Due Process Notice for COVID-19 Sweeps at a Homeless Encampment

March 18, 2021, Department, by James C. Kozlowski, J.D., Ph.D.

2021 April Law Review Due Process Notice COVID 19 Sweeps at Homeless Encampment 410

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In the case of Denver Homeless Out Loud v. Denver, 2021 U.S. Dist. LEXIS 13027 (Dist. Colo. 1/25/2021), an advocacy group for the homeless and several people experiencing homelessness filed a class-action suit against the City and County of Denver (Denver) and several of their officials. In their complaint, plaintiffs Denver Homeless Out Loud (DHOL) and the individuals experiencing homelessness alleged that Denver officials had “swept numerous homeless encampments around Denver with either no or insufficient notice, and have seized or disposed of homeless individuals’ property without due process.”

In addition, DHOL claimed Denver officials had “political motives for providing insufficient notice, including not wanting to alert those who might want to protest the sweeps.” DHOL further alleged that Denver had made at least 11 sweeps during the coronavirus (COVID-19) pandemic, including a sweep of Lincoln Park on July 29, 2020. In so doing, DHOL alleged Denver had violated constitutional guarantees against deprivation of property without due process under the 14th Amendment.

As described by DHOL, the COVID-19 pandemic had exacerbated the detrimental effects of the sweeps and endangered the lives of these displaced individuals. Instead of living in encampments, DHOL alleged the sweeps had forced many people experiencing homelessness to live in congregate shelters, which might increase the risk for the homeless, as well as the community at large to contract COVID-19 based upon guidance from the Centers for Disease Control and Prevention.

In part, Denver’s displacement of homeless encampments was being carried out through enforcement of the Denver “Camping Ban” ordinance, which prohibited unauthorized camping on public property. According to Denver officials, “camping bans and encumbrance ordinances were not regularly enforced early in the pandemic.” Denver officials, however, found significant health concerns arose as encampments grew and living conditions deteriorated. In Lincoln Park, Denver noted “members of that encampment dismantled security cameras, street lighting, and the sprinkler system.” Moreover, considerable amounts of food waste, trash, human waste and used needles had accumulated. As a result, a pre-existing rat infestation had become the worst rodent infestation in Denver’s recent history.

In addition, there was widespread open use and trade of drugs, and increasing incidents of violence. On July 22, 2020, the Denver Department of Public Health and Environment (DDPHE) conducted voluntary COVID-19 testing and found a 2 percent positivity rate. On July 23, 2020, one person was killed, and two others were seriously wounded in a shooting in Lincoln Park. Twice, Denver Parks and Recreation (DPR) Park Rangers observed someone in Lincoln Park shooting a handgun in the air.

According to Denver officials, they had “tried to strike a reasonable balance between being sensitive to the people experiencing homelessness in the encampments and the need to remediate the significant public health and safety risks.” Beginning in mid- to late-March 2020, the Denver Police Department (DPD) Homeless Outreach Team (HOT) advised individuals experiencing homelessness living in encampments about physical distancing and symptom monitoring. According to the supervisor of DPD’s HOT, “people in the encampments did not listen” and failed to “socially distance or follow other [COVID-19] guidelines, including having their tents in very close proximity.”

As a result, on July 27, 2020, Park Rangers, Denver Department of Housing Stability (HOST) employees and other outreach workers began to advise individuals experiencing homelessness in the Lincoln Park encampment that a temporary closure of the location was imminent and offered connections to services, storage, shelter and transportation.

DHOL, however, claimed there was no advance written notice of the actual sweep on July 29, 2020. Instead, on the morning of the sweep, DDPHE posted a written area restriction notice, stating Lincoln Park was being closed immediately due to a public health and safety emergency. According to DHOL, the notice did not identify or describe the emergency, or provide clarity whether the emergency was related to public health and safety.

Preliminary Injunction

In its lawsuit, DHOL requested that the federal district court issue an injunction prohibiting Denver officials from conducting sweeps, or other displacement of encampments of individuals experiencing homelessness “at least until public health authorities have determined that the COVID-19 pandemic is over”; i.e., “when the state of emergency ends in the State of Colorado as issued by Governor Polis.” In addition, DHOL requested that the court issue an order requiring Denver to provide restrooms, sanitation services (including trash services and personal hygiene facilities, as well as handwashing stations) to individuals experiencing homelessness in the encampments. Further, the requested injunction would prohibit Denver from conducting sweeps without at least a seven-day written notice. Under the requested injunction, Denver also would be prohibited from discarding and/or destroying unabandoned property of individuals experiencing homelessness in the encampments.

As noted by the federal district court, DHOL had to establish the following to obtain the requested preliminary injunction: (1) a substantial likelihood that DHOL would eventually prevail at trial on the merits of their case; (2) that DHOL would suffer irreparable injury unless the injunction was issued; (3) that the threatened injury to DHOL outweighed whatever damage the proposed injunction might cause Denver; and (4) that the injunction, if issued, would not be adverse to the public interest.

Due Process Notice

As cited by the federal district court, in pertinent part, the 14th Amendment protects property: “No state shall deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV, § 1. As required by the constitutional guarantee of procedural due process under the 14th Amendment, the court would address the following two questions: first, “whether there exists a liberty or property interest which has been interfered with by the State”; and second, “whether the procedures attendant upon that deprivation were constitutionally sufficient.”

In this case, the court found the existence of a property interest was not in question because Denver had not challenged DHOL’s argument that individuals experiencing homelessness had “a property interest in the sorts of items they fear will be seized in future sweeps.” Accordingly, the court would address the second procedural due process question, which would generally require the individuals experiencing homelessness at issue to “receive, at a minimum, notice and an opportunity to be heard before the Government deprives them of property.”

In so doing, the federal district court would consider the following factors to determine whether the government’s procedures provided an affected individual with due process:

(1) the interests of the individual in retaining their property and the injury threatened by the official action; (2) the risk of error through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the costs and administrative burden of the additional process, and the interests of the government inefficient adjudication.

In this particular instance, when Denver officials seized the property of the individuals experiencing homelessness, DHOL claimed Denver violated the procedural due process rights of individuals in the following three ways:

(1) Denver officials provided no (or deficient) notice prior to seizing their property, (2) Denver officials summarily discarded (and destroyed) the property of these individuals experiencing homelessness without any process for challenging the destruction, and (3) post-deprivation, Denver officials did not provide an adequate process for DHOL to challenge the seizure of the property of these homeless individuals or retrieve their property.

In so doing, DHOL claimed Denver’s “underlying basis for the lack of notice was that people might come to the encampments and protest.” DHOL contested the legal validity of Denver’s apparent rationale. According to DHOL, “public scrutiny and the threat of First Amendment activity is not a reasonable basis for failing to adequately provide advance notice.”

In response, Denver officials disputed the alleged lack of sufficiency of the notice provided, because individuals experiencing homelessness at Lincoln Park were warned by park rangers of “the impending sweeps and need to move.” Specifically, Denver officials claimed notices of the area restrictions were posted the morning of the sweeps. In addition, when individuals experiencing homelessness were told they had to leave, Denver officials claimed “no one was rushed or intentionally denied re-entry to the area to collect personal property.” One individual, however, stated notices were “posted on RVs at the encampment, but no one spoke to anyone who had tents at the encampment.”

As noted by the federal district court, Denver officials did not dispute that these individuals experiencing homelessness had “a possessory interest in their personal property which was located at encampments.” Moreover, the court acknowledged that “tents and non-contaminated blankets are necessary to protect individuals from rain and extreme weather.” Denver officials had stated that “all non-hazardous, unattended personal belongings were stored, and to the extent, they were inadvertently disposed of, property owners could file an [online] claim for reimbursement with Denver.” At least one individual, however, claimed Denver officials had disposed of his unabandoned, uncontaminated property in the sweep.

Insufficient Notice

In pretrial evidence, the federal district court found that DHOL had presented sufficient declarations and testimony to establish that there was a significant risk that Denver officials would erroneously deprive individuals of their property in sweeps of the encampment at Lincoln Park. In particular, the court noted that evidence indicated individuals experiencing homelessness at Lincoln Park had “only received notice of the sweeps early on the morning they occurred.” According to testimony from one individual living at the Lincoln Park encampment, he received no notice that the area would be swept until “he woke up and saw Denver officials and trash trucks” on the morning of July 29, 2020.

In the opinion of the federal district court, procedures for providing notice of an area restriction by the DDPHE “did not afford homeless individuals sufficient time to remove their property from designated areas such that they might avoid seizure.” Given “such limited notice as was provided for the DDPHE area restrictions,” the court found individuals experiencing homelessness “had little time to collect and remove their belongings prior to the commencement of the sweeps.” Based upon the testimony of these individuals, including plaintiff Lamb, the court found Denver’s procedures for providing notice “amounted to effectively no notice whatsoever”:

For homeless individuals like Lamb, even if they are present during a sweep, they may not be able to move all of their property quickly enough to avoid seizure. Lamb gathered a small amount of his belongings, moved them a few blocks away, but by the time he was able to return to Lincoln Park, it was enclosed by the six-foot high fence, and Denver officials refused to let him reenter. Lamb “watched from behind the fence as Denver officials took his property, threw it into a trash truck, and destroyed it.”

Similarly, the court found other individuals who were not physically present at an encampment during an area restriction risked having all of their property seized.

In addition, the federal district court found that Denver’s current procedures did not appear to afford individuals experiencing homelessness a meaningful way to recover the confiscated property. While these individuals appeared to have some recourse in finding their property in storage or recovering its value through a claim reimbursement, the court found this process carried “serious risks”:

For instance, one homeless individual was told by a Denver official that his property might have been stored, he went to the storage facility, only to have EHS [Environmental Health and Safety] tell him they had stored no property on September 15, 2020. Another individual, Marcos Sepulveda, testified that after losing property in a sweep, he submitted a reimbursement claim, but was told there was not enough evidence for reimbursement because “they didn’t think they’re liable.”

In conducting DDPHE-led area restrictions with only morning-of notice, the court concluded the limited process afforded by the Denver officials carried “a significant risk that homeless individuals have been and will be erroneously deprived of property.” In the opinion of the court, these homeless individuals would have had “a better chance to protect the property critical to their survival” if Denver officials had “provided homeless individuals with additional advance notice of sweeps.”

Significant Public Health Interest

Having considered the notice requirement of procedural due process, the federal district court then examined “the government’s interest at stake in conducting these sweeps.” In so doing, the court acknowledged: “The government’s overarching interest here — maintaining public health and safety — is unquestionably significant.”

Not only must the Denver officials handle the extraordinary task of navigating the Denver community through the COVID-19 pandemic, but they must simultaneously address those challenges in the context of Denver’s homeless population and the growth of encampments throughout the city.

As described by Denver officials, “Lincoln Park had deteriorated and included large amounts of trash and food waste, a rat infestation, improperly discarded syringes, and safety concerns for workers trying to clean the park.” Moreover, Denver’s decision regarding the timing of the notice for the Lincoln Park area restrictions was prompted by safety concerns. Earlier, when DDPHE had provided advance notice, a group of protestors had come to the site. According to Denver officials, these protestors were aggressive, shouted and tried to enter the areas secured by the police. Denver officials claimed that these protesters had “created security challenges and led to concerns for the safety of the team working to implement the area restriction.”

However, when asked to articulate why the written notice of the Lincoln Park area restriction was posted no earlier than the morning of the day of the sweep, the responsible official had simply said, “[W]e felt that it was safer to provide notice the day of.” Accordingly, written notice was only posted early in the morning on July 29, 2020, the day of the sweep.

Despite “substantial challenges” and safety concerns, in the opinion of the court, Denver officials had not effectively demonstrated that the government’s significant interest justified “providing written notice no earlier than the morning of DDPHE area restriction sweeps.”

More Procedural Protections

As a result, based upon the totality of pretrial evidence, the federal district court found that “the area restriction sweeps demanded more procedural protections than the Denver officials afforded DHOL and the homeless individuals at issue.” Under the circumstances, the court found DHOL and the individuals experiencing homelessness effectively received no advance notice of the Lincoln Park sweep.

While acknowledging “the importance of Denver’s governmental interest in preserving public health,” the federal district court found “the decision of DDPHE managers to conduct the sweeps at issue in the manner that they did were not based on actual, scientific, or evidence-based, public health concerns.” Instead, the court found that the decision to conduct these area restrictions with effectively no advance notice to the residents of the affected encampments were actually based on “the possibility of additional (and vociferous) public scrutiny and the threat of First Amendment protected activity, and these managers’ preference to avoid [the] same.”

Further, within the context of the collection or destruction of the possessions of people experiencing homelessness that are left unattended in a public space, the federal district court acknowledged that “courts have found that minimally, the municipality must provide advance notice and a meaningful way to collect the property.” In this particular instance, despite outreach workers’ attempts to communicate with those living in the affected encampments before the sweeps, the court found testimony from the affected individuals experiencing homelessness “made it quite plain that they remained to a very great degree unaware that the sweeps were imminent, thus leaving them without sufficient notice or time to gather their belongings and avoid seizure.”

While the Denver officials may have articulated in broad terms the public health reasons for undertaking the area restrictions in the first instance, in the opinion of the federal district court, Denver officials had not “demonstrated that the timing of their notice procedures had a basis in anything other than a bureaucratic pronouncement of DDPHE managers, one devoid of any basis in medical science.” In particular, the court found no evidence to indicate that the public health situation in the Lincoln Park encampment was “so exigent that effectively no advance notice was required before depriving Plaintiffs of most, if not all, of the meager property in their possession.”

Further, the court found no evidence to indicate that Denver officials “could not accomplish the same goal of remediating the encampments and the health threats they allegedly posed if DDPHE had instead given even 48 hours’ advance notice to encampment residents.”

Accordingly, the federal district court held DHOL and the individuals experiencing homelessness at issue had “met their burden of showing a substantial likelihood of success on the merits of their procedural due process claim” to warrant an injunction against Denver officials conducting sweeps with little or no notice during the pandemic.

Irreparable Harm

As noted by the federal district court: “A showing of probable irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction.” In this particular instance, the court found DHOL had met the burden of establishing irreparable harm based on pretrial testimony of individuals experiencing homelessness alleging violations of their 14th Amendment procedural due process rights.

After the seizure of his property in a sweep, one individual testified that he had “nothing but the clothes on his back and he had to try to make a tree into a shelter because it started blizzarding that night.” Another individual whose property was seized and destroyed in the sweep of Lincoln Park stated that he was forced to sleep on the streets without a tent. This individual slept unsheltered on a median for multiple nights because he feared being swept again.

Based upon this pretrial testimony, the federal district court concluded that these individuals experiencing homelessness would suffer irreparable harm if an injunction was not issued. Absent an injunction in favor of DHOL, the court found it likely that “vital possessions, such as tents, blankets, tarps, and other items necessary to survive outside in the elements, particularly during the winter in Colorado, will be seized and potentially destroyed without sufficient advance notice.” Further, the court found a preliminary injunction would be appropriate in this case because “it is always in the public interest to prevent the violation of a party’s constitutional rights.”

Narrow Pandemic Injunction

In requiring “a specific amount of notice before a sweep,” the court was “mindful” of Denver’s concern that a preliminary injunction would “to some degree limit Denver’s health experts from making decisions to combat the spread of disease and the deterioration of public health.” Moreover, the court recognized that “the City is facing a pandemic with constantly evolving scientific understanding and policymaking.” That being said, based upon the pretrial record, the federal district court found that Denver officials had “not come close to demonstrating that a requirement of at least seven days’ notice before an encampment sweep will preclude it from fulfilling its duty to protect public health and safety.” Accordingly, to ensure DHOL’s “procedural due process rights are protected,” and Denver officials “are not unduly restrained in their ability to maintain the public health and safety,” the federal district court decided to “issue the narrowest injunction possible” which provided, in pertinent part, as follows:

The Denver Defendants shall provide to all residents of affected homeless encampments not less than seven days’ advance written notice prior to initiating a large-scale encumbrance cleanup performed by DOTI [Department of Transportation and Infrastructure], or a DDPHE-ordered temporary area restriction of such encampments.

In addition, prior to any sweep, the court’s preliminary injunction would require Denver officials to provide advance notice of any sweep to DHOL’s attorney. Further, any sweep with less than seven days’ advance notice would require Denver officials to obtain a written determination from state and local public health officials that a public health or safety risk existed based on “reasonable, evidence-based reasons.

James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism Management at George Mason University. Law review articles archive (1982 to present)