In legal papers filed today, the ACLU of Colorado asked the Colorado Supreme Court to review Boulder’s controversial “no camping” ordinance, which targets homeless residents who are forced to sleep outside at night.

“When homeless persons are turned away from shelters, they have no choice but to sleep outdoors,” said Mark Silverstein, ACLU Legal Director. “Boulder’s ordinance unfairly and unconstitutionally turns them into criminals for this involuntary act. We are asking the court to overturn our client’s conviction.”

Boulder’s no-camping ordinance prohibits sleeping outside with "shelter," which Boulder defines to include any protection from the elements other than clothing. Under the ordinance, merely sleeping outside at night is not "camping," but sleeping while using a blanket or sleeping bag is a crime.

The ACLU’s client, David Madison, a person who is homeless, was charged with violating the camping ordinance in November, 2009, when he slept outside in a sleeping bag during a night when the temperature dropped to 11 degrees. Mr. Madison had sought refuge at the homeless shelter, but there was no space for him. He was found guilty of “camping” in Boulder Municipal Court, based on the court’s ruling that the sleeping bag constituted “shelter” and therefore violated the camping ban.

“Mr. Madison’s case highlights both the absurdity and the cruelty of Boulder’s ordinance,” Silverstein continued. “Because the frost-covered sleeping bag was deemed to be ‘shelter,” the ordinance makes our client a criminal. If our client had just slept in his clothes, he might have gotten frostbite or hypothermia, but he would have been found not guilty.”

On April 20, the Boulder District Court rejected the ACLU’s appeal of Mr. Madison’s conviction, prompting today’s petition for review in the state supreme court. “We have asked the Supreme Court to review this case, not only because of Mr. Madison’s conviction is so obviously unjust,” said Mr. Silverstein, “but also because it is still an open question in Colorado whether or not cities such as Boulder, in what appears to be nothing more than an effort to rid the city of its homeless population, are permitted to criminalize activities that the homeless have no choice but to do, such as sleeping outdoors. We hope that the Supreme Court will say with clarity that homelessness is not a crime.”

If the Supreme Court accepts the case, the ACLU, through cooperating attorneys Mark Walta and David Harrison, will argue that persons who are forced to sleep outdoors have a right to protect themselves from the elements when doing so causes no one any harm. Further, Mr. Walta explains: “Mr. Madison’s conviction constitutes cruel and unusual punishment because it criminalizes one of the essential attributes of homelessness – that the basic activities of daily life, including sleeping, often must be conducted outdoors. The ordinance puts individuals who are homeless in an impossible position – they can either break the law by harmlessly satisfying their need for warmth and shelter against the elements, or they can risk their own health and safety by forsaking these basic needs in order to comply with the letter of the law. This is not justice.”

In the past five years, Boulder has energetically enforced the “no camping” ordinance against the city’s homeless population, prosecuting almost 2000 cases. Yet, Boulder’s primary homeless shelter accommodates only 160 persons, less than a quarter of the city’s estimated homeless population. In 2009, advocates for the homeless, including the Boulder County Chapter of the ACLU, urged the City Council to stop enforcing the ordinance. In January 2010, the council instructed its staff to draft an ordinance declaring a moratorium. A month later the council reversed course and continued enforcing the controversial camping ban.

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Case continues against Jeffco sheriff for illegally imprisoning Colorado resident suspected of immigration violations

As partial settlement of a federal-court lawsuit filed last year, the United States will pay $50,000 to ACLU client Luis Quezada, who spent 47 days illegally imprisoned in the Jefferson County Jail in 2009 simply because federal immigration authorities wanted to investigate whether he was violating immigration laws. Mr. Quezada’s claims against Jefferson County Sheriff Ted Mink are still pending.

“This settlement is a victory for the Constitution and the rule of law,” said Mark Silverstein, ACLU Legal Director. “It sends a clear message that law enforcement officers must follow the law while enforcing the law. All persons in this country — including persons suspected or accused of immigration violations – have the right to due process of law and the right to be free from arbitrary arrest and arbitrary imprisonment.”

The lawsuit asserts that U.S. Immigration and Customs Enforcement (ICE) sent an Immigration Detainer to the Jefferson County Jail while Mr. Quezada was held on a traffic charge. The detainer asked the jail to hold Mr. Quezada an additional 48 hours after his traffic charge was resolved, so that ICE could determine whether to take him into custody and file an immigration charge seeking to remove him from the country.

ICE did not collect Mr. Quezada from the jail within 48 hours, and the jail did not release him at the end of that period. Instead, the ACLU’s client languished in the Jefferson County jail for an additional 47 days. During that time, there were no immigration charges or any other charges pending against Mr. Quezada, nor was there a warrant or any other legal authority authorizing Mr. Quezada’s imprisonment, or any hearing to determine whether his imprisonment was lawful.

After 47 days, ICE finally took action. ICE issued an immigration arrest warrant, picked Mr. Quezada up from the jail, and issued a notice that formally began an immigration proceeding. On the same day ICE picked him up from the jail, ICE released Mr. Quezada on bond, confirming that ICE does not regard him as a flight risk or a danger to the community. Mr. Quezada remains free on bond while he is defends himself in immigration court.

The ACLU’s lawsuit, filed in April 2010, originally named only Sheriff Mink as a defendant. In response, Mink pointed the finger at ICE, arguing that he held Mr. Quezada at the request of the federal government. ACLU lawyers then brought the United States into the lawsuit by filing a claim under the Federal Tort Claims Act. The settlement announced today resolves only that portion of the lawsuit.

“While the United States has agreed to a settlement, we continue to press the case against Sheriff Mink and the Jefferson County Jail,” said Dan Williams, of Faegre & Benson, who is litigating the case as an ACLU Cooperating Attorney. “Our position, and the position of the United States in this case, is that Sheriff Mink was obligated to release Mr. Quezada no later than the date when the 48-hour detainer expired. Sheriff Mink cannot escape responsibility for imprisoning our client for 47 days without legal authority.”

The Quezada suit is one of a growing number of cases against local, state, and federal agencies involving immigration detainers. “Immigration detainer procedures disregard fundamental principles and requirements that protect everyone – citizens and noncitizens alike – from being jailed without sufficient justification,” said Omar Jadwat, staff attorney with the ACLU Immigrants’ Rights Project, who is co-counseling the case. “This settlement is an important step towards forcing ICE to re-examine its detainer practices and is a reminder to state and local police to approach ICE programs like Secure Communities, which rely on detainers, with the utmost caution.”

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For Immediate Release
April 25, 2011
Contact: Rosemary Harris Lytle, Communications Director
303.777.5482, ext. 111 (office) 719.233.0243 (cell) [email protected]

The ACLU of Colorado today filed a written request with the office of Denver Department of Safety Manager Charles Garcia to release video footage, documenting the death of Marvin L. Booker, the street preacher who died July 9, 2010 while in custody at the Van Cise-Simonet Detention Center.

The request, filed pursuant to the Colorado Open Records Act and the Colorado Criminal Justice Records Act, seeks all videotaped footage, depicting Mr. Booker’s interaction with Denver sheriff’s personnel on that evening.

Though Denver District Attorney Mitchell R. Morrisey ruled September 28, 2010 that the force used by sheriff’s deputies was justified and no criminal charges would be filed against those involved in the death of Mr. Booker, the city has never released the videotape footage which formed the basis of that decision.

“The video footage recorded on jail cameras is directly referenced five times in the District Attorney’s Decision Statement, and indirectly referenced many more times throughout the document. Still, the city has continued to refuse the public’s requests for the video release,” said Mark Silverstein, ACLU Legal Director. “If it is the video footage that helped the District Attorney reach the decision that no criminal charges should be filed in Mr. Booker’s death, the ACLU believes that the residents of Denver have a right to see that same footage.”

The written request from the ACLU also references the city’s pending administrative investigation. But Silverstein said the release of the video footage could not possibly prejudice that administrative investigation.

“All the witnesses have been interviewed. Those who must make the decisions now will rely on their own evaluations of the evidence. But it has been nine months since Mr. Booker’s life ended in that jail. It’s unconscionable that the public has been kept in the dark this long. Everyone agrees that only the videotapes can show us what happened that evening.”

At an ACLU Mayoral Candidates Police Accountability Forum April 7, each of the eight candidates present said that if elected Mayor of Denver she or he would support the release of the videotape footage in Mr. Booker’s death. “We are calling on those who are currently in leadership in the city – Mayor Bill Vidal and Public Safety Manager Garcia – to do no less than immediately approve the release of the tapes,” Silverstein said.

To view the forum, and see how candidates answered questions about police discipline and restoring trust in Denver’s police departments, click on this link: https://aclu-co.org/event/police-accountability-mayoral-candidates-forum.