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.”

more on this case

By Ria Tabacco Mar OCTOBER 24, 2017 | 1:00 PM

 
Five years ago, Dave Mullins and Charlie Craig walked into Masterpiece Cakeshop, a Lakewood, Colorado, bakery to purchase a cake for their wedding reception. But the bakery’s owner refused to serve them solely because they’re a same-sex couple.
Colorado courts found that the bakery discriminated against Dave and Charlie, violating a state law that says businesses open to the public can’t turn away customers based on sexual orientation. Now, the bakery is asking for a “constitutional exemption” —permission to violate the state law based on the owner’s objection to serving gay people.
Here are three things to know about the case, which will be heard by the Court on December 5.

Is the bakery’s argument new? 

No. In the 1960s, Piggie Park barbecue restaurant argued that its owner’s religious beliefs meant it could refuse to serve Black customers. In the 1970s and 1980s, schools claimed that they should be allowed to pay women less than men based on the belief that men should be the head of the household. Time and again, courts have recognized that religious views, no matter how deeply felt, don’t entitle any of us to discriminate. The same is true today.
https://www.youtube.com/watch?v=nMWLawbBlOc&feature=youtu.be

Does this violate the bakery's First Amendment rights?

No. The Colorado anti-discrimination law doesn’t tell the bakery how to make its cakes. What it says is that if the bakery chooses to sell cakes, it can’t refuse to sell them to certain people based on their sexual orientation. The ACLU is proud to defend the First Amendment freedoms of speech and religion. But religious freedom doesn’t give anyone the right to discriminate. If it did, any business would be free to discriminate against almost any of us — members of minority faiths, women, racial minorities, LGBT people — solely based on the owner’s views.

What’s at stake in this case?

This fall the Supreme Court will decide whether businesses that open their doors to the public have a constitutional right to discriminate.
People have deeply held beliefs about all kinds of things. If those beliefs gave anyone the right to discriminate, a tailor shop could refuse to alter a business suit for women, or a bus company could refuse to drive people of different faiths to work. If the bakery has a constitutional right to discriminate, then today it’s Dave and Charlie, tomorrow it could be you, your family members, your friends and your loved ones. Any of us could be turned away simply because of who we are.

WASHINGTON — The American Civil Liberties Union today filed its brief in the Supreme Court in a case in which a Colorado bakery refused to serve a same-sex couple seeking a cake for their wedding reception.
The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, will be heard at the Supreme Court on December 5th.
The Colorado courts found that the bakery violated Colorado’s anti-discrimination law by refusing to serve Charlie Craig and David Mullins when they walked into the bakery in July 2012 to inquire about cakes for their wedding reception. In its brief, the ACLU argues that the First Amendment does not give a business open to the public the right to discriminate against its customers in violation of state law.
“As a nation and as a state, we decided decades ago that businesses that are open to the public should be open to everyone on the same terms,” said ACLU of Colorado Legal Director Mark Silverstein. “A ruling allowing discrimination in this case would have implications far beyond LGBT people.  It would put in jeopardy longstanding protections against discrimination here in Colorado and across the country.”
Under Colorado law, businesses open to the public like Masterpiece Cakeshop may not refuse service based on factors including race, religion, or sexual orientation. After lower courts ruled in Mullins and Craig’s favor, the bakery requested that the Supreme Court review the case.
“This is not about the cake. Charlie and David walked into the cake shop and were turned away because of who they are,” said Louise Melling, deputy legal director of the ACLU. “The stakes could not be higher. A ruling against them at the Supreme Court would not just encourage other businesses to engage in discriminatory practices: It would enshrine a constitutional right to discriminate.”
The American Civil Liberties Union, the ACLU of Colorado, and the Denver firm King & Greisen represent Mullins and Craig in the case.
Resources:

Read the ACLU brief: https://www.aclu.org/legal-document/craig-and-mullins-v-masterpiece-cakeshop-brief-respondents-charlie-craig-and-david

Visit the case page: https://www.aclu.org/cases/charlie-craig-and-david-mullins-v-masterpiece-cakeshop