Boulder files motion to dismiss ACLU camping ban lawsuit

·3 min read

Jun. 23—Boulder is looking to dismiss a lawsuit challenging its bans on camping and tents in public spaces.

In a motion filed June 17 in Boulder County District Court, the city argues that its camping ban does not criminalize homelessness but instead "regulates a certain conduct — sleeping outside with shelter."

"Because Boulder's camping and tent bans regulate behavior and do not criminalize the status of being homeless, they do not constitute cruel and unusual punishment as a matter of law," the motion states.

The original lawsuit was filed May 26 by the American Civil Liberties Union of Colorado. Feet Forward, a local organization providing services and resources for people experiencing homelessness, as well as several Boulder residents, some unhoused and some housed, are named as plaintiffs in the case filed against the city and Boulder Police Chief Maris Herold.

According to the ACLU complaint, Boulder prides itself on being the No. 1 place in America to call home "but through two municipal ordinances, the city seeks to expel from its public spaces the growing number of its residents who call the city home but cannot afford to live indoors there."

The ACLU takes issue with the fact that the city enforces the challenged ordinances even when varied weather conditions pose an elevated risk of heat-related illnesses, hypothermia, frostbite and death.

The nonprofit stands by its lawsuit and has confidence it will succeed in court.

"We think the law is on our side and expect the court to reject Boulder's motion," ACLU attorney and Equal Justice Works fellow Annie Kurtz wrote in an emailed statement.

Boulder has in the past said its camping ban is legal given that it does not focus on the status of being unhoused but rather is concerned with access to public land and health and safety.

The June 17 motion, written by Senior Assistant City Attorney Luis Toro, again makes this argument.

The existence of "more or less permanent tent cities being established on public land" prevents other people from using the land and raises the potential for public health problems arising from the city becoming "host to entire communities disconnected from the city's water and sewer systems and without trash collection service."

"Banning the use of shelter and tents is reasonably related to addressing these public health concerns," the motion continued.

According to a recent memo issued by the city, Boulder reports clearing 389 camping sites and 106 tons of debris in about a year. Boulder also instated a group of downtown ambassadors, which reports picking up nearly 800 bags of trash and cleaned up biohazard waste from more than 100 humans and animals, the report notes.

This ongoing legal battle is the latest in nearly a year of back-and-forth between the ACLU and Boulder.

It comes months after the ACLU wrote a letter demanding a moratorium on enforcement of Boulder's camping ban throughout the winter and about a year after the organization sent a separate letter to city officials arguing Boulder's treatment of its unhoused residents is inhumane and unconstitutional.

The initial letter was sent at least partially because Boulder City Council last summer agreed to prohibit people from using tents or other temporary structures used for shelter or storage of property on city-owned land.

And the city has for years banned overnight camping in parks and public spaces in the city as well as the use of shelter, which includes blankets or any other cover or protection from the elements that is not clothing, according to city code.

In its motion, Boulder wrote that it determined that, to protect the availability of public lands for everyone, camping and erecting tents should be banned.

But for local providers, including plaintiff Feet Forward, the camping and tent bans require people to move along and impede the organization's ability to provide services.

"Like other providers, we also experience disruption to our mission as our clients are forced to move along continually," the nonprofit wrote in a statement about the ACLU lawsuit. "This spatial rotation interrupts our continuity of services, particularly in housing."