"We are disappointed that the mayor and governor even filed a motion to avoid testifying. They are public servants and should answer to the public for their decisions instead of hiding behind the arguments of their lawyers," says Andrew McNulty, the Killmer, Lane & Newman attorney who's filed suit against the two elected officials, as well as the City and County of Denver, arguing that the city is contravening Centers for Disease Control and Prevention guidance by continuing to sweep homeless encampments during the pandemic. "When our elected officials veil their actions and decisions under a cloak of secrecy, as the mayor and governor have done here, it makes you question whether those actions and decisions are aboveboard."
Still, two top-ranking Hancock administration officials will have to testify in the U.S. District Court of Colorado later this month, when the court is holding an evidentiary hearing related to the case.
Judge William J. Martinez, who issued the December 8 decision regarding whether Polis, Hancock and other top officials would have to testify in court, has been presiding over the case since lawyers representing Denver Homeless Out Loud and multiple homeless individuals filed the lawsuit in October.
McNulty had been seeking to get Polis, Hancock and Denver's top public safety and public health officials to testify in court, saying they could best address what went into deciding to sweep large encampments in Denver at various points in mid-2020. The CDC had advised that municipalities not sweep encampments unless individual housing is available, so as not to further the spread of COVID-19.
The Colorado Attorney General's Office had argued against Polis testifying, saying that the evidence didn't show that the governor was connected to the claims in the case and that requiring him to testify while he's managing the state's pandemic response would be unduly burdensome.
The Denver City Attorney's Office made similar arguments regarding whether Hancock, Public Safety Executive Director Murphy Robinson and Public Health and Environment Executive Director Bob McDonald should testify in federal court during the pandemic. The city claimed that having to give such testimony during the pandemic would be unduly burdensome; the attorneys also said that there were plenty of lower-ranking city employees who could testify in court.
While Martinez agreed with the AG and the City Attorney's Office regarding their arguments about Polis and Hancock testifying, he said that McNulty had successfully argued for requiring Robinson and McDonald to testify.
"We are glad that the judge recognized that Bob McDonald and Murphy Robinson were instrumental to the sweeps and have to answer for their decisions," McNulty says. "We look forward to hearing their justifications for the clearly unconstitutional sweeps that run counter to CDC guidance and endanger the public health."