ACLU asks Colorado Supreme Court to review ruling upholding Boulder’s camping ban

The ACLU of Colorado is asking the Colorado Supreme Court to review an appeals court decision rejecting the organization’s challenge to the City of Boulder’s camping ban. The petition is one of its last avenues for challenging the ordinance after a series of legal setbacks.

In May, the Colorado Court of Appeals upheld the camping ban, rejecting arguments that the ordinance violated the constitutional rights of homeless residents who could not access indoor shelter. 

The plaintiffs’ petition for certiorari, filed July 23, argues the Court of Appeals failed to independently analyze state constitutional principles and based its decision on “fiction” rather than the facts of the case. It asks the state’s highest court to consider whether criminalizing conduct that homeless people cannot avoid constitutes cruel and unusual punishment under the Colorado Constitution. 

“By criminalizing the unavoidable trappings of extreme poverty, the ordinances penalize unhoused residents’ existence in any of the City’s public spaces,” the plaintiffs wrote in their filing. “That is not a choice. It is punishment for surviving. It is banishment for being poor.” 

The city’s camping ban, first adopted in 1980, allows police officers to ticket homeless people for sleeping in public spaces with “any cover or protection from the elements other than clothing.” It has been called the “blanket ban” because using a blanket while sleeping outside can constitute a violation. 

In 2022, the ACLU of Colorado sued the city on behalf of Feet Forward, a now-dissolved homelessness services organization, and several homeless residents, arguing the camping ban violated the Colorado Constitution’s protections against cruel and unusual punishment, its guarantees of freedom of movement and use of public spaces, and due process protections against “state-created danger.”

In its decision, the Colorado Court of Appeals found no constitutional violation on any of the three grounds. The court relied in part on the U.S. Supreme Court’s 2024 ruling in City of Grants Pass v. Johnson, which upheld the constitutionality of a similar ordinance.

The plaintiffs’ core argument following the Grants Pass decision is that Colorado’s constitutional protection against cruel and unusual punishment is broader than its federal counterpart, the Eighth Amendment. The judges were not persuaded.

In the certiorari petition, the plaintiffs argue the Court of Appeals “abdicated” its responsibility to independently interpret the Colorado Constitution.

“The lower courts’ abdication is especially dangerous here because Grants Pass was a sharp departure from prior federal jurisprudence,” the lawyers wrote. “This Court should grant review to provide like guidance so that the meaning of the Colorado Constitution does not silently follow wherever federal law goes, even when it upends pillars of prior jurisprudence.” 

The plaintiffs also argue the Court of Appeals based much of its decision on “fiction” rather than the facts of the case.

The three-judge panel concluded, for instance, that homelessness is not involuntary in all instances, citing “a complex web of factors and individual circumstances” that contribute to it, including “preferences, comfort level, work schedules, relationship status, and having animal companions.” Such factors may explain why someone does not stay in a shelter.

But the ACLU of Colorado argues the plaintiffs in the case are not backpackers passing through town. They are people against whom the city enforced its laws while they were involuntarily homeless.

“Its fundamental mistake was to privilege over the well-pleaded facts the Grants Pass majority’s fiction that an ordinance criminalizing the defining features of homelessness is distinct from an ordinance criminalizing homelessness,” the lawyers argue. “That false premise underlies the entire opinion. But fiction cannot sustain withholding the protections of the Colorado Constitution from a deeply vulnerable group.”

The appeals court also found that Boulder had a legitimate public health reason for enforcing the camping ban. In previous court filings, the city said the ordinance helps prevent “tent cities,” which it argued deprive others of the ability to use public lands and raise the potential for public health problems related to “entire communities disconnected from the city’s water and sewer systems and without trash collection service.” 

The ACLU of Colorado said this is also based on a false premise.

“The individual plaintiffs were ticketed when they were not interfering with anyone’s liberty,” the lawyers wrote.

The Colorado Supreme Court has no deadline to decide whether to take up the petition. The court granted review in about 6% of the 767 certiorari petitions filed in fiscal year 2025.

The City of Boulder will have an opportunity to respond to the petition before the Colorado Supreme Court decides whether to review the case.