Denver law enforcement officials have been using a 2012 city ordinance prohibiting unauthorized camping to conduct homeless sweeps throughout the city. The sweeps often involve police and other city workers detaining, citing, and arresting homeless people, while seizing and destroying their property.
Just last week, a federal judge granted class action certification for a lawsuit filed on behalf of those homeless, meaning as many as 3,000 victims of the homeless sweeps can join the litigation.
The lawsuit claims the property removal and destruction under the sweeps violates Fourth Amendment prohibitions on unreasonable search and seizure as well as Fourteenth Amendment due process guarantees. The plaintiffs are also claiming the way the sweeps were conducted amounted to cruel and unusual punishment:
In a December 15, 2015 sweep, Defendant Police Dep’t ordered homeless around the Samaritan House to evacuate the area, but leave their belonging [sic], telling Plaintiffs and Plaintiff Class that if they returned before being told that it was permissible, then they would be arrested. It was a bitterly cold day, less than 10 degrees and snowing. Plaintiffs and member of Plaintiff Class were forced into the cold without their jackets, blankets, any items to keep them warm. When they returned, they were met with the all-too-familiar sight of dump trucks and their property being thrown away like trash. Plaintiff Fredrick Jackson asked a Police Officer: “Why are you doing this to us?” The Officer responded, “You can try to sleep on sidewalks, but you can’t be warm.”
Class action lawsuits are intended to resolve a large number of plaintiffs’ claims involving one action or incident at the same time. In order to gain class action certification, the plaintiffs must prove:
The injuries are the same or similar as those suffered by the other prospective class members;
The class is clearly defined to the degree that it will be possible and practical to identity potential class members;
The injuries of all potential class members resulted from a common set of facts and legal theories; and
The potential class is large enough that successive, non-class action lawsuits would be impractical.
In this case, the city of Denver tried to argue the number of possible homeless plaintiffs was both too large to be clearly defined and too small to be certified. But U.S. District Judge William Martinez was unpersuaded. “The homeless population in Denver is likewise ‘shifting,'” Martinez wrote in his order, “and the Court is satisfied that it exists in sufficient numbers to reasonably infer that a sufficiently numerous subset have been and will be exposed to enforcement of the camping ban in a way that plaintiffs claim is unconstitutional.”
“Denver may succeed in proving that all of the alleged sweeps were different and that no homeless person’s belongings were confiscated and discarded in an unconstitutional manner,” Martinez wrote, addressing the potential for the homeless to prevail on their claims. “But plaintiffs claim to the contrary, and a number of them have submitted declarations attesting that they personally witnessed the conduct that they allege.”
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