Boulder camping ban lawsuit is paused as judge awaits U.S. Supreme Court ruling

A high court ruling on a lawsuit originating from Grants Pass, Oregon, could effectively decide a similar lawsuit in Boulder, with major implications for how cities address homeless encampments.

By John Herrick, Boulder Reporting Lab (Via AP Storyshare)

A Boulder County District Court judge has paused a lawsuit challenging the City of Boulder’s camping ban while the U.S. Supreme Court considers a similar civil rights case stemming from Grants Pass, Oregon. The ruling from the nation’s highest court could have major implications for how cities across the country respond to encampments in public spaces amid rising homelessness.

The Boulder lawsuit seeks to halt enforcement of an ordinance that allows city officers to ticket homeless people for sleeping in public spaces when shelter is not accessible.

The case, filed by the ACLU of Colorado in May 2022 on behalf of several homeless people and a local nonprofit, Feet Forward, alleges that the city violated protections against cruel and unusual punishment in the Colorado Constitution by issuing citations to homeless people when they had nowhere else to sleep but in public spaces, among other allegations.

The legal dispute is a flashpoint in a broader debate over how the City of Boulder addresses rising homelessness and its associated impacts on public spaces. In November 2023, voters passed a ballot measure that amended city code to make tents and propane tanks near schools, sidewalks or multi-use paths “subject to prioritized removal.”

The Boulder lawsuit is currently scheduled for a trial in August 2024.

However, on April 10, 2024, Boulder County District Court Judge Robert R. Gunning issued an order halting proceedings on the case until the U.S. Supreme Court reaches a decision on a related case involving a similar ordinance in Grants Pass. The order means that neither side in the City of Boulder lawsuit will be able to file motions for discovery or request depositions for several months.

The Supreme Court is expected to issue its ruling on the Grants Pass case in June or early July, at which point the local lawsuit could proceed. Gunning said the Supreme Court ruling on the Grants Pass case could provide important precedent and “hold tremendous weight” in shaping a ruling on the Boulder case.

The Grants Pass lawsuit, Johnson v. City of Grants Pass, was filed in 2018 and alleges the city violated Eighth Amendment protections against cruel and unusual punishment by citing homeless people for sleeping in public spaces when they could not access shelter.

The Supreme Court held a hearing on the lawsuit on Monday, April 22. The questions posed by justices suggested that the court is relatively divided on the case. Much of the debate centered on whether homelessness is considered a state of being or form of conduct, and therefore, whether people can be punished for violating local ordinances that prohibit sleeping in public spaces.

Liberal justices appeared to side with the plaintiffs. For instance, Justice Elena Kagan said sleeping is a biological necessity, implying that people should not be punished for it. “Sleeping in public is kind of like breathing in public,” she said. By contrast, Chief Justice John Roberts offered an analogy involving someone who is hungry and in need of food. “If someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?” he asked a lawyer for the plaintiffs. Roberts also questioned whether the nine justices should be making “policy judgements” typically reserved for cities.

A ruling by the Supreme Court is unlikely to entirely resolve the case in Boulder. The Boulder lawsuit is based on similar civil rights protections in the Colorado Constitution, not the U.S. Constitution. That said, the wording regarding cruel and unusual punishment is similar.

The City of Boulder, which filed the motion to stay proceedings on the local lawsuit, said the Supreme Court’s decision will have a “dispositive impact on the validity of Plaintiffs’ remaining claim.” The plaintiffs argued the stay will “interfere with ongoing discovery that is critical to the timely resolution of this case.”

The City of Boulder spends about $3 million per year clearing out encampments of homeless people and cleaning up public spaces.

At least 171 people are experiencing homelessness in the City of Boulder, according to a point-in-time count by the city in July 2023. That number is likely higher, as people are often turned away from the city’s main shelter in North Boulder, which has a capacity of about 180 during certain severe weather conditions.