Boulder City Hall on Dec. 9, 2021. Councilmembers have remained mostly quiet on the lawsuit to stop enforcement of the city's camping ban. Credit: John Herrick

Members of the Boulder City Council have said little publicly in response to last week’s lawsuit seeking to halt enforcement of the city’s controversial camping ban — even councilmembers who fiercely campaigned against it last year. 

Most are not commenting on the suit due to the pending litigation. But that some of the policy’s staunchest critics on council have remained mum could be an indication the courts will end up deciding the fate of the decades-old policy prohibiting sleeping in public spaces. 

“I think we’re going to look for feedback from the city attorney’s office on the merits of the case and the next steps that we should take,” Mayor Aaron Brockett told the Boulder Reporting Lab. 

Brockett has said he supports the camping ban. In July 2021, he voted to broaden the camping ban to include a prohibition of tents and propane tanks. But in April that year, he opposed spending another $1.5 million on hiring six additional police officers to clear encampments. 

His mixed stance captures the nuanced perspective in an often polarized debate.

Proponents say the policies prevent encampments from overtaking Boulder’s public spaces and creating unsafe living conditions. They generally want more enforcement as local homelessness rises across the county, propelled by high living costs and other factors. Opponents of the ban say it does little to reduce homelessness and punishes those without a home. 

The lawsuit, brought by the American Civil Liberties Union of Colorado, alleges the city’s enforcement of ordinances prohibiting sleeping in public spaces and possessing a tent violates the civil rights of homeless people when they have nowhere else to sleep. 

The ordinances came under additional scrutiny this winter when the city’s main nonprofit-run shelter in North Boulder, the Boulder Shelter for the Homeless, was turning away people on below-freezing nights due to insufficient capacity. Homeless service providers say there are more homeless people in the City of Boulder than there are shelter beds. 

The lawsuit could take a year or more before a Boulder County District Court judge issues a ruling on the civil rights allegations. A 2019 lawsuit filed by the ACLU of Colorado in the Larimer County District Court after Fort Collins police officers ticketed a man for sleeping in his car took nearly a year to reach a conclusion. (The judge in 2020 overturned the ticket, in part due to limited shelter capacity and implications for civil rights, but did not block the city from enforcing its camping ban.) 

While Boulder’s camping case plays out in the courts, it remains unlikely much will change in the meantime. The city has defended the constitutionality of the camping ban in the past. 

Councilmember Matt Benjamin posted on Twitter that the city should consider policy changes. But he and other council members declined to comment on the camping ban because the lawsuit is pending. 

“Why do we look to the courts to define our moral position on issues? Our city has kicked the can for too long in aligning its policies to our moral obligations to support those in need. We need to stop talking about it and start putting in the work,” Benjamin wrote in a tweet. 

When he was campaigning for a seat on the Boulder City Council last year, he said on his website, “I do not support continued encampment sweeps, unless we have somewhere for our unhoused to go.” 

Similarly, while campaigning, councilmember Nicole Speer penned an op-ed in the Daily Camera that likened ticketing homeless people to the War on Drugs, a drug enforcement policy that has had the effect of driving up the disproportionate incarceration of Black men. The editorial was co-authored by Dan Williams, a former city council candidate and Boulder-based civil rights attorney involved in the ACLU of Colorado lawsuit against the city. Speer also volunteers with Feet Forward, a homeless services provider named as a plaintiff in the lawsuit. 

“Experts agree putting people into the criminal justice system makes it harder for them to get back on their feet, find housing, and find a job, not easier,” the editorial stated. 

In July 2021, Councilmember Junie Joseph opposed measures that prohibited the possession of a tent or propane tank. But Joseph is reluctant to call for repealing the camping ban entirely. 

On Tuesday, she said she received emails from members of the community asking her what she plans to do about the number of encampments along the creek. Such emails are common. And she said she doesn’t want people living in tents, especially in freezing conditions.

“This is very hard,” she said. “It’s not safe to have community members living on the streets.” 

Joseph said she is interested in considering changes to the camping ban but did not describe specific reforms.

“At the end of the day, lawsuits are about grievances,” she said. “It’s about going back to the drawing board with all members of council.” 

Joseph said she supports creating a day shelter in Boulder to provide people a warm place to go during the day and a location to access a range of homelessness services. Kicking off the process for creating a day shelter was one of the Boulder City Council’s priorities this year. With the exception of a handful of unusually cold winter days, the city’s main shelter in North Boulder is closed from 8 a.m. to 5 p.m. 

Even if some of the nine councilmembers wanted to repeal the ordinance, it’s unlikely they would have the five votes needed to do so. 

Councilmembers Mark Wallach and Bob Yates both voted for the tent and propane bans. Yates told the Boulder Reporting Lab he wanted to wait until city staff present on Boulder’s homelessness policy later this summer before weighing in on the future of the camping ban. He declined to comment on the lawsuit.  

Councilmember Tara Winer has said she supports the camping ban along the Boulder Creek bike and walking path. (Councilmembers Rachel Friend and Lauren Folkerts did not return requests for comment from the Boulder Reporting Lab in time for publication.)

Repealing the camping ban at the city council level would be relatively unusual. Generally, cities across the country are enacting stricter policies on sleeping in public spaces — from New York City to Washington, D.C. to Seattle – not more lenient ones. 

In Austin, Texas, a vote by the city council to soften penalties for camping and laying in public spaces and sidewalks was overturned about two years later through a ballot measure. 

John Herrick

John Herrick reports on housing, climate, health and local government for Boulder Reporting Lab. He previously covered the state Capitol for The Colorado Independent and environmental policy for VTDigger.org. He is interested in stories about people, power and fairness.