Attorneys for the City and County of Denver asked a panel of federal appeals judges on Tuesday to release the city from court-ordered restrictions on how it cleans up homeless encampments that pose a health and safety risk while the homeless plaintiffs countered that the restrictions were crucial to protect the worldly possessions of those being evicted.
At issue was whether a lower court judge went too far when he mandated Denver give at least 48 hours notice when conducting cleanups, also called sweeps, of homeless encampments. Denver Homeless Out Loud, which brought the original lawsuit along with several homeless plaintiffs, argued that the city only seeks to nullify the notice requirement so that protesters will not be able to gather in support of encampment residents.
Andy McNulty, representing Denver Homeless Out Loud, told the U.S. Court of Appeals for the 10th Circuit in a legal brief that the evidence "conclusively showed that Denver had conducted repeated sweeps without any notice, authorized by an individual who had been delegated final policymaking authority by Denver, simply because it did not want protesters to show up and engage in First Amendment-protected activity."
Following three days of testimony in December 2020 and January of this year, U.S. District Court Judge William J. Martínez agreed with the plaintiffs that in the absence of a court order, it was likely that homeless residents of encampments would see their property seized or destroyed without sufficient notice. He found merit to their claim that the absence of notice violated the Fourteenth Amendment's guarantee that no one will be deprived of property without the due process of law.
Denver and its Department of Public Health & Environment had failed to show, the judge wrote on Jan. 25, "that they could not accomplish the same goal of remediating the encampments and the health threats they allegedly posed if DDPHE had instead given 48 hours' advance notice to encampment residents."
The members of the three-judge 10th Circuit panel, however, peppered McNulty and Assistant City Attorney Conor Farley of Denver with their own concerns about the circumstances of the case.
Judge Veronica S. Rossman, who was participating in oral arguments for the first time since the U.S. Senate confirmed her nomination in September, pressed the city about the lack of evidence showing it needed to sweep encampments with no notice. She also asked whether the seizure of encampment residents' possessions is different from government seizures of other property.
"The property we're talking about is not, 'I lost my favorite scarf in the park.' I mean, this is property that is critical to survival," she observed.
In a line of questioning sympathetic to Denver, Judge Carolyn B. McHugh wondered whether Martínez had acted appropriately in going beyond the terms of a 2019 settlement, known as the Lyall agreement, that had already prescribed protocols for cleanups.
"I am concerned about if you get this relief and you enter into another settlement agreement, are you going to sue again? Is there any end to it? Is there no limit?" she asked.
McNulty answered that the Lyall settlement did not encompass the same public health and safety motivations Denver claimed were at issue in the current cleanups.
"But this action was filed to enforce the Lyall settlement agreement," McHugh countered. McNulty acknowledged that to be the case.
The plaintiffs filed suit against Denver in October 2020 and focused on three cleanups DDPHE had conducted during the COVID-19 pandemic with little notice: at Morey Middle School in central Denver, along the South Platte River and in Lincoln Park adjacent to the state capitol. The federal complaint also named Gov. Jared Polis as a defendant because the Colorado State Patrol was involved in the Lincoln Park eviction.
At the hearing before Martínez, several witnesses testified about their own experiences with the sweeps.
"I had like two hours," said Michael Lamb, who resided at Lincoln Park during the July 2020 cleanup. "They wanted everybody out of there, so some people abandoned their tents and things like that and just went, you know, and left because they couldn't carry all that stuff."
Councilwoman Candi CdeBaca, who asked Mayor Michael Hancock to suspend encampment cleanups early in the pandemic, alluded to comments the mayor made accusing CdeBaca of "texting and sending out information" about planned cleanups to encourage protests.
"I think that his hesitance to provide the required notice," she testified, "was motivated by his desire to not see protestors intervene on behalf of their unhoused neighbors."
But city officials also described the abhorrent conditions of some encampments: needles, rodent infestations, blood, feces, fire hazards, violence — and on top of that the risk of COVID-19 transmission. One sergeant with the Denver Police Department said that an attempted cleanup in downtown Denver was thwarted when a crowd began to "surge" and some protesters taunted police officers.
Eliza Hunholz, who supervises approximately three dozen park rangers for the city, asserted that the goal is to have encampment residents clean up their own environment, and for the city to assist them in finding shelter elsewhere. She spoke to the intimidation protesters caused at certain cleanup sites.
"One person wrote a ukulele song about how I should get a different job because I was incompetent. I mean, it was like very personal," she said.
Ultimately, the preliminary injunction Martínez issued was based on the admission of Danica Lee, a director within DDPHE, that the lack of notice for cleanups was due to a desire to avoid disruptive protests. The plaintiffs had asked the judge to block Denver from sweeping encampments during the COVID-19 pandemic, and to provide at least seven days notice if the city did undertake a cleanup.
Martínez settled upon a more restrictive order, noting the legitimate health and safety threats that were present, especially in large encampments.
The court order required the Department of Transportation and Infrastructure to provide a seven-day notice before performing an "encumbrance cleanup," which is meant to clear public rights-of-way. But it also mandated at least 48 hours' notice for "temporary area restrictions," the name given to DDPHE's cleanup of encampments based on a public health need.
The judge also required the city to notify Denver council members of sweeps in their districts, and to post its notice and reasoning for the cleanups online. Those directives went beyond the terms agreed to in the Lyall settlement.
Denver appealed to the 10th Circuit, blasting Martínez for substituting his own judgement for that of public health authorities and for the settlement terms. Farley argued there was ample evidence that the city had only disposed of property that posed a health and safety risk.
"This is not a situation where every single encampment throughout the city is monitored at all times to see when the public health and danger threshold has been reached," he told the 10th Circuit panel. "We have to hope for the best, hope that we dodge the bullet and make seven days' notice. Or get together enough documentation and publication to get a 48-hour exemption."
McNulty disputed that contention, saying Denver monitors encampments for months prior to initiating a sweep and that rodent infestations, for example, do not occur overnight.
"If the judicial branch is required to simply take as true the government’s bald proclamations that its unconstitutional actions were taken to preserve 'public health and safety' without subjecting such proclamations to scrutiny, then the Constitution would not be worth the paper it is written on," McNulty wrote in his brief.
The ACLU of Colorado and the National Homelessness Law Center submitted briefs in support of the plaintiffs, saying that encampment sweeps disproportionally affect people of color and that people will often avoid separation from their personal property — including their identifying documents — even if it means missing medical appointments or employment opportunities.
The case is Denver Homeless Out Loud et al. v. City and County of Denver et al.