United States District Court, D. Colorado
RAYMOND LYALL, GARRY ANDERSON, THOMAS PETERSON, FREDRICK JACKSON, BRIAN COOKS, and WILLIAM PEPPER, Plaintiffs,
CITY OF DENVER, a municipal corporation, Defendant.
ORDER DENYING PLAINTIFFS' MOTION IN
William J. Martinez, United States District Judge.
are homeless persons living on Denver's streets.
Proceeding via 42 U.S.C. § 1983, they bring this class
action lawsuit against Defendant “City of Denver”
(more accurately, the City and County of Denver; hereinafter,
“Denver”), arguing that Denver clears homeless
encampments through unconstitutional “mass
sweeps.” A two-week bench trial is scheduled to begin
on March 18, 2019. (ECF No. 177.)
before the Court is Plaintiffs' Motion in Limine
for Order Suspending Camping Ban Enforcement During Trial.
(ECF No. 201.) The “camping ban” in question is
Denver Revised Municipal Code (“DRMC”) §
38-86.2, which prohibits camping on public property not
expressly approved for that purpose, or private property
without consent of the property owner. Plaintiffs have not
challenged the camping ban itself in this lawsuit.
(See ECF No. 54 ¶ 4 n.2.) But Plaintiffs argue
that, absent an order suspending enforcement of the camping
ban during trial, Denver may deprive them of their
constitutional right of access to the courts because
Plaintiffs and their witnesses will not be able to sleep
close enough to the courthouse to make it here in time for
their testimony. (See generally id.) See also
Christopher v. Harbury, 536 U.S. 403, 415 n.12 (2002)
(describing the various constitutional provisions from which
a right of access to the courts is said to emanate).
obviously have not filed a traditional motion in
limine, i.e., one seeking a pretrial
evidentiary ruling. Plaintiffs explain that they filed for
this relief as a motion in limine because, absent
such relief, numerous other evidentiary issues will arise
during trial, such as whether an unavailable witness's
testimony should be admitted by way of hearsay because Denver
may be responsible for causing the witness's
unavailability. (ECF No. 201 at 3.) See also Fed. R.
Court presumes without deciding that it has power to enter
the requested order, regardless of how Plaintiffs have
captioned their motion. See, e.g., Chambers v.
NASCO, Inc., 501 U.S. 32, 44-45 (1991) (courts possess
inherent authority “to fashion an appropriate sanction
for conduct which abuses the judicial process”);
Edelen v. Campbell Soup Co., 265 F.R.D. 676, 690
(N.D.Ga. 2010) (“courts may enter orders or injunctions
appropriate to protect both the courts and the rights of
litigants in the federal system”). The Court
nonetheless declines to enter such an order for the following
the degree to which DRMC § 38-86.2 might disrupt a
witness's ability to testify is speculative. Plaintiffs
have presented nothing demonstrating that Denver's
enforcement of that ordinance is continuous and systematic,
such that Plaintiffs or their witnesses have a high
likelihood on any day or night, in any location, of being
told to “move along” repeatedly until they have
moved so far away that they cannot make it back to the
courthouse on time. To the contrary, named Plaintiff Jerry
Burton submits a declaration announcing, “You can find
me around 27th and Arapahoe, until the police force me to
move.” (ECF No. 201-1 ¶ 1.) This suggests that
enforcement is sporadic, not systematic.
it is always the responsibility of the party calling the
witness-more specifically, the attorney representing the
party calling the witness-to ensure the witness's
presence, by way of subpoena or other arrangements. The Court
recognizes that this is a greater challenge as to the named
Plaintiffs and many of Plaintiffs' witnesses, but Mr.
Flores-Williams's ability to overcome these unique
hurdles is precisely why the Court approved him as class
counsel, despite other misgivings. See Lyall v. City of
Denver, 319 F.R.D. 558, 568 (D. Colo. 2017) (“. .
. the Court is satisfied that Plaintiffs' counsel, Mr.
Jason Flores-Williams, has spent and will continue to spend
significant time developing this case. The task of organizing
a potential class of homeless persons is naturally
challenging, but Mr. Flores-Williams has obviously put in
much effort and achieved much success, as partially evidenced
by the declarations he has obtained and the number of
homeless persons who have attended court proceedings in this
case.”); id. at 570 (“. . . Mr.
Flores-Williams has already shown substantial and commendable
dedication to the undoubtedly difficult task of organizing a
potential class of homeless persons. He has developed and
demonstrated experience in an area where most lawyers
(including most plaintiffs' civil rights lawyers) have
none. [¶] . . . If it were not for Mr.
Flores-Williams's unique success in working specifically
with the homeless population . . . the Court would have
refused to appoint him as class counsel, or at least as sole
class counsel.”). The Court is frankly surprised that
Mr. Flores-Williams or Plaintiffs' other attorneys have
not already made arrangements to ensure their clients'
and witnesses' availability at trial.
Plaintiffs' motion and attached declarations fail to
mention the various homeless shelters within easy walking
distance of the courthouse,  much less explain why those
shelters will not provide adequate overnight accommodations
for the named Plaintiffs and their witnesses.
the Court does not have anything approaching a record
sufficient to evaluate what effect an order suspending DRMC
§ 38-86.2 might have on Denver. And the Court is frankly
concerned that any such order would take on a life of its
own. As Plaintiffs' other two attorneys (Messrs. Lane and
McNulty) are well aware from their participation in an
unrelated lawsuit, the Court previously granted a limited
preliminary injunction-purposefully worded very
narrowly-against official efforts to prevent distribution of
jury nullification literature on the exterior grounds of
Denver's Lindsey-Flanigan Courthouse. See Verlo v.
City & Cnty. of Denver, 124 F.Supp.3d 1083, 1097 (D.
Colo. 2015). But inaccurate or incomplete reports of the
injunction spread, presumably by word-of-mouth, and the
Lindsey-Flanigan grounds quickly became viewed as an
unrestricted zone for disruptive demonstrations of all kinds.
See Verlo v. Martinez, 262 F.Supp.3d 1113, 1129-34
(D. Colo. 2017). Although the officials subject to the
injunction could have put an end to most of this behavior
without violating the injunction, one actual attempt to do so
prompted the plaintiffs in that lawsuit to seek contempt
sanctions, see Verlo v. City & Cnty. of Denver,
2015 WL 5159146 (D. Colo. Sept. 3, 2015) (finding accusations
of contempt unfounded), and the enjoined officials
understandably became wary of doing anything that might
appear contemptuous, see Verlo v. Martinez, 262
F.Supp.3d at 1120, 1150. The Court predicts that if it
enjoined Denver from enforcing DRMC § 38-86.2, similar
problems may arise, and on a larger scale.
these reasons, the Court will not enjoin Denver from
enforcing DRMC § 38-86.2. But there may be a more
pragmatic approach to addressing Plaintiffs' feared
problem. The undersigned always requires counsel, at the end
of each trial day, to inform opposing counsel of the names of
those witnesses whom counsel plans to call the next day. In
this case, Denver's counsel may be able to relay that
information to the appropriate police district(s) for
dissemination to the officers who will be on patrol that
night. With those names in hand, the Court trusts that the
Denver Police Department can prudently exercise discretion
not to present even the appearance of attempting to make
Plaintiffs' witnesses unavailable. Denver's counsel
will be required to address, at the upcoming Final Trial
Preparation Conference, why such a plan is not
for the reasons stated, the Court ORDERS as follows:
1. Plaintiffs' Motion in Limine for Order
Suspending Camping Ban Enforcement During Trial (ECF No. 201)
is DENIED; and
2. Denver shall be prepared to discuss, at the upcoming Final
Trial Preparation Conference, why it is not feasible to
inform the relevant Denver Police Department districts a day
in advance of a homeless witness's expected testimony,
and to secure the Denver Police Department's cooperation
in not forcing these witnesses away from a place ...