Legal Corner: Urban camping and Colorado's constitution

The U.S. Supreme Court confirmed in City of Grants Pass v. Johnson (2024) that legislative bodies, not courts, are best equipped to determine appropriate responses to the homelessness crisis. As discussed in CML’s newsletter at the time, the Court held that the camping bans did not penalize the status of being homeless or unhoused in violation of the Eighth Amendment’s cruel and unusual punishment clause. Now a division of the Colorado Court of Appeals has confirmed that the Colorado Constitution does not require a different result.

In Feet Forward v. City of Boulder, the court rejected state constitutional challenges to Boulder’s camping and tent ban ordinances that limited people from sheltering on public property. But the decision is not the end of the story, as state and local governments must continue to grapple with weighty moral considerations and constitutional protections that limit overzealous restrictions and enforcement.

The decision, which remains subject to review by the Colorado Supreme Court, is available online. 

Boulder’s ordinances

Boulder’s ordinances addressed temporary shelters on public land, subject to a fine of up to $2,650 or up to 90 days incarceration, or both. One ordinance, the so-called “Tent Ban,” prohibits tents, nets, or other temporary structures “for the purpose of shelter or storage” on any public property without a permit. Boulder Rev. Code § 8-3-21.

The other, a so-called “Camping Ban,” barred camping “within any park, parkway, recreation area, open space, or other city property.” Boulder Rev. Code § 5-6-10. Camping means temporarily residing or dwelling in a place with shelter (other than clothing) and conducting activities of daily living (e.g., sleeping, eating) but excludes daytime napping or picnicking.

The constitutional challenges

The Feet Forward plaintiffs raised three challenges to Boulder’s ordinances.

Cruel and unusual punishment:  First, the plaintiffs argued that the ordinances violated Colorado’s version of the cruel and unusual punishment clause (Article II, Section 20) because they disproportionately impacted homeless people who had no choice but to sleep and exist outdoors. In other words, the ordinances unconstitutionally criminalized the status of being homeless.

The Court of Appeals rejected the argument that Colorado’s constitution offers greater substantive protections than the Eighth Amendment. The court relied on Grants Pass for the principle that “the specific conduct of sheltering on public grounds is an activity distinguishable from the status of being involuntarily homeless.” The ordinances, which addressed conduct and not status, did not constitute cruel and unusual punishment.

The Court also held that the potential penalties were not cruel or unusual, but were common penalties for similar offenses. Moreover, the plaintiffs had not been penalized by fine or incarceration, so the court could not determine whether the ordinances imposed penalties that were grossly disproportionate to the offense.

CML’s amicus brief in support of Boulder analyzed why Article II, Section 20 is not substantively different than the Eighth Amendment.

Freedom of movement: Next, the plaintiffs argued that the ordinances violated their fundamental right to freedom of movement and right to use public spaces (derived from Article II, Section 3 of the Colorado Constitution) by preventing them from using public property for shelter. But the Court of Appeals recognized that these liberty interests do not include a fundamental right to sleep or rest on public property or to interfere with the liberty interests of others. Further, the ordinances were supported by a reasonable basis of ensuring access to public property by all persons and reducing public health concerns.

State-created danger: Finally, the plaintiffs contended that the ordinances violated due process protections (under Article II, Section 25) because they created a danger of harm that could be caused by third parties. Typically, a government actor is not liable for failing to protect persons from harm by others unless there is a special relationship or the government created the danger.

The court refused to create a novel constitutional tort and recognized that the state-created danger theory required more than laws that created a dangerous environment or opportunity for a third party to hurt a person.

Regulating camping after Grants Pass and Feet Forward

Both Grants Pass and Feet Forward recognized that “issues related to homelessness have levels of complexity and nuance” best left for legislative bodies and public participation. But neither decision should be viewed as judicial approval for governments to aggressively regulate conduct often associated with homelessness. Municipal officials also cannot practically legislate away the problem or turn a blind eye to the issues.

First, Feet Forward makes clear that aspects of the claims might have been viewed differently if the plaintiffs had alleged different facts. For example, if a penalty had been imposed, the court could have evaluated whether the punishment was grossly disproportionate to the offense and whether the plaintiffs were able to pay any fine. Municipalities should use caution in establishing penalties and sentencing guidelines, particularly after the Colorado Supreme Court’s recent holding that municipal penalties must conform to state penalties for the same offenses.

Second, when applied to individuals, camping ordinances and local government practices can offend other constitutional protections under both the federal and state constitutions. Municipal officials risk offending Fourth Amendment protections against unreasonable searches and seizures when handling or disposing of personal property (that might also contain important personal items). Due process standards under the Fifth and Fourteenth Amendments affect how restrictive an ordinance can be on fundamental rights. Equal protection requirements under the Fourteenth Amendment prohibit selective prosecution. Panhandling ordinances quickly draw First Amendment scrutiny.

Despite Grants Pass, municipalities should proceed cautiously with regulation of urban camping and any policies affecting homeless individuals. The Office of Homeless Initiatives in the Department of Local Affairs, Division of Housing offers resources like local tools, strategies, and data.

The policy choices are not so simple as choosing between funding shelters or permitting camping on public property. Some take a “housing first” approach while others have the resources only to focus on conduct regulation. Some municipalities have chosen to maintain notice requirements before clearing encampments in the interests of fairness and ensuring that constitutional boundaries aren’t crossed. Others, to the extent budgets permit, are seeking to fund shelter options directly or by supporting partners.

One path forward may lie in regional cooperation between governments and nonprofits. New legislation enacted through House Bill 26-1202 allows local governments to collaboratively form a Multijurisdictional Homelessness Response Authority. Assuming Gov. Jared Polis will sign the bill, these authorities can plan, coordinate, and implement regional strategies to reduce and prevent homelessness. By working together, local governments can stretch their resources and provide broader benefits.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.