Denver Legal Motion Claims CDC Guidance Allows Encampment Sweeps

Since close to the start of the coronavirus pandemic, the Centers for Disease Control and Prevention has recommended that municipalities not sweep homeless encampments unless housing is available for those living on the streets. "Clearing encampments can cause people to disperse throughout the community and break connections with service providers. This increases the potential for infectious disease spread," the CDC notes on its website.

Even as encampments grew around town, the City of Denver conducted no major sweeps in March and through much of April — but at the end of that month, the city once again began clearing out encampments, and it has continued to perform dispersals ever since.

The Denver City Attorney's Office, which is battling a federal lawsuit over the sweeps in the U.S. District Court of Colorado, is now using the CDC's own words to argue that Denver has the green light from federal public-health officials to disperse encampments.

"Local jurisdictions are meant to approach encampments with the goal of protecting people to the best of their ability. What that might look like will depend on the local context, including resource availability," Grace Marx, a CDC medical epidemiologist, wrote in a May 12 email to Danica Lee, director of public-health investigations at the Denver Department of Public Health and Environment. "Clearing encampments or moving people along with no plan for where those people will go is not ideal. However, if encampments are unsafe or unsanitary, then alternate options need to be considered."

Marx sent the email after Lee asked for guidance regarding homeless encampments. The city had generally not been clearing out encampments, Lee said, but it had seen a "substantial uptick in the number of urban campers and a deterioration of conditions around these encampments, which are in heavily residential and commercial areas."

Lee then asked: "Is the intent of the CDC guidance around not displacing campers intended to trump all other public health, environmental, and safety considerations?"

In her "alternate options" response, Marx concluded that her response did "not offer a concrete solution."

But according to a motion filed November 6 by Wendy Shea of the City Attorney's Office, the Hancock administration believes that CDC response justified the decision to continue sweeping encampments.

"The CDC recognized that while clearing encampments or moving people along with no plan for where those people will go is not ideal, those options need to be considered when encampments are unsafe or unsanitary," the motion notes.

Mayor Michael Hancock had signaled that position at a press conference in late July. "We know what the CDC guidelines say," he said when asked about the sweeps. "These are very difficult decisions. ... We have a balancing act that we have to achieve here, and we have to not only take care and protect those who are in the encampments, but we have to protect and keep safe the general public."

According to Andy McNulty of Killmer, Lane & Newman, one of the attorneys suing Denver in the class-action suit over the sweeps filed in October, city officials are misinterpreting the guidance the CDC offered in that email; he says he'll have more information backing up his argument when he files a response in court on November 16. (The CDC did not respond to a request for comment; the City Attorney's Office declined to comment.)

Denver's primary homeless service providers oppose the sweeps, which they say aren't helpful in solving the issue of homelessness, especially during a pandemic.

The city's email exchange with the CDC "feels like they’re saying, 'CDC, you issued this guidance, but can you tell us how we can get around it?,'" says Cathy Alderman of the Colorado Coalition for the Homeless. "This just feels like, 'Eh, we don’t really like those guidelines.'"

The Hancock administration and service providers are currently working to set up safe-camping sites in locations throughout the city. The Interfaith Alliance of Colorado hopes to have the first two sites, both of which would be located on church-owned property in Capitol Hill, up and running by sometime in December.

The city is also accepting proposals for additional safe-camping site locations and safe-parking site areas through the week.