A Denver County judge dismissed the charges against a man who was cited after police observed him smoking marijuana in Commons Park in October. Pictured: The Sky Garden sits atop an area dubbed Stoner Hill. (Anya Semenoff, The Denver Post)

Judge rules Denver Parks’ ban of marijuana user unconstitutional

The defendant had faced potential penalties of up to $999 and a year in jail for violating the notice by re-entering Commons Park three days after his suspension

A judge issued a rebuke to Denver Parks and Recreation officials on Wednesday for their handling of a temporary ban of drug users from parks, saying the policy violated due-process rights.

But city officials affirmed in a statement later Wednesday that they planned to propose a permanent rule that would take the ruling into account as they seek to keep suspending park access for people suspected of illegal drug use.

Denver parks director Allegra “Happy” Haynes, working with the mayor’s office and city attorneys, issued a temporary directive in late summer. The intent was to suspend suspected drug users’ ability to re-enter the park in which they were cited for 90 days, but the notices took effect immediately — with the option to appeal the order later.

That was the problem cited in a ruling by a Denver County judge, who dismissed the charges against a man who was cited after police observed him smoking marijuana in Commons Park in October.

The ability to contest a park suspension should be offered before the ban takes effect, Judge Clarisse Gonzales concluded.

Her dismissal order says: “As the park suspensions under Temporary Directive 2016-1 take effect immediately, within the pure unchecked discretion of any police officer on the scene, and with a complete lack of any pre-deprivation due process, the suspensions violate procedural due process protections, and are found unconstitutional for this reason.”

The judge noted that using the administrative appeal process outlined in Haynes’ directive could take up to 27 days, even if a person contested the suspension notice immediately. In the meantime, the park suspension still would be active.

The American Civil Liberties Union of Colorado, which was involved in the case that resulted in Wednesday’s order,  has pushed Denver Parks and Recreation to stop enforcing the ban. It also has questioned the way the policy has been enforced.

Forty people have received suspension notices. The last one was issued Nov. 8, a drop-off that a parks official has attributed to deterrence and colder weather.

“Denver Parks and Recreation will continue to address the issues of illegal activity and unsafe practices in our public parks,” said a statement issued by Denver Parks and Recreation. “We are reviewing today’s decision with the City Attorney’s Office to determine whether to appeal.”

Haynes’ temporary directive allowing the park bans is set to expire Sunday.

The new city statement says the coming proposal — for a permanent rule to allow temporary suspensions from a park for drug use — would be subject to review by the Parks and Recreation Advisory Board. The department also must hold a public hearing.

“Any permanent rule will take into account (Wednesday’s) ruling, information gathered from the public comment period and other considerations,” the city statement says.

The ACLU got involved in the case of Troy Holm in Gonzales’ court. His attorney, Adam Frank, filed a motion to dismiss the charges of trespassing and violation of Holm’s 90-day ban from Commons Park.

Holm had faced potential penalties of up to $999 and a year in jail for violating the notice by re-entering Commons Park three days after his suspension.

“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,” ACLU of Colorado legal director Mark Silverstein said in a news release.

But while the ACLU has urged the city to drop its use of the bans, the city statement indicates that officials plan to keep the policy in some form.

This story was first published on DenverPost.com