A Boulder County District Court judge on Thursday rejected an attempt by the City of Boulder to dismiss a lawsuit seeking to halt enforcement of the city鈥檚 camping ban, an ordinance that makes it illegal for homeless people to sleep outside in public spaces.
The ruling allows a May 2022 lawsuit alleging that the ordinance violates civil rights protections enshrined in the Colorado Constitution to move ahead. The decision sets the stage for a trial over the controversial law at the center of public conversation about the city鈥檚 response to rising homelessness.
The city鈥檚 camping ban, first in 1980, makes it illegal to sleep in public spaces during the night with 鈥渁ny cover or protection from the elements other than clothing.鈥�
The closely watched lawsuit, filed by the ACLU of Colorado, alleges such laws 鈥減unish the unavoidable consequences of being homeless in Boulder, endanger lives, and seek to exclude an entire segment of the community from collective space.鈥�
Specifically, the lawyers argued the laws run afoul of protections in Article II of the Colorado Constitution against cruel and unusual punishment and 鈥渟tate-created danger.鈥� The lawsuit also argues the camping ban violates rights to use public spaces.
City of Boulder attorneys in June 2022 filed a motion to dismiss the lawsuit, in part by defending the ordinance as a means to prevent 鈥渢ent cities鈥� that pose 鈥減ublic health problems.鈥�
The Feb. 23, 2023 issued by Boulder County District Court Judge Robert R. Gunning partially affirms arguments from both sides but rejects others.
For instance, the order supports the City of Boulder鈥檚 position in opposing one argument put forth by the ACLU: that sleeping outside is allowed under the state鈥檚 constitutional right to use public lands.
鈥淭he right to freedom of movement and right to travel are not synonymous with the right to camp on or indefinitely occupy public land,鈥� Gunning wrote, siding with the city. 鈥淭he enactment of the [camping and tent ban ordinances] is a reasonable exercise of the City鈥檚 police power to regulate the use of public lands and public health.鈥�
But under circumstances when there is no shelter available, he said the plaintiffs may have a case.
The lawsuit alleges ticketing homeless people for sleeping outside when they are not able to access a shelter 鈥� due to limited capacity, restrictions on entry or other reasons 鈥� is a form of 鈥渃ruel and unusual punishment.鈥�
An of police records by Boulder Reporting Lab in 2022 found people were ticketed for camping on days when the city鈥檚 largest shelter in North Boulder turned people away because it was at capacity the night before.
Under these circumstances, courts across the country have ruled that enforcing camping bans is a violation of Eighth Amendment protections against cruel and usual punishment. The lawsuit seeking to halt enforcement of Boulder鈥檚 camping ban 鈥� which lawyers refer to as the 鈥渂lanket ban,鈥� because basic bedding is prohibited under the law 鈥� relies on similar civil rights protections in the state constitution.
鈥淐olorado has yet to address this issue,鈥� Gunning wrote, referring to the state constitution. 鈥淏ased on these well-pled factual allegations, the Court concludes Plaintiffs have adequately stated a claim upon which relief can be granted as to the constitutionality of the Blanket Ban.鈥�
Plaintiffs鈥� lawyers said they are eager to go to trial. Dan Williams, a civil rights lawyer with a Boulder-based law firm working on the case, said they have been collecting evidence to make their case that Boulder鈥檚 law violates state protections against cruel and unusual punishment.
鈥淲e view this as groundbreaking,鈥� Williams told Boulder Reporting Lab. 鈥淚t鈥檚 going to set a precedent.鈥�
The plaintiffs include three people who have experienced homelessness and were unable to access the shelter but were ticketed for camping, according to the lawsuit. The other plaintiff is , the executive director of Feet Forward, which provides peer support and other services for homeless people. Lisa Sweeney-Miran, the executive director of , a homeless shelter, withdrew from the case in January after she was appointed to serve on the Police Oversight Panel. Her role in the lawsuit, which names Police Chief Maris Herold as a defendant, was cited by critics of her appointment as a source as 鈥渂ias鈥� making her unfit for the watchdog role.
Sarah Huntley, a spokeswoman for the City of Boulder, told Boulder Reporting Lab the city would not comment on the pending case. She said the city would present its position as part of the regular legal process.
Now that the court has denied parts of the city鈥檚 motion to dismiss the case, city attorneys have 14 days to file an answer to the original lawsuit. It could then go to trial.
The order comes at a time when city officials have requested more money to enforce the camping ban and plan to revise their policies and procedures to expedite the process for clearing out encampments of homeless people, particularly along the Boulder Creek multi-use path.
During a check-in with the Boulder City Council on Thursday, officials said they are considering changing the city鈥檚 policy of providing notice before clearing out an encampment from 72 hours to a shorter timeframe. Such a change would apply 鈥渋n certain circumstances when there is a significant public safety risk,鈥� Joe Taddeucci, director of the Utilities Department, told Boulder Reporting Lab. He cited the example of multi-use paths, where people often sleep beneath underpasses for protection from the elements.
The potential policy changes come as some residents call for stricter enforcement of the city鈥檚 camping ban, particularly near schools and along Boulder Creek. Revising the city鈥檚 policy for providing notice could sound alarms for civil rights lawyers, as courts have ruled officers must provide 鈥渞easonable notice鈥� before confiscating people鈥檚 belongings in order to comply with due process protections under the 14th Amendment of the U.S. Constitution.
City officials are scheduled to give an update to the Boulder City Council on its homelessness strategy during a meeting on April 13.
