A day after a federal judge placed restrictions on Denver's sweeps of homeless encampments, attorneys representing the city filed an emergency motion in the 10th Circuit Court of Appeals to block the order.
“If Denver is prohibited from making decisions related to encampments when significant public health, environmental, and/or safety risks are found — especially during the COVID-19 pandemic — all Denver’s residents, including people experiencing homelessness, could be placed at grave risk of significant and irreparable harm," Geoffrey Klingsporn, a senior assistant city attorney for Denver, wrote in a January 26 emergency motion to stay the ruling by Judge William J. Martinez of the U.S. District Court of Colorado. "The district court’s Order prevents Denver’s departments from quickly addressing significant and imminent public health, environmental, and safety conditions found in encampments. And the decision also removes DDPHE’s ability to quickly act to stop the spread of disease and the continuous deterioration of public health, environmental, and safety conditions.”
On January 25, after three days of testimony during evidentiary hearings in December and January, Martinez had partially granted a motion for preliminary injunction against the city stemming from a lawsuit filed in October 2020 by ten homeless individuals and Denver Homeless Out Loud regarding sweeps of homeless encampments during the COVID-19 pandemic.
Martinez determined that Denver needed to provide at least 48 hours of advance notice before clearing out homeless encampments, even when exigent circumstances related to public health and safety exist. He also ordered Denver to provide seven days of advance notice for sweeps that the city undertakes in non-exigent contexts — a requirement that Denver officials should already be following after an earlier federal court settlement. Such notice, whether 48 hours or seven days, would give homeless individuals a "better chance to protect the property critical to their survival," Martinez said in his order.
The ruling was a "partial victory" for the plaintiffs, according to their lawyer, Andy McNulty of Killmer, Lane & Newman. McNulty had been hoping that Martinez would order Denver to stop sweeping encampments entirely during the pandemic, since the Centers for Disease Control and Prevention advises municipalities to avoid sweeps unless individual housing is available, in order to avoid the spread of COVID-19. Instead, Martinez crafted the "narrowest injunction possible," the judge wrote in his ruling.
Even so, Denver considers his ruling far too broad: Klingsporn characterized it as having an "overreaching and inappropriate nature" in his emergency filing.
"The need for judicial restraint is underscored because this case involves imminent and significant public health, environmental, and safety risks. The local public health experts are best equipped to address such risks — not the court. Ignoring the sound reasons behind the need to exercise judicial restraint, the court created its own policy, resulting in problematic, burdensome, and vague requirements that will be difficult for Denver to meet," Klingsporn wrote.
In his January 25 ruling, Martinez focused on the lack of notice provided by city officials to residents of homeless encampments in Capitol Hill and next to the South Platte River near Englewood.
While Denver officials testified that they'd ordered three sweeps to move forward without advance notice because of dire health and safety conditions, Martinez found that these "were not based on actual scientific, or evidence-based, public health concerns."
In fact, Martinez concluded that the "decision to conduct these area restrictions with effectively no advance notice to the residents of the affected encampments were actually based...on the possibility of additional (and vociferous) public scrutiny and the threat of First Amendment protected activity." While the city had stopped clearing out encampments at the start of the pandemic, the sweeps resumed this summer as encampments spread around the city — and homeless advocates and protesters frequently showed up at the scene to protest, he noted.
"Nothing in the record even approaches a showing by the Denver Defendants, for example, that they could not accomplish the same goal of remediating the encampments and the health threats they allegedly posed if [the Denver Department of Public Health and Environment] had instead given even 48 hours’ advance notice to encampment residents," Martinez wrote.
McNulty has ten days to respond to Denver's emergency motion, but says he isn't worried by the city's filing. "It’s the same arguments that Judge Martinez rejected," he says. "The city just rehashed them and tried to argue that they had some public health and safety justification when it was borne out at the hearing that the judge recognized that the real justification for the lack of notice [for the sweeps] was so that people didn’t show up to bear witness and protest."
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