Denver Homeless Out Loud v. Denver

• Decision Date: 03 May 2022
• Docket Number: 21-1025
• Parties: DENVER HOMELESS OUT LOUD ; Charles Davis ; Michael Lamb; Sharron Meitzen; Rick Meitzen, Jr.; Tomasa Dogtrail; Steve Olsen; Gregory Costigan; Sean Martinez; Lisa Masaro; Nathaniel Warner, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees, v. DENVER, COLORADO; Mike Cody, Lieutenant, in his individual capacity; Michael Hancock, Mayor, in his individual capacity; Bob McDonald, in his individual capacity; Murphy Robinson, in his individual and official capacity; Kristin M. Bronson, in her individual and official capacity; Environmental Hazmat Services; James D. Harvey, Officer, in his individual capacity; Darren Ulrich, Officer, in his individual capacity; Mallory Lutkin, Officer, in her individual capacity; Brian Conover, Sergeant; Mark Moore, Corporal; Thanarat Phuvhapaisalkij, Officer; Rop Monthathong, Officer; Christopher Randall, Officer; David Hunter, Officer; Toby Wilson, Officer; Jon Udland, Officer; Andrew Gasparovic, Corporal; J.P. Burt, Trooper; Joseph Dirnberger, Trooper; Darce Weil, Trooper; William Caldwell, Trooper; Kevin Rae, Trooper; Colin Daugherty, Trooper; Victor Sargent, Trooper; David Dinkel, Trooper; Doug Kline, Trooper; Gregory Davey, Trooper; Jeremy Harrington, Trooper; Christopher Gonzales, Trooper; Rusty Sanchez, Trooper; Patrick Williams, Trooper; Jacob Cleveland, Trooper; Crystal Crenshaw, Trooper; Ryan A. Voss, Trooper; Umair Cheema, Trooper; Nathan Hardy, Trooper; Geoffrey Keeling, Trooper; Haas E. Pratt, Trooper; Nicholas Trujillo, Trooper; Ty Simcox, Trooper; Sean McCall, Trooper; Heidi Jewett, Trooper; Kyle Ross, Trooper; Alec W. Barkley, Trooper; Bryan Larreau, Trooper; Thomas Major, Trooper; Jonathan Strickland, Trooper; A. Martinez, Sergeant; in Her/his Individual Capacity; Anthony Martinez, Sergeant; Brandon Novy, Trooper; David Martinez, Officer, Defendants - Appellants, and Jared Polis, Governor, in his official capacity, Defendant. National Homelessness Law Center; American Civil Liberties Union of Colorado, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

32 F.4th 1259

DENVER HOMELESS OUT LOUD ; Charles Davis ; Michael Lamb; Sharron Meitzen; Rick Meitzen, Jr.; Tomasa Dogtrail; Steve Olsen; Gregory Costigan; Sean Martinez; Lisa Masaro; Nathaniel Warner, on behalf of themselves and all others similarly situated, Plaintiffs - Appellees,

v. DENVER, COLORADO; Mike Cody, Lieutenant, in his individual capacity; Michael Hancock, Mayor, in his individual capacity; Bob McDonald, in his individual capacity; Murphy Robinson, in his individual and official capacity; Kristin M. Bronson, in her individual and official capacity; Environmental Hazmat Services; James D. Harvey, Officer, in his individual capacity; Darren Ulrich, Officer, in his individual capacity; Mallory Lutkin, Officer, in her individual capacity; Brian Conover, Sergeant; Mark Moore, Corporal; Thanarat Phuvhapaisalkij, Officer; Rop Monthathong, Officer; Christopher Randall, Officer; David Hunter, Officer; Toby Wilson, Officer; Jon Udland, Officer; Andrew Gasparovic, Corporal; J.P. Burt, Trooper; Joseph Dirnberger, Trooper; Darce Weil, Trooper; William Caldwell, Trooper; Kevin Rae, Trooper; Colin Daugherty, Trooper; Victor Sargent, Trooper; David Dinkel, Trooper; Doug Kline, Trooper; Gregory Davey, Trooper; Jeremy Harrington, Trooper; Christopher Gonzales, Trooper; Rusty Sanchez, Trooper; Patrick Williams, Trooper; Jacob Cleveland, Trooper; Crystal Crenshaw, Trooper; Ryan A. Voss, Trooper; Umair Cheema, Trooper; Nathan Hardy, Trooper; Geoffrey Keeling, Trooper; Haas E. Pratt, Trooper; Nicholas Trujillo, Trooper; Ty Simcox, Trooper; Sean McCall, Trooper; Heidi Jewett, Trooper; Kyle Ross, Trooper; Alec W. Barkley, Trooper; Bryan Larreau, Trooper; Thomas Major, Trooper; Jonathan Strickland, Trooper; A. Martinez, Sergeant; in Her/his Individual Capacity; Anthony Martinez, Sergeant; Brandon Novy, Trooper; David Martinez, Officer, Defendants - Appellants,andJared Polis, Governor, in his official capacity, Defendant.National Homelessness Law Center; American Civil Liberties Union of Colorado, Amici Curiae.

No. 21-1025

United States Court of Appeals, Tenth Circuit.

FILED May 3, 2022

Conor D. Farley, Denver City Attorney's Office (Geoffrey C. Klingsporn and Wendy J. Shea with him on the briefs), Denver, Colorado, for Defendants – Appellants.

Andrew McNulty, Killmer, Lane & Newman, LLP (David A. Lane, Darold W. Killmer, and Reid R. Allison with him on the brief), Denver, Colorado, for Plaintiffs – Appellees.

Anna Kurtz and Mark Silverstein, ACLU Foundation of Colorado, Denver, Colorado, filed an amicus brief on behalf of the American Civil Liberties Union of Colorado.

Tristia M. Bauman, Carlton Martin, and Joseph W. Mead, National Homelessness Law Center, Washington, D.C., filed an amicus brief on behalf of the National Homelessness Law Center.

Before McHUGH, MURPHY, and ROSSMAN, Circuit Judges.

McHUGH, Circuit Judge.

The Denver Defendants have authorized and/or conducted sweeps of homeless encampments throughout Denver, Colorado.¹ The advocacy organization Denver Homeless Out Loud and several people experiencing homelessness ("DHOL Plaintiffs") allege these sweeps violated the rights of persons experiencing homelessness and breached a settlement agreement resolving related litigation. The DHOL Plaintiffs therefore filed this putative class action and corresponding motion for a preliminary injunction. They asked the United States District Court for the District of Colorado to enjoin all sweeps or, in the alternative, require seven days' advanced notice for all sweeps. The district court granted the motion in part after concluding the DHOL Plaintiffs' procedural due process claim was likely to succeed on the merits. The district court then issued a preliminary injunction requiring the Denver Defendants to satisfy additional notice and procedural requirements before conducting future sweeps.² The Denver Defendants timely filed this interlocutory appeal challenging the injunction.

Exercising our jurisdiction under 28 U.S.C. § 1292(a)(1), we vacate the district court's order and remand for further proceedings consistent with this opinion.

I. BACKGROUND

A. The Lyall Litigation and Settlement

Encampments of people experiencing homelessness have proliferated throughout Denver. In response, Denver banned unauthorized camping on public or private property. See Denver, Colo., Code § 38-86.2. The Denver Defendants enforce the camping ban in the following ways. The Denver Department of Public Health and Environment ("DDPHE") can issue an "area restriction," which "temporarily restricts activities that could occur in a specified area" to allow officials to remediate public health hazards. App. Vol. X at 2270. The Department of Transportation and Infrastructure ("DOTI") assists DDPHE in "cleaning locations that are subject to ... area restrictions." App. Vol. IV at 807. DOTI can also independently conduct large-scale "encumbrance removals," where it clears and cleans an area "to make sure that the public right-of-way is accessible to all Denver residents." App. Vol. X at 2110. These activities are colloquially known as homeless sweeps.³

In 2016, people affected by these sweeps filed a class action against Denver and certain city officials in the United States District Court for the District of Colorado. See Lyall v. City of Denver , 319 F.R.D. 558, 562 n.2 (D. Colo. 2017). The Lyall plaintiffs alleged, inter alia , that Denver's "policies, practices and conduct violate [p]laintiffs' right to due process of law under the Fourteenth Amendment." Lyall Amended Complaint at 33, Lyall , 319 F.R.D. 558 (No. 1:16-cv-2155), ECF No. 54. The Lyall Amended Complaint specifically claimed the sweeps "are conducted without notice or with inadequate notice and in a manner that prevents [p]laintiffs and [p]laintiff [c]lass from retrieving their property." Id. at 7.

The Lyall Amended Complaint then described sweeps from October 2015, December 2015, March 2016, July 2016, and August 2016, in which Denver allegedly violated the Lyall plaintiffs' procedural due process rights. For example, in October 2015, Denver Police and Public Works staff swept an encampment located in a park. The Lyall plaintiffs alleged the defendants "seized and destroyed personal property belonging to [the plaintiffs] without providing notice or the required procedural safeguards as to how this property could be retrieved." Id. at 20. Property, including "military records, identification, blankets, clothing and a wheelchair," was "taken and indiscriminately thrown into Denver Public Works' dump trucks." Id. Importantly, the Lyall Amended Complaint stressed Denver's sweeps amounted to a coherent and multi-year "policy and custom of raiding areas where homeless people are trying to survive and intentionally taking and destroying their property." Id. at 6; see also id. at 19 ("Defendant's taking and destruction of property was foreseeable as [d]efendants had performed it on numerous prior occasions. The sweeps had become a custom of the City of Denver.").

The parties in Lyall settled in February 2019, shortly before trial. The district court then entered a Final Judgment stating, "this civil action and Complaint are dismissed as settled and the case will be closed." Lyall Final Judgment at 1, Lyall , 319 F.R.D. 558 (No. 1:16-cv-2155), ECF No. 226. The Lyall settlement agreement sets forth detailed protocols for Denver's future enforcement of the camping ban and releases a broad range of city parties from present and future liabilities. The agreement's relevant provisions are discussed infra.

B. Post- Lyall Sweeps

Sweeps have continued post- Lyall and during the pandemic. The DHOL Plaintiffs' Amended Complaint and preliminary injunction motion focus on three specific sweeps—July 2020 in Lincoln Park, August 2020 around Morey Middle School, and September 2020 near the South Platte River. A description of the July 29 Lincoln Park sweep, which is representative of the Denver Defendants' actions during the other two sweeps, follows.⁴

Lincoln Park is located in downtown Denver on state property. The park was in "really bad condition" in the summer of 2020 largely due to the "very large encampment" it hosted. App. Vol. X at 2120. The park was littered with large amounts of trash, food waste, and improperly discarded syringes. And it suffered from a significant rat infestation. DOTI had not cleaned the park "because of concerns for safety for [ ] staff." Id. at 2121. Denver Park Rangers had witnessed the "wide-spread and open use and trade of drugs in the park." App. Vol. IV at 718. And Colorado State Patrol was not able to maintain security in the park due to "[t]he volume of people [who] were in and out of the park and the harassment and threats of violence that were taking place in the park." App. Vol. XI at 2506. All the security cameras in the park had been destroyed. Gunshots were heard at least eight to ten times in the weeks leading up to July 29, and there was a murder in the park on July 23.

On July 29, 2020, the Denver Defendants conducted a sweep of the encampment in Lincoln Park. DOTI swept the park after DDPHE restricted the area for public health reasons. The sweep was not a large-scale encumbrance removal.

The record does not show exactly when the Denver Defendants began planning the sweep, but it demonstrates they did plan it in advance. Around July 26, Denver Police notified the Colorado State Patrol that they would be clearing Lincoln Park sometime soon. On July 27, a Colorado State Patrol operations plan states a local nonprofit began telling campers in Lincoln Park about a forthcoming sweep. On July 28, the Denver Defendants notified the Colorado State Patrol that they had selected the following day as the sweep date. Also on July 28, Park Rangers told campers in Lincoln Park that due to "recent gun violence and the detection of COVID within the park, concern has been raised over [their] safety and health here in [Lincoln] Park. This is state property, but Denver Park Rangers are...