Federal Judge Puts Restrictions on Denver Homeless Sweeps

Denver must provide advance notice when sweeping homeless encampments, even when a "public health or safety risk exists."
Denver must provide advance notice when sweeping homeless encampments, even when a "public health or safety risk exists." Evan Semón
A federal judge has ruled that the City of Denver must provide advance notice when sweeping homeless encampments, even when a "public health or safety risk exists," he says.

"The Court will issue the narrowest injunction possible so that Plaintiffs’ procedural due process rights are protected, and the Denver Defendants are not unduly restrained in their ability to maintain the public health and safety," Judge William J. Martinez of the U.S. District Court of Colorado determined in a ruling released today, January 25. He issued his order in response to a motion for preliminary injunction filed by lawyers representing ten homeless individuals and Denver Homeless Outloud, who sued the City of Denver, among other defendants, last October over homeless encampment sweeps.

In the order, Martinez granted the motion in part, saying that Denver officials must now provide at least 48 hours' written notice before sweeping an encampment, even when exigent circumstances related to public health or safety exist. The City of Denver must provide at least seven days' notice before conducting other sweeps in non-exigent contexts, the judge ruled, noting that the city should already have been doing so per an earlier federal court settlement.

Martinez denied the other elements of the plaintiffs' motion for preliminary injunction, including the argument that the way in which sweeps were being conducted was a contravention of Centers for Disease Control and Prevention guidelines, putting homeless individuals at a higher risk of contracting COVID-19. Martinez also denied claims related to the office of Governor Jared Polis, who'd been named in the lawsuit because of the State of Colorado's involvement in one sweep this past year.

Much of Martinez's ruling focused on the lack of notice provided by the City of Denver to residents of homeless encampments in Capitol Hill and next to the South Platte River near Englewood prior to sweeps in summer 2020.

City officials testified in court that they'd ordered three sweeps to be conducted without advance notice because of emergent health and safety conditions. Martinez, however, found that these decisions "were not based on actual scientific, or evidence-based, public health concerns."

Instead, he 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." Protesters have begun showing up at homeless encampment sweeps in larger numbers over the last year, especially after the protests over George Floyd's death in Minneapolis started in Denver in late May.

"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 ruled.

Now, with additional notice — whether 48 hours or seven days — homeless individuals will have a "better chance to protect the property critical to their survival," Martinez says in his order.

The city took issue with this portion of Martinez's order. “Today’s ruling dangerously ties the hands of city officials and prevents us from acting swiftly in the case of a public health or safety emergency or significant environmental impacts, which we unfortunately see with some frequency in large encampments," according to a statement from the mayor's office. "With respect to the three encampment closures cited in this case, DDPHE issued area restrictions to address imminent and substantial public health hazards. We are exploring our options this evening and will likely appeal the ruling. Our goal is always to connect our unhoused neighbors with shelter, housing, services, treatment and care while also balancing that with our chartered responsibility to protect the public, including people who live in encampments, from the hazards that these encampments pose.”

Andy McNulty, the Killmer, Lane and Newman attorney who argued the case on behalf of the plaintiffs during a three-day evidentiary hearing in December and January, views Martinez's ruling as a "partial victory," he says.

"While we didn’t win the entire war, it’s a battle that’s been won in the interim," he notes. "It’s disappointing because we were looking to stop the sweeps entirely during COVID-19."

The judge's ruling didn't put a stop to the lawsuit; McNulty says he anticipates that the case will continue for years as the various parties continue to litigate their claims.

In the meantime, he says, Martinez's ruling on the preliminary injunction motion "recognized that homeless folks have constitutional rights just like the rest of us, and Denver can’t just violate those without any repercussions.".
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Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.