April 2021 - Parks & Recreation - 32

L AW R EV I EW

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 inter-

est 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

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. "

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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
April 2021 - Parks & Recreation

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