Moving from one camp to another

Melody Lewis moved to the streets of Denver about six years ago. In late April and early May, Lewis and hundreds of other people who are homeless were displaced from sprawling, blocks-long encampments. She refused to go to a shelter, in part because of the threat of COVID-19

Months after a federal appeals court said his intervention was a mistake, a judge has now dismissed a lawsuit that alleged Denver violated the constitutional rights of homeless residents by clearing encampments without proper notice.

Nearly two years ago, U.S. District Court Judge William J. Martínez issued a preliminary injunction against the city after concluding its last-minute "sweeps" were motivated less out of public health concerns and more from a desire to avoid protestors at encampment sites. He ordered Denver to provide at least 48 hours' notice in all circumstances, including sweeps purportedly undertaken for health reasons.

But earlier this year, the U.S. Court of Appeals for the 10th Circuit overturned his injunction, finding Martínez had failed to consider that the latest round of claims about Denver's encampment-clearing practices were actually barred by a 2019 agreement with the city, known as the "Lyall settlement." Following the 10th Circuit's ruling, Martínez conceded this month that the underlying lawsuit was not viable.

"The court has carefully evaluated both parties’ arguments, taking into particular consideration the Lyall Settlement, which — given its extraordinary breadth — underlies all aspects of this lawsuit," he wrote.

If the plaintiffs wanted to enforce the terms of the agreement, which includes a seven-day notice period before sweeps, Martínez concluded the solution was not another federal lawsuit.

"Plaintiffs have no alternative but to file an independent breach of contract action in the appropriate state court," he wrote.

Attorneys for the plaintiffs, which included several homeless residents and the advocacy group Denver Homeless Out Loud, did not respond to an inquiry about any plans to enforce the settlement.

The 2019 Lyall settlement, which was the product of another encampment-related lawsuit, committed the city to providing seven days' notice of sweeps "to the extent reasonably possible." The terms also permitted Denver to clear encampments with less notice if public health or safety risks were an issue.

Notably, the settlement contained several provisions releasing the city from future liability. The agreement covered injuries "which may occur in the future," prohibited claims "resulting from the cleanup of homeless encampments," and barred lawsuits stemming from Denver's practice of "sending ten or more employees or agents to clear away an encampment."

Then, in 2020, Denver Homeless Out Loud and individual encampment residents brought another lawsuit against the city, outlining multiple instances of Denver seizing and disposing of tents, sleeping bags and other property despite providing same-day warning of sweeps.

"Over the past year, and in a blatant effort to skirt a settlement agreement entered into between Denver and a class of its homeless population, City and County of Denver officials have repeatedly showed up at homeless encampments without notice," wrote attorneys for the plaintiffs.

Martínez held a three-day hearing, during which he heard from government officials and homeless residents. In the highlighted encampment clearings, he concluded Denver gave neither notice nor a meaningful way for residents to recover their seized property. The judge also found the lack of advance notice was based on Denver's desire to avoid giving protesters a heads-up about the sweeps.

"Denver defendants have not come close to demonstrating that a requirement of at least seven days’ notice before an encampment sweep will preclude it from fulfilling its duty to protect public health and safety," Martínez wrote in January 2021. "Thus, 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."

Martínez placed conditions on Denver that went beyond the Lyall settlement, including a requirement that, even if the city had health or safety reasons to sweep an encampment, it could not provide fewer than 48 hours' notice to homeless residents.

Denver then appealed to the 10th Circuit, where a three-judge panel overturned Martínez's injunction in May by 2-1. The majority relied on a doctrine known as "claim preclusion," which bars the re-litigation of claims that were, or could have been, raised previously by the parties. In this instance, the allegation of Denver illegally clearing encampments without notice was the same behavior that culminated in the Lyall settlement. And the Lyall settlement, in turn, barred future such claims.

Judge Veronica S. Rossman dissented from the decision, pointing out Denver itself never argued on appeal that the Lyall settlement should block the current litigation. She also did not believe the settlement clearly barred the new allegations of encampment sweeps.

"Here, Judge Martínez presided over the Lyall class action; he approved the Lyall settlement agreement; he is presiding over the instant class action," argued Rossman.

If Martínez found the current case to be viable, "it is a mistake to forge ahead without deference" to him, she added.

But while Martínez acknowledged the 10th Circuit had spiked the injunction on its own initiative, he nevertheless agreed it "cannot be overstated" that the broad language in the Lyall settlement precludes future sweep-related claims.

"Homeless individuals can bring countless claims against Denver that are not barred by the Lyall Settlement, though the court will not speculate as to what those claims might encompass," Martínez wrote this month. "In short, enforcing a settlement agreement is usually a question of enforcing a contract under state law and creates no federal jurisdiction."

At the time of the 10th Circuit's ruling, attorneys for the plaintiffs told Colorado Politics that as long as the injunction was in effect, the city did not perform any sweeps without notice to residents.

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

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