The O’Connor Corner: CO Legal

Published on: January 27th, 2019

A ruling in the Ninth Circuit Court of Appeals, Martin v. Boise, has sent cities across the west scrambling to comply with its interpretation. The court held that “[c]amping [o]rdinance[s] . . . enforced against homeless individuals who take even the most rudimentary pre- cautions to protect themselves from the elements” is a violation of the Eighth Amendment’s Cruel and Unusual Punishment Clause “when no sleeping space is practically available in any shelter.”

Though Colorado is not within the Ninth Circuit and does not have to comply with the Martin ruling, no similar case has made it to the Supreme Court or the Tenth Circuit Court of Appeals, and Martin would be persuasive if homeless individuals challenged a camping citation on a night they were turned away from shelter. After nearly a year of Boulder city staff and at least one council member, Bob Yates, making the claim that Boulder has enough shelter beds because no one has been turned away from shelter, Boulder Housing and Human Services Director Kurt Firnhaber recently revealed this to be false when he provided information to council that identified at least seven nights when people were turned away from shelters in the city.

This Christmas marked one year since Benjamin Harvey died after being turned away from the Boulder Shelter for the Homeless and froze to death complying with Boulder’s camping ban. He complied with the law by not using a blanket or any form of shelter — all prohibited under Boulder’s draconian ordinance — even though it was just ten degrees out that morning.

By continuing to enforce camping bans when shelter is not “practically available,” cities such as Boulder, Colorado Springs and Denver not only pursue failed legal policy costing millions of dollars a year that could be used to actually address homelessness, but also set themselves up to be the test case finding it is cruel and unusual punishment of homeless residents. Until then, there is no question that, like “sundown” and “ugly” laws of the past directed against black and disabled people, respectively, these camping bans are morally repugnant.

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