The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY May 14, 2026
2026 COA 37
No. 25CA0110, Feet Forward v. City of Boulder — Government — Municipal Law — Camping and Tent Bans; Constitutional Law — Colorado Constitution — Excessive Bail, Fines, or Punishment — Inalienable Rights — Due Process
A division of the court of appeals considers whether municipal
ordinances banning sheltering on public property violate homeless
residents’ rights under the Colorado Constitution to protection from
cruel and unusual punishment, to freedom of movement and to use
public spaces, and to due process protection against state-created
dangers.
The division concludes that the Colorado Constitution’s
protection against cruel and unusual punishment has not been
expanded beyond that provided by the Eighth Amendment.
Therefore, applying the United States Supreme Court’s
interpretation of the Eighth Amendment as guidance, the division concludes that the ordinances are not cruel and unusual
punishments because the ordinances criminalize homeless
residents’ conduct only, not their status.
Further, the division concludes that the Colorado
constitutional right to freedom of movement does not include a
fundamental right to shelter on public property. Thus, as the
ordinances have a rational relationship to municipal police powers,
the ordinances do not violate the right to freedom of movement.
Lastly, the division holds that the ordinances do not violate
Colorado’s substantive due process protection against state-created
danger because the ordinances do not create a danger of harm from
a third-party person.
Because the ordinances do not violate the Colorado
Constitution, the trial court correctly granted the motion to dismiss
the complaint for failure to state a claim. Accordingly, the division
affirms the judgment of dismissal. COLORADO COURT OF APPEALS 2026 COA 37
Court of Appeals No. 25CA0110 Boulder County District Court No. 22CV30341 Honorable Robert R. Gunning, Judge
Feet Forward - Peer Supportive Services and Outreach d/b/a Feet Forward, a nonprofit organization; Jennifer Shurley; Jordan Whitten; Shawn Rhoades; Mary Faltynski; Eric Budd; and John Carlson,
Plaintiffs-Appellants,
v.
City of Boulder and Maris Herold, Chief of Police for the City of Boulder,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur
Announced May 14, 2026
Timothy Macdonald, Emma Mclean-Riggs, Anna I. Kurtz, Denver, Colorado; Newman | McNulty, Andy McNulty, Madeline Leibin, Denver, Colorado; Grata Law and Policy LLC, Daniel D. Williams, Meghan C. Hungate, Boulder, Colorado; Hutchinson Black and Cook, LLC, Ashlyn L. Hare, Boulder, Colorado, for Plaintiffs-Appellants
Teresa Taylor Tate, City Attorney, Luis A. Toro, Deputy City Attorney, Veronique Van Gheem, Deputy City Attorney, Boulder, Colorado; Hall & Evans, L.L.C., Andrew D. Ringel, Denver, Colorado, for Defendants-Appellees
Justin Carpenter, Denver, Colorado, for Amicus Curiae Historians
Nelson Mullins Riley & Scarborough LLP, Blake A. Gansborg, Denver, Colorado; Robert S. Chang, Irvine, California; Kyle C. Barry, Waltham, Massachusetts; Caitlin Glass, Boston, Massachusetts, for Amici Curiae The State Law Research Initiative and Fred T. Korematsu Center for Law and Equality
Wilmer Cutler Pickering Hale and Dorr LLP, Mary V. Sooter, Denver, Colorado; Wilmer Cutler Pickering Hale and Dorr LLP, Laura E. Powell, Kelley E. Kling, Washington, DC, for Amici Curiae National Homelessness Law Center, National Alliance to End Homelessness, and National Low Income Housing Coalition
Rachel Bender, Robert D. Sheesley, Denver, Colorado, for Amicus Curiae Colorado Municipal League ¶1 Boulder’s residents without a safe place to rest indoors
understandably may seek to shelter on public property. But no
matter how sympathetic their plight, these circumstances alone
don’t create new state constitutional rights.
¶2 In this case, defendants, City of Boulder and Maris Herold,
Chief of Police for the City of Boulder, respectively enacted and
enforced municipal ordinances banning Boulder residents from
sheltering on public property. Plaintiffs, Feet Forward - Peer
Supportive Services and Outreach d/b/a Feet Forward, a now-
dissolved nonprofit corporation; Jennifer Shurley; Jordan Whitten;
Shawn Rhoades; Eric Budd; Mary Faltynski; and John Carlson
(collectively, Feet Forward), claim the ordinances violate the rights
of homeless residents — who they say have no reasonable means
for indoor shelter — under the Colorado Constitution’s protection
against cruel and unusual punishment, right to freedom of
movement and to use public spaces, and due process protection
against state-created dangers.
¶3 We hold that the Colorado Constitution’s protection against
cruel and unusual punishment mirrors its federal counterpart, the
Eighth Amendment. Applying as guidance the United States
1 Supreme Court’s interpretation of the Eighth Amendment in City of
Grants Pass v. Johnson, 603 U.S. 520 (2024), we conclude that the
ordinances are not cruel and unusual punishments because they
criminalize the act of sheltering on public property, not a homeless
resident’s status of being homeless without access to indoor shelter.
¶4 We further determine that the Colorado Constitution’s right to
freedom of movement does not entail a fundamental right to shelter
on public property. Because there is no such fundamental right, we
hold that the ordinances are constitutional because they bear a
rational relationship to ensuring access to public property and
reducing public health concerns.
¶5 Lastly, we conclude that the Colorado Supreme Court in
Henderson v. Gunther, 931 P.2d 1150 (Colo. 1997), narrowly
construed Colorado’s substantive due process protection against
state-created danger, aligning it with the protections afforded by the
Fourteenth Amendment. Under this narrow construction, we hold
that the ordinances here do not violate the protection against a
state-created danger because the ordinances do not create a harm
from a third-party person.
2 ¶6 For these reasons, we affirm the trial court’s order dismissing
the case.
I. Background
¶7 Boulder enacted two municipal ordinances that prohibit the
erection of temporary shelters on public land. The “Camping or
Lodging on Property Without Consent” ordinance states in relevant
part,
(a) No person shall camp within any park, parkway, recreation area, open space, or other city property.
....
(d) For purposes of this section, camp means to reside or dwell temporarily in a place, with shelter, and conduct activities of daily living, such as eating or sleeping, in such place. But the term does not include napping during the day or picnicking. The term shelter includes, without limitation, any cover or protection from the elements other than clothing. The phrase[ ]during the day means from one hour after sunrise until sunset . . . .
Boulder Rev. Code § 5-6-10. The parties refer to this ordinance as
the “Blanket Ban” or the “Camping Ban.” The other ordinance on
“Prohibited Items” states,
(a) No person shall erect or use any tent, net, or other temporary structure for the purpose of shelter or storage of property in a park or
3 recreation area, on any open space land, or on any other public property, unless done pursuant to a written permit or contract from the city manager.
Boulder Rev. Code § 8-3-21. The parties refer to this ordinance as
the “Tent Ban.” The penalty for violating these ordinances “is a fine
of not more than $2,650 per violation, or incarceration for not more
than ninety days in jail or by both such fine and incarceration.”
Boulder Rev. Code § 5-2-4.
¶8 Feet Forward sued Boulder, challenging these ordinances as
violating the constitutional rights of Boulder’s homeless residents
who have no means to shelter indoors.1 Each plaintiff alleges harm
through their respective connections to Boulder’s homeless
community. Feet Forward was a peer-led nonprofit corporation that
provided low-barrier, housing-focused peer support and navigation
1 The parties use the terms “homeless,” “houseless,” and
“unhoused” interchangeably, and we do likewise. Feet Forward also notes that the U.S. Department of Housing and Urban Development defines being “[l]iterally [h]omeless” as “lack[ing] a fixed, regular, and adequate nighttime residence, . . . ha[ving] a primary nighttime residence that is a public or private place not meant for human habitation . . . [or] living in a publicly or privately operated shelter designated to provide temporary living arrangements.” HUD Exch., Category 1: Literally Homeless, https://perma.cc/74MU-SMSE.
4 services in Boulder.2 Shurley, Rhoades, and Whitten are Boulder
residents presently experiencing homelessness (homeless plaintiffs).
Budd, Faltynski, and Carlson are Boulder taxpayers (taxpayer
plaintiffs).3
¶9 Feet Forward’s complaint alleged that Boulder contracts with
Boulder Shelter for the Homeless (BSH) to provide sheltering
services for homeless residents.4 At the time, BSH was the only
available shelter for Boulder’s homeless population, but BSH did
not have enough sheltering services for that entire population —
including for emergency overnight shelter during inclement
weather. BSH also placed restrictions on those attempting to
2 After the trial court dismissed the complaint, plaintiff Feet
Forward, a nonprofit corporation, filed articles of dissolution with the Colorado Secretary of State. However, “[a] dissolved nonprofit corporation continues its corporate existence,” such that a dissolution doesn’t “[p]revent commencement of a proceeding by or against the nonprofit corporation in its entity name” or “suspend a proceeding pending by or against the nonprofit corporation on the effective date of dissolution.” § 7-134-105(1), (3)(d), (3)(e), C.R.S. 2025. 3 Jennifer Livovich and Lisa Sweeney-Miran are Boulder taxpayers
who were originally plaintiffs to the suit but have since withdrawn. 4 BSH presently goes by the new name All Roads. See All Roads, Our History, https://perma.cc/GV3C-6RS9.
5 access its shelter, including prohibiting emotional support animals,
banning couples from sheltering together, and excluding belongings
that can’t be carried. For these reasons, Feet Forward alleged that
some homeless residents could not rely on BSH as a realistic or safe
option for indoor shelter.
¶ 10 Feet Forward thus claims that, by banning sheltering on
public property, the challenged ordinances disproportionately affect
homeless residents — namely, they prevent homeless residents who
can’t access BSH from sheltering outdoors, which they must do to
sleep and avoid extreme weather conditions. As a result, Boulder’s
enforcement of the ordinances directly injured the homeless
plaintiffs, as they have been ticketed and summoned to appear in
municipal court — or credibly fear such enforcement — while
sheltering on public property. The ordinances purportedly injured
Feet Forward by forcing it as an organization to allocate its
resources to respond to the effect of the ordinances. Finally,
Boulder allegedly injured the taxpayer plaintiffs by using their tax
dollars to enforce the purportedly unconstitutional ordinances.
¶ 11 Hence, Feet Forward claimed that the ordinances violate the
Colorado Constitutional rights of homeless residents who cannot
6 access indoor shelter by (1) violating their right to be free from cruel
and unusual punishment; (2) violating their fundamental right to
freedom of movement; and (3) depriving them of substantive due
process by affirmatively placing them in risk of a state-created
danger. The complaint requested the trial court grant relief by
• declaring that the ordinances violate the Colorado
Constitution;
• declaring that Boulder has deprived the homeless plaintiffs
of their rights;
• entering a permanent injunction prohibiting Boulder from
enforcing the ordinances against residents who cannot
access indoor shelter; and
• awarding nominal damages and attorney fees.
¶ 12 In response to the complaint, Boulder moved for dismissal
under C.R.C.P. 12(b)(5). The trial court granted the motion in part.
It dismissed the right to freedom of movement claim because it
ruled that such a right does not entail a fundamental right to
shelter on public property. And it dismissed the state-created
danger claim because the complaint failed to allege that Feet
Forward suffered harm from a private person created by Boulder’s
7 affirmative actions. The court also dismissed the cruel and unusual
punishment claim as to the “Prohibited Items” ordinance, Boulder
Rev. Code § 8-3-21.
¶ 13 Yet the court denied dismissal of the cruel and unusual
punishment claim as to the “Camping or Lodging on Property
Without Consent” ordinance, Boulder Rev. Code § 5-6-10. The
court based its denial on a federal decision from the Ninth Circuit
Court of Appeals upholding an injunction against a city’s camping
ban because the ban violated the Eighth Amendment. However, as
the case below proceeded to discovery, the United States Supreme
Court in Grants Pass overturned that circuit court decision. 603
U.S. at 561. The Supreme Court held that an Oregon city’s ban on
public camping was not cruel and unusual punishment under the
Eighth Amendment because the municipal law punished only a
person’s conduct and not a person’s condition or status. Id. at 542-
43.
¶ 14 Following Grants Pass, the trial court permitted Boulder to file
a new motion to dismiss. The trial court then granted the motion
on the remaining claim because the court determined that the
Colorado Constitution’s protections against cruel and unusual
8 punishment mirror those of the Eighth Amendment as interpreted
by Grants Pass.
II. Analysis
¶ 15 On appeal, Feet Forward contends that the trial court erred by
failing to recognize that (1) the Colorado Constitution’s protections
against cruel and unusual punishment are greater than those of its
federal counterpart; (2) the right to freedom of movement includes
the right to use public property for sheltering; and (3) the Colorado
Constitution’s due process protection against state-created dangers
extends to Boulder’s negligent conduct of exposing homeless
residents to the elements. We perceive no error.
A. Standard of Review
1. Motion to Dismiss
¶ 16 We review de novo a dismissal for failure to state a claim
under Rule 12(b)(5), and we apply the same standards as the trial
court. Norton v. Rocky Mountain Planned Parenthood, Inc., 2018 CO
3, ¶ 7. To avoid dismissal under Rule 12(b)(5), a plaintiff must
plead sufficient facts that suggest plausible grounds to support a
claim for relief. Warne v. Hall, 2016 CO 50, ¶ 24; Froid v. Zacheis,
2021 COA 74, ¶ 29.
9 ¶ 17 “We accept all factual allegations in the complaint as true,
viewing them in the light most favorable to the plaintiff, but we are
not required to accept bare legal conclusions as true.” Norton, ¶ 7.
We will uphold a trial court order granting a Rule 12(b)(5) motion
only if the plaintiff’s factual allegations do not support the claim for
relief as a matter of law. Id.
2. Colorado Constitutional Challenges
¶ 18 We review the constitutionality of municipal ordinances de
novo. See Dorotik v. Town of Breckenridge, 2026 COA 20, ¶ 12.
¶ 19 “We review issues of statutory or constitutional interpretation
de novo.” People v. Lewis, 2024 CO 57, ¶ 10. “In interpreting a
constitutional provision, our goal is to prevent the evasion of the
constitution’s legitimate operation and to effectuate the intent of the
framers of our constitution and of the people of this state.” People
v. Smith, 2023 CO 40, ¶ 20. “To do so, we start with the plain
language of the provision, giving its terms their ordinary and
popular meanings.” Id. “If the language of the provision is clear
and unambiguous, then we must enforce it as written, and we need
not turn to other tools of construction.” Id. at ¶ 21.
10 ¶ 20 “Under our doctrine of separation of powers, statutes are
entitled to a presumption of constitutionality.” People in Interest of
T.B., 2021 CO 59, ¶ 25. This presumption extends to municipal
ordinances. McCarville v. City of Colorado Springs, 2013 COA 169,
¶ 16. “[D]eclaring a statute unconstitutional is one of the gravest
duties impressed upon the courts . . . .” Rocky Mountain Gun
Owners v. Polis, 2020 CO 66, ¶ 30 (quoting People v. Graves, 2016
CO 15, ¶ 9). Accordingly, “[the] presumption of constitutionality
can be overcome only if it is shown that the enactment is
unconstitutional beyond a reasonable doubt.” Id.
¶ 21 “[S]tate courts are free to interpret their own state
constitutions as they wish.” Id. at ¶ 34. It follows that “we have a
responsibility to engage in an independent analysis of our own state
constitutional provision in resolving a state constitutional
question.” Id. Even so, context sometimes calls for us to borrow
from federal analysis of the United States Constitution when
construing our own constitutional text. Id. at ¶ 37.
¶ 22 Colorado appellate courts “have leaned on federal analysis
primarily where the text of the two provisions is identical or
substantially similar and where consistency between federal and
11 state law has been a goal of our own precedent.” Id. (citations
omitted). “That said, even parallel text does not mandate parallel
interpretation.” Id. But we have tended to follow federal
jurisprudence when we perceive the Supreme Court’s “reasoning to
be sound” and “where no party has argued that the Colorado
provision calls for a distinct analysis.” Id. at ¶ 38.
B. Cruel and Unusual Punishment
¶ 23 Feet Forward contends that Colorado Constitution article II,
section 20’s protection against cruel and unusual punishment
extends further than its federal counterpart, and thus the trial
court erred by viewing Grants Pass and the Eighth Amendment as
instructive. Feet Forward also contends that the ordinances violate
the broad protections that section 20 affords by effectively
criminalizing residents’ status of being involuntarily homeless, as
well as by imposing grossly disproportionate punishments and
excessive fines. We are unpersuaded.
1. Section 20 Doesn’t Provide Greater Protection than the Eighth Amendment
¶ 24 The Colorado Constitution provides that “[e]xcessive bail shall
not be required, nor excessive fines imposed, nor cruel and unusual
12 punishments inflicted.” Colo. Const. art. II, § 20. “To decide
whether a punishment is cruel and unusual, ‘courts must look
beyond historical conceptions to “the evolving standards of decency
that mark the progress of a maturing society.”’” Sellers v. People,
2024 CO 64, ¶ 17 (quoting Graham v. Florida, 560 U.S. 48, 58
(2010)). This protection is based on “the concept that punishment
for a crime should be proportionate to both the offender and the
offense.” Id.
¶ 25 Colorado courts have not previously determined whether the
criminalization of sheltering on public lands is cruel and unusual
under section 20. Yet the United States Supreme Court’s decision
in Grants Pass addressed an analogous ordinance under the Eighth
Amendment. Of course, “we are free to construe the Colorado
Constitution to afford greater protections than those recognized by
the United States Constitution.” Id. at ¶ 36 (quoting Millis v. Bd. of
Cnty. Comm’rs, 626 P.2d 652, 657 (Colo. 1981)). However, the text
of section 20 is identical to that of its federal counterpart, the
Eighth Amendment. See Rocky Mountain, ¶ 37; U.S. Const. amend.
VIII; Colo. Const. art. II, § 20. And in Sellers, ¶ 36, the Colorado
Supreme Court stated that, “[t]o date, . . . we have not interpreted
13 article II, section 20 of our constitution to provide greater protection
than the Eighth Amendment.”
¶ 26 Nonetheless, Feet Forward points to Wells-Yates v. People,
2019 CO 90M, and Close v. People, 48 P.3d 528 (Colo. 2002),
abrogated by, Wells-Yates, 2019 CO 90M, for the proposition that
the Colorado Supreme Court has held that section 20 provides
greater protections than the Eighth Amendment. 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.
¶ 27 In Close, the Colorado Supreme Court held that, under section
20, an abbreviated proportionality review of a sentence is required
for each separate sentence imposed under Colorado’s crime of
violence statute. 48 P.3d at 532-38. In doing so, the supreme
court observed that the United States Supreme Court has strongly
influenced Colorado case law’s approach on proportionality reviews:
• “Our review of Colorado precedent indicates that we have
closely followed the United States Supreme Court’s
proportionality principle; the progression of our
14 proportionality jurisprudence mirrors that of the Supreme
Court.” Id. at 536.
• “[W]e have applied the principles established by the
Supreme Court to articulate specific conclusions regarding
proportionality reviews in Colorado.” Id.
• “We have closely followed the United States Supreme Court
in developing our own principles to guide proportionality
reviews.” Id. at 538.
¶ 28 Having adopted “the procedural mechanisms for
proportionality reviews” from the United States Supreme Court, the
Colorado Supreme Court in Close then concluded that Colorado
“precedent has carved out some Colorado-specific principles for
proportionality reviews.” Id. These specific principles (although
later overruled in part by Wells-Yates) dictate “that certain Colorado
crimes are grave or serious for purposes of proportionality review.”
Id. As a result, when these crimes are involved, a sentencing court
may skip part of an abbreviated proportionality review. Id.
¶ 29 To be sure, Close demonstrates that Colorado precedent has
specifically delineated how to apply the procedural mechanism for
proportionality reviews. But the supreme court in Close still made
15 clear that Colorado has done so by adopting United States Supreme
Court principles. The court’s adoption of federal proportionality
review mechanics into a state-specific context doesn’t establish that
the Colorado Supreme Court meant to provide broader protection
under section 20. Rather, the Close court treated section 20 and
the Eighth Amendment as substantively coextensive while applying
Colorado-specific principles to the proportionality review procedure.
¶ 30 Similarly, in Wells-Yates the Colorado Supreme Court held
that, “in conformity with federal precedent, Colorado courts
conducting an extended proportionality review should compare the
sentence at issue to (1) sentences for other crimes in the same
jurisdiction and (2) sentences for the same crime in other
jurisdictions.” Wells-Yates, ¶ 17 (emphasis added).
¶ 31 Feet Forward argues that Wells-Yates articulates greater
protection under section 20 because Colorado courts “must
consider ‘the evolving standards of decency,’” which, Feet Foward
argues, federal courts do not consider. But that doesn’t accurately
read the opinion. In reaching its conclusion, the Colorado Supreme
Court said, “The [United States] Supreme Court has reasoned that
whether a sentence contravenes the Eighth Amendment requires
16 courts to ‘look beyond historical conceptions to “the evolving
standards of decency that mark the progress of a maturing
society.”’” Id. at ¶ 46 (quoting Graham, 560 U.S. at 58). It then
instructed that Colorado courts must consider “statutory
amendments . . . as . . . indicia of the evolving standards of
decency” when conducting an extended proportionality review
involving a drug offense. Id. at ¶ 47. But the “evolving standards of
decency” language Feet Forward relies on originates with the
Supreme Court’s Eighth Amendment analysis, not section 20.
Graham, 560 U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97,
102 (1976)).
¶ 32 Feet Forward also argues that Wells-Yates recognizes greater
protections under section 20 by defining “per se grave or serious”
crimes. But we don’t agree with this reading. Following the federal
approach, a court “should consider ‘the harm caused or threatened
to the victim or society,’ as well as ‘the culpability of the offender.’”
Wells-Yates, ¶ 12 (quoting Solem v. Helm, 463 U.S. 277, 292
(1983)). But under Colorado’s approach, a court can skip that
consideration when a crime has been designated as per se grave or
serious.
17 ¶ 33 Accordingly, we don’t see any substantive differences in
Colorado precedent between the Eighth Amendment’s protections
and section 20’s protections. Wells-Yates instructs that under
section 20, courts must consider Colorado’s specific standards, but
that courts must do so in conformity with federal precedent. Id. at
¶¶ 17, 47. Again, the requirement that Colorado courts use state
context to apply federal doctrine doesn’t change the fact that the
supreme court has maintained conformity between the substantive
standards for state and federal proportionality reviews. And such
substantive consistency for proportionality reviews implies that
section 20’s protections are congruent with — not divergent from —
the overall protections against cruel and unusual punishment
embedded in the Eighth Amendment. See Rocky Mountain, ¶ 37.
¶ 34 Even so, Feet Forward also contends that Colorado’s unique
history of outdoor survival warrants interpreting section 20 as
protecting the use of tents. In support, Feet Forward cites People v.
Schafer, where the Colorado Supreme Court relied on the notion
that “[t]ents have long served humans as a form of habitation in
Colorado and the West.” 946 P.2d 938, 943 (Colo. 1997).
18 ¶ 35 However, the supreme court in Schafer applied that notion to
the Fourteenth Amendment’s reasonable expectation of privacy,
extending that protection to a tent that police found on publicly
accessible land that permitted camping. Id. at 942-45. Indeed,
Schafer doesn’t address section 20 at all, and the historical facts
relating to expectations of privacy have no bearing on the legal
principles at issue here. In other words, Schafer doesn’t rebut
Sellers’s observation — at least as of its writing — that the
protections afforded by section 20 are not greater than those of the
Eighth Amendment. See Sellers, ¶ 36.
¶ 36 So we conclude that the Colorado Supreme Court has not
interpreted section 20 as providing greater protections than those
afforded by the Eighth Amendment. And Feet Forward provides us
with no sound basis upon which we could extend those protections.
It follows, then, that it is appropriate in this context for us — like
the trial court — to borrow from the United States Supreme Court’s
Eighth Amendment analysis in Grants Pass to the extent that its
reasoning is sound and the question before us doesn’t call for
distinct analysis. See Rocky Mountain, ¶ 38.
19 2. The Ordinances Are Not Cruel and Unusual Under Section 20
¶ 37 In Grants Pass, the United States Supreme Court addressed a
challenge to municipal laws in Oregon as cruel and unusual under
the Eighth Amendment. 603 U.S. at 525. The three relevant
municipal laws restricted sleeping on public property, camping on
public property, and camping or overnight parking in city parks. Id.
at 537. The penalties for violating the ordinances escalated in
steps: first civil fines, then temporary exclusion from public
property, and finally a maximum criminal punishment of “30 days
in prison and a $1,250 fine.” Id.
¶ 38 According to the Supreme Court, the Eighth Amendment
focuses on what “method or kind of punishment” a government may
impose, not on whether a government may criminalize a type of
behavior. Id. at 542-43 (quoting Powell v. Texas, 392 U.S. 514,
531-32 (1968) (plurality opinion)). Thus, the Supreme Court held
that the kind of punishment imposed by the three municipal laws
wasn’t cruel because they were not designed to cause “terror, pain,
or disgrace.” Id. at 543 (quoting Bucklew v. Precythe, 587 U.S. 119,
130 (2019)). It further held that the municipal laws were not
20 unusual because fines and incarceration remain among the usual
kinds of punishments employed across the country. Id. And
although the Eighth Amendment precludes criminalization of a
person’s status (rather than their actions or conduct), the Supreme
Court determined that status was not implicated by the municipal
laws because they forbade only actions, such as occupying public
property to maintain a temporary place to reside. Id. at 546-47
(“Under the city’s laws, it makes no difference whether the charged
defendant is homeless, a backpacker on vacation passing through
town, or a student who abandons his dorm room to camp out in
protest on the lawn of a municipal building.”).
¶ 39 Nonetheless, on this point, Feet Forward argues that Grants
Pass is logically unsound because criminalizing involuntary
conditions or a person’s status remains a cruel and unusual
punishment — a principle that Grants Pass explicitly didn’t
overturn. According to Feet Forward, this makes Grants Pass
flawed because the Supreme Court “failed to acknowledge the
reality that sometimes a person’s conduct cannot be isolated from
their status.”
21 ¶ 40 It’s true that the line between status and conduct can blur.
But as Feet Forward points out, Grants Pass reaffirms that, in
principle, the difference between conduct and status remains a
valid Eighth Amendment distinction. See id. at 546 (“[A] [s]tate may
not criminalize the ‘status’ of being an addict.” (quoting Robinson v.
California, 370 U.S. 660, 666 (1962)); Robinson, 370 U.S. at 666-67
(holding that it is cruel and unusual to criminalize the “status” of
narcotic addiction); Powell, 392 U.S. at 532-35 (holding that
criminalization of being in public while drunk was not cruel and
unusual to chronic alcoholics because it punished the act of
drinking to drunkenness while in public, not being an alcoholic);
see also People v. Giles, 662 P.2d 1073, 1077 (Colo. 1983) (holding
that criminalization of escape from a facility was not cruel and
unusual because the punishment applied to “a distinct crime” and
not “an illness or infirmity beyond the control of the defendant”);
Arnold v. City & County of Denver, 464 P.2d 515, 516-17 (Colo.
1970) (noting that prohibition on vagrancy would constitute cruel
and unusual punishment “[i]f condition or status were all that [was]
involved in . . . the ordinance under consideration”). Where Feet
Forward departs from Grants Pass, then, is with the United States
22 Supreme Court’s holding that the specific conduct of sheltering on
public grounds is an activity distinguishable from the status of
being involuntarily homeless.
¶ 41 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. 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. Giles, 662 P.2d at 1077.
¶ 42 Further, even viewing the complaint in the light most favorable
to Feet Forward, as we must, see Norton, ¶ 7, we can’t conclude
that the status of homelessness is involuntary in all instances. To
the contrary, the complaint reveals that homelessness in Boulder is
driven by a complex web of factors and individual circumstances.
These include economic conditions affecting the entire community,
such as housing supply, single-family home prices, rent, income,
dislocation due to wildfires, and available shelter beds. And they
include individual circumstances such as mental health factors,
preferences, comfort level, work schedules, relationship status, and
23 having animal companions. And as in Grants Pass, for the
ordinances challenged in this case, “it makes no difference whether
the charged defendant is homeless, a backpacker on vacation
passing through town, or a student who abandons his dorm room
to camp out in protest on the lawn of a municipal building.” 603
U.S. at 546.
¶ 43 The majority and dissenting opinions in Grants Pass ably
show that reasonable minds can disagree on this point of status
versus conduct. See id. at 557-60; id. at 581-87 (Sotomayor, J.,
dissenting). But such disagreement doesn’t establish that the
majority opinion in Grants Pass was flawed. Instead, it
demonstrates that the issues related to homelessness have levels of
complexity and nuance that raise the type of questions better “left
to be resolved through ‘productive’ democratic ‘dialogue’ and
‘experimentation,’” rather than addressed through “a rigid
constitutional mold.” Id. at 551 (majority opinion) (quoting Powell,
392 U.S. at 537). Given all this, we cannot conclude on this record
that the ordinances criminalize status rather than conduct — even
if that conduct is difficult to avoid under the totality of the
circumstances. See id. at 548-49, 558-59.
24 ¶ 44 We also conclude that Grants Pass is instructive on the
remaining questions here. The types of punishments imposed by
the ordinances — fines and incarceration — are not cruel because
they don’t terrorize, disgrace, or cause pain to those charged. See
id. at 543. And they are the types of punishments usually
employed across the country for similar offenses, so they are not
unusual. See id. Therefore, accepting the allegations in the
complaint as true, Feet Forward fails to state a claim for relief that
the ordinances are cruel and unusual under section 20. See Rocky
Mountain, ¶ 30.
¶ 45 Lastly, Feet Forward further contends that the ordinances are
unconstitutional because they impose a grossly disproportionate
punishment and excessive fines. Feet Forward asserts that it stated
a claim “by noting the types of conduct criminalized by the
ordinances” in its complaint. We disagree.
¶ 46 “A penalty is constitutionally excessive if it is grossly
disproportionate to the gravity of the underlying offense.” People ex
rel. Rein v. Jacobs, 2020 CO 50, ¶ 60. Feet Forward’s complaint
didn’t seek a declaration of the plaintiffs’ rights for having been
fined or threatened to be fined. Cf. Boulder Cnty. Apartment Ass’n
25 v. City of Boulder, 97 P.3d 332, 337-38 (Colo. App. 2004)
(addressing landlords’ constitutional challenge to fines for zoning
ordinance violations as excessive because the landlords complained
of “having been fined or being subject to the threat of a fine” and
sought “a declaration of their rights regarding the validity of [the]
ordinances”). We don’t see a claim in the complaint challenging the
ordinances’ punishments as grossly disproportionate.
¶ 47 Even if we assume that the plaintiffs’ references to
punishment properly stated a claim for relief, at best that claim
would present an as-applied constitutional challenge for the
homeless plaintiffs. The key considerations for such a challenge are
“the culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in
question.” People v. Ray, 2025 CO 42M, ¶ 185 (quoting Graham,
560 U.S. at 67).
¶ 48 Although the complaint alleged that two of the homeless
plaintiffs have been ticketed and summoned, none of the homeless
plaintiffs were purportedly sentenced or fined. Therefore, we agree
26 with the trial court that this claim isn’t ripe because there are
currently no punishments in question to consider.5 See id.
C. Right to Freedom of Movement
¶ 49 Feet Forward contends that the ordinances violate homeless
residents’ right to freedom of movement and to use public spaces
under the Colorado Constitution. We disagree.
1. Applicable Law
¶ 50 Colorado Constitution article II, section 3 states, “All persons
have certain natural, essential and inalienable rights, among which
5 In “conformity with federal law,” the Colorado Supreme Court has
held that a state proportionality review for excessive fines must consider a person’s ability to pay. Colo. Dep’t of Lab. & Emp. v. Dami Hosp., LLC, 2019 CO 47M, ¶ 29. Thus, for the claim of excessive fines specifically, we note that Feet Forward’s complaint — besides alleging that the homeless plaintiffs are homeless — provides no allegations on which to consider their ability to pay (i.e., the only relevant information provided is that one homeless plaintiff is generally alleged to be currently employed). And it isn’t clear what allegations would be sufficient in this context without the issuance of actual fines, as the potential fines are indeterminate within a range of up to a maximum of $2,650, not mandated set amounts. Cf. Boulder Cnty. Apartment Ass’n v. City of Boulder, 97 P.3d 332, 338 (Colo. App. 2004) (holding that a statutory fine was not excessive for penalizing landlords for over- occupancy violations because the fine was for “up to $2,000” and required the court to consider certain factors when determining the amount).
27 may be reckoned the right of enjoying and defending their lives and
liberties; of acquiring, possessing and protecting property; and of
seeking and obtaining their safety and happiness.” The Colorado
Supreme Court has held that such protected inalienable rights
include the 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.” People in Interest of J.M., 768 P.2d 219,
221 (Colo. 1989) (emphasis added).
¶ 51 “Because these liberty interests are fundamental, the
[government] must establish a compelling interest before it may
curtail the exercise of such rights . . . .” Id. However, “[a]n
ordinance which does not infringe upon a fundamental right . . . is
generally measured by the rational[] [basis] standard.” Id. at 223.
Under this standard, “the [government] need only establish a
28 legitimate purpose and a rational relation between the means
employed and the goals to be obtained.”6 Id.
2. Sheltering on Public Land Is Not Part of the Fundamental Right of Freedom of Movement
¶ 52 Feet Forward argues that the fundamental right of freedom of
movement under J.M. necessarily includes a right to a safe place on
public property to sleep, lie down, and eat when an individual has
nowhere else to do so. This has been established, Feet Foward
claims, by federal and out-of-state cases, such as Phillips v. City of
Cincinnati, 479 F. Supp. 3d 611 (S.D. Ohio 2020), and Pottinger v.
Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), among others. And
because the ordinances here criminalize this allegedly fundamental
right, Feet Forward asserts that the ordinances must further a
6 Feet Forward asserts that the trial court incorrectly applied the
“reasonable exercise of police power” test. That test is most commonly used to evaluate challenges under Colorado’s counterpart to the Second Amendment, Colo. Const. art. II, § 13; see Rocky Mountain Gun Owners v. Hickenlooper, 2016 COA 45M, ¶¶ 13-16. While the trial court did use the phrase “reasonable exercise,” we don’t perceive it as having applied the test sharing that name. The rest of the court’s order makes clear it was correctly evaluating the ordinances under the rational basis test.
29 compelling government interest to be constitutional, which it
asserts they do not.
¶ 53 Yet section 3 doesn’t state that there is a fundamental right to
shelter on public land to sleep and rest.7 And J.M. doesn’t say that
either. 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.” 768 P.2d at 221. A resident occupying public
property to shelter for sleep and rest necessarily interferes with
every other resident’s ability to traverse, use, and enjoy that same
space. Consequently, we can’t infer that section 3 contains a
fundamental right to shelter on public property contrary to the
limiting language of J.M.
¶ 54 The cases Feet Forward cites don’t change this conclusion.
None of the cases are grounded in Colorado precedent. For
example, Feet Forward relies on Phillips and Pottinger. Phillips
7 Colorado already regulates camping on public land, albeit
recreationally. See §§ 33-10-101 to -118, C.R.S. 2025. We are unaware of any legal challenges to these statutes based on their implicating a fundamental right to shelter on public land for sleep and rest.
30 merely cites Pottinger’s reasoning in passing without expanding on
it. See Phillips, 479 F. Supp. 3d at 649-53. And ultimately the
Phillips court denied a motion to dismiss based on the allegations in
the complaint: It did not conclude that the federal right to travel
includes a right to camp. For its part, Pottinger is distinguishable
from the situation here because the ordinances in that case
criminalized all “life-sustaining activities.” Pottinger, 810 F. Supp.
at 1561. It was not limited to banning camping or tents. Id.
¶ 55 Moreover, Phillips and Pottinger are federal district court cases.
As far as we can discern, no federal circuit — including the
Eleventh Circuit, where Pottinger arose — has adopted this right-to-
travel reasoning as precedential in the circumstances at issue here.
See Peery v. City of Miami, 977 F.3d 1061, 1071 (11th Cir. 2020)
(holding that the liberty interest for a person to be on a city’s public
lands is neither “fundamental nor limitless,” such that there is no
fundamental right to use public parks under any condition and at
any time (citation omitted)); see also Aitken v. City of Aberdeen, 393
F. Supp. 3d 1075, 1084 (W.D. Wash. 2019) (“None, however, have
followed Pottinger’s logic to enjoin an ordinance prohibiting camping
or other conduct that homeless people often engage in.”). The
31 remaining federal district court cases Feet Forward cites from other
jurisdictions fare no better.
¶ 56 Therefore, we conclude that section 3 does not contain a
fundamental right to maintain a place on public property to sleep,
lie down, and eat when an individual has nowhere else to do so.
3. The Ordinances Have a Rational Basis
¶ 57 With no fundamental right at issue, we review whether the
ordinances violate Feet Forward’s liberty interests using the rational
basis standard. See J.M., 768 P.2d at 223. To satisfy that
standard, the government must “only establish a legitimate purpose
and a rational relation between the means employed and the goals
to be obtained.” Id. An ordinance “is within the state’s police power
if it is reasonably related to the public health, safety, and welfare.”
People v. Zinn, 843 P.2d 1351, 1354 (Colo. 1993). When evaluating
the constitutionality of an ordinance, we are mindful that the
municipality “has broad discretion to enact measures for the
protection of the public health, safety[,] and welfare, and we may
not substitute our judgment for that of the legislature as to the
wisdom of the legislative choice.” Id.
32 ¶ 58 The ordinances satisfy this standard. The record
demonstrates, as the trial court recognized, that Boulder’s claimed
reasonable basis for the ordinances was to ensure that all citizens
have access to public property and to reduce public health
concerns. These public health concerns included potential health
problems that could arise when residents sheltered on public
property without connections to Boulder’s water, sewer, and trash
collection systems. See Grants Pass, 603 U.S. at 528-32
(discussing the positive and negative aspects of encampments
erected by homeless individuals across cities nationwide, including
challenges with increased health risks and crime).
¶ 59 For its part, Feet Forward doesn’t dispute that the ordinances
have a rational relationship to achieving these public access and
public health goals. See J.M., 768 P.2d at 223. Nor does it argue
that these aren’t legitimate purposes. Indeed, Feet Forward doesn’t
advance a rational basis argument. Instead, it anchors its
argument primarily in the fundamental rights context by
33 challenging the existence of a compelling government interest.8 In
fact, Feet Forward’s complaint implicitly acknowledges that the
ordinances are reasonably related to achieving Boulder’s goals
because the complaint alleges that Boulder carefully designed the
ordinances to distinguish between recreational and sheltering
activities.
¶ 60 However, given that we conclude that Feet Forward doesn’t
mount a challenge to a fundamental right, rational basis review
controls and Feet Forward’s compelling government interest
argument must fail. Accordingly, even taking the allegations in the
complaint as true and viewing them in the light most favorable to
Feet Forward, Feet Forward can’t disprove that the ordinances are
rationally related to Boulder’s stated goals of ensuring public access
and protecting public health. See Norton, ¶ 7; Rocky Mountain,
¶ 30; Zinn, 843 P.2d at 1353. Feet Forward’s complaint therefore
fails to state a claim for relief under article II, section 3.
8 Feet Forward also attempts to import the reasonable exercise of
police power test into its argument. But we reject that attempt above. See supra note 6.
34 D. State-Created Danger Doctrine
¶ 61 Feet Forward contends that the ordinances violate Colorado’s
due process protection against state-created danger. Feet Forward
argues that the trial court should have concluded that Feet Forward
was entitled to greater protections under Colorado Constitution
article II, section 25 than under the Fourteenth Amendment. We
are not persuaded.
¶ 62 Section 25 states that “[n]o person shall be deprived of life,
liberty or property, without due process of law.” Colo. Const. art. II,
§ 25.
¶ 63 The Colorado Supreme Court addressed the state-created
danger doctrine in a 42 U.S.C. § 1983 challenge based on the
Fourteenth Amendment in Henderson, 931 P.2d 1150. “[T]he
general rule is that state actors are liable under the Due Process
Clause only for their own acts and not for the violent acts of third
parties.” Id. at 1155. In Henderson, the supreme court held that in
limited circumstances the state has an affirmative duty to protect
citizens from a private person inflicting a constitutional injury. Id.
35 Those circumstances are “(1) the special relationship exception; and
(2) the danger creation exception.” Id.
¶ 64 For the state-created danger exception, the state may be
“liable under § 1983 for failing to protect an individual from harm
inflicted by a third party where the [s]tate has created the danger
that ultimately causes the harm or the [s]tate has increased the
individual’s vulnerability to the harm.” Id. at 1156. This exception
requires “more than the creation of a dangerous environment in
which harm occurs or the creation of an opportunity for a third
party to cause the harm.” Id. at 1159.
2. The Ordinances Don’t Create a Danger of Harm from a Private Person
¶ 65 Feet Forward argues that Henderson merely addressed the
minimum protections provided by the Fourteenth Amendment.
Feet Forward thus claims that, because Colorado has previously
broadened certain due process protections under section 25 beyond
those offered by its federal counterpart, the state-created danger
doctrine in Colorado must similarly provide greater protections than
those afforded by the Fourteenth Amendment.
36 ¶ 66 To that end, Feet Forward cites Leake v. Cain, in which the
court held that public officials can be liable for negligence. 720
P.2d 152, 160 (Colo. 1986) (“[F]or purposes of determining liability
in a negligence action, the duty of a public entity shall be
determined in the same manner as if it were a private party.”),
superseded by statute, Ch. 166, sec. 6, § 24-10-106.5, 1986 Colo.
Sess. Laws 876-77, as recognized in, Aztec Mins. Corp. v. Romer,
940 P.2d 1025, 1031 (Colo. App. 1996). Under Leake, Feet Forward
argues we should adopt ordinary tort law principles into the state-
created danger doctrine.
¶ 67 But we must reject Feet Forward’s proposal. The Henderson
court made clear that “[t]he constitutional guarantee of due process
does not convert all common law duties owed by government actors
into constitutional torts.” 931 P.2d at 1155. And although
Henderson addressed the Fourteenth Amendment, in doing so it
conducted an in-depth analysis to address a circuit split, where
“the Fourth, Fifth, Sixth, Seventh, Eighth, and Tenth Circuits have
refused to impose a duty to protect unless the [s]tate has
affirmatively placed a person in a situation of known danger that
the person would not have faced in the absence of the [s]tate’s
37 involvement.” Id. at 1158. The supreme court concluded that
“[t]hese circuits require more than the creation of a dangerous
environment in which harm occurs or the creation of an
opportunity for a third party to cause the harm.” Id. at 1159. The
supreme court therefore held that the context of the case and the
“general analysis of the law on the subject[] support adoption of
th[is] narrow construction of the danger creation exception.” Id.
¶ 68 Given the extensive review and general analysis of the law on
the subject, we have no reason to think the supreme court intended
to create distinct protections under section 25 specific to the state-
created danger doctrine. And 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.
Indeed, when analyzing the state-created danger doctrine, the
Henderson court warned,
As we venture into this area of the law, we are mindful of the [United States] Supreme Court’s admonition that “guideposts for responsible decisionmaking in this uncharted area are scarce and open ended. . . . The doctrine of judicial self-restraint requires us to exercise
38 the utmost care whenever we are asked to break new ground in this field.”
Id. at 1156 (quoting Collins v. City of Harker Heights, 503 U.S. 115,
125 (1992)).
¶ 69 We are likewise mindful of the need to exercise the utmost
care and follow the same path already trodden by the Colorado
Supreme Court. Lacking a solid footing on which to extend the
state-created danger doctrine under section 25 further afield, we
decline the invitation to create a novel constitutional tort. See id.
And similarly, even though Henderson involved a § 1983 challenge
under the Fourteenth Amendment, we deem its reasoning
applicable here.
¶ 70 Turning to the application of the state-created danger doctrine
under Henderson then, Feet Forward further asserts that it
sufficiently stated a state-created danger claim under either a state-
tort theory or the standard laid out by Henderson. Namely, Feet
Forward asserts that the enforcement of the ordinances either
negligently or affirmatively placed homeless residents in danger by
prohibiting them from protecting themselves from the elements.
39 ¶ 71 Here, however, there is no “injury inflicted by a private person”
alleged in the complaint. Id. at 1155. The only purported injury
inflicted is that of exposure to the elements, and the infliction of
that injury is a consequence of Boulder’s alleged enforcement of the
ordinances. Without a harm from a private person, this claim
amounts to a mere allegation of “the creation of a dangerous
environment in which harm occurs,” which Henderson has deemed
insufficient to invoke the state-created danger doctrine. Id. at 1159.
And the multiple cases cited by Feet Forward from outside
jurisdictions for the proposition that exposure to weather can be a
state-created danger lack sufficient weight to convince us to cast
aside Henderson’s reasoning. Therefore, we conclude that the
complaint fails to state a claim for relief under this theory as well.9
III. Disposition
¶ 72 The judgment of dismissal is affirmed.
JUDGE FOX and JUDGE SULLIVAN concur.
9 Because all of Feet Forward’s constitutional claims fail, we need
not address Boulder’s contention that Chief Herold cannot be liable under section 13-21-131, C.R.S. 2025, because she allegedly perceived the ordinances as constitutional when she enforced them.