Boulder responds to ACLU lawsuit against city's camping ban

Apr. 1—Boulder has formally responded to a lawsuit challenging the city's camping ban and questioning its constitutionality.

In a filing dated March 23, the city addressed a number of allegations made in the American Civil Liberties Union of Colorado's lawsuit, admitting that some of them were true but denying others. Most crucially to the case, Boulder has continued to deny one of the lawsuit's key claims — namely, that the city's camping ban, which it refers to as a "blanket ban," violates the Colorado Constitution's prohibition against cruel and unusual punishment.

In other jurisdictions, such as the Ninth Circuit Court of Appeals, camping bans have been successfully challenged on the grounds that they constituted "cruel and unusual punishment," particularly in cases where unhoused residents have no other viable options for shelter. The Ninth Circuit's 2018 ruling in Martin v. Boise established that, under the Eighth Amendment of the U.S. Constitution, camping bans could not be enforced against unhoused individuals who lacked access to other shelter.

"As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter," the ruling stated.

The heart of the lawsuit centers around whether Boulder's camping and tent bans may be considered "cruel and unusual punishment." The lawsuit itself asked that Boulder stop enforcing the bans in certain situations, such as when unhoused people are unable to access indoor shelter.

The city made numerous admissions in the filing indicating that the city's unhoused do not always have options for indoor shelter. For example, Boulder admitted that there are not adequate indoor shelter options for all of Boulder's unhoused population every night. The city also admitted it doesn't always check whether unhoused individuals are eligible to stay at private homeless shelters in Boulder before enforcing the camping ban.

Boulder also conceded that the 2021 regional Point in Time Count, a yearly count of people experiencing homelessness done on a single January night, showed a 99% increase from the previous year in people reporting they were newly unhoused.

"These are our neighbors," said Darren O'Connor, chair of the board of Feet Forward, a nonprofit homeless advocacy organization that is a plaintiff in the lawsuit. "A 99% increase in newly homeless means that we have lots of people, whether it's from the impact of COVID or god knows what else ... that are becoming homeless. ... What does this mean for someone who maybe just lost their home? It could be from a fire, it could be from the impact of COVID, and they don't have access to shelter. And they're basically criminals because of that."

Notably, the city acknowledged that unhoused people in Boulder spend at least part of the year in dangerously cold weather conditions that could cause hypothermia and frostbite, and that it has enforced the camping ban even during inclement weather.

But Boulder denied an allegation by the lawsuit that the city provides "woefully inadequate" shelter for its unhoused residents, that the size of the unhoused population exceeds available shelter space, that certain program rules and restrictions can exclude some unhoused residents from accessing what shelter is available, and that "as a result, on any given day or night, many unhoused residents are left with no access to indoor shelter in the city." The city also stated it "does not set rules for any shelter in Boulder."

Boulder has previously argued that its homeless policies are legal and don't violate the state Constitution because they're intended to address conduct rather than criminalize the status of homelessness. City Attorney Teresa Taylor Tate wrote in an email to the ACLU last year that Boulder's laws "focused on access to public lands, public spaces, and health and safety" and were not intended to punish people for being unhoused.

But O'Connor shared a statement with the Daily Camera saying that the city's response overall was "full of blatant denial of the truths we know from the city's own data."

"If this is the best defense they can muster on the asserted facts, they should be begging for a settlement," O'Connor wrote. He said he hopes the case will go to trial.

The ACLU of Colorado originally filed the lawsuit against the city of Boulder and Boulder Police Chief Maris Herold in May 2022. In addition to Feet Forward, several "Boulder taxpayers and unhoused residents of Boulder" are plaintiffs.

By June 2022, Boulder had already filed a motion to dismiss the lawsuit, arguing that because the city'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."

Although Boulder District Judge Robert Gunning in late February dismissed many of the lawsuit's complaints, including those concerning the city's tent ban, he upheld part of the lawsuit that challenged the camping ban, ruling that the complaints about the camping ban violating constitutional cruel and unusual punishment provisions were "ripe, justiciable questions."

A representative for the city of Boulder could not be reached for comment Friday afternoon.