Sweeps: Possible Constitutional Violation
By Robert Davis
In a partial preliminary injunction against the City of Denver issued on January 26, Judge William J. Martinez of the Colorado District Court said the City must provide at least 48 hours’ notice before conducting a homeless sweep. He also argued the sweeps are likely unconstitutional.
The order left open the possibility of conducting rapid no-notice sweeps under limited circumstances and does not address the plaintiff’s requests for handwashing stations, restrooms, and other hygienic facilities to be provided to homeless communities.
The injunction followed a Notice of Supplemental Authority submitted by Andy McNulty of Kilmer, Lane & Newman, who represents Denver Homeless Out Loud (DHOL) in the lawsuit against Denver, concerning President Joe Biden’s extension of the federal eviction moratorium through the end of March.
“Today, a federal judge stated that Denver violated the constitution by failing to provide notice before sweeping our unhoused neighbors, not because of public health concerns, but because they did not want people to show up to watch the inhumane evictions,” McNulty told the Denver VOICE.
Judge Martinez focused on two issues in the ruling: the treatment of property confiscated by Denver during the sweeps and the less-than-timely notices provided beforehand.
According to the settlement Denver struck with its homeless community in Lyall v. City and County of Denver, city officials agreed to store “any items of personal property that could reasonably be assumed to have value to any person” at a facility where an individual may retrieve the property.
However, Judge Martinez found that Denver’s policies “do not appear to afford homeless individuals a meaningful way to recover confiscated property.”
Several witnesses staying at the South Platte, Morey Middle School, and Lincoln Park camps testified that their belongings were often confiscated under the guise of “contamination” even though it didn’t contain bodily fluids, excrement, or blood, as the City claimed.
Other witnesses said they were only allowed to take what they could carry out of the camps before officials enclosed the area with six-foot-high fences and refused to let them back in for another load. Afterward, city officials often gave homeless people misleading or incorrect information about recovering their property.
Denver officials contended that “all non-hazardous, unattended personal belongings were stored, and to the extent they were inadvertently disposed of, property owners can file an online claim for reimbursement.”
“Plain and simple, Denver violated the constitutional rights of an entire population of our city because it did not want folks to show up to protest and bear witness to the cruelty of the sweeps,” McNulty said.
The Lyall settlement also requires Denver to provide at least seven days’ notice before conducting a large-scale sweep like the ones at South Platte, Morey, and Lincoln Park. In several instances, Judge Martinez found city officials gave notice either the day of or right before a sweep occurred.
Notice directives often came from Denver Department of Public Health and Environment (DDPHE) Executive Director Bob McDonald and Danica Lee, Denver’s director of DDPHE’s Public Health Investigations Division, according to the order.
Judge Martinez recognized the delicate tightrope Denver officials are navigating between the COVID-19 pandemic and addressing its homeless crisis. However, he said Denver “[did] not demonstrated that the government’s interest—significant though it may be—justifies providing written notice no earlier than the morning of DDPHE area restriction sweeps.”
While these practices may violate the terms of the Lyall settlement, Judge Martinez said he has no jurisdiction to enforce the settlement because it led to the dismissal of the lawsuit, even though the relief claims made by the plaintiffs essentially ask Denver to abide by the agreement.
In a prepared statement following the order’s publishing, Mayor Michael Hancock said it “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.”
Denver will appeal the ruling.