The class-action case pitting Denver’s homeless population against the city will go to trial March 29, 2019, if it makes it that far.
The case had a hearing in front of a federal judge Tuesday afternoon, where the case got set for its trial date and the parties dealt with other special issues. Those issues include challenges facing homeless litigants as well as definitions of what constitutes as a sweep.
In the hearing at Denver’s Alfred A. Arraj Courthouse, the plaintiffs’ lawyer, Jason Flores-Williams, questioned the judge on logistical issues facing his clients in participating in the trial. He asked how homeless plaintiffs were to enter the courtroom without a government-issued ID due to losing theirs — in a sweep or for any other reason. It was estimated by the plaintiffs that there would be an average of six plaintiffs without IDs per day of the trial; the plaintiffs’ may-call list is 29 people long.
Flores-Williams also suggested that homeless plaintiffs might need to be given a service of a shower and fresh clothes for their testimony. Judge William Martínez asked how he knew the plaintiffs would still be homeless by the time the trial starts, to which Flores-Williams said, “I hope I don’t know.”
The defense presented special issues as well: three former witnesses brought by the plaintiffs did not show up to their deposition by the defense. There were another four witnesses disclosed at the end of discovery that were not deposed by the defense either. The plaintiffs initially agreed to discount the witnesses, however, they were brought back into the trial as possible witnesses. Martínez ordered that the seven will be given a full day of deposition each by Sept. 15.
The defense also challenged some of the dates the plaintiffs gave for homeless sweeps that did not match the dates the city said it officially conducted sweeps. There is some disagreement on what constituted a sweep — the plaintiffs stated that they wanted to give evidence of any clean-up attempt that involved 10 or more Denver agents.
An additional wrinkle is what communication documents the defense has access to between Terese Howard, a principal organizer with the organization Denver Homeless Out Loud, and the plaintiffs. Howard was a retained investigator for the plaintiffs and is serving as a fact witness. The defense is worried that when she testifies, the cross-examination will move into areas that the defense is unaware of as they did not have access to documents that would better prepare them for the questioning. Martínez directed the defense to file a motion for review by a magistrate judge of documents from privileged logs and for further deposition of Howard.
The case has grown since its origination in 2017. The dispute grew out of a criminal case against three homeless individuals who were accused of violating Denver’s camping ban in November 2016, but after the defendants challenged citations after they said their blankets, tents and other items were taken from them in the sweep, the case has focused on the city’s sweep practice instead.
Plaintiffs gained class certification and now claim the city repeatedly violated their constitutional rights by confiscating belongings and “sweeping” encampments without due process, specifically in violation of the Fourth Amendment’s protections against illegal searches and seizures.
Despite statements from both parties that the settlement talks were going well, Flores-Williams told Law Week that his side is prepared for the case to go to trial. He believes they will prevail “if the facts are admitted,” and if the court is amenable to the facts. When asked why he decided to handle this case, he stated that, “I like constitutional rights, I don’t like to see them violated.”
— Connor Craven