🦄 COVID-19 , 🦄 Social Control

Federal Judge Rules Denver Cannot Conduct Sweeps Without At Least 48-Hour Written Notice

By Alex Binder, Unicorn Riot

Denver, CO – A federal judge ruled January 25, 2021 partially in favor of Denver Homeless Out Loud and several others in the order issued for the preliminary injunction in a class-action lawsuit against Denver, the State of Colorado, and numerous government and contract workers. U.S. District Judge William J. Martinez essentially reaffirmed the previous lawsuit settlement agreements from Lyall et al v. City of Denver, which went into effect in September 2019, and provided protocol on how to lawfully sweep unhoused encampments.

Update (May 2022): The U.S. Court of Appeals for the 10th Circuit overturned the injunction on May 4, 2022, stemming from Denver’s appeal to the January 2021 ruling, arguing the injunction stymied the city’s ability to respond to public health emergencies.

The preliminary injunction motion submitted by the plaintiffs, asked the court to:

  • Enjoin Defendants from conducting sweeps, or other displacement of encampments of homeless individuals (whether those displacements are carried out through the enforcement of a public health order, the Camping Ban, the Encumbrance Removal Ordinance, or any other law), at least until public health authorities have determined that the COVID-19 pandemic is over;
  • Require Defendants [to] provide restrooms, sanitation services (including trash services), and personal hygiene facilities (including handwashing stations) to Plaintiffs;
  • Enjoin Defendants from conducting sweeps without at least seven-days written notice;
  • Enjoin Defendants from discarding and/or destroying Plaintiffs’ unabandoned property; and
  • Enjoin Defendants from violating the terms of the Lyall v. Denver settlement agreement [(“Lyall Settlement”)].

At the core of the injunction ruling were three sweeps: the July 29, 2020, sweep of Lincoln Park, the August 5, 2020, sweep near Morey Middle School, and the September 15, 2020, sweep near the South Platte River. There were no written notices posted prior to the morning of either of these sweeps because, as testified by the defendants and written in the injunction order, the city wanted to avoid any “possibility of additional (and vociferous) public scrutiny and the threat of First Amendment protected activity.”

“Nothing in the record even approaches a showing by the Denver Defendants, for example, that they could not accomplish the same goal of remediating the encampments and the health threats they allegedly posed if DDPHE had instead given even 48 hours’ advance notice to encampment residents.”

U.S. District Judge William J. Martinez

In reaffirming the Lyall et al v. City of Denver settlement agreements, the judge ruled that the city needs to provide seven days’ written notice prior to a large-scale “encumbrance cleanup performed by DOTI, or a DDPHE-ordered temporary area restriction of such encampments,” to the encampment itself, as well as electronic notices to plaintiff’s counsel and the corresponding district’s Denver City Council member.

Although, there is one key difference between the 2019 settlement and this injunction order. The 2019 settlement allowed for the city to “conduct large-scale cleanups with less than seven days’ notice only if the city determines that a public health or safety risk exists which requires it.” The settlement didn’t explicitly state how many days less than seven was permissible.

For small-scale cleanups enforcing the Encumbrance Ordinance, the city needed to post forty-eight hour written notices prior to the removal of personal property; even for unattended property. The settlement states property can only be taken prior to that amount of time if the city determines it poses a public health or safety risk pursuant to city protocol.

Conversely, the injunction order explicitly states that “[i]n no event, however, may any homeless encampment sweep take place with less than 48 hours’ advance notice being given to the residents of the affected encampments.”

This ruling prevents the city from forcing any amount of people to pack up and move from their outdoor living space, even if there are public health and safety concerns, with less than 48 hours’ written notice—including camping ban enforcement.

“[The ruling] was a win for our unhoused neighbors in getting the court to recognize that the way that the sweeps were being conducted was unconstitutional and violated one of the fundamental guarantees of the Constitution, which is due process of law.”

Andy McNulty, attorney for the plaintiffs

The Lincoln Park Sweep

Below are two videos from the Lincoln Park sweep. Approximately 200 unhoused residents were told at 6 a.m. on July 29, without prior warning, that they had about four hours to move. As the residents who were present began packing, contracted workers with GH Phipps built a chain-link fence around the park’s perimeter.

The first video shows state troopers and Denver police aggressively preventing advocates from attempting to salvage property, entire tents being put directly into a dump truck, and a young man’s bloody wrist after being violently arrested for trying to block the dump truck from taking people’s belongings.

“They don’t see us as human beings. We don’t matter to them.”

Violently arrested unhoused resident and advocate

In our video we also interviewed residents of Lincoln Park, one of whom was just returning after having breakfast at a friend’s house, and didn’t know a sweep was happening.

Initially she wasn’t allowed in to retrieve her property and she spoke with us about what that meant:

“My birth certificate, my kids’ birth certificates, my social security card, my ID, my EBT cards; everything. My card for my stimulus—all of it—so they just put me in a worse shape than I was to begin with.”

After speaking with multiple members of law enforcement, she was allowed inside the park.

Our second video shows a group of about 20 advocates, including clergy people, who were congregated outside the remaining entrance to the park, when state troopers and Denver police violently shoved the crowd back in order to close the fence.

A minor was sexually assaulted during the aggression by Denver Police Officer A. A. Martinez and Denver Police Officer James Harvey. Tay Anderson, a board member of Denver Public Schools, was also shoved to the ground, hitting his head on the concrete. He was taken to the hospital with non-life threatening injuries.

Officer Harvey also sexually assaulted a Unicorn Riot journalist by pushing on their chest while they were filming.

The raw footage we captured from the Lincoln Park sweep, and other sweeps, was submitted as evidence in the preliminary injunction hearing. Unicorn Riot reporter, Alex Binder, also testified in the hearing in their capacity as a journalist. They were the first witness to take the stand in the hearing.

“Public” Space

The concept of public space was discussed in the hearing; both one’s right to exist in it, and the right to store one’s property in it. Eliza Hunholz, assistant director for Denver’s Park Rangers, testified that parks are “public spaces for everyone,” and “when you don’t clean the park and when the park isn’t safe, it’s not a park that everyone can use.”

Public space, however, has historically and is continually, not for everyone. The Black Codes, enacted in Southern states after the 13th Amendment was passed in 1865, aimed to keep Black people out of public view and effectively kept a form of slavery alive.

The Codes criminalized and controlled many aspects of Black people’s lives, throwing them in jail for being unemployed and without permanent residence; and while in jail, the 13th Amendment permitted slavery “as a punishment for crime whereof the party shall have been duly convicted.”

Many other laws and policies prohibiting certain types of people from public space popped up in the books, such as Ugly Laws and Sundown Towns.

In Denver, there are currently laws in place which prohibit unhoused people from using public space; specifically the Sitting or Lying Down in the Public Right-of-Way law (sit-lie ordinance) passed in 2005, and the Unauthorized Camping Ordinance (camping ban) passed in 2012.

The sit-lie ordinance criminalizes sitting or lying down in the Downtown Denver Business Improvement District (BID) on the sidewalk or on a chair that is not “furnished by the city.” The camping ban criminalizes basic acts of survival such as eating, resting, and sleeping in public or private space with anything on top or underneath a person other than their clothing.

We asked Andy McNulty, the plaintiff’s attorney, what his thoughts were on Eliza Hunholz’s testimony:

“She is saying that families don’t like to go to the park and see the unequal nature of our exploitative and capitalistic society . . . That’s basically what Eliza Hunholz is saying when she says that parks should be for everyone. What she means is that parks should be for everyone who’s housed, and that they shouldn’t have to look at unhoused people.”

Another difference between the 2019 settlement and the injunction order is the terminology used. Nowhere within the 2019 settlement is the word “sweep,” only the word “cleanup” is used. In the injunction, however, the terms are used somewhat interchangeably.

This discrepancy is important because Hunholz actually explained the significance of cleanups in her testimony. She highlighted that in order to solely remove and dispose of trash and other hazardous materials, residents don’t necessarily need to pack up and move.

The video below is of a large-scale sweep on October 6, 2020, the day after the class-action lawsuit was filed in federal court.

A resident of the encampment at 14th and Logan, Sophie, spoke with us the morning of the October sweep. She said a temporary chain-link fence started getting built around 2:30 a.m., and the city told the encampment residents they had until 9 a.m. to move.

“We’re supposed to be the ‘land of the free and the home of the brave,’ where’s the ‘land of the free and the home of the brave?’ Cause’ if we were free, we would be able to stay where we’re at . . . I’m part of the public, and if I want to lay my head on the sidewalk, I should be able to lay my head on a sidewalk.”

Pandemic Displacements and Sweeps: Mayor Hancock’s Legacy

When the pandemic hit Colorado and Governor Polis first issued a Stay-At-Home order on March 25, 2020, all Coloradans were ordered “to stay at home whenever possible due to the presence of coronavirus disease 2019 (COVID-19) in the State” effective the next morning at 6 a.m.

For CO residents who live inside, this order was at least relatable.

The city ceased sweeping from the order’s effective date until the end of July, except for three occasions. Including those three sweeps, the city has conducted at least 37 large-scale sweeps during the pandemic.

The first ask in the preliminary injunction request by the plaintiffs was for the court to suspend all sweeps and displacements “at least until public health authorities have determined that the COVID-19 pandemic is over.” That ask was not granted by Judge Martinez.

Despite the Centers for Disease Control and Prevention (CDC) guidelines for encampments stating that: “[i]f individual housing options are not available, allow people who are living unsheltered or in encampments to remain where they are,” the defendants testified that they don’t need to follow them because they’re just guidelines.

Another sweep, seen in the video below, is from 25th and Arapahoe on September 22, 2020. This sweep was the second where the city erected a temporary chain-link fence around the encampment’s perimeter in preparation for sweeping; the first one was at Lincoln Park.

However, since the September 22 sweep, temporary fencing has been consistently built the morning of each sweep “to keep protestors out”—the same reason the Denver defendants testified to for not providing notice for the three disputed sweeps.

Nearly 24 hours after Judge Martinez made his injunction ruling, the City of Denver filed an emergency motion to block the judge’s order.

The emergency motion states, in part:

“If Denver is prohibited from making decisions related to encampments when significant public health, environmental, and/or safety risks are found—especially during the COVID-19 pandemic—all Denver’s residents, including people experiencing homelessness, could be placed at grave risk of significant and irreparable harm.”

With their emergency motion, the city is effectively spreading disinformation. Denver was not prohibited from making decisions. If the Denver Department of Public Health and Environment needs to intervene and sweep an encampment prior to seven days, they can provide a 48-hours’ prior notice, as long as they’re “able to adequately articulate why protection of the public health and safety requires advance notice of a shorter duration.”

The judge’s order pushes the city to be accountable and transparent, it also reaffirms what they are already supposed to be doing.

“The city in May 2019, signed a settlement, so that they didn’t have to go to trial, and in that settlement there are certain requirements for how sweeps are managed. We feel that they’re looking for any way to breach the contract. If they’re so upset with the contract, why did they sign it or why didn’t they go to trial in the first place?

And so the judge requiring that they follow the contract that they signed [in May 2019] as the injunction [order], that’s about as minimal as you can go.”

Benjamin Dunning, Denver Homeless Out Loud

The city did not argue that they were sweeping encampments because of COVID-19 outbreaks during the injunction hearing, and therefore highlighting that the order is impeding on their abilities during the pandemic, is out-of-touch with what they were arguing in the hearing.

The primary reasons the city defendants outlined for why they conduct sweeps include the presence of trash, hazardous materials, human waste, rotten food, and rat infestations.

When Andy McNulty, attorney for the plaintiffs, was cross-examining Dr. Bill Burman (chief medical officer of the City and County of Denver and director of Denver Public Health), he admitted that the problems concerning public health and safety which he identified could be “solved by ways other than clearing an encampment.”

With the city spending hundreds of thousands of dollars each year on the sweeps, they could potentially divert that money into solutions that will prevent the public health and safety concerns they allege.

“This is Mayor Hancock’s legacy, his legacy is the sweeps. In fifty years, that’s what we’re going to be talking about. He just continues to throw dollar after dollar after dollar at this bogeyman that doesn’t solve any of the problems. This appeal is just the latest example of the city of Denver, Mayor Hancock’s office, doing everything in their power to continue engaging in fruitless and ineffective sweeps that violate the constitutional rights of our unhoused neighbors.”

Andy Mcnulty, attorney for the plaintiffs

This injunction order is only the precursor to the fully-fledged trial, which according to McNulty, may not begin for a few years. If the judge’s injunction ruling is not successfully appealed, then the order will be in place until the trial is complete.

Update (July 2021): Denver filed an official appeal on April 19, 2021 with the 10th Circuit Court of Appeals. In early June 2021, plaintiffs filed their response.

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