No place to go 

District court says camping ban lawsuit can move forward

A tent set up near Boulder Creek in downtown Boulder. Photo by Will Matuska.

A Boulder district court judge said on Feb. 24 that a lawsuit challenging the City of Boulder’s camping ban can move forward. 

The lawsuit, filed by the American Civil Liberties Union (ACLU) last May, claims the Boulder camping ban violates three provisions of the Colorado Constitution, including the state’s prohibition against cruel and unusual punishment.

“We welcome this groundbreaking ruling,” said Mark Silverstein, ACLU of Colorado legal director, in a press release. “This is the first Colorado court to expressly recognize that the state constitution may require an injunction against the way a city polices its population of persons without homes.” 

Adopted in 1980, the City’s camping ban makes it illegal to sleep outside while using “any cover or protection from the elements other than clothing.”

The lawsuit — which includes three individual plaintiffs who have experienced homelessness, plus the advocacy group Feet Forward — centers around allegations that the City doesn’t have enough indoor shelter space and that “program rules, restrictions and structural realities exclude many unhoused residents from accessing the limited shelter that exists.”

One of the original plaintiffs, Jennifer Livovich, founder of Feet Forward, told Boulder Weekly on Feb. 28 that she was pulling out of the case as an individual, but that Feet Forward would remain a plaintiff. Feet Forward didn’t respond to requests for comment by press time.

Boulder Shelter for the Homeless, the City’s only overnight shelter, has a maximum capacity of 160 beds and makes 20 more available on critical weather nights, according to the City. During extreme weather events, the City opens the East Boulder Community Center for additional capacity. 

There is also limited overnight sheltering at The Lodge at Mother House for people who identify as women, transgender or nonbinary, and at TGTHR’s The Source, for anyone ages 12 to 20.

While The Source and Mother Lodge have limited day-time sheltering options, the City is still considering its own daytime shelter.

During an extreme weather event in December 2022, 107 people utilized the East Boulder Community Center, suggesting a valid need for more overnight shelter space on a consistent basis. 

The order, issued by Judge Robert R. Gunning, supports arguments from both sides while dismissing others. The court denies the lawsuit’s claim that sleeping outside on public lands indefinitely is allowed under the state’s constitution — calling the City’s camping and tent ban ordinances “a reasonable exercise of the City’s police power to regulate the use of public lands and public health.” But Gunning affirmed that the plaintiffs may have a case when there are inadequate sheltering options available. 

Boulder City Council discussed its homelessness strategy at its retreat last week (Feb. 23 and Feb. 24). Per Boulder Reporting Lab, city officials focused on both harm-reduction — possibly providing a sanctioned campsite where homeless people can sleep outside legally and access limited amenities — and on the more punitive action of shortening the amount of notice the City is required to provide before clearing out tent encampments.

“The situation of unsheltered homelessness has not markedly improved during our council tenures,” councilmembers Matt Benjamin and Rachel Friend wrote in a City Council hotline email.  

The council has a study session scheduled for April 13 to further discuss its homelessness strategy. 

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