DENVER (LN) — A division of the Colorado Court of Appeals on Thursday affirmed the dismissal of a lawsuit challenging Boulder’s ordinances banning sheltering on public property, ruling that the state constitution’s protections against cruel and unusual punishment mirror the federal Eighth Amendment.
The court held that the municipal ordinances, which prohibit erecting temporary shelters and camping on public land, do not violate the Colorado Constitution’s prohibition against cruel and unusual punishment because they criminalize conduct rather than the status of homelessness.
The division relied on the U.S. Supreme Court’s 2024 decision in City of Grants Pass v. Johnson, which held that bans on public camping do not violate the Eighth Amendment because they punish the act of sleeping outdoors, not the condition of being homeless.
"The division concludes that the Colorado Constitution’s protection against cruel and unusual punishment has not been expanded beyond that provided by the Eighth Amendment," the court wrote. "Therefore, applying the United States Supreme Court’s interpretation of the Eighth Amendment as guidance, the division concludes that the ordinances are not cruel and unusual punishments because the ordinances criminalize homeless residents’ conduct only, not their status."
Plaintiffs, including the nonprofit Feet Forward and several homeless residents, argued that the Colorado Constitution’s Article II, Section 20 provides broader protections than the federal counterpart. They contended that the ordinances effectively criminalize involuntary homelessness and impose grossly disproportionate punishments.
The court rejected this argument, noting that while Colorado courts have adopted specific procedural mechanisms for proportionality reviews, they have not interpreted Section 20 to provide greater substantive protection than the Eighth Amendment.
Feet Forward also challenged the ordinances under the Colorado Constitution’s right to freedom of movement, arguing it includes a fundamental right to shelter on public property. The court disagreed, stating that the right to use public spaces is limited to activities that do not interfere with the liberty of others.
"Because there is no such fundamental right, we hold that the ordinances are constitutional because they bear a rational relationship to ensuring access to public property and reducing public health concerns," the court said.
The plaintiffs further alleged that the ordinances violated substantive due process by creating a state-created danger. The court found this claim insufficient because the ordinances did not create a danger of harm from a third-party person, but rather exposed residents to the elements.
The trial court had previously dismissed the freedom of movement and state-created danger claims, and dismissed the cruel and unusual punishment claim regarding the "Tent Ban" ordinance. It initially denied dismissal of the cruel and unusual punishment claim regarding the "Camping Ban" ordinance, but granted a new motion to dismiss after the Grants Pass decision.
The court noted that the ordinances carry penalties of up to $2,650 per violation or 90 days in jail.
The judgment of dismissal is affirmed.