In Latest Order, Judge in Homeless Class Action Lawsuit Defines a "Sweep"

A new order by the judge overseeing the federal homeless class action case in Denver, in which the entire homeless community is suing the city, has set some parameters for the upcoming trial, which is still slated to begin next March.

At issue in this case, which was filed back in August 2016, is whether the City of Denver violated constitutional rights — specifically the Fourth and Fourteenth amendments (protection against unlawful searches and seizures and the equal-protection clause, respectively) — when it dismantled homeless encampments during a number of sweep operations.

Confident in their respective positions, both the homeless plaintiffs and the city had asked for summary judgment in the case, but U.S. District Court Judge William Martinez denied those motions in spring of this year, setting the stage for next year’s jury trial. Since then, occasional hearings and rulings have defined the scope and contours of next year’s showdown in federal court.

Here’s the latest:

On Friday, October 5, Judge Martinez defined some terms that will be used during the trial, and ruled on conflicting motions by the plaintiffs and the city about what historical incidents could be referenced in arguments in court.

Most notably, the federal court defined a “sweep” — a term Mayor Michael Hancock's administration has vigorously avoided using when speaking to the press, but is nevertheless used in internal Denver Police Department documents.

“For purposes of this lawsuit, those sweeps are defined as 'the City and County of Denver’s alleged custom or practice (written or unwritten) of sending ten or more employees or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there,'” Martinez wrote in his latest order.

The rest of the order concerns the range and number of alleged sweeps that can be explored at the trial, with the city trying to limit the number of incidents that can be discussed and the plaintiffs trying to bring in as much evidence as possible.

Martinez’s order, included below, is technical, but it reveals constant counter-maneuvers between the plaintiffs, led by attorney Jason Flores-Williams and supported by the civil-rights firm Killmer, Lane & Newman, and the City of Denver when it comes to arguing whether certain witnesses and certain alleged sweeps can be discussed at trial.

Martinez appears to walk a fine line, granting the plaintiffs some added evidence, including a video that was taken this summer of Denver employees throwing out a homeless person’s shopping cart, but denying other incidents from being explored in court, including a December 15, 2015, sweep (which Westword also wrote about).

But Martinez was firm that nothing after July 9, 2018 — the date the shopping cart video was filmed (above) — could be included in the trial.

Asked for his opinion about the court allowing some alleged sweeps to be discussed at trial but not others, Flores-Williams emailed Westword: "All you can do is adapt to the system's version of reality without losing sight of what you know is the truth."

Denver is no longer the only city facing a class action lawsuit concerning homeless sweeps. On September 27, a federal judge in California allowed advocates to bring a similar class-action lawsuit against the City of Berkeley.