The City of Boulder has found a new ally in its legal battle to uphold its controversial camping ban: the U.S. Supreme Court.
In a legal motion filed Friday, Aug. 23, the city cited the June 2024 ruling by the nation’s highest court that upheld the right of cities nationwide to ticket homeless people for sleeping in public spaces, even when shelter beds are unavailable. The ruling has given Boulder new ammunition in an ongoing lawsuit that has deepened divisions in Boulder over how to address encampments of homeless people.
Siding with the justices, the city argued in an amended motion to dismiss that decisions on how to address homelessness rest with elected officials, not the courts.
“Ultimately it is up to legislators to determine Colorado’s public policies regarding homelessness, not this Court,” the city’s lawyers wrote. “It is up to the City Council, not the Plaintiffs nor this Court, to determine the continued propriety of these provisions as a matter of public policy.”
The ACLU of Colorado filed the lawsuit against Boulder in May 2022 on behalf of several homeless people and the local nonprofit Feet Forward. The suit alleges that the city violated protections against cruel and unusual punishment in the Colorado Constitution by issuing citations to homeless people who had no option but to sleep in public spaces, among other claims. The lawsuit seeks to halt enforcement of the city’s camping ban when shelter space is unavailable.
The debate over Boulder’s camping ban has gained renewed attention as the number of people sleeping outdoors has increased in recent years. In November 2023, voters passed a ballot measure amending city code to make tents and propane tanks near schools, sidewalks or multi-use paths “subject to prioritized removal.” The Boulder City Council has largely refrained from publicly discussing the lawsuit or altering the underlying policy.
Previously, the city sought to dismiss the lawsuit by arguing that it does not criminalize the status of homelessness, but rather regulates the conduct of sleeping outside overnight without shelter. The city drew comparisons to other legal rulings allowing cities to punish certain behaviors, such as drug use.
But the legal landscape has shifted with the U.S. Supreme Court’s ruling. The case involved similar claims and a similar ordinance in Grants Pass, Oregon. The conservative justices concluded that such laws do not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
The plaintiffs in the Boulder case argue the Supreme Court’s ruling should not determine the outcome of their case. Their claims are based on provisions in the Colorado Constitution, not the U.S. Constitution.
Lawyers for the city, however, counter that the provisions regarding cruel and unusual punishment in both constitutions are “identical” in wording. They argued Colorado courts have historically followed federal interpretations of similar provisions, suggesting there is “no legitimate basis” to deviate from the Supreme Court’s ruling in this case.
Dan Williams, a lawyer with the local civil rights firm Hutchinson Black and Cook who is representing the plaintiffs in the case, said there is no reason to believe the Colorado Supreme Court would follow the U.S. Supreme Court’s lead when interpreting the state’s constitution.
“For the City of Boulder to demand that the Boulder District Court interpret our state’s constitution similarly to the way the right-wing conservative bloc on the U.S. Supreme Court interprets the federal constitution is a choice,” Williams said.
The plaintiffs in the case will have a chance to respond to the city’s latest motion to dismiss by Sept. 6.
Update: This story was updated on Aug. 26 with a statement from Dan Williams, a lawyer representing the plaintiffs in the case.
So let it play out between the State and Fed’s Supreme Court constitutions, not inflame the public meanwhile.
There are only two kinds of land: Privately owned and Publicly owned. If you don’t own the land, you do not have a right to be on it. If the Privately-owned landowner wants you off, you stay off or the police will remove you. If it is Publically-owned, the government speaking for the public owners can decide that you can/can not be on the land. The police can remove you. If the government decides to allowcate or set aside some of it’s Responsibility-land for the special temporary use by a class of people (“homeless” without funds to rent a space), it can do it. If the people don’t like the government’s decision, the people can replace that government with another that follows the voters wishes. If there were severe economic hard times, the homeless might be accommodated temporarily on Public Lands, as in mountain “Reserved” land, National Forest lands, National Desert lands, River Flood zones, etc. The latter may not be all that desireable, but at least a person could legally stand there, sleep there, eat there, exist there…temporarily. Ideally the nearest government could supply clean water, toilets, garbage pickup, lite-police discipline to protect the individual and their property, lite medical care, emergency transportation for more serious issues (heart attack, breathing, bleeding, spreading fires, flooding,…).
I own my land and Xcel has the right to enter my property against my will.
Bob, what about the cost of providing human need without conventional shelter? Its much more expensive. And you say “temporarily,” until when? Until it’s no longer needed? What would cause that?
All good points. We need to look strategically and realistically at this issue, not head in the sand as we do now. Keeping people unsheltered and shuffled around town exacerbates all the related issues.
The link to a previous BRL story of the ACLU lawsuit has a link to the lawsuit which is now dated. Jennifer Livovich has removed her name from the original lawsuit which led to her separation from Feet Forward, one of the main plaintiffs in the ACLU lawsuit. Here is the link to the most recent amended suit:
https://www.aclu-co.org/sites/default/files/field_documents/2023-10-13_exhibit_a_-_amended_compl.pdf
Here is a link to the ACLU Colorado note on this lawsuit:
https://www.aclu-co.org/en/cases/feet-forward-et-al-v-city-boulder-et-al
There is a brief statement about the Grants Pass ruling at the bottom:
“After the decision in Grants Pass was issued, the court ordered the parties to brief its impact on this lawsuit. The ACLU of Colorado maintains that the reasoning in Grants Pass is unpersuasive, and the Colorado Constitution protects unhoused people from being prosecuted for basic survival activities.”
Does anyone know why the former Chief of Police Maris Herrod is still on the lawsuit?