(CN) — After hearing testimony for three days, a federal judge must now decide whether to bar the City and County of Denver from clearing homeless encampments through the rest of the Covid-19 pandemic.
“I have to balance the considerable property rights of the residents with what is truly an emergency situation from public health officials,” U.S. Judge William J. Martinez told the court, which met in person at the Alfred A. Arraj U.S. Courthouse in downtown Denver and over teleconference.
According to the lawsuit filed 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.
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. The city settled with the group in February 2019, agreeing to give advance notice of sweeps and provide resources like storage for those displaced.
Denver claimed it was unable to give the required notice because the camps posed immediate public health emergencies.
"These are all people who didn't cause the pandemic,” Martinez said Monday. “I've heard testimony from people who had all of what they had in this world taken, all because of the no-notice notice, like a no-knock raid, these are all people who didn't commit a crime and need enough notice to get their stuff out so they can leave lawfully. Then the public health folks can come in pretty darn quickly to clean up the area.”
City attorney Wendy Shea argued public health is unpredictable and that officials need to be able to clear an encampment at a moment’s notice, adding that no one expected that the Covid-19 pandemic would rattle the country or last as long as it has.
“One of the things I’m troubled about is that there appears to be a pattern of giving only morning notice that has nothing to do with public health but has to do with officials being spooked,” Martinez said, referring to evidence that Denver cleared encampments without notice in efforts to stop protesters from intervening.
Tilly English, a woman who had been living on the streets of Denver in August 2020 said she only learned her camp was being cleared when she awoke that late summer morning. She said she kept to herself and had spent the prior day securing housing. She thought she had a week to move into her new apartment.
“I went to get an apartment situated and I was supposed to move into it the next day. I was proud so I went back to my tent to get some rest, but the police came back the next day,” English told the court. While English was later able to retrieve her couch, she said the city lost her generator, clothes, DVDs and several fans.
Representing the class of homeless plaintiffs, civil rights attorney Andy McNulty argued that the sweeps violate guidelines set out by the Center for Disease Control and Prevention, increasing the risk that unhoused people will contract Covid-19.
“Defendants increased the danger to plaintiffs by conducting the sweeps, by dispersing them into the wider community,” McNulty said. “How do these sweeps pose a danger to plaintiffs? They separate them from resources and force them into indoor congregate settings, which every study has shown pose a higher risk to residents, whether in homeless shelters, prisons, or cruise ships.”
While Denver countered that ignoring a federal guideline does not amount to a constitutional violation, McNulty underscored that “the CDC guidance is the best medical authority we have right now in response to the pandemic.”
One other guidance passed over by the City and County of Denver was a federal recommendation that nurses and health care workers quarantine 14 days after being exposed to Covid-19, a recommendation Denver officials said would prevent hospitals from remaining operational.
With evidence presented by both parties, Martinez looked ahead toward a potential trial.
"This sets up a battle of the experts, which is usually settled in a trial, and not a preliminary injunction, where the evidence has to be so one-sided there is a significant likelihood of success," Martinez said.
The judge said he did not want to issue an order that would prevent public health officials from responding to emergencies. Otherwise he did not indicate when or how he will decide the unhoused class’ petition for relief.
As of January 2020, the Metro Denver Homeless Initiative counted 4,171 people experiencing homelessness in the city, with 996 living outside of shelters.
As of Jan. 11, Denver reported 51,618 cases of Covid-19 and represented 707 of the state's total death toll of 5,279.
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