Thursday, July 22, 2021

Boulder city council on Tuesday approved a ban on tents that allows for their removal from all public property without prior notice. The law was passed via emergency vote, meaning it went into effect immediately.

There was no attempts to educate or inform unhoused individuals or providers prior to Tuesday’s vote, Housing and Human Services Director Kurt Firnhaber confirmed Wednesday. Those efforts will begin now.

Activists and advocates reported that encampments behind Boulder High School were being removed early Wednesday morning. The city said those were previously scheduled and unrelated to Tuesday’s action.

The new law prohibits tents — except for shade structures, during the day — on all public land, mirroring a policy for the city’s open space properties. That is in addition to the existing camping ban, which requires evidence of “daily living.” Tents typically had to be slept in overnight to be considered in violation. That made meaningful enforcement impossible, according to city officials.

“Often when we remove camps,” Deputy Chief Carey Weinheimer said Tuesday, “people move 50 or 100 feet away and set up their tent during the daytime, which right now is perfectly legal.” 

Two policies, few details

The emergency measure required a council super-majority of six votes. Junie Joseph, Adam Swetlik and Rachel Friend dissented. Mark Wallach, Sam Weaver, Bob Yates, Mirabai Nagle and Mary Young were joined by Aaron Brockett, who has in the past voted against increased criminalization of homelessness and in favor of new or expanded services.

Brockett on Wednesday said he would not have voted for the measure if he believed it to be a change in police regarding prior notice.

Boulder is required to give 72 hours heads-up in writing before clearing encampments. Acting City Attorney Sandra Llanes said the city still would — for “large” encampments.

But, under the tent ban, single tents or “a small number of tents” will have to be removed immediately. That aligns with Open Space & Mountain Parks practices, which can demand removal of tents “on sight” without advanced notice, Weinheimer said Tuesday in response to questions from councilwoman Friend.

It’s unclear how the city is defining an encampment versus “a small number” of tents, and if small encampments or individual tents were previously subject to the 72-hour notice requirement. Brockett on Thursday said his understanding was that tents would have to be removed or taken down, but that people and their belongings could remain — at least until/unless they were defined as encampments, and therefore subject to the 72-hour notice.

Earlier this year, a federal judge mandated that the city of Denver give seven days notice before removing encampments. Llanes said those standards shouldn’t apply, because they are for large encampments. Also, such judgements have typically been for violating urban camping bans, not a prohibition on specific types of structures.

‘Camping’ continues

Camping bans have faced increasing legal challenges as a form of cruel and unusual punishment if adequate shelter is not available. Boulder has continued to argue in favor of the law, citing the multiple empty beds most nights of the season.

Nonetheless, more than 100 people continue to live unsheltered on any given night in Boulder. As staff wrote in notes to council ahead of Tuesday’s meeting, “Since 2016” — the year Boulder’s camping ban was implemented — “there have been a growing number of encampments in city public spaces.”

Homelessness has grown nationally during that time amid rising housing prices, the number one predictor of increasing homelessness. The median cost of a home in Boulder County grew 57% between 2016 and 2021.

Boulder also implemented unique and controversial requirements that prevent non-residents (defined as residing in Boulder County for less than six months) from shelters except under certain weather conditions. Once an unhoused individual is screened and identified as non-resident, they are barred from receiving any services for two years. (The exception is diversion, which often takes the form of paid transportation out of town.)

According to outreach workers and service providers, many remain in the community, living in parks, by waterways or in/near underpasses. Among them are long-term residents who do qualify for housing or other services but have grown disenchanted with Boulder’s system or are awaiting placement in a home; city officials blame a dearth of available homes for waits of up to three years.

Unsheltered residents have drawn the ire of housed Boulderites for years. Council has received complaints by the hundreds about trash, drug use, crime and other impacts of mass homelessness. There have been fires and explosions from propane tanks used for heating, cooking and  currency. Elected officials also banned the possession and use of propane tanks on public property as part of the new law.

Both bans carry a possible fine of up to $2,650 — council raised the max penalty for all municipal crimes in an unrelated vote Tuesday night — and up to 90 days in jail. According to staff, heavy fines and/or jail time are rarely imposed on unhoused individuals.

Council instructed Boulder Police Department to educate rather than confiscate tents during the early days of enforcement. Brockett on Thursday said education efforts will last for one month, after which enforcement will begin.

Police officers have the discretion to issue a citation and also to confiscate tents.

“Confiscating a tent will be our last resort,” Weinheimer said, but it would be used “with someone refusing to leave. That would probably be the next logical step.”

Added Llanes, “arrest is always an option or a possibility if things escalate and get out of hand.”

Deterrence strategy

Experts on homelessness unilaterally condemn measures that bring unhoused individuals in frequent contact with police because of the potential for escalation and arrest. Nearly every facet of unsheltered life is already illegal — using the restroom, changing, sleeping, consumption of alcohol or marijuana — when conducted on public property, leading to lengthy rap sheets for many unhoused individuals that make it much harder to secure housing.

Focus Reentry is a local nonprofit which assists people leaving the Boulder County jail. Program Director Lani Gordon said every single client of the organization has been turned down for a housing voucher due to criminal history, forcing them into a lengthy and difficult appeals process. They are not always successful.

No client has ever qualified for a Housing Choice Voucher awarded by Boulder Housing Parters, Gordon said, even with an appeal. Some have qualified for vouchers administered by the state.

Furthermore, if an unhoused individual is given the max penalty of 90 days in jail, federal guidelines dictate that they no longer be counted as homeless. Such clients are kicked to the bottom of the priority list and must begin the process all over again.

Rotating in and out of jail, or moving frequently to avoid police, also breaks connections with service providers and makes unhoused individuals less trusting of law enforcement and less able or willing to access services in the future, according to multiple reports and experts.

Local criminal justice officials have acknowledged the limitations of using the system to get people off the streets, including Sheriff Joe Pelle and Boulder’s own city attorneys and police chief. But the city has been under enormous pressure from housed residents, who have reported camps and sent emails to city council by the hundreds.

“It will allow the police to adequately do their job instead of us tying their hands where a tent-dweller can just move or get a 72-hour notice,” said Shari Hack, one of a handful of residents who spoke at Tuesday’s public hearingScheduled time allocated for the public to testify or share commentary/input on a particular ordinan..., mostly in favor of the tent ban. “Illegal campers have been running amok in Boulder for way too long. The residents of Boulder, we’re sick and tired of being sick and tired of this situation.”

“Public parks are not meant to be pop-up subdivisions or shelters for everyone who comes to Boulder with no lodging,” added Elaine Dannemiller.

Read a thread from Tuesday’s discussion

Swetlik, ahead of his dissenting vote, said that he and the public were aligned in not wanting people to live in parks or near creeks. He cautioned that this law would not have the effect that residents might hope.

“By our police department’s own words, it sounded like all it’s going to do is maybe have people owe a fine, go to jail for a few days and be back on the street right where they were,” Swetlik said. “They’ll return to life with even less than they had, plus an arrest record that is not going to help them get back into society.

“It doesn’t sound like much of a solution, and I don’t want to set the public up for thinking that it’s really going to change things, because I’m not sure it will.”

Boulder’s recent moves are part of a deterrence strategy, aimed at encouraging non-residents to leave Boulder and “local” unhoused to seek services. The residency requirement, additional police officers and a special city team specifically for encampment removals have all been added in recent months, along with consolidation of shelter services and a halving of available beds.

Despite the lack of success with past encampment removals, city officials clearly believe the tent ban will result in a different outcome.

“Hopefully,” Llanes wrote on Tuesday, “there will be some deterrent effect over time.”

— Shay Castle, @shayshinecastle

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Homelessness Aaron Brockett Adam Swetlik Bob Yates Boulder camping ban city council city of Boulder homeless homelessness housing and human services Junie Joseph Mark Wallach Mary Young Mirabai Nagle Open Space Mountain Parks OSMP Rachel Friend Sam Weaver tent ban unhoused