A Boulder County District Court judge has paused a lawsuit challenging the City of Boulder’s camping ban while the U.S. Supreme Court considers a similar civil rights case stemming from Grants Pass, Oregon. The ruling from the nation’s highest court could have major implications for how cities across the country respond to encampments in public spaces amid rising homelessness.
The Boulder lawsuit seeks to halt enforcement of an ordinance that allows city officers to ticket homeless people for sleeping in public spaces when shelter is not accessible.
The case, filed by the ACLU of Colorado in May 2022 on behalf of several homeless people and a local nonprofit, Feet Forward, alleges that the city violated protections against cruel and unusual punishment in the Colorado Constitution by issuing citations to homeless people when they had nowhere else to sleep but in public spaces, among other allegations.
The legal dispute is a flashpoint in a broader debate over how the City of Boulder addresses rising homelessness and its associated impacts on public spaces. In November 2023, voters passed a ballot measure that amended city code to make tents and propane tanks near schools, sidewalks or multi-use paths “subject to prioritized removal.”
The Boulder lawsuit is currently scheduled for a trial in August 2024.
However, on April 10, 2024, Boulder County District Court Judge Robert R. Gunning issued an order halting proceedings on the case until the U.S. Supreme Court reaches a decision on a related case involving a similar ordinance in Grants Pass. The order means that neither side in the City of Boulder lawsuit will be able to file motions for discovery or request depositions for several months.
The Supreme Court is expected to issue its ruling on the Grants Pass case in June or early July, at which point the local lawsuit could proceed. Gunning said the Supreme Court ruling on the Grants Pass case could provide important precedent and “hold tremendous weight” in shaping a ruling on the Boulder case.
The Grants Pass lawsuit, Johnson v. City of Grants Pass, was filed in 2018 and alleges the city violated Eighth Amendment protections against cruel and unusual punishment by citing homeless people for sleeping in public spaces when they could not access shelter.
The Supreme Court held a hearing on the lawsuit on Monday, April 22. The questions posed by justices suggested that the court is relatively divided on the case. Much of the debate centered on whether homelessness is considered a state of being or form of conduct, and therefore, whether people can be punished for violating local ordinances that prohibit sleeping in public spaces.
Liberal justices appeared to side with the plaintiffs. For instance, Justice Elena Kagan said sleeping is a biological necessity, implying that people should not be punished for it. “Sleeping in public is kind of like breathing in public,” she said. By contrast, Chief Justice John Roberts offered an analogy involving someone who is hungry and in need of food. “If someone is hungry and no one is giving him food, can you prosecute him if he breaks into a store to get something to eat?” he asked a lawyer for the plaintiffs. Roberts also questioned whether the nine justices should be making “policy judgements” typically reserved for cities.
A ruling by the Supreme Court is unlikely to entirely resolve the case in Boulder. The Boulder lawsuit is based on similar civil rights protections in the Colorado Constitution, not the U.S. Constitution. That said, the wording regarding cruel and unusual punishment is similar.
The City of Boulder, which filed the motion to stay proceedings on the local lawsuit, said the Supreme Court’s decision will have a “dispositive impact on the validity of Plaintiffs’ remaining claim.” The plaintiffs argued the stay will “interfere with ongoing discovery that is critical to the timely resolution of this case.”
The City of Boulder spends about $3 million per year clearing out encampments of homeless people and cleaning up public spaces.
At least 171 people are experiencing homelessness in the City of Boulder, according to a point-in-time count by the city in July 2023. That number is likely higher, as people are often turned away from the city’s main shelter in North Boulder, which has a capacity of about 180 during certain severe weather conditions.
Ticketing people — who by reason of where they’re sleeping suggests they don’t have any money — is a fool’s errand. What is this meant to accomplish? Sound and fury signifying nothing, but appeasing those who are, who are what? Annoyed by the poor? Frightened by the mentally ill? Used to having their own way? What’s next? Bikes off city streets because some folks are bothered by having to drive past them?
We could, I suppose, load the homeless on buses and send them to Texas, but that’s truly cruel punishment for folks who clearly need a helping hand. So. The issue is: What does that helping hand look like? To me the idea of a year-round shelter is a good start. But I know that leaves those who won’t or can’t for a myriad of reasons use it. Do we have “mental health” teams visiting the encampments? Do we have them riding with the PD to check on the encampments? Could we do something like that? I know arresting people for being who and what they are isn’t the answer.
My daughter and some of her friends have been looking for housing for over a year and if you have one single eviction on your record there is no housing for 5 to 7 years. This is the issue that we need to address immediately.
Previous Boulder Reporting Lab pieces have referenced the raw data on the topic, but always helpful to link: https://bouldercolorado.gov/boulder-measures/homelessness-services
It’s interesting to see how many people who need shelter haven’t lived in Boulder for 2 years or more (over 70%), yet are local to Colorado broadly. Without direct data here it makes one wonder how strain on other shelters — say Denver — impacts Boulder.
When someone needs a bed in the broader Denver metro I suspect that those cities who offer the most services will be the most appealing. It would be helpful to understand this possible ‘demand generation’ in the discussion around adding more shelter beds or services; are the current shelter beds and services sufficient to service the 48% of people who have been in Boulder for at least one month (or the 33% who have been in Boulder for at least one year)?
Putting everyone seeking shelter into the same bucket seems pretty counter productive, lest a larger city nearby decides to bus people into Boulder the next time a large shelter expansion is complete. In housing law, many tenant rights are established after a person lives in a place for a minimum of 30 days, with some rights reserved for longer residence. Maybe we should use a similar analysis when it comes to considering what it means when people are turned away from the shelter due to capacity issues (currently at 25% of nights since October 2020).
Of course all of this hinges on the Supreme Court case, but maybe regardless of the outcome we should try to understand homelessness at an individual or cohort level rather than black and white — e.g. people in Boulder sleep in the rough purely because there is insufficient housing in Boulder.
We should probably understand the degree to which other surrounding city shelters and personal choices around shelter usage play a role. Anecdotally it seems like camping is the most prevelant in the summer months when, paradoxically, there is the most abundant shelter capacity — compared to the headline stat of 25% of nights with insufficient beds, from June 5th 2023 – Sepetember 2nd 2023 people were only turned away from the shelter a single night, or less than 1% of that period.
Your analysis falls short. The simple bottom line is that if people are living here and are homeless, they have no choice but to camp if the shelter is full. They have to sleep somewhere. If the shelter is full, has banned them, or they have legit reason not to go there, then what? You can’t then just sit back and theorize about where they came from in CO and dither about how long they’ve been here or why they don’t go somewhere else. If the goal is to get them off the street there are basically two options: jail or an alternate shelter situation. Jails are already full to overflowing so that’s not the answer. The sad fact for many residents is that Boulder is a mid-size city – not a smaller town like Louisville or Lafayette or any number of cities between here and Denver. So we need to suck it up and figure it out just like every other urban city center. At least make a genuine effort.
What if 100 people are bussed in from a neighboring city, is Boulder responsible for housing them? 1,000? More? I think you missed my point completely which is if people aren’t staying for at least a month then we should question to what degree they are ‘living here’.
What about a third option: we can go back to the raw data and see how many people need rehabilitation either for addiction or mental illness?
Defining Boulder, a city of 110k people as an “urban city center” seems pretty disingenuous. Is Longmont also an urban city center? Westminster?
This kind of blanket response is in fact why we aren’t getting anywhere with the situation and, indeed, why the Oregon case has reached the supreme court.
You are inventing problems No one is bussing people to Boulder.
Boulder is a regional job center with a research University last time I checked.
Roxanne, so Boulder has it’s own contribution to the problem. I wonder what the Area Median Income is in BO, over time. Maybe John Herrick can come up with that. I just know the proposed rents for example at 2206 Pearl @ a 300 sf. microunit without parking, but not what these housing costs are based on, 30% of income for 80% AMI at $1700mo. and 120 % AMI at $2600/mo.? This range is the “missing middle,” and maybe AKA “attainable” housing. This figure will be very revealing for the widening spread of wealth inequity and resultant evictions and homelessness. But I never hear the numbers for the actual AMI.
Some federal agency or department must be tracking that at least annually, I guess. The first hit on Google says it was around says it was around 75k in 2021 which is the number I usually hear.
Wait, what? I just saw this updated info where is says AMI is over 96k in 2022. That sounds more realistic. https://fred.stlouisfed.org/series/MHICO08013A052NCEN
Roxanne – But what is it now? It sounds like a moving target, which is my point. Probably $150K. How often do they update it?
Sounds like you and roxy should get together and have some coffee and discuss this matter ☕☺
😂
I don’t know, annually? For one thing, it has to be known for those applying to live in affordable housing so it can be determined whether they qualify based on their income. Soon most of us will be eligible.