ACLU: Aurora ‘at risk’ as lawsuit over Boulder’s camping ban looms

BOULDER | After filing a lawsuit to halt enforcement of the City of Boulder’s controversial camping ban, the American Civil Liberties Union of Colorado says Aurora is “at risk” of a legal challenge to its own ban, which the city council passed earlier this year.

Attorneys argued in a lawsuit filed in the Boulder County District Court on May 26 that Boulder’s prohibition on sleeping outside and possessing a tent violates protections in Article II of the Colorado Constitution against cruel and unusual punishment and endangerment. The lawsuit also says Boulder’s camping ban violates state constitutional rights to use public spaces.

“On any given day or night, many unhoused residents are left with no way to live in Boulder without engaging in conduct the City makes a crime,” the lawsuit states. “When enforced against these individuals, the [camping and tent ordinances] punish the unavoidable consequences of being homeless in Boulder, endanger lives, and seek to exclude an entire segment of the community from collective space.”

While ACLU Colorado’s legal director Mark Silverstein acknowledged that Aurora’s ban would only allow for sweeps if there was enough shelter space to accommodate those impacted, he said camping bans in general punish those for whom existing shelter options aren’t a good match.

“It’s not just a question of shelter space; it’s a question of whether sleeping indoors is even an option for that person,” he said. “Aurora is one of a number of cities that are at risk of a challenge.”

Silverstein mentioned couples, pet owners and individuals with behavioral problems as examples of people who have traditionally had issues with established shelter options.

It’s unclear what accommodations might be made as the city has yet to make public it’s actually enforcing the new law. Questions surrounding available shelters space were raised days after some city lawmakers said they wanted sweeps of homeless campers to begin earlier in May.

The ACLU Colorado suit asks the court to deem the City of Boulder’s camping and tent bans unconstitutional and to impose a permanent injunction prohibiting the city from enforcing the ordinances.

At the heart of the lawsuit is whether Boulder can legally issue citations to people who sleep outside on city property when its homeless shelters don’t always have sufficient capacity or have policies restricting who gets inside. 

In December 2021, ACLU Colorado wrote a letter warning city officials to stop enforcing the camping ban after learning the largest shelter, the Boulder Shelter for the Homeless in North Boulder, had turned away people due to capacity limits. The letter followed a Boulder Reporting Lab analysis of city data showing dozens had been denied shelter access so far that year. Subsequent reporting revealed that tickets were issued on days when the shelter was full or when temperatures dipped below freezing.

“The ACLU called on [Boulder Police Department] to implement a moratorium on enforcement of the Blanket and Tent Bans at least until the end of winter,” the lawsuit states. “Rather than engage with any of the concerns raised in the letter, City Attorney Teresa Tate responded by pointing out that the Blanket Ban had not yet fallen to a constitutional challenge.” 

Sarah Huntley, a spokesperson for the City of Boulder, told Boulder Reporting Lab the city had received the lawsuit and was reviewing it. She said the city will comment at the appropriate time through its filings in the court process. 

Tate, the city’s attorney, in her earlier response to the ACLU wrote: “No court has ever found [the city’s ban on camping] to violate the constitutional rights of any person. Boulder’s laws have been upheld because we are in no way focused on the status of being unhoused.” Instead, she said, the laws are “focused on access to public lands, public spaces, and health and safety.”

The three plaintiffs named in the May 26 lawsuit were unable to access the North Boulder shelter, but still received camping tickets, according to the complaint. 

One person works during the only hours people are allowed entry for the night. One has four dogs, which the shelter prohibits unless they are service animals. One had been banned for a “code of conduct violation,” and was ticketed on a day when the shelter turned people away due to capacity, the lawsuit states. 

When people are unable to access the shelter, the attorneys for the plaintiffs argue, the city makes it illegal for them to use other means of shelter, such as a tent, for their survival. 

“They may ticket someone for using a tent when there is five inches of snow on the ground,” Annie Kurtz, an attorney for ACLU Colorado, told Boulder Reporting Lab. “Not having these items that the city has prohibited elevates the risk of serious injury and death.” 

Kurtz, citing the county coroner’s annual report from 2020, said five people who were living outside in Boulder County died of hypothermia that year. 

One of the plaintiffs, Jennifer Shurley, a 46-year-old who has lived in Boulder intermittently since 1996 and has the four dogs, said in an interview she was ticketed in December 2021 for camping. She said on most days she wakes up from her van parked on Mapleton Avenue at 5:30 a.m. and moves to a private parking lot, such as a McDonald’s, so she doesn’t receive another one. 

Shurley wants to stay in Boulder, where she works, but said she is not allowed to stay at the shelter with her dogs. She said she hasn’t been able to get housing through the housing lottery. 

“So you get these tickets and they tell you you should go somewhere else but there’s nowhere to go,” she told the Boulder Reporting Lab.

She said she got involved in the lawsuit because she believes it is important to decriminalize homelessness in Boulder. 

“That’s just the starting point. There’s a lot of other things that need to be done. But without decriminalizing it, I don’t see how we could do anything else,” Shurley said. 

The other plaintiffs in the case include several high-profile members of the community who advocate and support the city’s unhoused residents, including Jennifer Livovich, the executive director of Feet Forward, which provides food and services for homeless people on Tuesdays at the Boulder Bandshell. Another is Lisa Sweeney-Miran, the executive director of Mother House, which operates a shelter for people who identify as women, transgender, or nonbinary, and their children.

The lawsuit is the latest effort by Colorado civil rights attorneys to overturn the city’s camping ban, which was first adopted in 1980, following an influx of visitors who would camp in the foothills. 

Civil rights attorneys challenged the constitutionality of the city’s camping ban after David Lee Madison was ticketed in 2009 for sleeping in a public space after he was denied entry to the shelter. 

The city’s camping ban makes it illegal to sleep outside with anything, including a sleeping bag, except clothing. Early in the case, a Boulder Municipal Court judge ruled in favor of the city, stating Madison “could have anticipated the need to utilize layers of clothing, including a hat and gloves, rather than a sleeping bag, to provide protection from the elements.” Later, a Boulder County District Court judge similarly ruled Madison had other options for sleeping — and therefore the city did not violate his Eighth Amendment protections against cruel and unusual punishment. The state Supreme Court declined to hear the case. 

But since that lawsuit, in 2018, a federal court ruled ticketing people when they don’t have access to shelter violates Eighth Amendment protections. And last year, a District Court judge ruled in a lawsuit, also brought by ACLU Colorado, that the camping ban in Fort Collins violated civil rights for the same reason. 

In addition to Fort Collins, other cities across the Colorado Front Range have bans on camping, including Longmont, Denver and Colorado Springs. Boulder County was considering a prohibition on camping until the county commissioners voted it down earlier this month. 

Aurora’s camping ban was finalized at the end of March but has faced hurdles that have blocked its implementation. On May 9, Aurora’s City Council finalized a policy for storing certain items left behind at campsites, which a deputy city attorney said was the final obstacle to implementation.

But the city also suffers from a lack of available shelter space. Depending on the weather, there may be fewer than half as many shelter beds as there are homeless people in Aurora, and the language of the camping ban prevents campers from being displaced unless there is enough shelter space to accommodate them.

Discussing a proposal to install additional units of shelter at sites run by the Salvation Army, Mayor Mike Coffman said May 16 that the city “can’t go forward with the camping ban until we have an alternative shelter option.”

A city spokesman was not immediately able to confirm on Friday whether Aurora’s camping ban had officially gone into effect.

Silverstein said ACLU Colorado hopes the Boulder case will set a precedent for cities such as Aurora that are ironing out the details of their own camping bans.

“We don’t know yet how Aurora is actually going to enforce the ordinance,” Silverstein said. “But we’re watching.”