Feet Forward v. City of Boulder

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.

1. Applicable Law

¶ 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.

40