Boulder camping ban lawsuit can move forward after judge rejects city’s attempt to dismiss

By John Herrick, Boulder Reporting Lab (AP Storyshare)

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’s 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’s response to rising homelessness.

The city’s camping ban, first adopted in 1980, makes it illegal to sleep in public spaces during the night with “any cover or protection from the elements other than clothing.”

The closely watched lawsuit, filed by the ACLU of Colorado, alleges such laws “punish the unavoidable consequences of being homeless in Boulder, endanger lives, and seek to exclude an entire segment of the community from collective space.”

Specifically, the lawyers argued the laws run afoul of protections in Article II of the Colorado Constitution against cruel and unusual punishment and “state-created danger.” 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 “tent cities” that pose “public health problems.”

The Feb. 23, 2023 order 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’s position in opposing one argument put forth by the ACLU: that sleeping outside is allowed under the state’s constitutional right to use public lands.

“The right to freedom of movement and right to travel are not synonymous with the right to camp on or indefinitely occupy public land,” Gunning wrote, siding with the city. “The enactment of the [camping and tent ban ordinances] is a reasonable exercise of the City’s police power to regulate the use of public lands and public health.”

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 — due to limited capacity, restrictions on entry or other reasons — is a form of “cruel and unusual punishment.”

An analysis of police records by Boulder Reporting Lab in 2022 found people were ticketed for camping on days when the city’s 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’s camping ban — which lawyers refer to as the “blanket ban,” because basic bedding is prohibited under the law — relies on similar civil rights protections in the state constitution.

“Colorado has yet to address this issue,” Gunning wrote, referring to the state constitution. “Based 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.”

Plaintiffs’ 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’s law violates state protections against cruel and unusual punishment.

“We view this as groundbreaking,” Williams told Boulder Reporting Lab. “It’s going to set a precedent.”

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 Jennifer Livovich, the executive director of Feet Forward, which provides peer support and other services for homeless people. Lisa Sweeney-Miran, the executive director of Mother House, 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 “bias” 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’s 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’s policy of providing notice before clearing out an encampment from 72 hours to a shorter timeframe. Such a change would apply “in certain circumstances when there is a significant public safety risk,” 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’s camping ban, particularly near schools and along Boulder Creek. Revising the city’s policy for providing notice could sound alarms for civil rights lawyers, as courts have ruled officers must provide “reasonable notice” before confiscating people’s 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.