ARLINGTON, Va.—Yesterday, the Institute for Justice (IJ) submitted an amicus brief calling on the full 10th U.S. Circuit Court of Appeals to rehear a case brought by a group of individuals experiencing homelessness in Denver. In the brief, IJ argues the court erred in its original decision by raising defenses on behalf of the city that the city did not itself raise. 

The case began in 2020 when a group of people experiencing homelessness sued Denver, alleging the city’s “homeless sweeps” violated their constitutional rights. The sweeps—which involved city officials’ clearing out homeless encampments and trashing belongings—were often conducted without much notice. The federal trial court granted the group a preliminary injunction and ordered the city to stop the unannounced sweeps. 

But when the city appealed that decision to the 10th Circuit, the court sided with Denver. The court ruled that the plaintiffs couldn’t bring a due-process claim against Denver because a different group of homeless people had reached a class-action settlement with the city years ago. What made the court’s decision so “unprecedented,” as the one dissenting judge put it, was that the court sided with the city based on a defense that the city itself did not argue. 

“Courts should make their decisions based on the arguments presented by the parties. Except in extraordinarily rare circumstances, they should not dig up unargued defenses that favor one party over the other,” said IJ Attorney Sam Gedge, one of the amicus brief’s authors. “When courts start ruling based on unargued theories, they run the risk of losing (or appearing to lose) their neutrality in the case.” 

Making matters worse, the court reached this decision without providing the plaintiffs with any notice or a chance to respond to the defense the court had raised on Denver’s behalf. 

“The opportunity to be heard is a fundamental tenet of the American justice system,” said IJ Attorney Daniel Rankin. “When courts make decisions without hearing from the parties, they increase their chances of making a legal error. That’s harmful not only to the parties themselves but also to the many others who must follow the decision in the future.” 

Denver Homeless Out Loud, the group that brought the original suit, is now asking the 10th Circuit to rehear the case. IJ’s amicus brief supports the plaintiffs’ position that they are entitled to rehearing.