DENVER (CN) - Advocates for the unhoused pushed the Colorado Court of Appeals on Tuesday to follow guidance from a 2024 U.S. Supreme Court dissent and revive their challenge to the Boulder's bans on blankets and tents.
"The Colorado Constitution requires independent interpretation and does not follow the U.S. Constitution in lockstep," argued civil rights attorney Andy McNulty. "This is an ordinance that enforces writing tickets when it's freezing at night and so hot during the day that sitting in the sun can give you heatstroke."
Three people experiencing homelessness and two taxpayers joined a nonprofit in suing the city of Boulder in May 2022 challenging "cover ban" ordinances directed at the unhoused population.
The Metro Denver Homeless Initiative estimated 727 people were unhoused in the city northwest of Denver in 2024. Today many home prices reach beyond $1 million and apartment rent averages $2,500 a month.
Calling Boulder's ordinances "the blanket ban" and "the tent ban," the advocates argued the laws criminalized unhoused people and blocked them from creating temporary protection from the elements, even when the city's shelter was full. Violators face fines up to $2,650 and possible jail sentences of 90-days.
When the complaint was filed, the city funded a single shelter with 180 beds. During the winter of 2021 to 2022, the plaintiffs said in the complaint that the Boulder Shelter for the Homeless turned away 182 people on days when temperatures were below freezing, leaving them to choose between being fined for using a tent or risking death by exposure.
Following the U.S. Supreme Court's 2024 majority decision in Grants Pass v. Johnson upholding an Oregon town's sleeping ban, a Boulder judge granted the city's motion to dismiss in December 2024. The advocates for the unhoused appealed, urging the state Court of Appeals to look to U.S. Justice Sonia Sotomayor's dissent in Grants Pass rather than the majority opinion.
"The Eighth Amendment prohibits punishing homelessness by criminalizing sleeping outside when an individual has nowhere else to go," Sotomayor wrote. "It is cruel and unusual to apply any penalty selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer."
Colorado Court of Appeals Judge Grant Sullivan sought to test the line where the government can limit actions carried out in the name of survival.
"One could argue, that staying warm when it's zero degrees out in Colorado, that making a fire is necessary," Sullivan said. "If it is a necessity that we ban fires, why not blankets?"
McNulty pushed back on the comparison, arguing a government has a higher interest in regulating fire due to its risk.
"A blanket does not pose the risks your honor is raising. A tent does not pose those risks. A tarp does not pose those risks," McNulty said.
Representing Boulder, attorney Andrew Ringel urged the panel to affirm the lower court's order, pointing critics across the street to the General Assembly.
"If people disagree with Grants Pass and think this is a matter of public concern, the legislature can take up the issue," Ringel argued. "Legislators and municipalities have the ability to draw those lines, not the courts."
Sullivan asked Ringel to explain why Boulder's ordinances targeted conduct rather than status.
"Presumably you agree a city can't criminalize homelessness," Sullivan said.
Ringel said unhoused people are not banned from coming to the city, and can could sit or walk around as long as they don't pitch a tent.
Colorado Court of Appeals Judges Terry Fox and Eric Kuhn rounded out the panel. All three judges were appointed by Democratic governors: Kuhn and Sullivan by Jared Polis and Fox by Bill Ritter. Sullivan promised an opinion in due course.
Outside the court, McNulty reflected on the case while passing out gluten-free chocolate chip cookies to his colleagues at the ACLU Colorado.
"With people losing faith in the federal government, it's more important for the state court to uphold the rights of citizens," he told Courthouse News.
McNulty has spent a decade representing unhoused people in court, and secured settlements with the city and county of Denver to curb homeless sweeps.
"We're not talking about an unfettered right," he added. "We're talking about not criminalizing people when they have no where else to go and it's freezing outside."
Source: Courthouse News Service
