Pushback against Denver homeless initiatives grows

By Robert Davis

As the November municipal election nears, several advocates and nonprofit service groups are pushing back against two initiatives that they say will harm people experiencing homelessness.

The initiatives—Initiative 303 and Initiative 304—were introduced by Garrett Flicker, the chair of Denver’s Republican Party. Initiative 303 seeks to increase Denver’s enforcement of homeless encampments by requiring the city to remove them within 72 hours. If the city fails to perform a cleanup, then Denver property owners can sue the city, according to the initiative.

Similarly, Initiative 304 seeks to cut Denver’s sales tax from 4.85% to 4.5%. While the measure seems like a standard Republican measure on its face, several city leaders have decried it as a means of cutting services for people experiencing homelessness. 

On October 15, Denver filed a lawsuit to amend Initiative 303 on the November ballot claiming that part of the Initiative “exceeds the legislative authority of voter initiatives.” Specifically, the City contends the 72-hour enforcement timeline as an “illegal infringement on Denver’s basic administrative functions” because it “mandates the manner in which Denver enforces its [Urban Camping Ordinance].”

As one of its claims of relief, Denver is asking the Denver District Court to sever the enforcement section of the initiative, even though “not all aspects of Initiative 303 may be illegal or ripe for the court’s pre-election review,” the lawsuit says. 

Denver VOICE reached out to Flicker for comment on the lawsuit but did not receive a reply. 

Denver City Council previously approved two proclamations opposing Initiatives 303 and 304 on October 4. At the time, Councilman Chris Hinds, District 10, lamented that the proclamations were a “rare step” but would hopefully make Denver voters “stop and think about why the city opposes these petitions.”

However, city leaders are not the only ones throwing their voices into the ring. Nonprofit organizations like the Colorado Coalition for the Homeless (CCH), Colorado Jobs with Justice (COJWJ), and the Caring for Denver Foundation (CDF) have also voiced concerns about the Initiatives. 

“…The mandate that camps be swept within three days violates this standard and puts the City in a legal bind. The initiative makes the City liable to legal action whether it acts within the 72-hour window or not, and taxpayers will pay for these legal battles.”

COJWJ said in a statement about Initiative 303 that “City resources should focus on providing supportive services and housing our neighbors, not targeting them further.”

Cathy Alderman, CCH’s vice president of communications, said in a statement that proponents of Initiative 303 are using “scare tactics and false promises to exploit the housing and homelessness crises.”

For example, Alderman points to the requirement to enforce the city’s camping ban within three days and provisions requiring the establishment of up to four safe outdoor spaces as examples of Initiative 303’s false promises. 

“These measures falsely create an expectation that the City of Denver cannot meet,” Alderman said in a statement. “Denver is subject to federal court orders limiting the action that can be taken to dismantle encampments. Denver is required to give seven days’ notice to people living in encampments prior to enforcement of the camping ban, or a ‘sweep,’ to protect their constitutional rights. The mandate that camps be swept within three days violates this standard and puts the City in a legal bind. The initiative makes the City liable to legal action whether it acts within the 72-hour window or not, and taxpayers will pay for these legal battles.”

Denver’s camping ban ordinance has withstood several challenges to date. In 2016, a class of people experiencing homelessness filed a lawsuit—Lyall v. City and County of Denver— in federal court contending that the city’s practice of sweeping homeless encampments violated the constitutional rights of homeless people. The case was settled in 2019 just three months before the municipal elections. However, the settlement required Denver to provide at least seven days’ notice before sweeping an encampment and provide a meaningful way for homeless people to recover their confiscated property. 

In 2018, city voters rejected a petition seeking to throw out the camping ordinance by a 5-to-1 margin. 

Since then, outreach organizations like Denver Homeless Out Loud and legal watchdogs like the American Civil Liberties Union have challenged Denver’s sweeps in court under the same auspices. In December 2019, Denver County Judge Johnny Barajas ruled in Burton v. City and County of Denver that Denver’s enforcement of its camping ban is unconstitutional because it punishes people experiencing homelessness when the city does not have enough shelter space. This ruling is in line with a ruling from the 9th Circuit—Martin v. Boise—which established the principle.  

In September 2020, district court judge J. Eric Elliff overturned Judge Barajas’ ruling shortly after Barajas retired from the bench. Elliff reasoned in his opinion that the ordinance does not criminalize “a status” but rather an “activity,” and rejected Barajas’ reading that the city’s enforcement facially violates the Eighth Amendment. 

Alderman cautioned that Initiative 303 would put Denver in a “legal bind” given the precedents its faces. 

“Criminalization of homelessness is unproductive and harmful and perpetuates the cycle of poverty, reduces the ability of those impacted to access services and housing, and increases pressure on the already strained homeless response system,” Alderman said. 

The CDF described Initiative 304 as a plan that could “adversely impact the community during this time of recovery,” especially as Denver seeks to provide additional support for people experiencing homelessness and mental health crises. 

According to city estimates, Initiative 304 could result in an immediate cut of $4.7 million to $8 million from Denver’s 2022 budget and up to $80 million in total cuts from city services.  

“If [Initiative] 304 passes, it would threaten vital city services and substantially decrease the grants we can make to address substance misuse and mental health challenges in Denver when we need it most,” Lorez Meinhold, CFD’s executive director, said in a statement.