Are We Progressives or Puritans? Boulder District Court Decision Criminalizes Homelessness

Boulder District Court Judge Robert R. Gunning ruled in favor of Boulder’s camping (aka the Blanket Ban) on Friday, December 6th, 2024, an unsurprising development given the June 28, 2024 SCOTUS Grants Pass majority decision – albeit full of pretzel-worthy twists and absurdities alluding to the blanket ban’s general applicability.

Just as hypothermia can lead to hallucinations, the confusion and perplexity of criminalizing anyone who cannot afford housing – in one of the most expensive areas of the country is adding insult to injury and flies in the face of the city’s homelessness strategy “built around the belief that Boulder community members should have the opportunity for a safe and stable place to live.”

Reality of Housing Costs in Boulder County and the U.S. in General

The average rent for a one-bedroom in Boulder is currently $2,464. Using 30% of income as a guide, you’d need to earn $8,000 a month gross to make that work, or $6,250 if you use 40% of your income.

A new Harvard report says 22.4 million households in the United States now spend more than 30 percent of their income on rent, with 12.1 million spending more than 50 percent.

More than your mortgage? Well, of course it is. It’s expensive to have to rent when you don’t have the money for a large down payment or the promise of consistent monthly income to be able to take on a mortgage in the first place.

While all of Sweden, Norway, and parts of Finland and Iceland, promote “wild camping” anywhere one pleases outside of official campsites, law enforcement authorities in the land of the free will wrestle that blanket from you, lest you try to keep yourself warm in an area of the country with 89 inches of annual snowfall and lows ranging from the negatives to 20 degrees December through February.

Efficacy and Usefulness of Camping Bans

Everything happens for a reason, and our criminal laws are no different. There has to be a purpose behind punishment, or essentially, it boils down to “I don’t like the way it looks” or “because we said so.” Either sentiment applies when looking at Boulder’s camping ban.

Does a camping ban deter people from camping in public places? When the punishment is a fine they can’t afford to pay, it’s plain that it doesn’t.

What about when the punishment is up to 90 days in jail? Now, they are worse off, having a criminal record for their mere presence in a public space – a presence that would not be a crime unless it is accompanied by the bodily necessities of sleeping and eating outside of daytime hours.

Boulder’s camping ban does not include “napping during the day or picnicking.”

Although it is not clear when the day ends, it’s safe to say it would be sunset which is as early as 5 pm during wintertime in Boulder.

Although the Grants Pass SCOTUS majority held that “camping ordinances validly criminalized the conduct of “occupying a campsite on public property” and were applicable to housed and unhoused persons alike, reality hits differently.

An unhoused person in public space is often met with hostility by civilians and law enforcement alike.

Ask yourself, why would anyone who already has housing camp in a city park or on city property? Newsflash buddy! They wouldn’t, and neither would you because you have a choice. Failure to admit the homeless person’s only choice is to freeze or not to freeze is as dangerous as the threat of frostbite.

But they have shelters! Shortsightedness Runs Amok

You want to argue the unhoused have the choice of going to a shelter. Well, if there are enough beds and a winter shelter is open, it is also:

Where they don’t get to choose who is in there with them
Where they don’t get to choose when they can come and go
Where zero-tolerance policies apply, and a rule infraction will be handled the same as putting someone else in danger.

Plaintiffs for the unhoused in Grants Pass argued that camping bans were cruel and unusual punishment incompatible with the 8th Amendment when there weren’t enough shelter beds, an argument plaintiffs in this Boulder case cited while also claiming Colorado Constitution’s counterpart, Article II, Section 20, should apply and is more protective than the 8th Amendment.

Judge Gunning disagreed, writing, “the Colorado Supreme Court has not yet interpreted Art. II, § 20 to afford broader protection than its federal counterpart, the Court disagrees.”

Mismatch Between Number of Shelter Beds and Number of Unhoused

Estimates of the number of shelter beds in Boulder range from 150-180 but regardless, the chances that the number of available beds will ever mirror the number of people in need is the same chance that people will ever stop referring to Boulder as the “People’s Republic of Boulder.”

“At any given time in Boulder, we have around 500 more unhoused people than we have beds to serve them,” explains Lisa Sweeney-Miran, CEO of local homeless shelter and outreach program Haven Ridge. The last Point in Time Count published was for 1/30/23, tallying 839 homeless individuals in Boulder County, with 243, or 29% of that figure being unsheltered and the remainder in emergency or transitional housing.

In SCOTUS’s Grants Pass decision, Gorsuch (the only Justice with Colorado ties) concluded that the punishments attached to the Grants Pass ordinances — increasing fines and up to 30 days in jail — were not cruel or unusual because they were not designed to “superadd terror, pain, or disgrace,” and are typical of other punishments for similar offenses.

Having your blankets torn away from you and being carted off to jail to be housed with no escape from dangerous and violent criminals would most certainly instill terror and is disgraceful unless you discount someone’s humanity and admit that jail should be reserved for people who commit dangerous offenses that are malum in se and not malum prohibitum.

If we’re throwing open the jailhouse doors to anything we deem bad because we think it’s bad, Boulder jails would be teeming with jaywalkers, parking violators, or publicly intoxicated college students. Been to the Hill lately? Colorado does not have a law against public intoxication. Jail is only appropriate if you commit a crime WHILE you are intoxicated.

Back to “typical of other punishments for similar offenses,” Jaywalking is a class B infraction punishable by a $15-$100 fine. Compare this to violations of the Blanket Ban, which are punishable by fines of up to $2,650 per violation and up to ninety days of incarceration. Not exactly apples to apples.

Consider the cost of jail at roughly $205 per day (2023 figure) and the cost to try and obtain payment of fines, and there is a litany of other worthwhile uses for taxpayer funds than to put someone in jail for the offense of being unhoused. A job training program for trade comes to mind, or diverting that amount to a true housing first model that has proven successful in other Western cities like Salt Lake.

If one of the most progressive towns in the nation resorts to camping bans, where is the ingenuity and the compassion Boulder likes to pride ourselves on? The means exist, but the will is lacking, and in cases such as Feet Forward and Grants Pass, is overpowered by a cruel thirst for punishment, reminiscent of vagrancy laws that existed until the 1970’s. These laws are just far enough in the rearview of our history that those in power now were only infants or young teens when these were last in favor.

Legal scholars, judges, law enforcement and Boulder residents should revisit the 1972 case of Papachristou v. Jacksonville, striking down a vagrancy ordinance for being unconstitutionally vague because it failed to give people fair notice of what was prohibited, encouraging arbitrary arrests, and making activities that were normally innocent criminal.

While the Boulder camping ban gives notice that sleeping and eating on public property outside of daytime hours is prohibited, the ordinance encourages law enforcement to enforce only on unhoused persons as no unhoused person would have reason to sleep or eat on city property outside of daytime hours. Furthermore, eating and sleeping are innocent activities and only because of the where and when of the camping ban – are deemed criminal.

When you hear the oft used, “he or she would give you the shirt of their back,” imagine it’s counterpart inspired by Boulder’s camping ban, “He or she would wrestle a blanket away from a homeless person.”

“Reason often makes mistakes, but conscience never does.” Josh Billings.

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