Update: On Friday, the homeless plaintiffs' lawyer told Westword that he has decided not to completely drop city officials as defendants in the class action suit — including Mayor Michael Hancock — as was discussed in Wednesday's hearing. His explanation of this technicality and update on the case has been added to the bottom of this article, which also includes plans to file a temporary restraining order and a motion for preliminary injunction which would put an immediate halt to the sweeps.
There was a look of surprise from Magistrate Judge Craig B. Shaffer when he saw the number of attendees at the first hearing in a class action lawsuit filed against Denver that alleges the city is violating the U.S. Constitution when it conducts regular sweeps of the homeless.
“Thank you for coming. Welcome to the United States District Court,” Shaffer said to the standing-room-only crowd at the Alfred A. Arraj Courthouse on Wednesday, October 12.
The audience included a dozen or so homeless individuals that Shaffer explicitly allowed into the courthouse despite their lack of government-issued identification; Shaffer ruled that they did not have to follow the security requirement of having an ID because they claimed to have had identification cards or documents seized during Denver's homeless sweeps – which are the focus of the trial.
Others in the crowd were there to show support for the suit and what could become a landmark civil-rights case that sets precedent in the United States Tenth Circuit and beyond.
Once the hearing began, however, it became clear that the case against Denver is going to be a long and rather drawn-out process.
The main takeaways from Wednesday morning's hearing:
- A ruling on class certification (whether the nine homeless plaintiffs will be considered as representative of thousands of Denver's homeless) will be decided by a different Judge – U.S. District Judge William Martinez – and the city has until October 28 to file its response in the matter. The homeless plaintiffs' lawyer, Jason Flores-Williams, tells Westword that he's confident about being granted class certification and hopes a ruling will come down by mid-November. He also adds that he will appeal to the Tenth Circuit should the district court decide not to grant his clients class certification.
- A number of revisions will be made to the suit that will hopefully speed up the trial, which Shaffer pointed out was in danger of being bogged down by various motions and delays until the middle of 2017.
In fact, most of the hearing revolved around Shaffer offering suggestions as to how to streamline the litigation and avoid getting mired in procedural motions.
Shaffer's main suggestion to the plaintiffs' lawyer, Flores-Williams, was to drop the individual defendants in the case — which include Mayor Michael Hancock, Denver Police Chief Robert White and the Mayor's Deputy Chief of Staff Evan Dreyer – and instead only sue the “City and County of Denver.”
The reason for the suggestion, Shaffer explained, is because the individual defendants could (and probably would) claim qualified immunity from the suit, including from Flores-Williams's discovery requests that they turn over documents and electronic records pertaining to the homeless sweeps.
The City and County of Denver, however, cannot claim immunity from turning over documents, so dropping the named defendants and focusing more broadly on the city would save a lot procedural headaches and delays.
Flores-Williams agreed with the judge during the hearing that the most important thing was bringing an expedient resolution to what he says are ongoing constitutional abuses carried out against Denver's homeless population. He says these actions include regular violations of the Fourth Amendment's protections against illegal searches and seizures.
Other revisions that the judge recommended included technicalities around Colorado's statute of limitations.
The next hearing in the case has been set for Thursday, October 20, at 10 a.m.
Outside the courthouse, Flores-Williams told a crowd that he hopes people will continue to attend and pack the hearings, just as they did Wednesday morning.
“That's the most powerful argument we have,” he said.
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Flores-Williams added that he appreciated Shaffer's suggestions, as well as the fact that the judge acknowledged that delaying the trial too long might make it difficult to find or stay in contact with all of the plaintiffs, who continue to live on the streets.
“I think that showed a real dose of humanity,” Flores-Williams said.
However, Flores-Williams said he will not be dropping the city officials listed in the suit as defendants as pertains to their "official" capacities as city employees. He will also be motioning for a preliminary injunction and temporary restraining order which would put a halt on ongoing sweeps. On Friday, he sent Westword the following explanation:
After we filed the proper motion stream-lining the suit, however, we received a request from the city to drop the individual Defendants in their official capacity, leaving only the City of Denver as the sole Defendant. Legally, the request is somewhat legitimate. If you are suing The Chief of the Police in his official capacity, then you are suing the city and vice-versa. They are—for insurance purposes—the same entity.
But this is a battle worth fighting.
On a level of moral culpability, the Evan Dreyers and Robert Whites and the Mayor Hancocks are guilty in this mass injustice. They must be held accountable. On a legal level, we are, amongst other things, seeking equitable — injunctive and declaratory relief — and we want these Departments named and bound by it. One can make the argument that if you issue an injunction against the City, then you are issuing an injunction against these Departments, but there is a power in having these Departments specifically named.
They will file a "Motion to Dismiss Defendants-other-than-the-city-in-their official-capacity," we'll counter by a shining a further light on these issues, specifically how each of these agencies played a role in the homeless sweeps. Furthermore, as previously discussed, we are now going to move forward with a Temporary Restraining order & Motion for Preliminary Injunction. This will be a mini-trial unto itself in which all the evidence that is admitted in the Preliminary Injunction/TRO hearing is admissible into the law suit. This is a powerful tool that will allow us to subpoena all the named Defendants to testify in Court in the next several weeks. Most importantly, it would force, if granted, the city to immediately stop the sweeps.