Class Action Lawsuit Against Denver For Homeless ‘Sweeps’ Prepares For Upcoming Trial

Diane Lorene Cox on the sidewalks of downtown Denver. (Credit: Andrew Kenney). Originally published in the March 2016 issue of Denver VOICE.

By Robert Davis

Nearly three years after the initial lawsuit was filed against the city government for its so-called “homeless sweeps,” the City of Denver will stand trial beginning March 19. 

The lawsuit accuses the city government of denying homeless people their constitutional rights against unreasonable searches and seizures, cruel and unusual punishments, due process of law, and equal protection while conducting the “sweeps.” 

Judge William J. Martinez has settled a number of “special issues,” as he characterized them, leading up to the trial. That includes defining what constitutes a “sweep” and allowing those who have lost their government-issued IDs during the sweeps to attend the trial.

In October, Westword reported that Judge Martinez defined a “sweep” as “‘the City and County of Denver’s alleged custom or practice (written or unwritten) of sending ten or more employees or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there.”

Regarding those without identification, Jason Flores Williams, who is representing the homeless plantiffs, and his co-counsel, David Lane, will have to vouch for those who wish to attend the trial because many of the plaintiffs had their IDs confiscated. 

The city’s lawyers have fought the case by attempting to remove several named witnesses from the proceedings. The city asked Flores-Williams to turn over hundreds of pages of communications with Terese Howard of Denver Homeless Out Loud (DHOL) and filed a motion to bifurcate the trial.

The City argued in a court filing on December 3 that the trial should be bifurcated — divided into two parts so as to render a judgment on a set of legal issues without looking at all aspects — because “[the] Plaintiffs’ class-wide injunctive claims will be tried to the Court, but individual claims for damages asserted by named Plaintiffs will be tried to a jury.”

They have also worked to limit the scope of admissible evidence and the number of sweeps that can be explored during trial. Judge Martinez has explicitly said he will allow the admission of a video reportedly showing Denver Public Works employees throwing out a homeless person’s shopping cart.

A lengthy battle ensued between Howard, Flores-Williams and the City’s lawyers regarding those communications. Howard and Flores-Williams decided not to turn over the communications, claiming doing so would violate attorney-client privileges and could be considered an “infiltration” of DHOL. Similarly, Howard says she will not testify at the upcoming trial.

Jason Flores-Williams, the lawyer who will represent the homeless plantiffs in the class-action lawsuit against Denver’s “homeless sweeps.” (Credit: Giles Classen) Originally published in the May 2018 issue of Denver VOICE.

Judge Martinez said in a court order filed in over the summer that he will allow the witnesses City lawyers want removed from the case to testify as long as they have been deposed by September 15. Flores-Williams confirmed to The Denver VOICE that all of those witnesses have been deposed. 

Flores-Williams also asked for the Court’s permission to have a bus from the California nonprofit Lava Mae parked outside of the Alfred J. Courthouse during the trial. The bus will be outfitted with shower areas and would provide clean clothes for homeless individuals. This would grant them a dignified appearance in court, as Flores-Williams argued in a court filing. 

In the mean time, this back and forth between Flores-Williams’ team and the City has not stopped the sweeps from occurring. 

On October 29, Flores-Williams filed a response to a Status Report generated by the City regarding a sweep that occurred that morning. Flores-Williams asked the court to provide the plaintiffs “at least 72 hours prior to the planned sweep, so that Plaintiffs would have the option of applying for a Temporary Restraining Order to this Honorable Court pursuant to Federal Rule of Civil Procedure 65(b) at least 72 hours notice before the sweep.”

On January 12, Candi CdeBaca, a local activist and candidate for Denver City Council, shared a video on her Facebook page showing a Denver Public Works Employee throwing out a homeless person’s belongings as others stood by and watched. When questioned by the videographer regarding what he was going to do with the items, the employee said he was going to “burn them” and laughed. 

The trial will be held in the Alfred A. Arraj U.S. Courthouse at 901 19th Street. ■