Boulder is seeking to dismiss a against the city’s camping ban in the wake of a that upheld cities’ right to prohibit unhoused people from sleeping on the streets.
The city , claiming that, instead of criminalizing homelessness, the camping ban “regulates a certain conduct — sleeping outside with shelter.” That attempt to dismiss the suit failed, and the case moved forward.
But in this latest motion to dismiss, attorneys for the city argue that the case should be dismissed based on this summer’s City of Grants Pass v. Johnson Supreme Court decision. The court ruled that it was not “cruel and unusual punishment” for cities to enforce camping bans.
In , attorneys for Boulder wrote that the city’s camping ban is “less restrictive” than the ordinances the Supreme Court upheld in Grants Pass and that local governments should be the ones to set homelessness policy.
“Ultimately it is up to legislators to determine Colorado’s public policies regarding homelessness, not this court,” they wrote, suggesting that that responsibility should fall to the Colorado legislature, county commissioners or city councils.
“This court must reject plaintiffs’ effort to litigate the public policy of the city of Boulder and the state of Colorado under the guise of their interpretation of (the state Constitution).”
Boulder has not allowed overnight camping in parks or public spaces for years. But additionally, the city has outlawed the use of shelter, which includes any cover or protection apart from clothing, leading some to refer to the city’s policy as a “blanket ban.”
The ACLU lawsuit, filed in 2022, argues that Boulder enforcing its “blanket ban” violates a provision in the Colorado Constitution prohibiting “cruel and unusual punishment,” especially in cases where people camping outdoors have no viable options for indoor shelter.
Camping bans in other jurisdictions have been challenged in the past on similar grounds. In the , the Ninth Circuit Court of Appeals ruled that, under the Eighth Amendment of the U.S. Constitution, camping bans could be considered “cruel and unusual punishment” and could not be enforced against unhoused people who had no access to other shelter.
The Ninth Circuit Court applied similar logic in the Johnson v. City of Grants Pass case of 2022. The city of Grants Pass, Ore., had several anti-camping ordinances, including one that banned the use of bedding supplies like pillows, blankets and sleeping bags when sleeping in public. The court struck down the bedding supply ordinance and ruled that it, as well as other anti-camping ordinances, violated the Eighth Amendment.
But in June, the , declaring that it’s not a violation of the Eighth Amendment for cities to enforce camping bans. The court , with the six conservative justices in support and the three liberals dissenting.
It’s been clear for some time that the future of the ACLU lawsuit against Boulder’s camping ban could hinge on the Supreme Court decision. Boulder District Judge Robert Gunning previously made a , but he considered the Grants Pass case “pivotal” in that ruling. In April, he pending the Supreme Court’s decision.
He wrote at the time that the Supreme Court decision “will at a minimum be of great precedential value. In the absence of existing Colorado precedent, the U.S. Supreme Courtap interpretation of the identically worded Eighth Amendment will hold tremendous weight.”
Dan Williams, an attorney for the plaintiffs, told the Daily Camera he believes the ACLU lawsuit still has merit because the suit argues that the policy violates the Colorado Constitution rather than the Eighth Amendment.
He also said that, regardless of the District Court’s decision, he believes both sides — the plaintiffs and the city — are likely to appeal the case if they don’t prevail. The case could eventually make its way to the state Supreme Court for a final decision.
“There’s just no reason why the Colorado Supreme Court should feel bound by what was clearly a politicized decision from the conservative bloc on the current U.S. Supreme Court,” said Williams. “And it’s disappointing to me, as a resident of Boulder, that our city is following what is pretty much universally regarded as an extremist right-wing majority Supreme Court. I would have hoped that Boulder would have taken a more progressive view to this subject.”
In Friday’s court filing, attorneys representing Boulder argued that the Colorado Constitution’s provision about “cruel and unusual punishment” is exactly the same as the Eighth Amendment and that there’s no legal basis for interpreting the two differently.
The case had originally been scheduled to , but the trial dates were vacated by agreement from the parties in the lawsuit. Williams said the plaintiffs have until Sept. 6 to respond.
