Feet Forward—Peer Supported Services and Outreach v. City of Boulder.

2026 COA 37. No. 25CA0110. Municipal Law—Camping and Tent Bans—Colorado Constitution—Excessive Bail, Fines, or Punishment—Inalienable Rights—Due Process—US Constitution—Eighth Amendment—Fourteenth Amendment—Dismissal for Failure to State a Claim.

May 14, 2026

The City of Boulder enacted two municipal ordinances banning Boulder residents from putting up temporary shelters on public property. The “Prohibited Items” ordinance limits the use of tents, and the “Camping or Lodging on Property Without Consent” limits camping. The penalty for violating the ordinances is a potential indeterminate fine within a range of up to a maximum of $2,650 and/or incarceration for not more than 90 days. Feet Forward—Peer Supportive Services and Outreach d/b/a Feet Forward, a now dissolved nonprofit corporation, and individual plaintiffs—three Boulder residents experiencing homelessness (homeless plaintiffs) and three Boulder taxpayers (taxpayer plaintiffs)—sued Boulder and its chief of police (collectively, Boulder). Plaintiffs alleged that the ordinances violated the rights of homeless residents under the Colorado Constitution’s protection against cruel and unusual punishment, the right to freedom of movement and to use public spaces, and substantive due process protection against state-created dangers. Plaintiffs maintained that the ordinances violated the rights of homeless residents, who had no reasonable means to shelter indoors, and injured Feet Forward by forcing it to allocate its resources to respond to the effect of the ordinances. Plaintiffs also alleged that Boulder injured the taxpayer plaintiffs by using their tax dollars to enforce the purportedly unconstitutional ordinances. Boulder moved to dismiss under CRCP 12(b)(5). The trial court dismissed (1) the right to freedom of movement claim, because it ruled that such right does not include a fundamental right to shelter on public property; (2) the state-created danger claim, because the complaint did not allege that Feet Forward suffered harm from a private person created by Boulder’s affirmative actions; and (3) the cruel and unusual punishment claim as to the “Prohibited Items” ordinance. The trial court initially denied dismissal of the cruel and unusual punishment claim as to the “Camping or Lodging on Property Without Consent” ordinance but later granted dismissal of this claim based on City of Grants Pass v. Johnson, 603 U.S. 520 (2024).

On appeal, Feet Forward argued that the trial court erred by not recognizing that Colo. Const. art. II, § 20’s protections against cruel and unusual punishment are greater than those protections in the US Constitution. The court of appeals concluded that the Colorado Supreme Court has not interpreted § 20 as providing greater protections than those afforded by the Eighth Amendment. Further, Feet Forward put forth no sound basis for extending those protections. The court thus held that the Colorado Constitution’s protection against cruel and unusual punishment mirrors that of the US Constitution’s Eighth Amendment. On the merits, the court looked to Grants Pass, where the US Supreme Court addressed a similar challenge to Oregon municipal laws as cruel and unusual under the Eighth Amendment. Grants Pass held that the specific conduct of sheltering on public grounds is an activity distinguishable from the status of being involuntarily homeless. The court of appeals concluded that the Boulder ordinances are not cruel and unusual punishments because the ordinances criminalize homeless residents’ conduct only, not their status.

Feet Forward also contended that the ordinances violated homeless residents’ right to freedom of movement and to use public spaces under Colo. Const. art. II, § 3. Feet Forward asserted that the right of freedom of movement necessarily includes a right to a safe place on public property to sleep, lie down, and eat when someone lacks another place to do so. However, the cases Feet Forward relied on were inapposite, and § 3 does not state that there is a fundamental right to shelter on public land to sleep and rest. The court concluded that the Colorado constitutional right to freedom of movement does not include a fundamental right to shelter on public property. Further, applying the rational basis standard, the record showed 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, including potential health problems that could result from residents sheltering on public property without connections to Boulder’s water, sewer, and trash collection systems. The ordinances thus have a rational relationship to municipal police powers, so they do not violate the right to freedom of movement.

Feet Forward additionally asserted that the ordinances violated Colorado’s due process protection against state-created danger, maintaining that the trial court should have concluded that Feet Forward was entitled to greater protections under Colo. Const. art. II, § 25 than under the US Constitution’s Fourteenth Amendment. Feet Forward claimed that Colorado has previously broadened certain due process protections under § 25 beyond those offered by its federal counterpart, so the state-created danger doctrine in Colorado must similarly provide greater protections than those afforded by the Fourteenth Amendment. The state-created danger exception provides that the state may be liable for not protecting an individual from harm inflicted by a third party where the state created the danger that ultimately causes the harm, or the state has increased the individual’s vulnerability to the harm. In Henderson v. Gunther, 931 P.2d 1150 (Colo. 1997), 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. But Henderson narrowly construed Colorado’s substantive due process protection against state-created danger and aligned it with the Fourteenth Amendment protections. Henderson also made clear that the constitutional due process guarantee does not convert all common law duties owed by government actors into constitutional torts. The court did not find that the Colorado Supreme Court intended to create distinct protections under § 25 specific to the state-created danger doctrine. And Feet Forward provided no logical basis to extend the Fourteenth Amendment protections. The court thus held 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.

The judgment of dismissal was affirmed.