Both the city and the American Civil Liberties Union of Colorado are claiming victory in the first battle of a new lawsuit.
Filed Nov. 28 by the ACLU on behalf of a diverse list of clients that includes, among others, a panhandler, the Pikes Peak Justice and Peace Commission, and the Denver Voice newspaper, the suit centers on Colorado Springs' new downtown no-solicitation ordinance. Approved by City Council on Nov. 27 on an 8-1 vote, it will ban all solicitation from public areas in the downtown core.
City and ACLU attorneys met Nov. 30 for their first hearing in the lawsuit. The ACLU had asked Denver federal judge Marcia Krieger for a preliminary injunction and temporary restraining order to prevent the ban from going into effect as early as Dec. 2.
The judge denied that action, citing a lack of urgency — because the city told the judge that the law wouldn't go into effect until Dec. 19, and tickets wouldn't be issued for another month after that.
To ACLU legal director Mark Silverstein, the apparent change of date looks like a dodge — and a victory.
"There were four [city] lawyers researching this for a year," Silverstein tells the Independent, "and then they say, 'Oh my God, we were taken by surprise, we need some more time.'"
City Attorney Chris Melcher, however, sees things differently, stating in a press release, "We are pleased the court agreed with the City of Colorado Springs that there was no need for any emergency action at this time, and denied the ACLU's temporary restraining order."
Asked by the Indy, Melcher states in an e-mail that he had never planned on a Dec. 2 effective date: "There is no change in the effective date of the ordinance. The December 2nd date reported by some outlets was inaccurate. There is a process that must take place before a new ordinance goes into effect, including having it published. This process is being followed."
But Melcher did quote Dec. 2 as the probable effective date to Gazette reporter Daniel Chacón in City Council chambers, in a conversation overheard by the Indy.
And in a court document, ACLU staff attorney Rebecca T. Wallace notes, the mayor and City Councilors repeatedly told the public that the law actually would be in effect during the holiday shopping season.
In fact, it wasn't until an e-mail from Melcher to ACLU staff attorney Sara Rich from Melcher on Nov. 28 saying "[t]he ordinance will likely not be effective until December 5 at the earliest," that the ACLU claims there was any indication the effective date might not be Dec. 2.
"Apparently in an attempt to gain a continuance of the emergency hearing," Wallace states in the court document, "[the city] has performed an about-face by formulating a new plan to delay the effective date of the ordinance to December 19, 2012. This new plan involves, among other things: the Mayor holding up the ordinance for five days and the clerk holding up the ordinance for another week or so."
The city, however, hasn't tied its opponents' hands for long. The ACLU still plans to ask a judge to take lasting action by preventing the solicitation ban from going into effect until its lawsuit is resolved.
But with the law on hold until Dec. 19, that conversation can wait for the next hearing, scheduled Dec. 13.