/guest-post-denver-camping-ban-initiative-300/
"Our attorneys are taking a closer look at this complicated ruling to determine our best path forward. Options could include asking for a reconsideration by the entire Ninth Circuit panel or an appeal to the U.S. Supreme Court," wrote Mike Journee, a spokesman for Mayor Dave Bieter, in a statement. "That said, key portions of the ruling seem to support how we’ve approached this issue to date. Specifically, our officers do not cite people for camping when our local shelters have no space."
On Tuesday, the Ninth Circuit Appellate Court agreed with plaintiffs in Martin v. City of Boise, formerly known as Bell v. City of Boise, that the city violated plaintiffs' Eighth Amendment rights when it issued citations for sleeping or camping in public under its Camping and Disorderly Conduct Ordinances.
Boise's Camping and Disorderly Conduct Ordinances prohibit people from sleeping on public property, and in 2009, a collection of civil rights-oriented groups and attorneys filed suit on behalf of a number of homeless people who had received citations for violating them. The city has been embroiled in legal battles over the issue ever since.
In a 2015 flashpoint, U.S. Magistrate Judge Ronald Bush dismissed Bell v. City of Boise on the grounds that the plaintiffs had insufficient standing in the case. In his opinion, Bush wrote that there was "no known citation of a homeless individual under the Ordinances for camping or sleeping on public property on any night or morning when he or she was unable to secure shelter due to a lack of shelter capacity," though he added that in dismissing the case, he left the door open to future challenges of the ordinances on Eighth Amendment grounds.
The plaintiffs rejiggered their case under a new name, Martin v. City of Boise, to reflect their reinforced standing. The Ninth Circuit Appellate Court accepted their argument Sept. 4, and in its opinion, it wrote, "as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter."
The city hasn't indicated what its response will be, though Journee said the city is consulting with its attorneys and hasn't ruled out appealing the decision. The plaintiffs and critics of the city's ordinances, however, hailed the decision as a victory.
"The outcome of the court's decision will ripple across the country," wrote Howard Belodoff, an attorney with Idaho Legal Aid Services who represented the plaintiffs, along with The National Law Center on Homelessness & Poverty, and Latham & Watkins LLP.
Other municipalities and local governments have likely eyed the progress of the case with an eye toward rules and ordinances of their own. South Jordan, Utah, announced in May it would implement an anti-camping ordinance that, among other things, would prohibit using public property for temporary or permanent dwellings, from shanties and tents to simple bedding, according to Deseret News . In April, a judge threatened to bar Orange County in California from enforcing its own anti-camping laws.
"We are hoping that this does cause a similar conversation in a lot of other communities," said Eric Tars, senior attorney with the National Law Center on Homelessness & Poverty, who added that housing-first and supportive-housing initiatives are more effective. "We want people off the streets. The way to get there is the question."
Tars said his organization prefers cities tackle homelessness head-on, and anti-camping ordinances arise when constituents pressure city leaders to deal with visible homelessness. Tuesday's decision, he said, gives cities "an out," freeing them to pursue other methods like housing-first initiatives and supportive housing. (In 2017, the City of Boise and other stakeholders broke ground on the New Path Community Housing facility.)
The case, he said, is just one more in a long string of court decisions confirming the unconstitutionality of a whole matrix of laws that have been passed to combat homelessness.
"In addition to this case, which just came down on the Eighth Amendment and camping, we've had a whole series of cases that have struck down panhandling ordinances, Fourth Amendment search and seizure, so the message from the courts is clear: This entire approach to homelessness is not a constitutional one," he said.
Increasingly, local laws punish Americans who are homeless.
By severely restricting or even barring the ability to engage in necessary, life-sustaining activities in public, like sitting, standing, sleeping, or asking for help, even when there’s no reasonable alternative, these laws are essentially persecuting homeless men, women, and children.
As law professors who study how laws can make homelessness better or worse , we encourage cities, suburbs and towns to avoid punishing people who live in public and have nowhere else to go. One big reason: These “ anti-vagrancy laws ” are counterproductive because they make it harder to escape homelessness.
Every year, volunteers count and interview the thousands of people that live in the Denver metro but have no permanent address. The “Point in Time” survey is a vital, if logistically challenging, study on how the area’s homeless population changes annually.
Here are three takeaways from this year’s survey , which was released this week.
They stood in a rainy parking lot under fir trees, 60 homeless men and women, young and old, patient and weary. The glow of a single lightbulb outside the “office” – a shack of plywood, duct tape and plastic sheeting – illuminated their faces.
It was the 9pm check-in at a homeless village called Right 2 Dream Too in Portland, Oregon. The code of conduct was read aloud. Then the roll call began: one by one, people showed ID and stepped through the chain link fence, towards portable toilets, bedrolls, warmth, sleep and safety.
Most people don’t associate this kind of order and security with homelessness. Indeed, homelessness and criminality are often conflated. But a Guardian investigation in two US cities where such highly organized homeless villages are common, Seattle and Portland, found that their presence was not generally accompanied by a rise in crime in their neighborhoods. In fact, crime was likelier to go down.
For five of 11 villages surveyed, crime in a broad range of categories decreased in the surrounding neighborhood after they were established. In four cases, any change was small, within single digits. In two, crime increased.
The Guardian’s data is “consistent with the position that homeless villages are not generators of crime”, said Kenneth Leon, a criminologist at George Washington University, and could be part of a “crime prevention ecosystem”.
The numbers show “there’s no evidence homeless encampments add to crime”, wrote Mike Males, senior research fellow at the Center on Juvenile and Criminal Justice in San Francisco, calling the figures “an important finding”.
There is a distinction between these villages and the ad hoc, curbside agglomerations of tents and tarps that have come to symbolize the surging homelessness crisis in many cities across the western US. All these villages have the sanction, explicit or tacit, of officials, are largely self-governing, and have defined boundaries and codes of conduct.
Take Othello Village, comprised of 29 tiny homes, which was established on the border of two residential southern Seattle neighborhoods in March 2015.
Sharon Lee, executive director of the Low Income Housing Institute in Seattle, which sponsors seven “tiny home” villages, including Othello, said the property used to be a “hot spot” – “a vacant, derelict, dilapidated lot full of trash and garbage [where] people would do their drug deals”.
Now, Lee jokes, it’s a “gated community”. It has a fenced perimeter, gatehouse, locking doors, foot patrols, arbitrators for squabbles and “eyes on the street”.
Using Seattle and Portland crime statistic “dashboards”, the Guardian pulled crime rates for the neighborhoods in which Othello and the other homeless villages are located, comparing the number of incidents that occurred before and after their establishment.
In Othello’s case, crime in the two Seattle neighborhoods it straddles went down an average of 31%, versus a 4% rise citywide.
Lee believes the the creation of an organized village engenders a psychological shift. People “literally cry when we show them that they can move into a tiny house and give up their tent”, she said. “If you go to a village and there’s food and you can shower and there’s a warm place and you can keep your place and lock the door, it takes away your need to hustle or commit a crime or go in a store and steal some food.”
Neighbors have noticed. “It keeps getting better,” said Manzil Pradhan, manager of Jim’s Market and Gas, a gas station and mini-mart next to Othello Village. “Now when I work here at night, it’s good. I can get out after midnight; I feel safe now.”
Camp residents also take measures to keep crime down. In Portland, residents of Right 2 Dream Too perform foot patrols. On a recent night, a man named Leo L, 59, carried a walkie-talkie and what he calls his “extra hand”, a picker-grabber to snare trash and cigarette butts. He never carries a weapon.
Left with minimal state protection in extremely vulnerable positions, many homeless people must undertake self-made solutions, such as forming alternative communities like tent cities, creating self-designed sanitation processes, or using public space to perform basic bodily functions when there is nowhere else to go. When doing this, individuals engaging in self-help measures are often penalized. A significant number of jurisdictions routinely and discriminately target homeless people under ordinances which prohibit particular behaviors—for example, obstructing sidewalks, loitering, panhandling, begging, trespassing, camping, being in particular places after hours, sitting or lying in particular areas, sleeping in public, erecting temporary structures, storing belongings in public places, or urinating in public. These laws are common—and worse, their use is growing, despite the severe deficit of affordable housing in the United States and the shortage of shelter space to meet even the emergency needs of homeless people. Under these laws, homeless people are regularly cycled through prisons and jails, which exacerbate discrimination, exclusion, and violation. The violations described in this report are especially severe for people of color, immigrants, gay, lesbian, bisexual, and transgender people, and people with disabilities, who are among the most likely to be rendered homeless, and are often subject to the harshest treatment by private actors and law enforcement officials when that occurs.