A Colorado Court of Appeals panel unanimously found that two city of Boulder ordinances that ban sheltering in public spaces don't violate the Colorado Constitution, shooting down constitutional challenges from a now-defunct nonprofit and several Boulder residents, according to an opinion announced Thursday.

The panel rejected Feet Forward-Peer Supportive Services and Outreach's claims that Section 20 of the Colorado Constitution provides broader cruel and unusual punishment protections than the Eighth Amendment; that residents have a right under the state constitution to shelter on public property; and that the ordinances deny residents their due process rights.

"Boulder's residents without a safe place to rest indoors understandably may seek to shelter on public property," the panel said in the opinion written by Judge W. Eric Kuhn. "But no matter how sympathetic their plight, these circumstances alone don't create new state constitutional rights."

Feet Forward contended that because Section 20 expands the cruel and unusual punishment protections provided by the Eighth Amendment, the lower court was wrong to rely on the U.S. Supreme Court's 2024 decision in Grants Pass v. Johnson . The justices in Grants Pass found that an "analogous" anti-camping ban in an Oregon city doesn't amount to cruel and unusual punishment under the Eighth Amendment.

The appellate panel found that the lower court correctly relied on Grants Pass in its decision to dismiss Feet Forward's complaint. The panel found that no Colorado court has found that Section 20 provides greater protections than the Eighth Amendment and that two Colorado Supreme Court cases cited by Feet Forward — Wells-Yates v. People in 2019 and Close v. People in 2002 — weren't persuasive.

"Nonetheless, Feet Forward points to [the two cases] for the proposition that the Colorado Supreme Court has held that Section 20 provides greater protections than the Eighth Amendment," the panel said. "But we reject this proposition because, while both cases mold Eighth Amendment precedent on proportionality reviews using a Colorado-specific context, neither case holds that Section 20 provides greater protections than the Eighth Amendment in the process."

The panel further ruled that Boulder Revised Code Section 5-6-10, which prohibits using shelters such as blankets or tarps to protect against the elements in public places, and Section 8-3-21(a), which forbids sheltering or storing property outside under temporary structures, don't criminalize homelessness, which is prohibited under Section 20.

At oral arguments in April, counsel for Feet Forward argued that the ordinances ban being homeless through its ban on certain conduct. The panel disagreed with that assertion, ruling that although it's true the "line between status and conduct can blur," the majority in Grants Pass reaffirms that the ordinances aren't a ban on the status of homelessness.

"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," the panel wrote. "That said, there is no precedent establishing that a person should be treated under our constitution as if they have a medical condition — effectively 'an illness or infirmity' — based on their inability to access or afford indoor shelter."

The panel said it disagreed with Feet Forward's second constitutional challenge as well, that the ordinances violate the Colorado Constitution's protection of the right to freedom of movement by restricting homeless residents' rights to use public spaces.

The Court of Appeals found that Section 3 of the state constitution doesn't grant residents the right to use public land for sheltering because sheltering in public isn't part of the constitutionally protected right of freedom of movement.

The panel rejected Feet Forward's reliance on the 1989 ruling from the Colorado Supreme Court in People in Interest of J.M. , in which the court said the justices ruled all people have protected, fundamental rights "of freedom of movement and to use the public streets and facilities in a manner that does not interfere with the liberty of others."

"Section 3 doesn't state that there is a fundamental right to shelter on public land to sleep and rest. And J.M. doesn't say that either," the panel wrote. "Instead, J.M. simply holds that citizens have rights to 'use the public streets and facilities.' But these rights are specifically limited to activities done 'in a manner that does not interfere with the liberty of others.'"

On the final constitutional challenge from Feet Forward, the judges found that the ordinances don't violate Colorado's due process protections against "state-created danger," ruling that Section 25 of the Colorado Constitution provides no greater protections than the 14th Amendment.

The panel cited the 1997 Colorado Supreme Court ruling in Henderson v. Gunther , in which the justices "made clear that '[t]he constitutional guarantee of due process does not convert all common law duties owed by government actors into constitutional torts.'"

"Feet Forward offers no logical basis on which we should assume that simply because our constitution can provide greater protections than the Fourteenth Amendment, that means it must do so in every instance, or even in this instance," the panel wrote.

Because the panel unanimously chose to affirm the lower court dismissal, they said they didn't need to address an argument from Boulder that former police chief Maris Herold can't be held liable under Colorado law for enforcing the ordinances. 

Counsel for Feet Forward, Andy McNulty of Newman McNulty, said when speaking with Law360 that the ruling from the Colorado Court of Appeals was "disappointing."

"We believe that the Colorado Constitution protects the rights of houseless residents to exist outside without being criminalized here in Colorado," McNulty said. "The court's ruling otherwise, instead just going in lockstep with the [U.S.] Supreme Court and refusing to analyze whether the Colorado Constitution has broader protections than the United States Constitution, is troubling."

McNulty continued that counsel for Feet Forward and the individual residents intend on taking the case "as far as it will go" and they intend on continuing "to fight until the rights of our clients and all Coloradans are protected under the Colorado Constitution."

Sarah Huntley, a spokesperson for the city of Boulder" told Law360 in a statement that the city "appreciates the Court of Appeals' decision."

"Homelessness remains a serious and complex issue, and the city will continue working with service providers and regional partners to connect people with shelter, housing pathways and support," Huntley's statement said. "Boulder's approach will continue to balance compassion for individuals experiencing homelessness with accountability for maintaining shared public spaces."

Judges Terry Fox, Grant Sullivan and W. Eric Kuhn sat on the panel for the Colorado Court of Appeals.

Feet Forward and the individual residents are represented by Andy McNulty and Madeline Leibin of Newman McNulty, by Anna Kurtz, Emma McLean-Riggs and Timothy Macdonald of the American Civil Liberties Union of Colorado, by Ashlyn Hare of Hutchinson Black & Cook LLC and by Daniel Williams and Meghan Hungate of Grata Law & Policy LLC.

The city of Boulder and Herold are represented by Andrew Ringel of Hall & Evans LLC and by Luis Toro, Teresa Tate and Veronique Van Gheem of the Boulder City Attorney's Office.

The case is Feet Forward-Peer Supportive Services and Outreach et al. v. City of Boulder et al., case number 2025CA110, in the Colorado Court of Appeals.

--Additional reporting by Rachel Konieczny. Editing by Nick Petruncio.