Municipal ordinances that ban people from living on public property do not violate the Colorado Constitution’s prohibition on cruel and unusual punishment, the state’s second-highest court ruled on Thursday.

A three-judge Court of Appeals panel agreed that it was appropriate to rely on the U.S. Supreme Court’s interpretation of the Eighth Amendment, which Colorado courts have historically looked to when interpreting the state’s identical cruel-and-unusual provision. Because the Supreme Court concluded in 2024 that bans on municipal camping do not unconstitutionally criminalize a person’s homeless status, the appellate panel followed suit.

“To be sure, we appreciate the tension in differentiating between a person’s conduct and status when their conduct involves basic activities for survival due to an involuntary status,” wrote Judge W. Eric Kuhn in the May 14 opinion. But “in principle, the difference between conduct and status remains a valid Eighth Amendment distinction.”

In 2022, a group of Boulder taxpayers, an outreach organization, and individuals who received citations from law enforcement filed suit against a pair of city ordinances. Taken together, the laws generally prohibited people from erecting tents or other temporary living shelters and from camping during the day on public property. The ordinances exempted certain recreational activities, but the ban on camping encompassed “any cover or protection from the elements other than clothing.”

The plaintiffs pursued three legal theories under the state constitution:

• The ordinances infringed on the right to access public spaces
• The ordinances created a danger
• The ordinances amounted to cruel and unusual punishment

In February 2023, District Court Judge Robert R. Gunning dismissed the plaintiffs’ first two claims. He reasoned that the right of access “is not synonymous with the right to camp on or indefinitely occupy public land.” He also noted the plaintiffs failed to allege how the government created a danger of violence from private individuals, as the claim requires.

Although Gunning concluded that the portion of the cruel-and-unusual challenge against the tent ban was also not viable, he allowed the challenge to the camping prohibition to proceed.

While the case was pending, the Supreme Court handed down a 6-3 decision in City of Grants Pass v. Johnson. The court’s majority concluded that an Oregon city’s similar outdoor camping prohibition was constitutional. It reasoned that such bans did not impermissibly criminalize a person’s status as involuntarily homeless, but targeted the conduct of “occupying a campsite” on public property.

Gunning, who put the Boulder lawsuit on pause to await the Grants Pass decision, concluded the plaintiffs’ remaining claim must also fail. While he recognized that Colorado courts are not required to interpret state constitutional provisions in lockstep with their federal counterparts, he rejected the plaintiffs’ argument that Colorado provided greater constitutional protection.

“Therefore, the critical question is whether the Colorado Supreme Court has ever, in its independent judgment, deviated from federal jurisprudence when interpreting (the cruel-and-unusual provision). This Court concludes that it has not,” Gunning wrote.

On appeal, multiple outside entities weighed in from various angles.

The Colorado Municipal League wrote in support of the Boulder defendants, arguing that local policymakers should be allowed to develop appropriate responses to homelessness.

“By prohibiting the occupation of public parks and rights-of-way, Colorado’s municipalities are performing the hard work of balancing community needs while investing enormous resources into homeless and housing services,” wrote attorneys for the league.

The State Law Research Initiative and the Fred T. Korematsu Center for Law and Equality wrote in support of the plaintiffs and urged the Court of Appeals to interpret the state constitution more expansively than its federal counterpart.

Finally, two University of Colorado professors and a graduate student argued that Colorado has a long history of outdoor camping, predating statehood.

“From the deep Rockies to the banks of the South Platte to the eastern plains, tents were everywhere on public land in early Colorado. Their presence was not a surprise or an aberration, let alone a crime,” wrote attorney Justin Carpenter. “Instead, their presence on public land was a result of Coloradans exercising their fundamental rights that, after 1876, were protected by our state’s constitution.”

During oral arguments in April, the Court of Appeals panel identified concerns on both sides.

Judge Grant T. Sullivan suggested that the right to camp on public property for survival might necessitate governments tolerating open-air fires that could pose public safety concerns.

On the other hand, the law is “pretty plainly targeting the unhoused. It doesn’t apply to individuals who go to the park with a blanket for a nap or a picnic,” Sullivan added. “Help me understand why it’s a conduct-related regulation, and not targeting status in disguise.”

Ultimately, the panel declined to deviate from the U.S. Supreme Court’s interpretation of the cruel-and-unusual prohibition. Based partly on the Grants Pass decision, the panel upheld the dismissal of the plaintiffs’ claims.

In doing so, Kuhn acknowledged that the line between a person’s status and their conduct “can blur.” But he indicated the policymaking process was the place to argue that distinction.

“Boulder’s residents without a safe place to rest indoors understandably may seek to shelter on public property,” Kuhn wrote. “But no matter how sympathetic their plight, these circumstances alone don’t create new state constitutional rights.”

The case is Feet Forward et al. v. City of Boulder et al.