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The American Civil Liberties Union of Colorado on Thursday sued Boulder, challenging the city’s bans on camping and tents in public spaces.

Specifically, the lawsuit is asking Boulder to stop enforcing these ordinances under certain circumstances, including when a person cannot access indoor shelter. The suit also seeks to recoup “nominal damages” for the individual, unhoused plaintiffs named in the suit.

“What I’m hoping is that this is a nudge to the city to rethink some of the decisions that it’s made over the past few years,” ACLU attorney and Equal Justice Works fellow Annie Kurtz said.

Boulder acknowledged receipt of the lawsuit but otherwise did not provide a comment on the ongoing litigation.

“We have just received the lawsuit and are reviewing it,” city spokesperson Sarah Huntley wrote in an emailed statement. “The city will comment at the appropriate time through its filings in the court process.”

The lawsuit comes months after the ACLU demanded a moratorium on enforcement of Boulder’s camping ban throughout the winter and nearly a year after the organization sent a separate letter to city officials arguing Boulder’s treatment of its unhoused residents is inhumane and unconstitutional.

Boulder City Council last summer agreed to prohibit people from using tents or other temporary structures used for shelter or storage of property.

And the city has for years banned overnight camping in parks and public spaces in the city as well as the use of shelter, which includes any cover or protection from the elements other than clothing, according to city code.

While the ordinance prohibiting camping and sleeping in public spaces is generally called a “camping ban,” the lawsuit instead refers to it as a “blanket ban.” It argues that is more accurate “because the ordinance does not target the recreational activity of camping; it targets the survival act of using shelter as minimal as a blanket to protect oneself from the elements.”

Feet Forward, a local organization providing services and resources for people experiencing homelessness, as well as several Boulder residents, some unhoused and some housed, are named as plaintiffs in the case filed against the city and Boulder Police Chief Maris Herold.

According to the complaint, Boulder prides itself on being the No. 1 place in America to call home “but through two municipal ordinances, the city seeks to expel from its public spaces the growing number of its residents who call the city home but cannot afford to live indoors there.”

The lawsuit alleges that since last summer the Boulder Shelter for the Homeless has turned away more than 250 people, with two-thirds turned away on nights with freezing temperatures.

There are a couple of reasons people might be refused stay at the shelter, including a failure to go through the county’s Coordinated Entry screening process or due to capacity constraints. These instances are documented on the city’s shelter utilization dashboard.

The coronavirus pandemic also played a role as the shelter was forced to reduce capacity during the height of the pandemic. It is now operating at its full 160-bed capacity, according to Interim Director Spencer Downing.

Its contract to provide hotel space for some residents during the pandemic has ended, however, and the shelter maintains its focus on housing, which experts argue is the most effective way to positively impact homelessness.

“The shelter and the city are striving to provide spaces, as much as possible, for people who are unhoused in Boulder,” Downing said. “The shelter, of course, takes great pride in focusing on housing.”

The ACLU posits in its lawsuit that the problem is more about how the city reacts when people are unable to stay at the shelter. Boulder enforces the challenged ordinances against unhoused residents even when dangerous weather poses elevated risk of heat-related illnesses, hypothermia, frostbite and even death, an ACLU news release states.

According to Kurtz, Boulder could check with the shelter to see if it’s at capacity before enforcing its camping-related ordinances.

“I honestly don’t think it’s that big of an ask,” she said. “I think it’s something the city should already be doing.”

Huntley confirmed in an email that “the city of Boulder does not ask the shelter to give us nightly capacity updates, as staff is extremely busy checking individuals in for the evening.”

The decision to pursue legal action was approved unanimously by Feet Forward’s board, according to executive director Jen Livovich.

The organization is built on the foundation of lived experience. Livovich and other staff and volunteers have experienced homelessness in Boulder.

“This includes our own experiences with the blanket ban and consequential jailing, fines, discrimination, and overall cruelty experienced for daily acts of survival,” the organization noted in a statement.

While the city declined to respond to Thursday’s lawsuit, in a response to the ACLU’s December letter that asked for a moratorium on enforcement of the camping ban during the winter, Boulder officials emphasized that the Boulder municipal and district court have in the past upheld the law.

“Boulder’s laws have been upheld because we are in no way focused on the status of being unhoused,” City Attorney Teresa Taylor Tate wrote in an emailed response to the ACLU late last year. “Rather, Boulder’s laws are focused on access to public lands, public spaces, and health and safety.”

Last summer, after the ACLU penned its initial letter to the city, Homeless Solutions for Boulder County revoked its policy requiring that people live in the county for six months in order to obtain shelter services and other aid for those experiencing homelessness. The HSBC executive board made the decision to do so before receiving the letter, according to officials, but the move had yet to be officially announced.

In a statement, Dan Williams, a member of the plaintiffs’ legal team and a former Boulder City Council candidate, noted that the city’s strategies haven’t reduced the number of people living outside. Those numbers have increased, he said.

“But it has made life much harder for people by forcing them into the criminal justice system and creating new obstacles to exit homelessness,” he stated.

Indeed, the lawsuit references the 2021 point-in-time count, which indicated a 99% increase from the year before in people who reported being newly homeless.

Jennifer Shurley, one of the plaintiffs in the lawsuit, has lived on and off the streets of Boulder since 1996, when she fled an abusive relationship.

Although she has been through the county’s Coordinated Entry screening process, Shurley cannot stay at the Boulder Shelter for the Homeless because she has four dogs, one of which is a service dog trained to help manage her lupus, according to the complaint.

While she’s always felt some discrimination, Shurley argued that the criminalization of being homeless has intensified. She said it often feels as if policies are designed to make people who are housed feel comfortable rather than addressing poverty and other reasons people may be without permanent housing.

At the end of the day, Shurley’s request is simple.

“I want to be considered a human,” she said. “The basic human needs are sleeping, eating, bathing — basic things that people do in the privacy of their homes which we have no choice to do in public.”

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