The Boulder City Council approved changes to the ordinance that created the Police Oversight Panel in an effort to clarify confidentiality requirements. Credit: John Herrick

The attorney for the City of Boulder defended the constitutionality of the city’s public camping ban in response to a request by the American Civil Liberties Union of Colorado to suspend the ordinance this winter. 

Annie Kurtz, an attorney for the ACLU of Colorado, had requested the city suspend enforcement of the camping ban in part because the largest shelter, in North Boulder, has turned away dozens of people this winter due to capacity limits, according to city data

Kurtz argued ticketing people experiencing homelessness who sleep on city public property when there is not enough indoor shelter available violates constitutional protections against cruel and unusual punishment. 

The city disagreed, stating that the ban is focused on protecting the health and safety of the community.  

“No court has ever found [the city’s ban on camping in public spaces] to violate the constitutional rights of any person,” City Attorney Teresa Tate said in an email Wednesday to Kurtz that was obtained by the Boulder Reporting Lab. “Boulder’s laws have been upheld because we are in no way focused on the status of being unhoused.” 

Tate said the city’s camping ban ordinance is focused on maintaining access to public lands, public spaces, and health and safety. City workers who clear encampments where people don’t have immediate access to public restrooms have found hypodermic needles and feces. 

Tate wrote that the city “has placed significant resources and efforts into services, programs and initiatives that assist individuals in exiting homelessness” and will continue that work.  

Each year, police ticket hundreds of people for violating the camping ban, first adopted in 1980. Of those ticketed in 2020, 99% were considered unhoused, according to city officials. People sleeping outside risk receiving additional citations after the Boulder City Council last summer prohibited the possession of tents and propane tanks. 

The request for the camping ban suspension came after the Boulder Reporting Lab reported on Dec. 22 that the city’s largest shelter, the Boulder Shelter for the Homeless (BSH), had been turning people away at the door due to limited capacity.

The shelter had 140 beds and was sleeping 20 people in hotel beds at the time. Prior to the Covid-19 social distancing measures, the shelter slept 160 people. 

Last week, it added five additional beds and announced plans to place another five people in hotels on Saturday. That brings the total nightly capacity to 145 at the shelter, with another 25 people sleeping in hotels. 

Spencer Downing, the interim executive director of the shelter, said the shelter increased capacity last week in response to requests from shelter staff — many of whom turn people away at the door. 

Cold front: ‘no beds available’

The city attorney’s response came ahead of a New Year’s Eve cold front with temperatures dropping into the single digits.

The cold temperatures on Friday and Saturday triggered a “critical” weather threshold. According to the city and county homelessness services policy, that should open up another 20 hotel beds. 

But Downing said all the hotel beds were booked, even before the Marshall Fire displaced many hundreds of people suddenly in need of temporary housing

That means the shelter was unable to meet the city and county’s policy to increase capacity on the coldest nights of the year. 

“You sign a contract a long time ago when it’s all theoretical and then you have the reality,” Downing said on Friday. “Tonight there were no [additional hotel] beds available.”

At the time of publication, the Boulder Reporting Lab was awaiting information on whether the shelter turned anyone away this weekend, and whether the shelter was able to place five additional people in hotels on Saturday.

Downing previously confirmed the shelter had not turned away anyone on Wednesday and Thursday nights. He said fewer people typically show up to the shelter on holidays. 

Kurtz said she has been collecting records on camping ban citations and the ACLU will have people at the shelter monitoring turnaways. She said she cannot comment about whether her organization plans to sue the city over its camping ban. 

John Herrick is a reporter for Boulder Reporting Lab, covering housing, transportation, policing and local government. He previously covered the state Capitol for The Colorado Independent and environmental policy for Email: