Denver Homeless Out Loud v. Denver, Colorado
514 F.Supp.3d 1278
D. Colo.2021Background
- Plaintiffs (Denver Homeless Out Loud and several people experiencing homelessness) sued the City and County of Denver, various Denver officials, and the Governor over multiple 2020 encampment "sweeps" (Lincoln Park, Morey, South Platte), alleging Fourth and Fourteenth Amendment violations, Monell liability, and breach of the Lyall settlement.
- Plaintiffs allege sweeps occurred with no or only morning-of written notice, led to seizure and destruction of unabandoned property, and (during COVID-19) forced displacement that increased health risks; they sought a preliminary injunction requiring seven days’ notice, storage/return of property, sanitation, and compliance with Lyall.
- Denver and state defendants argued encampments posed acute public-health and safety hazards (rats, human waste, used needles, shootings), that outreach/some storage were provided, and that limited notice was premised on safety concerns (including avoiding disruptive protests) and exigent remediation needs.
- The Court held a three-day evidentiary hearing, applied the heightened standard for a disfavored preliminary injunction, and evaluated procedural due process (Mathews balancing), Fourth Amendment seizure reasonableness, substantive (danger-creation) due process, Monell municipal liability, and Lyall enforcement issues.
- Ruling: the Court granted the PI in part—enjoining Denver from conducting large-scale/DPPHE-ordered encampment sweeps without at least seven days’ written notice (with a 48-hour minimum exception if an evidence-based written public-health justification is posted), and requiring notice to plaintiffs’ counsel and local councilmembers—but denied or declined relief on Fourth Amendment, substantive due process, Lyall-enforcement in federal court, and against the Governor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fourteenth Amendment — Procedural due process (notice before property seizure) | Sweeps gave no or deficient advance notice; deprived possessory property without meaningful process | Outreach occurred; storage offered for non-hazardous items; morning-of notice was necessary for safety and health exigencies | Court: Plaintiffs showed substantial likelihood of success; injunction requires ≥7 days’ written notice (with narrow exceptions and 48-hour floor) |
| Monell municipal liability | DDPHE Executive Director McDonald is a final policymaker who authorized the notice practice; custom/policy caused ongoing deprivations | City defended its policies as reasonable public-health responses | Court: Substantial likelihood of Monell claim success as policy/custom by final policymaker caused procedural due-process violations |
| Fourth Amendment — Unreasonable seizure/destruction of property | Defendants seized and destroyed unabandoned property without adequate distinction or storage; deprivation unreasonable | Much property was contaminated/comingled with hazards; removal/disposal necessary for public health and worker safety | Court: Factual disputes and defendants’ evidence of hazardous conditions preclude finding substantial likelihood of success; no PI on Fourth Amendment |
| Fourteenth Amendment — Substantive due process (danger-creation re COVID-19) | Sweeps forced people into congregate settings and dispersed populations, increasing COVID risk per CDC guidance | CDC guidance is advisory; local data and experts show encampments sometimes posed equal/greater public-health risks; evidence is mixed | Court: Significant expert and factual disputes; Plaintiffs failed to show substantial likelihood of success on danger-creation claim |
| Breach of contract — Lyall settlement enforcement | Lyall required ≥7 days’ notice for large-scale cleanups and set property-storage rules; Denver breached these terms | Lyall was not incorporated into an order retaining jurisdiction; enforcement is a state-law contract matter | Court: Plaintiffs cannot enforce Lyall in federal court here; no substantial likelihood of federal breach-of-contract success |
| Governor official-capacity liability | Plaintiffs sought PI against the Governor for state-property sweep (Lincoln Park) | Governor did not direct, plan, or participate; state patrol acted at City request | Court: No evidence Governor involved; PI denied as to Governor |
Key Cases Cited
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability requires a policy, custom, or final policymaker action)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (balancing test for required procedural protections)
- United States v. Jacobsen, 466 U.S. 109 (U.S. 1984) (reasonableness of seizures judged by balancing intrusion vs. governmental interest)
- Soldal v. Cook County, 506 U.S. 56 (U.S. 1992) (possessory interests in property remain protected even on public land)
- Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375 (U.S. 1994) (federal courts lack ancillary jurisdiction to enforce settlement terms unless retained or incorporated)
- DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (U.S. 1989) (no constitutional duty generally to protect individuals from private harm)
- Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995) (substantive due process/danger-creation and "shock the conscience" standard)
- Free the Nipple–Fort Collins v. City of Fort Collins, 916 F.3d 792 (10th Cir. 2019) (heightened standard for disfavored preliminary injunctions)
- Schrier v. University of Colorado, 427 F.3d 1253 (10th Cir. 2005) (preliminary injunction is extraordinary relief)