"You only get an evidentiary hearing at this point if you need emergent relief," explains Andy McNulty, an attorney from Killmer, Lane & Newman LLC who is representing the homeless individuals suing the city and state. "The court believed that a hearing at this point was necessary to make sure [the plaintiffs] weren’t subject to infection and death."
Today, December 15, attorneys for the plaintiffs, a lineup that includes ten homeless individuals and Denver Homeless Out Loud, will present their witnesses for testimony and eventual cross-examination by lawyers representing the City of Denver and the State of Colorado. On December 16, Denver and the state will have their own witnesses testify; their witnesses will also be subject to cross-examination by opposing attorneys.
At issue in the case is the City of Denver's continuing to sweep encampments this summer, despite the fact that Centers for Disease Control and Prevention guidelines recommend that municipalities not sweep homeless encampments, so as to avoid the spread of COVID-19. The plaintiffs argue that these sweeps are unconstitutional, while the City of Denver claims it's well within its rights to sweep encampments, even during a pandemic.
The plaintiffs are also suing the State of Colorado for its involvement in a sweep of Lincoln Park in front of the Capitol.
The evidentiary hearing will make public the rationale behind the city's sweep of homeless encampments. For example, lawyers will debate whether an email exchange between a CDC official and a Denver public health official provided the green light for Denver to restart encampment sweeps, which the city had largely suspended early on in the pandemic.
Although Governor Jared Polis and Mayor Hancock were able to get out of testifying, Denver's top public health and public safety officials will testify.
The hearing will essentially be a mini-trial on the issues. Although the judge overseeing the case, William J. Martinez, could rule from the bench after the two hearing days, it's more likely that he will rule on a motion for a preliminary injunction in the coming weeks.
"The judge has a lot of discretion into what he could order. 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 or motel rooms or housing," McNulty says. "He could do a lot of different things."
The City of Denver has been fending off legal challenges regarding its approach to homelessness for years. In late 2019, a Denver County Court judge ruled that the city's camping ban, which was enacted in 2012, was unconstitutional. This past September, a Denver District Court judge overturned that ruling following an appeal by the City of Denver. The matter is now before the Colorado Supreme Court, which could put a final resolution to the case over a year away. McNulty has been serving as one of the lead attorneys on that case.
In September 2019, a federal court settlement of another legal action between homeless plaintiffs and the City of Denver took effect, requiring city officials to provide one week's notice before sweeping encampments for public right-of-way violations. That settlement agreement also requires the city to offer the storage of belongings for those staying in encampments subject to sweeps. In this latest case, McNulty is also arguing that the City of Denver has been violating the settlement agreement.