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The City of Boulder is defending its controversial laws allowing police to ticket homeless people who sleep in public spaces, according to court filings that seek to dismiss a civil rights lawsuit filed on behalf of unhoused residents.
The lawsuit, brought by the ACLU of Colorado in May, aims to overturn the ordinances banning camping and possession of tents on city property. The group’s attorneys argue that making it a crime for people to sleep outside when there isn’t capacity available at the city’s main shelter — or when policies restrict who gets a bed — violates constitutionally protected rights of unhoused people.
The motion to dismiss the lawsuit was filed in Boulder County District Court on Friday, June 17. Attorneys representing the city said in the filing the laws are needed to prevent “permanent tent cities being established on public land.”
“The existence of such communities would not only deprive other citizens of the use of the occupied public lands,” wrote Luis Toro, senior assistant city attorney, “but would raise the potential for public health problems that would arise if the city became host to entire communities disconnected from the city’s water and sewer systems and without trash collection service.”
The city’s motion kicks off what will likely be a closely watched debate in the courts over the constitutionality of its longstanding camping ban, first adopted in 1980. Such ordinances are common in cities across the country but have come under frequent legal challenges due to concerns that they almost exclusively punish homeless people who have nowhere else to sleep.
A central question to the latest lawsuit is whether police can issue tickets for sleeping outside when the city’s homeless shelters fill up or have policies that limit who gets inside.
During winter months, people are often turned away at the door of the city’s main homeless shelter in North Boulder — the nonprofit Boulder Shelter for the Homeless — due to limited capacity. And police have ticketed people for sleeping outside on those same nights, according to an analysis of citations and city data by Boulder Reporting Lab.
Citing BRL’s reporting, the ACLU of Colorado initially sent a letter to city officials to stop enforcing the camping ban, at least during winter.
The subsequent lawsuit argues ticketing people for using basic forms of shelter, such as a blanket, when they need it for survival during the coldest months is a form of cruel and unusual punishment and government endangerment under the Colorado Constitution.
In short, they argue, the city punishes people “by virtue of their homelessness.”
The City of Boulder’s defense
In defending against this claim, the city argues it is not punishing people for being homeless, but rather for violating municipal ordinances.
This same distinction was the basis of Boulder County District Court judges’ decision to uphold a 2009 camping ticket, the catalyst for a previous constitutional challenge to the camping ban. The judge said the man challenging the ordinance had options besides using a sleeping bag, such as “using more layers of clothing,” to protect himself from the weather.
The city uses a similar argument to make the case that its ordinance does not intentionally punish homeless people and is therefore constitutional.
“Spending the night sleeping in public bundled in warm clothing is permitted, so long as the person does not use shelter,” like a tent or blanket, Toro wrote.
“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,” he added.
The city’s attorneys also argued that it is not the city that denies people access to the Boulder Shelter for the Homeless. The city contracts with the shelter to provide homeless services, and city staff help oversee policies that affect admission to all the shelters in Boulder County. The shelter is not named in the lawsuit.
The suit asks the Boulder County District Court to impose a permanent injunction prohibiting the city from enforcing the ordinances.
The city’s attorneys suggested that overturning policy instead falls to the Boulder City Council, not the courts.
Members of Boulder City Council were advised by the city attorney’s office not to comment on the lawsuit. And while several councilmembers have been vocal in their opposition to the camping ban, they did not vote during their retreat in January to make reforming the policy a priority in 2022.
The ACLU of Colorado will have about 21 days to respond to the city’s motion to dismiss before the judge issues a ruling on the merits of the case.
“We have every confidence in our case,” Annie Kurtz, an attorney representing the ACLU in the lawsuit, told Boulder Reporting Lab. “We think the law is on our side and expect the court to reject Boulder’s motion.”