The American Civil Liberties Union of Colorado on Thursday sued Boulder, challenging the city’s bans on camping and tents in public spaces.
Specifically, the lawsuit asks Boulder to stop enforcing these ordinances in certain circumstances, even if a person does not have access to an animal shelter. The lawsuit also seeks to recover “nominal damages” for the individual unplaced plaintiffs named in the lawsuit.
“I hope this nudges the city to reconsider some of the decisions it’s made over the last few years,” said ACLU Attorney and Equal Justice Works Associate Annie Kurtz.
Boulder acknowledged receipt of the lawsuit but otherwise did not comment on the ongoing litigation.
“We have just received the lawsuit and are reviewing it,” city spokeswoman Sarah Huntley wrote in an emailed statement. “The city will comment through its filing in the court proceeding in due course.”
The lawsuit comes months after the ACLU called for a moratorium on enforcing Boulder’s winter camping ban, and nearly a year after the organization sent a separate letter to city officials arguing Boulder’s treatment of his unaccommodated Residents are inhumane and unconstitutional.
Boulder City Council voted last summer to ban people from using tents or other temporary structures used for shelter or property storage.
And the city has for years banned staying in parks and public spaces around the city, as well as the use of shelters that, according to city law, include any covering or protection from elements other than clothing.
While the ordinance banning camping and sleeping in public spaces is commonly referred to as a “camping ban,” the lawsuit instead speaks of a “blanket ban.” She argues that this is more accurate “because the regulation does not target the recreational activity of camping; It targets the act of survival, using a shelter as minimal as a blanket to protect yourself from the elements.”
Feet Forward, a local organization that provides services and resources for the homeless, and several Boulder residents, some homeless and others housed, are named as plaintiffs in the lawsuit filed against the city and Boulder Police Chief Maris Herold.
According to the complaint, Boulder prides itself on being No. 1 in America to call home, “but through two municipal ordinances, the city is seeking to accommodate the growing number of its residents who call the city home but cannot afford evicted from their public spaces to live indoors.”
The lawsuit alleges that the Boulder Shelter for the Homeless has turned away more than 250 people since last summer, with two-thirds being turned away on nights with freezing temperatures.
There are a number of reasons people might be denied stay at the emergency shelter, including failure to go through the county’s coordinated entry screening process or due to capacity constraints. These cases are documented on the city’s Shelter Occupancy Dashboard.
The coronavirus pandemic also played a role as the shelter was forced to reduce capacity during the peak of the pandemic. It is now operating at its full capacity of 160 beds, according to interim director Spencer Downing.
However, its contract to provide hotel rooms to some residents during the pandemic has expired, and the shelter remains focused on housing, which experts say is the most effective way to positively impact homelessness.
“The shelter and the city are making every effort to provide as much space as possible for people who are not housed in Boulder,” Downing said. “The shelter is obviously very proud to focus on housing.”
The ACLU posits in its lawsuit that the problem is more how the city responds when people cannot stay in the shelter. Boulder is enforcing the contested ordinances against unaccommodated residents even as hazardous weather poses an increased risk of heat-related illness, hypothermia, frostbite and even death, according to an ACLU press release.
According to Kurtz, Boulder could check with the shelter to see if it’s operating at full capacity before enforcing its camping-related ordinances.
“I honestly don’t think it’s such a big question,” she said. “I think that’s something the city should be doing already.”
Huntley confirmed in an email that “the City of Boulder is not asking the shelter to give us nightly capacity updates because the staff is very busy checking people in for the evening.”
The decision to pursue legal action was unanimously approved by Feet Forward’s board of directors, according to executive director Jen Livovich.
The organization is based on lived experience. Livovich and other staff and volunteers have experienced homelessness in Boulder.
“This includes our own experiences of the blanket ban and the resulting imprisonments, fines, discrimination and general cruelty experienced for daily acts of survival,” the organization noted in a statement.
While the city declined to respond to Thursday’s lawsuit, Boulder officials, in a response to the ACLU’s December letter requesting a moratorium on enforcement of the winter camping ban, stressed that the city and district court von Boulder have upheld the law in the past.
“Boulder’s laws have been upheld because we have no focus whatsoever on the status of the homeless,” prosecutor Teresa Taylor Tate wrote in an email reply to the ACLU late last year. “Instead, Boulder’s laws focus on access to public lands, public spaces, and health and safety.”
Last summer, after the ACLU wrote its first letter to the city, Homeless Solutions for Boulder County rescinded its policy requiring people to live in the county for six months to receive homeless shelters and other assistance. According to official sources, the HSBC board made the decision before receiving the letter, but the move has yet to be officially announced.
In a statement, Dan Williams, a member of the plaintiffs’ legal team and a former Boulder City Council candidate, noted that the city’s policies have not reduced the number of people living outside. Those numbers have increased, he said.
“But it’s made life a lot harder for people, forcing them into the criminal justice system and creating new barriers to getting out of homelessness,” he said.
In fact, the lawsuit relates to the 2021 census, which showed a 99% increase in the number of people saying they were newly homeless from the previous year.
Jennifer Shurley, one of the plaintiffs in the lawsuit, has lived on and off the streets of Boulder since 1996, when she fled an abusive relationship.
Despite going through the county’s Coordinated Entry Screening process, Shurley is unable to stay at Boulder Shelter for the Homeless because, according to the complaint, she has four dogs, one of which is a service dog trained to deal with her lupus .
While she has always felt somewhat discriminated against, Shurley argued that the criminalization of homelessness has increased. She said it often feels like policies are aimed at making people who are housed feel comfortable, rather than addressing poverty and other reasons people may not have permanent housing.
At the end of the day, Shurley’s request is simple.
“I want to be seen as a human being,” she said. “The basic human needs are to sleep, eat, bathe – basic things that people do in the privacy of their homes that we have no choice about in public.”