The ACLU is attempting to overturn Boulder’s camping ban, after seeing it upheld by a Boulder County District Court ruling in 2024.

The ACLU had filed a lawsuit in 2022 to challenge Boulder’s “blanket ban” policy, which forbids the use of shelter, cover or protection apart from clothing, including the use of blankets. A similar ban in Oregon was upheld by the U.S. Supreme Court in Grants Pass v. Johnson last year.

Citing the Supreme Court decision, Boulder’s district court dismissed the ACLU lawsuit in December. The ACLU of Colorado filed its opening brief to the Colorado Court of Appeals on May 19 to overturn that ruling.

In the brief, the ACLU states that the district court’s decision should be overturned, as the Eighth Amendment should be interpreted differently in Colorado given its unique climate and history. “When interpreting the Colorado Constitution, this Court is responsible for protecting fundamental rights in accordance with Colorado’s unique history, tradition, geography, and legal landscape,” the opening brief states.

The brief cites historical examples of using shelter-like tents to survive harsh Colorado weather, such as that experienced during Lewis and Clark’s historic journey through the Rocky Mountains, an 1820 expedition up the Platte River and the Chautauqua tent encampment of the late 1800s and early 1900s.

“Coloradans have been living outside, and so necessarily covering themselves for survival, since long before the state existed,” the brief states. “In the context of this history and tradition, the Colorado Constitution’s protections should be interpreted consistent with the fact that it is cruel and unusual punishment to criminalize Coloradans covering themselves to survive outside in Boulder.”

In its 2024 dismissal, the district court argued that Grants Pass still applied, as there was no precedent for the Colorado Supreme Court deviating from federal rulings in regard to cruel and unusual punishment.The opening brief also alleges that the city’s ordinance seeks to “ban houseless people from Boulder,” citing the ordinance’s careful exclusion of recreational activities and focus on prosecuting those residing in parks.

The city will have an opportunity to respond before the Court of Appeals makes its decision.