A federal judge issued a ruling on Monday requiring Denver city officials to give seven days notice before clearing most homeless encampments, or two days notice if the area is deemed dangerous to public health and safety.
The preliminary injunction was issued by Judge William J. Martinez on Jan. 25 after three days of evidentiary hearings took place in December and January. Most of the testimony focused on three large encampment sweeps that city officials conducted over the summer without adequate notification to homeless residents.
“The 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,” Martinez said in his order, adding that city officials can still conduct emergency removals with two days notice if they are able to adequately document the reasoning for doing so.
The class action lawsuit, which aims to halt Denver from conducting encampment sweeps through the pandemic, will continue to move forward while the preliminary injunction is in place. The complaint, filed in the U.S. District Court of Colorado in October on behalf of nearly a dozen people experiencing homelessness, alleges that city officials have seized or disposed of homeless individuals’ belongings without due process.
City officials have defended the sweeps that occurred without notice, pointing to the size, detrimental living conditions and the general health concerns of the encampment — factors that they say outweigh the risks of the coronavirus pandemic. In Martinez’s order, he stated that the city official’s overarching interest of maintaining public health and safety is “unquestionably significant,” but that it did not justify their actions of not providing notice to residents living within the encampments.
“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,” Martinez said.
In response to the preliminary injunction, Mayor Michael Hancock’s office released the following statement: “Yesterday’s ruling dangerously ties the hands of city officials and prevents us from acting swiftly in the case of a public health or safety emergency or significant environmental impacts, which we unfortunately see with some frequency in large encampments.”
City attorneys filed an emergency motion on Tuesday night to halt Martinez’s order and gave notice that they plan to formally appeal the ruling, which will likely prolong the case for months.
Lack of prior notice to homeless residents was in part to avoid protests, judge writes
Homeless encampment sweeps have continued throughout the pandemic despite guidance from the Centers for Disease Control and Prevention, which recommends that if individual housing options are not available, people living unsheltered should be allowed to remain where they are.
“Clearing encampments can cause people to disperse throughout the community and break connections with service providers,” the guidelines say. “This increases the potential for infectious disease spread.”
But Denver city officials have pushed back against the guidance, saying it’s more of a suggestion and does not take into account other public health concerns such as the accumulation of trash, the existence of used needles or the presence of human feces.
One of the most important testimonies during the three days of hearings was from Danica Lee, director of public health investigations for the Denver Department of Public Health and Environment. Her testimony focused on the environmental and public health considerations taken into account when the city evaluates if an encampment needs to be disbanded with or without notice.
Martinez wrote that one event appeared to have a significant impact on Lee’s decision to not provide notice for an upcoming sweep. Lee testified that during a June 17 sweep at 21st and Stout streets, where advance notice was given, a group of protestors gathered and ultimately halted the removal of the encampment. Large groups of activists and community members had become common during homeless sweeps, with people showing up early in the morning to help encampment residents pack up their belongings or to provide food or other resources.
“According to Lee, the protestors were aggressive, shouted, and tried to enter the areas secured by the police, which allegedly created security challenges and led to concerns for the safety of the team working to implement the area restriction,” Martinez said, but added that the decision to halt the clean up was not based on “actual, scientific, or evidence-based, public health concerns.”
Instead, Martinez said that the decision to not provide notice to residents was based on the potential of “public scrutiny and the threat of First Amendment protected activity.”
Judge: More notice doesn’t jeopardize city efforts to address health concerns
Martinez ruled that city officials’ procedures for providing notice of upcoming encampment clearings were insufficient.
He wrote that for homeless individuals like Michael Lamb, an unhoused resident who testified during the hearing, residents did not have enough time to move all of their property to avoid it being seized or tossed by city officials.
Lamb was barred from gathering the rest of his belongings during the Lincoln Park cleanup in July near the Capitol, and watched behind a temporary chain link fence as “Denver officials took (his) property … threw it into a trash truck, and destroyed it,” Martinez wrote in the preliminary injunction.
Martinez concluded that if an injunction was not imposed, it would be likely that vital possessions such as tents, blankets, tarps, and other items necessary to survive Colorado’s harsh winter conditions would be seized and potentially destroyed by city officials, which could cause “irreparable harm” for people experiencing homelessness.
Martinez also found that the city’s procedures didn’t provide a meaningful way for people to recover their belongings once they’d been confiscated. He used the testimony of Steve Olsen as an example.
During the homeless sweep on Sept. 15 near the South Platte River, Olsen was told by a Denver official that his missing property might have been stored by the city. When Olsen went to the storage facility he was told that officials had not stored any property from that day.
“While homeless individuals appear to have some recourse in finding their property in storage, or recovering its value through a claim reimbursement, this process carries serious risks,” Martinez wrote.
Editor’s note: This story was updated at 7:30 a.m., Jan. 27, 2020, to include new information about Denver’s emergency motion to block the case.