(CN) — A federal judge ordered Denver to provide seven days’ notice before clearing the campsites of people experiencing homelessness.
"[Denver’s] procedures for providing notice of a Denver Department of Public Health and Environment area restriction did not afford homeless individuals sufficient time to remove their property from designated areas such that they might avoid seizure,” wrote U.S. Judge William J. Martinez in a 50-page order issued Monday.
The preliminary injunction follows three days of testimony held between December and January at the Alfred A. Arraj Courthouse in downtown Denver and broadcast over teleconference.
A spokesperson for the city criticized the order.
“Today’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,” said communications director Theresa Marchetta in a statement. “We are exploring our options this evening and will likely appeal the ruling.”
The city made good on that threat and filed an appeal with the 10th Circuit on Tuesday afternoon.
According to the lawsuit filed by nonprofit organization Denver Homeless Out Loud on Oct. 5, Denver cleared at least 11 homeless camps between April and August, displacing more than 1,000 unhoused citizens.
Covid-19 guidelines from the U.S. Centers for Disease Control and Prevention advise against clearing encampments unless adequate housing is available.
Denver claimed it was unable to give the required notice because the camps posed immediate public health emergencies.
"Here, there is a factual dispute about the core proposition underlying plaintiffs’ substantive due process claim: that displacement from encampments, presumably with the intent that Plaintiffs go to congregate shelters, increases their risk of exposure to Covid-19,” Martinez, a Barack Obama appointee, wrote. “The parties also treat the CDC guidance on unsheltered homelessness and Covid-19 differently.”
On Jan. 21, President Joe Biden issued a memo making emergency hotel rooms obtained for homeless individuals during the pandemic reimbursable through the Federal Emergency Management Agency.
"Under President Biden’s new (and to be sure, much welcomed) initiative, more alternative housing options will be available, making future sweeps less likely to endanger members of encampments and undercutting plaintiffs’ likelihood of success on the merits of their substantive due process claim,” Martinez noted.
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. The city settled with the group in February 2019, agreeing to give advance notice of sweeps and provide resources like storage for those displaced.
Martinez signed off on the settlement in September 2019, requiring a week’s notice before breaking up homeless camps and outlining protocol for what to do with the personal belongings left behind.
In Monday’s order, Martinez additionally provided Denver a loophole if the city provides "evidence-based reasons to believe that a public health or safety risk exists which requires the undertaking of such encampment sweeps with less than seven days’ advance notice to the residents of those encampments."
A jury trial has not yet been scheduled for the overarching complaint.
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