"The sweeps are inhumane and must end. To take away our homeless neighbors' only possessions, during a global pandemic, is cruel. Today we say 'Enough is enough' and tell Denver to stop stealing its citizens' belongings," says Andy McNulty, the Killmer, Lane & Newman attorney who crafted the complaint.
Today, October 5, the eleven plaintiffs, all represented by McNulty, filed a class-action lawsuit in the U.S. District Court of Colorado alleging that the sweeps violate provisions of the Fourth and Fourteenth amendments and also aspects of the Colorado Constitution.
The lawsuit lists over fifty defendants by name, including Mayor Michael Hancock, Governor Jared Polis, the Denver city attorney, the executive director of Public Safety, the executive director of the Denver Department of Public Health and Environment, and a private company that has assisted with sweeps. The complaint also names numerous Denver police officers and Colorado state troopers who have participated in sweeps; it also cites unnamed individuals who assisted Denver and the state in sweeps.
In addition to alleging unconstitutional practices, the lawsuit accuses the defendants of violating terms of a September 2019 federal court agreement that requires Denver officials to give seven days' notice before sweeps of encampments, and also to store belongings of those living in encampments that are swept up in the cleanups.
The voluminous complaint, which totals 112 pages and is accompanied by an 82-page motion for preliminary injunction and expedited hearing, points to three sweeps during the pandemic that it argues were both unconstitutional and violated the federal court settlement. The first was the July 29 sweep of an encampment in Lincoln Park in front of the Capitol, the second one the August 5 action on the outskirts of Morey Middle School in the Capitol Hill neighborhood, and the third a sweep on September 15 along South Platte River Drive.
Charles Davis, one of the plaintiffs, had been staying at the large auxiliary shelter that the city had opened at the National Western Center early on in the pandemic. After a friend who'd been staying at the same shelter contracted COVID-19, Davis says he feared he would become ill, too, and left the shelter (which has since closed). Davis then began camping out in a tent at the Lincoln Park encampment.
When that encampment was swept in a joint effort by Denver and the Colorado State Patrol, Davis lost his tent and whatever belongings were in it. According to the complaint, the City of Denver didn't store Davis's belongings or those of anyone else that day, and instead disposed of everything that was not moved by those who'd been at the encampment. The residents had received no advance notice of the sweep, which the city justified under public health and safety concerns.
"Under the circumstances, DDPHE determined that advance posting of the order would not be appropriate because of concerns around the recent escalating violence in encampments. The safety of all involved, including the general public, is our top priority," Ann Cecchine-Williams, deputy executive director of DDPHE, said at the time.
Lincoln Park had already been cleaned up at the start of the year as a public-health hazard. And in the weeks leading up to the Lincoln Park sweep, a shooting by the encampment had resulted in a death.
But the lawsuit suggests another reason that the city didn't issue the required warning: Protesters had been showing up at other sweeps, chastising city employees. "That the failure to give any notice whatsoever was purposeful, and done to prevent those who disagree with the sweeps from showing up to voice their displeasure, is even more shocking," McNulty says.
After the Lincoln Park sweep, Hancock administration officials began telegraphing an upcoming sweep of the encampment by Morey Middle School; it came down on August 5, with no advance written notice. Another plaintiff listed in the complaint had been staying at this encampment and lost belongings that the city failed to store, the suit claims.
The third sweep listed in the complaint was conducted along South Platte River Drive near Englewood; that encampment included tents and RVs. According to testimony from four of the plaintiffs, the residents received four days' notice that a sweep was coming, but it only mentioned vehicles and not tents. When the sweep occurred on September 15, however, city employees ended up asking everyone present to leave. Again, no property was stored, according to the complaint.
The City of Denver offered two primary reasons for this sweep: Public health and safety conditions were deteriorating, and there were major fire hazards, such as propane tanks and gasoline canisters, at the encampment.
In addition to the individual who'd been staying at Morey Middle School, the plaintiffs include a total of four people who'd been staying at Lincoln Park, four from the South Platte River encampment, and Nathaniel Warner, who was at an encampment located at 24th and California streets when a sweep took place in March. The complaint alleges that city officials and contractors seized all of Warner's belongings and destroyed them.
"As a result of this harassment by Denver officials, Mr. Warner decided to enter the National Western Complex congregate shelter mid-April 2020," the complaint states. Warner has multiple health issues that make him particularly vulnerable to getting severely ill or dying from COVID-19.
After two weeks at the National Western Center shelter, Warner contracted COVID; he wound up spending six days in a hospital. Following his release, Warner entered another shelter and has been staying there ever since. He fears contracting the coronavirus a second time and would like to sleep outdoors in a tent, according to the complaint, but he's afraid of going through another sweep.
Fear of contracting COVID-19 in a shelter is a common theme woven throughout the complaint.
The lawsuit is seeking injunctive relief — in particular, an end to sweeps — for a class of homeless individuals and those who are at risk of having their belongings taken or destroyed through sweeps. The complaint highlights the fact that the Centers for Disease Control and Prevention states in its guidelines that municipalities should avoid dispersing homeless encampments so as not to further spread COVID. Studies undertaken by local service providers and the City of Denver show that COVID is less prevalent among those camping outdoors than those staying in shelters.
Among the complaint's constitutional claims are that the defendants have violated the Fourth Amendment's prohibition of unlawful seizure and the Fourteenth Amendment's provisions surrounding deprivation of property without due process, danger creation and void for vagueness.
The lawsuit also lists violations of the Colorado Constitution. While seeking both injunctive relief and damages for the class, the lawsuit is also asking a judge to declare two Denver ordinances — the camping ban and a public-right-of-way law that is frequently used to disperse those camping outdoors — as unconstitutional both facially, meaning in every instance, and as applied.
The lawsuit is additionally asking that the defendants be compelled to "provide restrooms, sanitation services (including trash services), and personal hygiene facilities (including handwashing stations)" for the plaintiffs.
The Colorado Attorney General's Office declined to comment because it has not yet seen the suit. Ryan S. Luby, public information officer with the Denver City Attorney's Office, supplied this statement: “While the City has not yet seen the lawsuit, the City disagrees that it has violated the terms of the settlement agreement. The City works very hard to connect people experiencing homelessness with services, but cannot allow unsafe and unsanitary conditions to continue as it puts everyone at risk, including those who are experiencing homelessness.”
Both the city and state are expected to vigorously contest the claims. Denver could point to the fact that the September 2019 settlement includes language stating that the city “may conduct [sweeps] with less than seven days’ notice only if the City determines that a public health or safety risk exists which requires it.” Additionally, the settlement states that “[i]f a [sweep] is conducted with less than seven days’ notice, the City shall provide reasonable notice of the [sweep], with the determination of reasonableness based upon the nature of the public health and safety risk present in the area.”
Per that agreement, Denver is supposed to store belongings from encampments for sixty days, unless that property poses a public health or safety risk. Items falling into this category include trash, used syringes, perishable food items and mattresses.
Items that "could reasonably be assumed to have value to any person," such as tents, sleeping bags, backpacks, bikes and phones, "will be collected and stored," according to the agreement. Denver officials are also required to “take particular care to identify, collect and store sensitive personal items and documents, such as wallets and purses, prescription drugs, birth certificates, identification cards, drivers’ licenses, and health care documents.” In the event that there's any question whether an item should be trashed or kept, "the City will assume the property has value and it should be stored.”
McNulty's legal complaint comes while he's in the middle of another battle with the City of Denver over the camping ban. In December 2019, a Denver County Court judge declared the city's ordinance against urban camping to be facially unconstitutional. But in early September, a Denver District Court judge reversed that decision, stating that the camping ban is constitutional. McNulty is now appealing that ruling to the Colorado Supreme Court.
The City of Denver has plans to sweep various encampments located between 13th and 14th avenues and Logan and Clarkson streets over the course of three days this week. Today's filing could put a halt to those actions.
Read the full complaint: