Editor’s note: An earlier version of this story mischaracterized the status of the 48 people who were honored for dying while experiencing homelessness. That number included people who were housed when they died in 2019. The story below has been corrected.

Boulder officials insist the city’s urban camping ban — the rule preventing homeless people from resting with blankets, sleeping bags and tents in public — could withstand a legal challenge as similar measures in Denver and the west this month have been struck down in courts.

Denver quickly appealed a Friday Denver County Court ruling calling that city’s prohibition on camping in public “cruel and unusual punishment,” a violation of the Eighth Amendment to to the U.S. Constitution, since there are not enough shelter beds to house all of its homeless and that some demographics, such as people with pets, LGBT individuals and couples, and certain people who have been banned from some facilities, have limited access to homeless shelters.

The Denver court decision relied on a federal Ninth Circuit Court ruling that struck down a Boise, Idaho, urban camping ban. The U.S. Supreme Court this month let that ruling stand. Colorado is under the Tenth Circuit’s jurisdiction, which has yet to take up this issue since the new Denver and federal outcomes. The Ninth Circuit was the fourth U.S. appeals court to rule against urban camping bans, the Denver Post reported.

Homeless outnumber shelter beds

Boulder claims the shelters in the city are adequate for its homeless population, despite that there were 623 people in Boulder County counted on the Jan. 28 “point in time” homeless census by the Metro Denver Homeless Initiative organization. Its report shows there were 440 emergency shelter beds available in the county, with 72 of those only open on severe weather shelter nights in Boulder, when the National Weather Service forecasts lows of 32 degrees or cooler on dry nights and 38 degrees or cooler when precipitation is expected.

During the Metro Denver Homeless Initiative’s count that January night, there were 159 people in “transitional housing,” in addition to 411 in the available emergency shelter beds, while 53, all adults, remained unsheltered in Boulder County.

“If someone got cited for the camping ban on a day like that, that would be unconstitutional, plain and simple,” said Andy McNulty, an attorney for the Killmer, Lane and Newman law firm that won the Denver court ruling last week.

The number of total homeless caught by the organization’s count in January was up from 592 in 2018, with 107 newly homeless people this year, even as the Boulder Shelter for the Homeless reported placing a record 119 people into stable housing between 2018 and 2019.

Boulder officials are closely following the recent court rulings, but do not expect the city’s urban camping ban to be impacted, citing the fact that the Idaho matter involved unconstitutional enforcement of the camping ban when there were not adequate shelter beds.

“Boulder works very hard to provide appropriate shelter space for people experiencing homelessness,” city Homeless Initiatives manager Vicki Ebner said. “Capacity-related turnaways have been rare. In the current severe weather shelter season, no one has been turned away because of lack of capacity, with the year-round programs consistently having vacancies.”

Officials’ defense of the urban camping ban as currently constructed came just days after a ceremony in Boulder honored 48 people who died in 2019, some of whom were experiencing homelessness, and some who had struggled with chronic homelessness, in the area.

There were 74 days last severe weather shelter season, which ran from October 2018 through the end of May, when the temperature thresholds did not trigger an opening of the facility on 30th Street, which is next to the Bridge House Path to Home shelter with 50 permanent beds.

After the severe weather shelter season, the city in 2020 plans to no longer have those 50 beds available through the Bridge House nonprofit, and there is no plan to replace them, city officials said.

In August there was an average vacancy of 50 beds out of the 160 at the Boulder Shelter for the Homeless, which will take over the navigation services offered by Bridge House at the 30th Street location, and officials are working on bringing more than 50 people experiencing homelessness into permanent supportive housing, which are subsidized apartment units meant to tackle the homelessness issue, and 70 units are set to be completed in 2020, officials said earlier this year.

There are other barriers to using shelters faced by people experiencing homelessness, who may have no choice but to sleep in a car or outside in public and risk receiving a public camping citation, a point acknowledged by the Denver court ruling.

For example, some individuals have been banned from Boulder’s year-round homeless shelters for behavioral issues that could put other shelter users at risk, Ebner said. Plus, Boulder Shelter for the Homeless cannot allow people to bring pets that are not service animals, and more belongings than they can carry to its facility, while couples are forced to sleep separately, and children are unable to be served there, with the nonprofit Attention Homes providing services for teens and young adults lacking housing.

Citations increase

Through Dec. 19, Boulder police this year issued 530 citations for public camping, a substantial increase from the 379 citations issued in 2018. Police department spokesman Dean Cunningham said officials expect a greater number of complaints made by the public drove the increase seen this year. Citations in Boulder outnumber those issued in Denver, where the homeless population is far larger and officers contact urban camping violators with warnings they will receive citations unless they pack up their belongings.

Ebner does not believe any urban camping citations have been given to people banned from year-round shelters, or to people caught camping on nights when the severe weather shelter is not opened; officials were unable to confirm that on Monday, with Cunningham stating police officers have discretion in how they deal with potential camping situations they are called to address.

Officers take into account the severe weather shelter’s availability when deciding whether to issue a citation, but there is no explicit directive not to when it is closed, Cunningham said.

“We want to make sure we give officers the discretion to take care of what they’re seeing at the time. We want to give officers the ability to evaluate the situation, evaluate the options,” Cunningham said.

Mark Silverstein, legal director for American Civil Liberties Union of Colorado, said his organization is appealing a Fort Collins urban camping citation given to a person sleeping in a car at a rest stop who was unable to use the homeless shelter in that city because the client works there as a case manager. Silverstein said the state ACLU also is relying on the Ninth Circuit ruling in the Fort Collins matter, and believes the Denver ruling contends urban camping bans are unconstitutional anytime someone is unable to access a shelter for any reason, including if capacity limits would hypothetically exclude any portion of the homeless population if its entirety were to seek shelter usage, which they would in Denver, according to testimony cited by the court.

“I think with the Ninth Circuit Court of Appeals decision, and what happened in Denver and our pending (Fort Collins) case, it is time for all communities to reconsider their ordinances that make it a crime for people to sleep outdoors, especially when there is not a choice,” Silverstein said. “The camping bans are not a solution to the housing problem.”

Councilwoman calls for change

Boulder in 2011 faced a challenge to its urban camping ban from the ACLU of Colorado, and the city prevailed, with the municipal court and Boulder District Court upholding the rule, and the Colorado Supreme Court declining to hear an appeal, Ebner noted.

“In 2011, we had no summer shelter and no emergency shelter,” Ebner said. “Today, we provide more shelter beds than we did in 2011. … While it is impossible to predict what will happen as this works its way through the courts, there is currently no legal compulsion for the city to change its camping ordinance. … This remains a policy question committed to the judgement of our Council.”

Boulder Councilwoman Rachel Friend hopes to reevaluate the urban camping ban in light of the recent court rulings in other jurisdictions, and is in favor of opening the severe weather shelter every night for the cold season.

“Our staff have done an excellent job of grounding our solutions in data and best practices, and with the end goal of housing as the solution for homelessness,” Friend said. “Nonetheless, the recent decisions are a good prompt for us to take a step back and relook at our ban.”

Council earlier this year declined a request by Councilman Aaron Brockett to expand the severe weather shelter’s operations to every night in the late fall, winter and spring, and also declined to raise the temperature thresholds for when it opens.

Council next week is set to discuss its homelessness strategy, which will likely include the severe weather shelter’s frequency of operation and the recent legal action.