The evidentiary hearing for the homeless sweeps lawsuit is about to kick off in the U.S. Dist. Court of CO. The plaintiffs (ten homeless individuals and Denver Homeless Out Loud) will be facing off against the City of Denver and State of Colorado over sweeps during the pandemic.
If you would like to listen in to the evidentiary hearing, which will take place today and tomorrow, the call-in number is 877-336-1828 with an access code of 9449909#.
This is an evidentiary hearing for a preliminary injunction. Up 1st are the witnesses for the plaintiffs. Tomorrow, the city and state will present witnesses. Judge William J. Martinez is presiding over the case. He does not like leading questions from attorneys, the judge said.
Andy McNulty from Killmer, Lane and Newman is the attorney for the plaintiffs today in court. The City Attorney's Office has three attorneys here. The Attorney General's Office has two attorneys here. And a city contractor involved in sweeps has one attorney calling in.
Judge Martinez asking the Attorney General's Office if it knows of homeless encampments on any other state land. Attorney from AG's office is not sure, but will try to figure that out over next two days. It would help the State's defense if there were none, judge notes.
Plaintiffs calling first witness: Alexandra Binder, a journalist with Unicorn Riot. Binder wrote a declaration about videos that Binder took at homeless encampment sweeps. Binder also submitted these videos. Been to about 20 sweeps during COVID-19 pandemic.
Alexandra Binder is done testifying. Plaintiffs are now calling Jacob Wessley to the stand. Wessley is the street outreach coordinator for the Colorado Coalition for the Homeless.
An attorney for Denver asks Wessley about the terms "sweep" and "swept," which Wessley used in his initial testimony. Wessley responds that he doesn't typically use these words when speaking with encampment residents.
"When I hear sweep, I literally picture cleaning up. I picture dirt cleaning up," Wessley says. "These terms just get used a lot. You don’t often question the meaning, like you do under oath."

Adds, "Our outreach workers are really good about being trauma-informed."
City leadership generally does not like the phrase "sweep" when people are referring to encampment dispersals or clean-ups. Many news outlets, including Westword, use the word "sweep" to refer to these dispersals and clean-ups.
Alright, Jacob Wessley is done testifying. Morning recess for 15 minutes.
Marisa Westbrook is up. She's a PhD candidate at CU Denver who has done research in homeless encampments.
An attorney for Denver is trying to present Westbrook as overly-sympathetic to Denver Homeless Out Loud, which is a plaintiff in this case, essentially trying to cast doubt on the neutrality of her expert testimony.
Judge Martinez says he finds some merit to arguments about Westbrook's possible bias toward plaintiffs. That will go toward the weight of her testimony, judge notes.
The court is now in recess for a lunch break. Marisa Westbrook, an expert witness for the plaintiffs, was on the witness stand (virtually) for over an hour. The majority of that time was spent on cross-examination by an attorney for Denver.
That cross-examination was a mixture of the Denver attorney attempting to cast doubt on Westbrook's objectivity, her qualifications to opine on the subjects in question, and her assertions about encampment sweeps.
Westbrook kept pointing out that the CDC tells municipalities not to sweep encampments during the COVID-19 pandemic so as not to further spread the virus. Instead, there are ways for the city to ensure that public health conditions don't deteriorate in encampments, Westbrook says
The city highlights trash accumulation, scattered used syringes, and the presence of human waste as deteriorating public health conditions in encampments that might justify a sweep. Westbrook points out that providing track pickup, bathrooms, and needle pickup could prevent this.
Court is now back in session. Plaintiffs calling Kathleen Van Voorhis of the Interfaith Alliance of Colorado as a witness.
Van Voorhis is the director of housing justice at the Interfaith Alliance of Colorado.
One thing that's especially intriguing about this lawsuit is that some of the witnesses for the plaintiffs are people that work closely with the city of Denver on solving homelessness issues. Wessley's outreach work is funded by the city, for example.
Van Voorhis commenting on the late-July sweep of the homeless encampment at Lincoln Park in front of the Capitol: "It was probably the most, for lack of a better word, militarized sweep I’ve ever seen, in any of the states that I’ve ever lived in."
Van Voorhis notes that Mayor Michael Hancock has approved a third safe camping site. I heard this from two other service providers the other day. I don't know where the site is, however. The city isn't revealing awards for its request for proposal for safe camping sites just yet.
Van Voorhis is done. Next witness for the plaintiffs is Councilwoman Candi CdeBaca.
McNulty is asking CdeBaca about various proposals she's made in recent months to improve the situation for people experiencing homelessness. I get the sense that McNulty is trying to highlight areas in which he believes the city has not done as much as it could for homeless folks
Unfortunately, I have a dentist appointment now, so I'm gonna have to take a break from tweeting for a bit. I'm not sure if the hearing will still be going by the time I get back from the dentist. We shall see!
I’m back. Teeth are clean. Dr. Gregory Whitman is testifying. He’s a public health physician in Denver.
Testimony is over for today. Plaintiffs have two more witnesses for tomorrow morning and then the rest of the day will be witnesses for the defendants.
I missed about an hour of testimony, so now I'm gonna go back and listen to what I missed.
So after CW CdeBaca, the plaintiffs called Steve Olsen, one of the people who was living in a tent along South Platte River Drive right near the border between Denver and Englewood when the city swept the encampment there back in September.
Olsen testified that he was out searching for a job opportunity that morning when the sweep began and when he returned around noon, his belongings were gone. Olsen says that he tried to retrieve them from where the city stores them, but that they didn't have anything w/ his name.
Gregory Whitman, a physician, came next as a witness. He was the last one for today. Attorneys for Denver and Colorado went after Whitman as an expert witness, saying he was unqualified to opine in court on "pandemic management." The judge allowed him to testify.
Whitman testified that sweeps go against sensible public health policy and that congregate settings such as shelters are more dangerous in terms of COVID than are encampments.
Okay, I'm all caught up. So now we have two witnesses for the plaintiffs tomorrow and then the full set of witnesses for the defense. Should be an interesting day at the court.
*bangs gavel*

Court is back in session. We will have a few remaining witnesses from the plaintiffs and then a bunch from the defendants (Denver and Colorado). The other defendant, Environmental Hazmat Services, hasn't spoken up much during the court hearing.
Up now is Michael Lamb, a witness for the plaintiffs. Lamb is a homeless resident of Denver. He was living in Lincoln Park back in late-July when the City of Denver and State of Colorado swept it.
Okay, City of Denver is up for its witnesses. Charlotte Pitt, manager of solid waste management, is testifying first.
Attorneys for Denver are showing videos from various sweeps that show different things: hostility from protesters, encampment residents authorizing city officials to throw out their tents, and city employees finding hazardous materials in tents.
Charlotte Pitt testifies that a Bobcat is used to dismantle tents that encampment residents give city officials to greenlight to dismantle. Admits that it could look like an outside observer that the city is trashing people's belongings, but that that's an incorrect assumption.
I can't actually see these videos right now because I'm listening by phone. But I've watched them previously.
"When we see a needle [in a tent], we have to assume that there’s more," Charlotte Pitt testifies, saying that city officials will throw a tent out if they find one needle in it.
15 minute morning recess. Court should be back in session around 11.
Court is back in session. Charlotte Pitt remains on the witness stand.
Pitt testimony is done. Due to some scheduling issues, plaintiffs are now back up and calling one last witness: a doctor who is in Florida.
Dr. Sorensen (still need to figure out her first name) is a psychiatrist typically based in Denver who works with homeless individuals. She says that the chief complaint from patients after sweeps is "loss of community and support. They felt very displaced from their community.”
"The sweeps and the threat of sweeps cause an increase in anxiety," Sorensen says.
“The sweeps are akin to a natural disaster scenario," says Sorensen in the types of mental disorders they lead to.
Okay, Sorensen is done testifying. Now we have more testimony from witnesses for the defense.
Now defense has called Danica Lee of the Denver Department of Public Health and Environment to testify. This should be really interesting testimony, as Lee corresponded back in May with the CDC over sweeps.
Danica Lee is the director of public health investigations for DDPHE. She's been in that role for 4.5 years and worked at DDPHE for 18.5 years in total. Lee is also the deputy public health official overseeing Denver's COVID response.
Lee testifies, "We have not taken action relating to the majority of encampments in the City and County of Denver."

Adds, "We’re having to balance a lot of different factors that are all environmental and public health considerations in making a decision."
"One of the biggest factors: safe living environment of people living in the encampments."
Danica Lee is one of the most important witnesses in this case. Her testimony goes straight to the heart of the matter: whether the city and county of Denver has been justified in going against the guidance of the CDC in sweeping homeless encampments.
It's time for lunch recess in court. Danica Lee will be subject to cross-examination by the lawyer for the plaintiffs when the hearing restarts.
Okay, I missed a bit of the hearing. Denver's chief medical officer testified for a while. Danica Lee is now back in court for some more testimony.
Now we have cross-examination of Danica Lee by counsel for plaintiffs. All about the emails!…
The email exchange between Danica Lee and a CDC official back in May seem "to be a focal point of this litigation on some level," McNulty notes.
Sounds like there's going to need to be a third day in court for this evidentiary hearing. There are four witnesses for the City of Denver and one for the State of Colorado that still haven't testified. Judge says could schedule for December 22, December 30, or January 15.
Danica Lee's testimony is over. She's a key witness in this case. And now Bob McDonald, Denver's top public health official is up.
Day 3 of the evidentiary hearing related to the Denver homeless sweeps lawsuit in federal court is about to start. A few more witnesses will testify and then there will be closing arguments.
First up today on the witness stand is Eliza Hunhold, assistant director for the Denver park ranger program.
Interesting back-and-forth between Andy McNulty, counsel for plaintiffs, and Eliza Hunhold, who is assistant director for Denver park rangers program:

"We actually don’t call them sweeps. That’s a really pejorative term," Hunhold says.
Hunhold prefers to call them "clean-ups." Judge Martinez jumps in to say, "Ma’am, there is a difference between a daily cleaning and removing people. We need to use different words for the record."
Hunhold is done. Time for a brief court recess.
Alright, court is back in session. Now up is Sgt. Brian Conover of the Denver Police Department. Conover supervises DPD's Homeless Outreach Team.
Attorneys for City of Denver are showing body-worn camera footage from sweeps that took place in the spring and summer of this past year. I've watched the footage. I believe the city is trying to show evidence of protesters obstructing the work of city employees at the sweeps.
I also believe the city is trying to demonstrate the "soft approach" of DPD's Homeless Outreach Team during these sweeps.
Okay, court recess until 130. I'm multi-tasking since I have a print deadline. Hope to be able to tweet a bit more about this once court is back in session.
I'm back to listening, albeit a little after court got back in session. I believe Sgt. Brian Conover is still testifying and Andy McNulty, attorney for plaintiffs, is performing cross-examination.
Okay, now the State of Colorado attorneys are calling Major Steve Garcia of the Colorado State Patrol as a witness.
Major Steve Garcia: "I was informed by the Denver district 6 police commander [about decision to clean lincoln park] on July 28."

That's a day before the July 29 sweep of Lincoln Park. State is trying to show that it wasn't part of decision-making regarding sweep.
Closing arguments have wrapped up and now we get into questions for counsel from Judge William J. Martinez. He says that he finds Denver defendant's argument that the plaintiffs are overly-elevating the significance of the CDC guidance to be compelling.
Questions how a violation of a "couple of sentences" in a CDC guidance can be elevated to the "level of a constitutional violation of that guidance."
Judge Martinez says that the CDC guidance is "not so bright lined. There’s grey in it."
Based on the way the judge is speaking, I get the sense that he won't be issuing a preliminary injunction in this case.
Fun things said by lawyers in federal court: "I'd ask the court to look at Free the Nipple vs. Fort Collins."
Alright, I am actually not sure where the judge is leaning. However, he did state that "it’s an important case," which I think most observers would agree with.

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