Homeless Sweeps: Takeaways From Second Hearing in Class Action Lawsuit

Thursday morning's 10 a.m. hearing at the Alfred A. Arraj courthouse was significantly less crowded than last week's for a class action lawsuit filed against Denver that alleges the city is violating the U.S. Constitution when it conducts regular sweeps of the homeless.

Much of the October 20 hearing was spent affirming dates and clarifying questions between the homeless plaintiffs' lawyer, Jason Flores-Williams, the city's attorneys and U.S. District Judge Craig B. Shaffer.

Here are the main things that we learned:
  1. Just how long this case might take. Because the lawyers on both sides agreed to an April 12 date to conclude discovery of evidence they'll use in trial or a summary judgment, Shaffer said that means that a trial might not start until late next year. He set the last pre-trial hearing for September 6, 2017. Meanwhile, the case still hinges upon whether another judge – U.S. District Judge William Martinez – grants the plaintiffs class certification. The city has until October 28 to file a response in the matter, after which a decision or a hearing on class certification could follow within weeks. 
  2. The U.S. Department of Justice may issue a statement of interest in the case. During the hearing, Flores-Williams said that he is in discussions with the civil-litigation division of the DOJ about issuing a statement in his case similar to what the DOJ issued in a 2015 case that challenged Boise, Idaho's, camping ban. Shaffer responded that he wouldn't dismiss such a letter of interest, but he also warned Flores-Williams that he shouldn't count on opinions – even from the DOJ – to have a significant bearing on the trial. “This case is not going to be won or lost based on how many people show up in court or on public sentiment or what shows up in newspapers or on the Internet,” he cautioned. “The case will ultimately be decided solely on the law and facts...and some statement of interest from the DOJ is neither of those things.”
  3. Initial electronic discovery requests by the homeless lawyer turned up 169,000 city e-mails related to the sweeps. Shaffer was wary of this number, however, advising both sides to narrow their keyword searches and discard extraneous evidence that has no bearing on the trial – for the sake of expediency. 
  4. Flores-Williams requested that “tiny houses” be considered as a possibility for declaratory relief should his clients win. This was flatly dismissed. The lawyer offered to show district judges examples of tiny homes as a means to compensate his clients who've been affected by the sweeps. Shaffer was immediately dismissive of this remark, however, saying that it was too early in the process to think about such things and that the suggestion may not be related to the claims in the suit. “You've got to focus on the battle you've chosen to fight,” he said bluntly. 
After the hearing, Flores-Williams gathered some of the homeless plaintiffs in front of the courthouse to tell them how he thought the hearing went, and what the next steps are.

“I actually like this judge,” he began, despite Shaffer's frank demeanor during the hearing.

“The real decision will be on class certification,” Flores-Williams continued. “That will really tell us what way we're going to be breaking. If we get class certification, we'll be one of the only cases in the country to have ever received it [for the homeless]. And currently we're looking good for that.”

He also offered a behind-the-scenes look at negotiations with city lawyers.

“The other issue is that we're trying to admit evidence that the city used Denver's Road Home donations to fund the sweeps, and the city, of course, is fighting stringently to keep that out,” he said. “Their motion to keep those out is due Friday — tomorrow.”

Westword will continue following developments in the case.
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Chris Walker is a freelancer and former staff writer at Westword. Before moving to the Mile High City he spent two years bicycling across Eurasia, during which he wrote feature stories for VICE, NPR, Forbes, and The Atlantic. Read more of Chris's feature work and view his portfolio here.
Contact: Chris Walker