A federal judge overseeing Denver’s “homeless sweep” class-action lawsuit filed on behalf of Denver’s homeless population said on Monday the case will proceed to trial.
In a court order, Judge William Martínez denied motions for summary judgment by both parties in Lyall v. City of Denver. He also denied a third motion by the city to strike evidence submitted by the plaintiffs.
The class of plaintiffs in Lyall v. City of Denver represent all of the city’s homeless. According to the lawsuit, the City of Denver violated plaintiffs’ Fourth Amendment rights by conducting sweeps of homeless camps around Denver in enforcement of the city’s Unauthorized Camping Ban and unlawfully seizing and destroying their possessions.
The lawsuit also alleges 14th Amendment violations, claiming law enforcement did not give plaintiffs sufficient notice before seizing their property, and the plaintiffs were not granted due process to contest the seizures or given opportunities to retrieve their possessions.
“When the court denied their motion to strike, it was the court saying, ‘We hear you,'” said plaintiffs’ attorney Jason Flores-Williams, who filed the suit in 2016. “We hear that there are people …who have been hurt by Denver’s homeless sweeps.”
Civil rights law firm Killmer Lane & Newman joined Flores-Williams in the lawsuit as co-counsel in 2017.
Martínez cited Denver’s lack of any new procedures put in place to prevent allegedly unconstitutional violations of previous sweeps. Had Denver ended its alleged practices of sweeps, he wrote, the case would potentially be moot. If the city had done either, Denver would have a “heavy burden” to “demonstrate it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’”
Martínez did grant summary judgment in favor of the city on the plaintiffs’ claim under the Equal Protection Clause. He wrote the claim “suffers multiple interrelated flaws.” According to the order, the plaintiffs have not directly challenged Denver’s camping ban in the suit, which they would need to claim is a law specifically targeted to push homeless individuals out of the city.
Martínez also wrote the plaintiffs have not argued a sweep “conducted with sufficient notice, with sufficient discrimination between personal items and trash, and with adequate storage and retrieval procedures would still create an equal protection problem because the sweep was targeted at the homeless.” Relatedly, he stated the plaintiffs have not argued the Equal Protection Clause bars Denver from cleaning homeless encampments by any means, absent a a narrowly tailored, compelling justification.
Flores-Williams said he expected to lose on the equal protection claim, calling it an “experiment” and acknowledging that poverty is not a protected class under the Equal Protection Clause.
“If you are impoverished in America, you are so disadvantaged with regard to access to justice that I thought I would take a shot” at getting homelessness recognized, he said. “But we expected to lose that one.”
He said he expects the case to go to trial within the next six to eight months.