An unhoused man who was ticketed by Lafayette police for illegal camping has filed a lawsuit in federal court claiming the city does not provide enough indoor shelter for people who are homeless.
In the lawsuit, which was filed July 31 in U.S. District Court in Denver, James H. Holmes Sr. alleges that ordinances in Lafayette that prevent him and his 17-year-old son from camping in public violate his right to privacy, to be free from self incrimination, and protections against cruel and unusual punishment. The lawsuit also claims police harassed him during the three months he has camped in Lafayette.
Holmes has been ticketed once for illegal camping, according to records the Lafayette Police Department provided to The Colorado Sun.
The lawsuit was filed at a time when places like Boulder County, one of the wealthiest counties in Colorado, are seeing increasing rates of homelessness. The number of unsheltered homeless people in Boulder County has grown to 243 in 2023 from 52 in 2019, an increase of 367%, according to federal data. Unsheltered homelessness refers to individuals and families who sleep “in a place not designed for or ordinarily used as a regular sleeping accommodation,” such as cars, parks and garages, according to the Department of Housing and Urban Development.
Legal experts say a steady stream of lawsuits against cities, including Boulder and Fort Collins, could require Colorado courts to finally answer the question of whether cities can punish homeless people for sleeping outside when there is no shelter available to them. For example, a 2021 decision in the 9th U.S. Circuit Court of Appeals known as Martin v. Boise expressly prohibits cities from punishing homeless folks under these conditions, but that decision isn’t binding on Colorado communities, said William Knight, an attorney with the National Homeless Law Center. States like New York have also enshrined a right to shelter in their constitution.
Knight said Holmes’ case mirrors other litigation in state courts in Washington, Arizona and New Mexico where unhoused plaintiffs are filing state constitutional claims, which often offer broader protections than the federal constitution. He pointed to a case decided in July by Washington’s King County Superior Court where a judge ruled that Seattle’s definition of when it could sweep an encampment was too broad under the state constitution.
Holmes told The Sun that he and his son have been homeless in Colorado for several years. They moved to Colorado from Omaha, Nebraska, after Holmes and his son’s mother split up. Holmes said he raised his son “on the job site,” living in a recreational vehicle while working construction jobs. But he was never able to make enough money to afford to rent an apartment. They’ve also lived in Longmont and Brighton, but Holmes said they were harassed there and eventually moved to Lafayette.
Now, Holmes says he can’t work because he worries that local police will take his son into foster care. Instead, he spends his time helping his son study for his GED exam so that the teenager can join a jobs program or the military, but Holmes said it feels like he’s “running out of time.”
“This is all about trying to get my son an education, and I’ve been through some nightmares to do it,” Holmes said.
The lawsuit names Lafayette Mayor J.D. Mangat and Police Chief Rick Bashor as defendants. A spokeswoman for the city declined to make Mangat or Bashor available for an interview, saying the city and police department do not “comment on threatened or pending litigation.”
Homelessness has become an increasing issue for cities across Colorado over the past several years. According to the latest federal snapshot data, Colorado’s homeless population increased from 9,619 in 2019 to 10,397 in 2022, an increase of about 7.3% compared with a 2.5% increase nationwide. Holmes and his son are among the 1,283 families with children under the age of 18 who are experiencing homelessness in the state.
Suzanne Crawford, the chief executive of the Sister Carmen Community Center in Lafayette, a nonprofit provider of services to people struggling with food, housing and health care, said the lack of affordable housing in the area is one of the key drivers of the increasing rate of homelessness. As of June, Redfin data shows the median home price in Lafayette was $667,500, which represents an increase of 31% from June 2019, before the pandemic began. The average rent for a two-bedroom apartment in Lafayette is $2,175 as of this month, which is an 8% increase from last August and a 12.6% increase since August 2021, according to data from Zumper, a company that tracks rents in the U.S.
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Crawford added that there aren’t any overnight or day shelter options in Lafayette, which she said is “fairly common” in towns the size of Lafayette, which has about 31,000 residents, according to census data. Overnight and day shelters are specific building types that provide shelter, case management, and other services for homeless people. This does not refer to places like libraries and other public places where homeless people can shelter during the day. Homeless people who come to the Sister Carmen Center are often given a meal and a bus ticket to a shelter in a larger city, like Denver or Boulder, which have more robust services for the homeless, Crawford said.
“Typically, communities the size of Lafayette haven’t had to grapple with this,” Crawford said. “But this is going to be something that communities across the United States are going to have to deal with in the near future.”
Even though the Martin decision doesn’t apply to Colorado, it seems like an opinion that the Denver district court could concur with in the future given its rulings in cases such as Lyall v. Denver and Denver Homeless Out Loud v. Denver, attorney Andy McNulty with the civil rights law firm Killmer, Lane & Newman told The Sun. McNulty added that the Lyall case showed that the court was willing to “make hard decisions” to protect the constitutional rights of the unhoused.
Killmer, Lane & Newman is not currently representing Holmes in this case. However, McNulty represented Lyall and Denver Homeless Out Loud in their lawsuits and has worked to enforce the settlements in both cases.
Denver’s district court ruled in both cases that homeless people have private property rights, McNulty said, although the court has largely sidestepped the question of whether cities can punish homeless individuals when there isn’t enough shelter available. McNulty said these cases, and the lawsuits filed in Lafayette, Boulder and Fort Collins, could eventually lead to a ruling by the 10th U.S. Circuit Court of Appeals on the question, but that may not happen for several years.
The lawsuit against Boulder challenges the city’s camping ban and the Fort Collins case, which was dismissed in March, suggested city and Colorado State University trespassing laws violated an unhoused man’s constitutional protections. Robert-Lawrence Perry, the person who sued in Fort Collins, on April 6 filed an appeal that is still waiting to be heard by a judge.
“Issues related to homelessness and criminalization are only becoming more widespread across the state,” McNulty said. “So, at the end of the day, the courts will have to weigh in on this question.”