A federal judge has dismissed Denver’s hazardous materials contractor from the federal lawsuit that is challenging the constitutionality of the city’s encampment-clearing tactics and seeking to restrict future seizures of property.

One of the defendants named in the lawsuit, Environmental Hazmat Services, is a Wheat Ridge company whose contract with Denver entails clearing encampments for homeless residents, storing or throwing away items, and performing inventory of seized property. EHS insisted that it was not the cause of any constitutional violations because it was acting at the direction of the city.

U.S. District Court Judge William J. Martínez agreed with the company, finding the allegations insufficient to establish that EHS knew the city was providing inadequate notice of “sweeps” or in any way abusing its authority.

“To be sure, Plaintiffs have alleged throughout the Complaint that EHS, in conjunction with the City, seized and discarded Plaintiffs’ property without notice,” Martínez wrote in a March 18 order. “Critically, however, there is simply no factual basis to conclude that EHS knew or reasonably should have known that its actions were potentially violating Plaintiffs’ constitutional rights.”

The plaintiffs, who are a group of Denver residents subjected to encampment sweeps, initially filed suit in October 2020 against Mayor Michael Hancock, individual Denver police officers, Colorado State Patrol troopers and others. The lawsuit alleged unlawful seizures under the Fourth Amendment, deprivation of property without due process, and violations of rights under state law due to the sweeps.

“Additionally, the sweeps have devastating effects on Denver’s homeless population’s mental and physical health through the interruption of their sleep,” wrote lawyers for the plaintiffs. “Schizophrenia-like symptoms are associated with lack of sleep, as are increases in anxiety, memory loss, and depression. And, police contact, and the fear of police contact, substantially undermines the sleeping-related health of Denver’s homeless residents.”

Allegedly, Denver’s actions violated a 2019 agreement known as the Lyall settlement, which placed parameters on large-scale cleanups and regular clearings of public rights of way. Denver had agreed to provide at least seven days’ notice prior to a large-scale cleanup, information about the retrieval of property and storage space, among other requirements.

In January of last year, Martínez granted a preliminary injunction to the plaintiffs in response to the allegations that the city was sweeping encampments without proper notice and seizing property without due process. The judge directed the city to provide seven days’ notice not only for large-scale cleanups, but also for “temporary area restrictions” that the department of health ordered with little warning.

Martínez did allow the city to clear encampments with as little as 48 hours notice, but mandated that Denver post its justification for doing so online prior to the sweeps.

The defendants appealed to the U.S. Court of Appeals for the 10th Circuit, arguing Martínez improperly went beyond the terms of the Lyall settlement. The plaintiffs countered that Denver only wanted to avoid providing notice of sweeps to prevent interference from protestors. A three-judge panel heard oral arguments in the case in November but has not yet issued a decision.

In EHS’ motion to dismiss the claims against it, the company argued it was not a party to the Lyall settlement and could not be held responsible for failing to abide by its terms.

“On a job-by-job basis, EHS would have to decide whether to follow Denver’s instructions and face exposure to litigation from Plaintiffs, or refuse to perform under its contract, thereby breaching it and suffering the related consequences. For good reason, lawsuits creating this impossible choice have been rejected in the Tenth Circuit,” wrote attorneys for the company.

The plaintiffs, meanwhile, alleged that EHS stood “side-by-side” with Denver in conducting the encampment sweeps and should not be allowed to say the company was “just following orders.”

Martínez noted that while there were allegations of EHS employees seizing and discarding personal property, there was no suggestion EHS knew it was violating anyone’s constitutional rights.

Denver has also filed a motion to dismiss the claims against the mayor and city employees, and the Colorado Attorney General’s Office has submitted a similar motion to dismiss the claims against the state troopers. The motions, filed in March of last year, are still awaiting rulings from Martínez.

Andy McNulty, an attorney for the plaintiffs, indicated the judge may be waiting for the 10th Circuit’s decision before acting on the government’s motions. He said that courts have held a “just following orders” defense is not a basis for violating constitutional rights, and he would look to appeal EHS’ dismissal from the lawsuit.

Last September, the Denver City Council voted to extend the city’s contract with EHS to October 2023, despite hearing opposition from those with concerns about encampment sweeps. The agreement continues EHS’ obligation of collecting, storing and returning property, and requires that the company “take steps to prevent or avoid interaction with members of the public on behalf of the City at a clean-up site.”

Notably, the contract also requires the city to provide a copy of the Lyall settlement and train EHS on its obligations.

The case is Denver Homeless Out Loud et al. v. City and County of Denver et al.