DENVER (CN) — Attorneys for the city of Denver asked a 10th Circuit panel on Tuesday to overturn a federal judge's order requiring the city to give a week's notice before clearing out encampments of unhoused people, or 48 hours’ notice with documentation of a public health and safety emergency.
Nonprofit organization Denver Homeless Out Loud first challenged the constitutionality of Denver’s urban camping ban in 2016, after several unhoused persons’ blankets and tents were seized during winter.
U.S. District Judge William Martinez signed off on a settlement between the parties in September 2019, requiring a week's notice before breaking up homeless camps and outlining protocol for what to do with personal belongings left behind.
The class sued a second time in October 2020, claiming the city breached its settlement agreement during the pandemic when it cleared 11 homeless camps between April and August that year, displacing more than 1,000 unhoused citizens.
The cleared encampments included locations along the South Platte River as well as in Lincoln Park next to the state capitol and outside of Morey Middle School.
At the time, Covid-19 guidelines from the U.S. Centers for Disease Control and Prevention advised against clearing encampments unless adequate housing was available.
After hearing three days of testimony, Barack Obama appointee U.S. District Judge Martinez issued an order in January 2021 partially granting a preliminary injunction that required the city to give a week’s notice before clearing encampments. Denver appealed.
“Denver is here today because the district court has severely limited its ability to address the public health and safety associated with outdoor campsites of Denver’s unhoused,” City Attorney Daniel Farley told the federal appeals panel. “This is now opening the floodgates for significant health risks."
U.S. Circuit Judge Veronica Rossman, a Joe Biden appointee, asked Farley to point out emergencies that might require immediate response without notice.
“I don’t see anything in the record that suggests any example like that was offered,” Rossman observed.
Farley cited a meth lab and other fire hazards as well as the presence of trash, needles and human feces in various camps.
“Beyond the record,” Farley added, “this is not a situation where every single encampment throughout the city is monitored at all times to see when the public health endangerment threshold has been reached. But there’s been examples upon entering encampments when there’s 5-gallon buckets of feces and because of this injunction that situation cannot be addressed.”
Senior U.S. Circuit Judge Michael Murphy, a Bill Clinton appointee, tested this notion, asking whether the injunction prevented the city from putting out literal fires. Farley clarified that the fire department could respond to fires, but could not actively prevent them.
“So you could put out the fire, you just couldn’t confiscate the grill,” Murphy summarized.
On behalf of the plaintiff class, civil rights attorney Andy McNulty said the city's concerns of an emergency don't exist.
“There is no evidence in the record whatsoever of emergent public health and safety risk that would require less than 48 hours’ notice," said McNulty, who practices with the firm Killer Lane & Newman in Denver. “Since the injunction, Denver has not conducted one 48-hour sweep; it has not provided less than 7 days’ notice of sweeps. That shows that their stated public health and safety concerns are nonexistent."
Judge Rossman said she had concerns the lower court had exceeded its authority and altered the settlement agreement.
“While I am perfectly comfortable what you filed this as, which is an action to enforce a previously agreed settlement, I have issue with where the district court seems to be giving you additional relief that you didn’t get in the first action and you waived the right to get,” Rossman said.
McNulty parsed out a few differenced between the original 2016 lawsuit and the 2020 lawsuit, namely the Covid-19 pandemic.
“The fact is the circumstances on the ground changed,” McNulty said. “At its core this appeal is about one issue: whether Denver can take things that are necessary for survival, like tents and sleeping bags, without any notice whatsoever. The district court held it cannot and imposed a few basic notice requirements before [Denver] can take unhoused persons’ only worldly possessions.”
Due to the pandemic, the hearing was held remotely and broadcast over YouTube. In closing, presiding U.S. Circuit Judge Carolyn McHugh described it as a “difficult case.”
The Obama appointee did not indicate when or how the court would decide the case.
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