Judge upholds ACLU’S challenge of “blanket ban”
A Boulder district judge this week upheld part of a lawsuit challenging the city’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 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 although 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 9th Circuit Court of Appeals, have found that such bans violate the Eighth Amendment’s limits on criminalizing status rather than conduct.
In a ruling on an Oregon city’s ban on blankets and pillows, the 9th 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 .“and as involuntarily unable to access unhoused 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 wellpled factual allegations, the court concludes plaintif fs have adequately stated a claim upon which relief can be granted as to the constitutionality of the blanket ban.”
Gunning does note that while considering a motion to dismiss, he was required to “accept the material allegations of the complaint as true and draw all inferences in favor of the plaintiff,” including the assertion made by the lawsuit that “the number of individuals experiencing homelessness in the city of Boulder often exceeds the number of available shelter beds at (Boulder Shelter for the Homeless), the only shelter in the city.”
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 thi s 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 confirmed the city had reviewed the ruling as well.
“I can confirm that we have received the court’s order, which dismisses part of the claim against the city,” spokeswoman Sarah Huntley said in a statement. “Because the case is still active, with remaining issues still to be decided, we are not able to provide any additional comment. The city will present its position as part of the regular legal process.”
The lawsuit also alleged the camping ban violated the plaintiffs’ right not to be 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.”