Judge upholds ACLU’s challenge of Boulder ‘blanket ban’

A Boulder District judge this week upheld part of a lawsuit challenging Boulder’s camping ban, specifically an ordinance prohibiting sleeping in public spaces under blankets.

The American Civil Liberties Union of Colorado filed a lawsuit against Boulder and Boulder police Chief Maris Herold claiming that the city’s camping ban violated three provisions of the Colorado Constitution.

Boulder then filed a motion to dismiss the lawsuit.

In a 35-page ruling issued Thursday, Boulder District Judge Robert Gunning dismissed most of the lawsuit’s claims for relief, but did rule that the complaints that the blanket ban in particular violated the state’s prohibition against cruel and unusual punishment “are ripe, justiciable questions.”

Gunning in his ruling noted that while the tent ban sanctioned conduct and not status, the blanket ban could be interpreted as a way to “essentially criminalize the status of homelessness.”

The Boulder ordinance bans living or sleeping outside while using “any cover or protection from the elements other than clothing.”

The ruling noted that other courts, including the Ninth Circuit Court of Appeals, have found that such bans violate the Eighth Amendment limits on criminalizing status rather than conduct.

In a ruling on an Oregon city’s ban on blankets and pillows, the Ninth Circuit ruled that “the distinction between sleeping without bedding materials, which was permitted under the anti-camping ordinances, and sleeping with bedding, which was not, was insufficient to distinguish the anti-camping ordinances” from other ordinances that had been ruled unconstitutional for punishing people for being homeless and not for specific conduct.

“Although Colorado has yet to address this issue, the court notes that at least one Circuit Court of Appeals has upheld a trial court’s ruling enjoining the city’s blanket ban as violative of the Eighth Amendment,” Gunning wrote. “This ruling was premised on plaintiffs’ status as involuntarily unhoused, and unable to access the city’s shelter, which had fewer beds than the number of unhoused city residents. Similarly, here, the complaint alleges, in extensive detail, the individual plaintiffs’ inability to access indoor shelter on a consistent basis, due in part to the number of available beds and other circumstances.

“Based on these well-pled factual allegations, the court concludes plaintiffs have adequately stated a claim upon which relief can be granted as to the constitutionality of the blanket ban.”

Feet Forward, a local organization providing services and resources for people experiencing homelessness, as well as several Boulder residents, some unhoused and some housed, are named as plaintiffs.

“We welcome this groundbreaking ruling,” said ACLU of Colorado Legal Director Mark Silverstein  in a statement. “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.”

Boulder officials have not commented on the ruling.

The lawsuit also alleged the camping ban violated the plaintiffs’ right not be to affirmatively placed into danger by the state and to use public lands in a manner that does not harm other Colorado citizens, but Gunning upheld the motion to dismiss those complaints.

Online court records do not show a next scheduled court hearing in the case.

“We are gratified by the court’s careful consideration of our arguments,” said Dan Williams, who is litigating this case as an ACLU Cooperating Attorney. “This decision will now allow us to proceed with discovery and a trial, which we expect will finally put a stop to the cruelest of Boulder’s enforcement practices.”