Two men are ticketed by Denver police for smoking marijuana in public during the 4/20 celebration at Civic Center Park on April 20, 2014. (Joe Amon, The Denver Post)

Second judge agrees Denver can’t ban drug users from parks without hearing

A second judge ruled this week that the Denver Parks and Recreation’s temporary ban of drug users from parks violates the right to due process.

District Court Judge William D. Robbins ruled that suspending a person’s right to enter a public park based on suspicion that they would engage in activity involving drugs without giving them a chance to contest the suspension at a hearing violates the U.S. Constitution.

“We are disappointed with the decision but continue to discuss the issues internally,” Cynthia Karvaski, Parks and Recreation spokeswoman said.

The department plans to make adjustments to the ban, Karvaski said. “We have committed to creating a Park Suspension Stakeholder Group to provide input on the policy, and we are currently in the process of finalizing the stakeholder group.”

Supporters will design a process that can withstand Constitutional muster, said Melissa Drazen-Smith, assistant director of prosecutions for the city attorney’s office.

The American Civil Liberties Union of Colorado is handling the case for Troy Holm, who police cited after observing him smoking marijuana in Commons Park.

“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 Mark Silverstein, American Civil Liberties Union of Colorado Legal Director.

Robbins’ Wednesday ruling follows a similar conclusion by a Denver County judge, who dismissed charges against Holm in February, prompting the city to appeal to the District Court.

Holm faced a year in jail and a fine of $999 for entering a park three days after he was banned under the directive.

Denver parks director Allegra “Happy” Haynes, working with the mayor’s office and city attorneys, issued a temporary directive in late summer 2016. The directive expired in February and Denver officials have said they plan to propose a permanent rule with the same provisions.

The city could have avoided due process concerns had it stayed the suspension to give Holm time to appeal, Robbins wrote.

The intent was to keep drug users out of the parks where they were cited for 90 days, but the notices took effect immediately — with the option to appeal the order later.

Robbins said the use of public facilities such as parks is a fundamental right that can be outweighed only by “compelling governmental interests.”

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