A three-judge panel heard oral arguments Tuesday in a lawsuit seeking to halt enforcement of Boulder’s camping ban, with judges pressing both sides on how to interpret the state constitution and whether the city’s ordinance targets conduct or the status of being homeless.
The ACLU of Colorado filed the lawsuit in 2022 on behalf of several homeless people, arguing that ticketing people for sleeping outside with as little as a blanket amounts to cruel and unusual punishment when no shelter is available. A Boulder County District Court decision upheld the ban in 2025, relying heavily on the U.S. Supreme Court’s ruling in Grants Pass v. Johnson, which found a similar Oregon ordinance did not violate the Eighth Amendment.
During oral arguments this week, plaintiffs argued that the Colorado Constitution should be read more broadly than the federal version given the state’s history and geography. The city countered that the Colorado Supreme Court has signaled it does not interpret those protections differently.
The judges appeared skeptical of both positions at times. No timeline has been set for an opinion from the court.
They also questioned whether the court should deviate from Grants Pass and whether the Colorado Constitution should be interpreted more broadly than the U.S. Constitution.
“I know we can interpret our own state constitution to provide broader protections, and certainly our state Supreme Court has done that, but it has also signaled alignment or mirroring of the Eighth Amendment,” Judge Grant T. Sullivan told the plaintiffs.
Sullivan also asked the plaintiffs where cities can draw a line between criminalizing someone’s status and their conduct.
“It’s cruel and unusual to prevent a person from using a blanket to cover themselves in the elements, that might be very well true, but I think that same rationale could be applied to building a fire to keep yourself warm during cold Colorado winters,” Sullivan said.
Andy McNulty, a Denver-based civil rights lawyer representing the plaintiffs, said courts should decide where to draw that line.
“I think that all of these cases present a balancing test … of governmental interests against the constitutional rights of individuals,” McNulty said. “That’s what courts are here to decide.”
Despite this apparent skepticism of the plaintiffs’ argument, Judge Sullivan also asked the city to clarify how its camping ban does not target the status of homelessness.
“It’s pretty plainly targeting the unhoused,” he said of the city’s camping ban. “It reminds me of the adage … ‘a tax on yarmulkes is a tax on Jews.’ So help me understand why it’s a conduct-related regulation and not targeting status in disguise.”
Andrew D. Ringel, a lawyer representing the city, said homeless people can do other things in the City of Boulder that are not criminalized, such as sitting in a park or walking around.
“One could argue that different lines could be drawn in that context, but I think that’s a legislative judgment issue and not a judgment for the court,” Ringel said.
What camping ban? There are tons of tents and people camping along the Creek Path (and have been for years). Doesn’t seem like there’s any effort to enforce a camping ban.
There should be an effort. I no longer bike along the creek path because I do not feel safe. The last time was when a woman was illegally camping along the bath and threatened another illegal camper with a big knife as she screamed and cursed. I do not support illegal camping that is a threat to the residents of Boulder and our safety. When people argue that Boulder should not have a camping ban, are they considering the well being of Boulder residents that follow the laws and pay taxes for all the services that are provided including helping the unhoused? Do they want them camping in their neighborhoods and near their homes? I doubt it.
When you logically look at this case like Judge Sullivan is attempting to do, it’s impossible to defend that the city (like many others) is not targeting the homeless. Of course it is. We all know that. And this weak sauce of an argument (“Andrew D. Ringel, a lawyer representing the city, said homeless people can do other things in the City of Boulder that are not criminalized, such as sitting in a park or walking around.”) is making that ever more evident. If there is not enough shelter, he is implying the unhoused can simply walk around all night or sit in the park without even a blanket. Sullivan sounds like he has more integrity and sense than to accept this absurdity.
In order to protect the residents of Boulder and the general public, there must to be laws and limits on public camping. If someone comes to Boulder and thinks it will be fine to camp overnight with no laws that apply, laws are needed to prevent it. If someone is homeless and a resident of Boulder, they should be given priority for shelter. I am not sure what the rules are. Boulder should follow the same procedure that Central Park in NYC has. There is no camping, hammocks, tents, propane or open grills allowed. No overnight camping is permitted.
I personally saw City Housing Director Kurt Firnhaber tell City Council at least twice that the shelter “never” turns anyone away because of lack of space. The ACLU lawsuit revealed it happens THOUSANDS of times some years. The old Boulder Beat reported this at least twice but I can’t find it. Jen Livovich, who started Feet First and another org for the homeless, will remember. Here’s BRL’s story: https://boulderreportinglab.org/2022/05/27/aclu-of-colorado-sues-city-of-boulder-over-camping-ban-homelessness/
The US Constitution’s Supremacy Clause (Article VI, Clause 2) establishes it, along with federal laws and treaties, as the “supreme Law of the Land.” This means state constitutions, laws, and courts must yield to federal authority in any conflict.
Even without the Grant’s Pass ruling, common sense dictates that no one has a right to take the public space for their own exclusive, private use. Because then it becomes, well, private space…