"It’s an important case," Judge William J. Martinez said on January 11, before adjourning an evidentiary hearing that ran for three days, two in December.
Martinez has no deadline for his ruling, but Andy McNulty, the Killmer, Lane & Newman lawyer representing the plaintiffs suing government officials and agencies behind the sweeps, says he hopes to see a decision on his motion for a preliminary injunction by late January. In his ruling, the judge could allow sweeps to continue unabated or mandate certain restrictions.
The lawsuit, filed by Denver Homeless Out Loud and ten homeless individuals in October 2020, charges that by performing sweeps during a pandemic, the City and County of Denver and various officials are violating Centers for Disease Control and Prevention guidelines. The CDC currently advises municipalities not to sweep encampments during the pandemic, to avoid the possible spread of COVID-19.
The suit further claims that the City and County of Denver has been violating aspects of a September 2019 federal court settlement stipulating certain requirements regarding sweeps, including advance notice and storage of belongings.
The legal complaint also names the State of Colorado and numerous state employees, as well as a waste management company that contracts with Denver, as defendants.
In the first weeks of the pandemic, Denver largely halted its sweeps, only to restart them this summer, as encampments popped up across the city, particularly in Capitol Hill and other areas around downtown. While Denver has a camping ban on the books, city officials use a variety of laws to justify the sweeps, including those involving public right-of-way and public health and safety.
In court, defense lawyers argued that the sweeps are necessary and still in line with the guidance from the CDC.
Martinez found this to be the city's strongest argument, saying that he believes there's a "malleability" to the CDC guidances that would potentially greenlight encampment sweeps based on an assessment of the "totality of circumstances."
But Martinez had concerns about some of the other testimony. "I've heard a lot of evidence of people losing their property," the judge said, noting that he needs to weigh property rights with allowing city officials to mitigate potential public-health risks.
Martinez said said he believed that the City of Denver started sweeping encampments without notice in the spring and summer of 2020 not because of any public-health considerations, but because employees had been intimidated by the conduct of protesters at past sweeps.
In particular, Martinez referenced Danica Lee, a Denver public-health official who testified on January 11: "She was spooked that people were chanting her name and were photographing her and...she got so rattled that she decided that she wasn’t going to go through that again."
Through the hearing, city employees took issue with McNulty's use of the term "sweeps."
"We actually don’t call them sweeps. That’s a really pejorative term," said Eliza Hunholz, assistant director for the Denver park ranger program.
Martinez quickly responded: "Ma’am, there is a difference between a daily cleaning and removing people. We need to use different words for the record."
For the record, Martinez referred to the sweeps as "evictions."