Boulder files motion to dismiss lawsuit over its camping and tent bans

According to the lawsuit from the ACLU, the bans violate doctrines and constitutional provisions related to cruel and unusual punishment, state-created danger, freedom to use public streets, freedom to travel and freedom to remain.

Boulder’s camping ban leaves unhoused residents no alternatives, plaintiffs say

In the motion filed by Luis Toro, the attorney for Boulder and Boulder Police Chief Maris Herold, who is named as a defendant, he argued the bans are not cruel and unusual punishment and do not constitute a state-created danger. He wrote that unlike a similar ordinance disputed in Boise, Idaho, unhoused people can lawfully remain in Boulder public spaces.

Regarding sheltering in public spaces, the motion says that being “bundled in warm clothing is permitted” as long as a shelter is not used.

The motion says that the ACLU’s claim regarding a state-created danger towards unhoused residents is due to extreme weather and not “private violence.” It says the city does not place residents in danger, because the local shelter — Boulder Shelter for the Homeless — is the entity that denies their admittance, not Herold or the city.

The third alleged constitutional violation touches on the use of public spaces. The motion says freedom to travel does not give the right to “sleep, rest and recuperate.” Toro argued in the motion that disallowing encampments and “tent cities” preserves public spaces for others. According to the motion, allowing residents to camp outside when they are denied shelter access would permit them to do so permanently.

The motion was filed a few weeks after the ACLU submitted the initial complaint.