Saying that they don't want to take time away from dealing with the COVID-19 pandemic, Mayor Michael Hancock, two other top Denver officials and Governor Jared Polis are all trying to avoid testifying in connection with a federal lawsuit over homeless encampment sweeps in the city.
On December 1, lawyers with the state Attorney General's Office filed a motion to quash a subpoena asking Polis to testify at an upcoming evidentiary hearing related to the case. A day later, lawyers from the Denver City Attorney's Office filed a similar motion on behalf of Hancock, Public Safety Executive Director Murphy Robinson and Public Health and Environment Executive Director Bob McDonald.
Andy McNulty, the lawyer from Killmer, Lane & Newman who filed the October 5 lawsuit on behalf of Denver Homeless Out Loud and multiple plaintiffs who were dislocated by sweeps, is pushing back against efforts by Hancock, Robinson, McDonald and Polis to get out of testifying, and has already filed opposing arguments.
"If you’re going to make decisions, and make decisions that are against public-health guidance, you’re going to have to answer for those decisions," McNulty says. Guidelines issued by the Centers for Disease Control and Prevention advise municipalities not to sweep encampments during the pandemic — unless adequate housing is available and not being used — so as not to further the spread of COVID-19. Much of the lawsuit, which names numerous city and state employees and also a private company that has assisted with the sweeps, revolves around allegations that in light of the CDC guidelines, the sweeps are violating the U.S. and Colorado constitutional rights of encampment residents.
Attorneys with both Denver and the state have pushed back, however, saying they're not at fault. And besides, they argue in motions to quash the subpoenas, both Polis and city officials are extremely busy dealing with the COVID-19 pandemic and resulting economic downturn; being forced to testify would be unduly burdensome for these civil servants.
McNulty doesn't buy it. "I find it hypocritical that Hancock is using the pandemic as some sort of shield to testify, when just two weeks ago he was flying across the country for Thanksgiving," he says.
Attorneys for the city also argue that Hancock, Robinson and McDonald weren't intimately involved with the sweeps that took place over the summer, including those at large encampments in Lincoln Park and around Morey Middle School in Capitol Hill. Given that, the lawyers say, there are plenty of lower-ranking city officials who could better speak to the facts. (The City Attorney's Office declined to comment on its motions to quash the subpoenas for Denver officials.)
McNulty rejects that argument, too. "They’re the three people who are making the decision at the end of the day. The buck stops with them," he explains.
For its part, the Attorney General's Office has questioned whether the effort to get Polis to testify was made in good faith, or so lawyers could "conduct a fishing expedition through cross-examination at the hearing." (The AG's office, too, declined to comment.)
Polis's lawyers argue that the governor was not involved in the sweep of Lincoln Park in late July, despite the fact that Colorado State Patrol troopers assisted with the enforcement action. In the days leading to the sweep, the governor stated that he'd welcome the removal of tents from Lincoln Park, which is state property. "He certainly had something to do with it when he called Mayor Hancock and instructed him to do the sweep," notes McNulty.
McNulty says he anticipates a decision on the motions to quash the subpoenas any day. Judge William J. Martinez, who is presiding over the case in the U.S. District Court of Colorado, has scheduled an evidentiary hearing for December 15 and 16, which will help determine whether he grants a motion for a preliminary injunction against the City of Denver and the state regarding future sweeps.
"The judge has a lot of discretion into what he could order," explains McNulty. "He could order the sweeps to stop completely. He could order that the sweeps can’t happen unless Denver and the state are providing individual housing options, like hotel and motel rooms or housing."
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