The City of Boulder has responded to a lawsuit filed by the ACLU of Colorado, which seeks to overturn its ban on public camping on grounds it violates civil rights protections in the Colorado Constitution. The March 23 filing describes how police officers and city officials enforce the controversial law, but denies allegations that it has run afoul of the state Constitution.
The camping ban law allows city employees to clear out encampments of homeless people and ticket them for sleeping outside in public spaces. It makes any shelter beyond the clothes on their back illegal. A district court judge in February 2023 allowed the case to proceed on one of the plaintiffs’ core allegations after the city requested the case be dismissed.
In particular, the judge said that when there is no shelter available, the plaintiffs may have a case.
In its answer, the city responded to all allegations in the May 26, 2022 lawsuit, either admitting, denying, or stating it didn’t have “sufficient information to admit or deny” them.
The response acknowledges that “on some nights there are not enough overnight shelter beds for the number of people experiencing homelessness” in the City of Boulder. It estimates there are about 450 homeless people in the city. On most nights, the city’s largest shelter in North Boulder, the Boulder Shelter for the Homeless, sleeps 160 people. Other, smaller shelters in the city serve young people and women, transgender or nonbinary people. The city admitted it does not always check if a person is eligible to stay at one of the city’s privately operated shelters before taking enforcement actions.
The city agreed with the plaintiffs that “unhoused persons in Boulder spend some portion of the year in conditions that could cause hypothermia and frostbite.” At the same time, the city said it has enforced the campaign ban when the weather “was below freezing, when it was raining, or when it was snowing.”
Homelessness advocates have long expressed ethical concerns with such enforcement practices. But the lawsuit centers around a more narrow legal question: whether the city is violating protections against cruel and unusual punishment enshrined in the Colorado Constitution when it punishes people for sleeping outside when they have nowhere else to go. When people do not have access to a shelter, courts across the country have ruled that enforcing such camping bans violate similar Eighth Amendment protections in the U.S. Constitution.
The city denied all allegations with these more obvious constitutional implications.
The ACLU lawsuit, for instance, argued that if unhoused city residents cannot be indoors, then they “rely on shelter, including tents and other cover from the elements beyond their clothing, to stay dry and warm enough to survive.”
The city denied this allegation.
The lawsuit also alleged that the city has enforced the campaign ban “on many nights when, or mornings after” the city’s main shelter in North Boulder, the Boulder Shelter for the Homeless, was at full capacity. (An analysis of City of Boulder police records by Boulder Reporting Lab in 2022 found officers wrote at least a dozen tickets for illegal camping or possession of a tent on days the city’s largest shelter turned people away due to capacity, or the following day.)
The city denied this allegation.
Lastly, the lawsuit argued that certain people cannot access an indoor shelter due to limited bed capacity or policies restricting entry, such as a prohibition on pets. As a result, the city has enforced its camping ban when people have nowhere else to go, punishing them “by virtue of their homelessness.”
The city denied this allegation.
Since the lawsuit was filed in 2022, the city has continued implementing its camping ban. That year, 304 citations for illegal camping were filed in the Boulder Municipal Court, according to city data. Since 2010, the average number of annual camping ban filings has been about 400.
The same week the city responded to the lawsuit, City Manager Nuria Rivera-Vandermyde told councilmembers the city has modified its protocols to treat multi-use paths and underpasses as “commuter corridors.” As a result, the city will not provide 72-hour notice before clearing out encampments of homeless people in these areas.
Courts have ruled cities must provide “reasonable notice” before confiscating people’s belongings in order to comply with due process protections under the 14th Amendment of the U.S. Constitution.
The reduction in notice will not include areas around schools, despite some residents requesting that it apply there. Instead, Rivera-Vandermyde said the city is increasing police patrols in areas around schools, such as Boulder High.
Her decision comes after a series of fires near tents, presumably caused by people using propane heat for warmth. Between January 2022 and February 2023, the city confiscated 352 propane tanks.
Dan Williams, a civil rights lawyer with a Boulder-based law firm working on the case, said in the next few weeks, the plaintiffs will request that the case go to trial. The trial date could be set later this year.
On April 13, city officials will present on the city’s homelessness response to the Boulder City Council. Most councilmembers have said they are interested in creating a sanctioned campsite, also known as a “safe outdoor space,” where people could sleep legally and have access to basic amenities, such as bathrooms.
So, are my civil rights being violated if I must procure a building permit prior to construction in Boulder? Where are the safety concerns for everyone affected by construction of these encampments? The fire risk alone should be of concern to everyone as well as the health risks do to human waste disposal.
Hi Taree, I think my privilege to build is more important than a humanitarian issue that causes me slight inconveniences. What can the city do for my already successful business to ensure these people’s lives get worse?
This Boulder-based think tank, the Institute for Cultural Evolution, has a thoughtful policy recommendation on the issue of homelessness:
Nobody is being anti-homeless here. A small subset of people our public spaces and creating dangerous situations for those trying to enjoy our public spaces. Enforce the no-camping ban. Let the chips fall where they may. Parents no longer feel safe taking their kids to our public spaces for fear of being harassed. Are we going to wait until the city is burned down and all the small businesses shut down? Do we care about the safety of our kids dealing with exploding propane tanks right outside their schools? Take a tour of one of these encampments before you make up your mind. Enough is enough.
I was a homeless camper on the outskirts of Boulder, CO from early 2008 through 2017 (I’m now living in a long-term care facility due to medical issues). I never had any trouble with neighbors, business owners, or law enforcement (who checked on my welfare in the coldest weather conditions). The only problems I had were with the small percentage of transients who seek to prey on others they perceive as weaker. I never thought that my rights were being violated! My secret really isn’t any secret: Respect yourself, respect others, and respect the community we all share.
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