UNITED STATES DISTRICT COURT IN THE DISTRICT OF COLORADO AUTHORITIES

Transcription

1 LAW OFFICE OF JASON FLORES-WILLIAMS JASON FLORES-WILLIAMS Attorney for Plaintiffs Bassett St. #0 Denver, CO JFW@JFWLAW.NET RAYMOND LYALL, GARRY ANDERSON, THOMAS PETERSON, JERRY RODERICK BURTON, FREDRICK JACKSON, BRIAN COOKS, WILLIAM PEPPER, CHRISTOPHER FARRELL, KRYSTAL MCEVOY INDIVIDUALLY ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; vs. Plaintiffs, CITY OF DENVER, A MUNICIPAL CORPORATION, MAYOR MICHAEL B. HANCOCK, POLICE CHIEF ROBERT C. WHITE, DENVER PUBLIC WORKS MANAGER JOSE M. CORNEJO, MAYOR S CHIEF- OF-STAFF EVAN DREYER, COMMANDER ANTONIO LOPEZ: INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; Defendants UNITED STATES DISTRICT COURT IN THE DISTRICT OF COLORADO Case No.: 1-1 PLAINTIFFS MOTION FOR CLASS CERTIFICATION MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITIES DEMAND FOR JURY TRIAL PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

2 TABLE OF CONTENTS I. INTRODUCTION. II. STATEMENT OF FACTS.. III. ARGUMENT...1 a. ALL REQUIREMENTS OF FEDERAL RULE (a) ARE SATISFIED..1 b. ASCERTAINABILITY AND ADMINISTRATIVE FACILITY...1 c. PROPOSED CLASS IS SUFFICIENTLY NUMEROUS SO THAT (A)(1) IS SATISFIED.1 d. THERE ARE MANY COMMON ISSUES OF LAW AND FACT SO THAT (A)() IS SATISFIED..1 e. THE CLAIMS OF THE NAMED PLAINTIFFS ARE TYPICAL OF THE CLASS THEY REPRESENT SO THAT (A)() IS SATISFIED.1 f. THE NAMED COUNSEL AND THEIR PLAINTIFFS ARE ADEQUATE REPRESENTATIVES SO THAT (A)() IS SATISFIED.. IV. CLASS CERTIFICATION IS APPROPRIATE PURSUANT TO (B)().. a. DEFENDANTS HAVE ENGAGED IN A COMMON PRACTICE WITH RESPECT TO THE CLASS AS A WHOLE SO INJUNCTIVE RELIEF IS APPROPRIATE... V. MONEY DAMAGES ARE SECONDARY AND DO NOT PRECLUDE CLASS CERTIFICATION UNDER (b)().. VI. SCOPE OF CLASS CERTIFICATION EXTENDS TO (b)().. a. COMMON QUESTIONS OF LAW AND FACT PREDOMINATE. b. CLASS TREATMENT IS SUPERIOR TO OTHER AVAILABLE METHODS..1 VII. CONCLUSION 0 1 PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

3 TABLE OF AUTHORITIES CASES Amchem Prods., Inc. v. Windsor, 1 U.S. 1, 1 (1)..., Anderson v. Boeing Co., F.R.D. 1, 1 (N.D. Okla. 00) 1 Anderson v. City of Albuquerque, 0 F.d, (th Cir. 1).1 Armstrong v. Davis, F.d, (th Cir. 001) 0 Baby Neal v. Casey, F.d, (d Cir. 1)... Boughton v. Cotter Corp., F.d, (th Cir. 1). Chin v. Chrysler, 1 F.R.D. (D.N.J. 1)..., Comcast Corp. v. Behrend, 1 S. Ct. 1, 1 (01).. Dairy Queen Inc., v Wood, U.S 1 1 Daubert v. Merrell Dow Pharmaceuticals, 0 U.S. (1) DG Ex Rel. Stricklin v. DeVaughn, F.d (th Cir. 0)..passim Dimich v. Schiedt,.S. (1) 1 Dornberger v. Metropolitan Life Insurance Corp., 1 F.R.D. (SDNY 1)...0 Dukes v. Walmart, Inc., F.d, 1 (th Cir. 00)...passim Eisen v. Carlisle & Jacquelin, 1 U.S. 1, 1 (1)...1,1 Esplin v. Hirschi, 0 F.d, (th Cir. 1).1 Fincher ex rel. Fincher v. Prudential Prop. Cas. Ins. Co., Case Nos. 0-1 and 0-, 0 WL, at *1-1 (th Cir. April 0, 0) Hanlon v. Chrysler Corp., 10 F.d, 1 (th Cir. 1) 0 Harrington v. City of Albuquerque, F.R.D. 0, 0-0 (D.N.M. 00)...1 Horn v. Associated Wholesale Grocers, Inc., F.d 0, - (th Cir. 1)...1 In Re: Motor Fuel Temperature Sales Practices Litigation, J.B. ex rel. Hart v. Valdez, 1 F.d 10, 10 n. (th Cir. 1)..1 PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

4 Joyce v. City and County of San Francisco, 1 U.S. Dist. LEXIS 0, at *1 (N.D. Cal. 1) 1 Levitt v. PriceWaterhouseCoopers, LLP, No. 0 Civ. 1(RO), 00 WL 0 (S.D.N.Y. July 1, 00).. Maez v. Springs Automotive Group, LLC, F.R.D. 1, (D.Colo. 0). Marison v. Giuliani, 1 F.d, (d Cir. 1) 1 Milonas v. Williams, 1 F.d 1, (th Cir. 1) 0 Monreal v. Potter, F.d 1, 1- (th Cir. 00).. Phillips Petroleum Co. v. Shutts, U.S., 0 (1). Pottinger v. City of Miami, 0 F. Supp., (S.D. Fla. 1)..1 Rector v. City County of Denver, F.d, 0 (th Cir. 00).. Rutter & Willbanks Corp. v. Shell Oil Co., 1 F.d 0, - (th Cir. 00)... Rex v. Owens ex rel. State of Okla., F.d, (th Cir. 1)..1 Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc., 1 F.d, n. (th Cir. 00).. Shook v. El Paso Cnty., F.d, (th Cir. 00) 1, Skinner v. Uphoff, 0 F.R.D., (D. Wyo. 00)..1 Vallario v. Vandehey, F.d 1 (th Cir. 00)...,1 Wallace B. Roderick Revocable Living Trust, F. d, 10 ( th Cir. 01) Walters v. Reno, 1 F.d, (th Cir. 1.)..., Wal-Mart Stores Inc. v. Dukes, U.S (0). STATUTES FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION passim SEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION..passim EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION..passim FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION..passim U.S.C. SEC. 1..passim PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

5 COLORADO OPEN RECORDS ACT C.R.S to 0 RULES FEDERAL RULE OF CIVIL PROCEDURE (a)-(d)()....passim FEDERAL RULE OF EVIDENCE 0.. FEDERAL RULE OF EVIDENCE. 0. FEDERAL RULE OF EVIDENCE 0(b)()... FEDERAL RULE OF EVIDENCE 0.. U.S. CODE 1. OTHER AUTHORITIES NEWBERG ON CLASS ACTIONS 1,1 SEDONA PRINCIPLES ADDRESSING ELECTRONIC DOCUMENT PRODUCTION... ATTACHMENTS EXHIBIT LIST: 1 EX. S ATTACHED (INCLUDING C.V. DR. ROBINSON.) NOTICE OF DUTY TO CONFER PURSUANT TO D.C.COLO.L.Civ. R PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

6 I. INTRODUCTION Plaintiffs seek an order under Fed. Rule Civ. P. (b)() and (b)() certifying and authorizing them to represent a class consisting of all persons in the City of Denver who were, are, or will be homeless at any time after May 1, 01, and whose personal belongings have been or may in the future be taken or destroyed by one or more of the Defendants. The proposed class and the action meet all of the requisites for class certification under Rule of the Federal Rules of Civil Procedure. This Motion is supported by Plaintiff Declarations, Expert Affidavit and selfauthenticating evidentiary materials that establish a cohesive class of homeless persons whose Fourth, Eighth and Fourteenth Amendment Rights to the U.S. Constitution are being violated on a systemic and increasingly frequent basis by the practices, policies and conduct of Defendants Re supporting evidence: recent U.S S. Ct. and Circuit Ct. decisions demonstrate that we are moving toward the application of the Federal Rules of Evidence at the class certification stage, but that they have yet to be formally adopted. Plaintiffs submit their exhibits in support of this motion in an attempt to acknowledge both the current state of the law and its trajectory. See Shell Rocky Mountain Prod., LLC v. Ultra Res., Inc., 1 F.d, n. (th Cir. 00); Wal-Mart Stores Inc. v. Dukes, U.S (0); Comcast Corp. v. Behrend, 1 S. Ct. 1, 1 (01); Daubert v. Merrell Dow Pharmaceuticals, 0 U.S. (1). For instant purposes of admissibility at this stage, with regard to Exhibits A-D, Defendants s are self-authenticating under FRE 0, fall under hearsay exception FRE 0() and are being submitted both for their content and to show institutionalized planning and policy; Declaration are submitted in support of this Motion pursuant to U.S. Code 1, see also Levitt v. PriceWaterhouseCoopers, LLP, No. 0 Civ. 1(RO), 00 WL 0, at *1 (S.D.N.Y. July 1, 00) (denying motion to strike for lack of personal knowledge because Rule applies only to summary judgment motions), see also, FRE 0(b)() statements against interest and FRE 0 hearsay within hearsay admissible; Dr. Tony Robinson s expert affidavit and opinion admissible pursuant to FRE 0 and Daubert (should the Court determine to conduct a qualifying hearing. ) The Sedona Principles Addressing Electronic Document Production are attached as Exhibit E, as ESI as we have already seen, will be of heightened relevance in this litigation. Finally, for simplicity, lead Plaintiffs and Plaintiff Class will be referred to herein as Plaintiffs. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

7 The City of Denver and the remaining Defendants have been seizing and summarily destroying the valuable and essential personal property of homeless people in Denver, according to their ongoing unlawful practice and policy. The unlawful conduct is not a matter of randomness or isolated cases of abusive law enforcement, but follows a common pattern and results in the same legal violations against all class members. (Expert Aff., Dr. Tony Robinson, Summ. Conclusions.) The statistical rates of homeless property seizure and destruction in Denver are so high that they militate toward, if not prove that the conduct described herein is a product of Defendants institutionalized policies and practices. (See Expert Aff. Robinson 1-1; Pl s Compl. passim; Exhibits A-D. Nb. Ex. s A-D are, as described in attached Exhibit List, group s retrieved through public records requests pursuant to the Colorado Open Records Act C.R.S to 0 that evidence Defendants formal policy and custom re the confiscation of property and removal of homeless persons from city areas.) Rarely, do we see such wide-ranging and multi-level ratification of a local government policy that has harmed so many people. (See Exhibit entitled: Mass re Policy, Practice and Implementation. ) The proposed class representatives are nine presently homeless persons living in the City of Denver ( Denver ) each of whom has lost personal property because of Defendants practice and policy. (Plaintiff Decl. s Lyall, Burton, Peterson, Jackson.) Plaintiffs have been victims of this ongoing practice and policy and have suffered substantial injury and damages because of it. Their experience is typical of the class of homeless persons they seek to represent, which in many ways is attributable to the brutally efficient and coldly strategic manner in which Defendants have confiscated property from homeless persons in the Denver area. (Expert. Aff. Robinson Summ. Conclusions ; Decl. Howard -.) PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

8 Plaintiffs primarily seek a permanent injunction and a declaration of the illegality of this ongoing conduct. Secondarily, Plaintiffs seek damages for the losses suffered, much of which is common as well. The overarching issue of Defendants liability will involve common proof. The common issues include: (a) whether Defendants policies and practices in conducting the sweeps at issue are unlawful in that they result in immediate destruction of property; (b) whether Defendants policies and practices in conducting the sweeps at issue are unlawful in that they fail to provide adequate pre- or post-seizure notice and fail to provide any opportunity to recover seized property; (c) the nature of injunctive relief that should be ordered, including notice requirements, the amount of time allowed to move property, and what must be done with property that is removed; and (d)whether Defendants confiscation of property uniformly-seized items like clothing and bedding that Plaintiffs depend on for survival and protection from the elements in a city subject to recognized extremes in weather has constituted cruel and unusual punishment; and (e) whether Defendants are liable for punitive damages and if so, the amount. 1 Proof as to each of these issues will be the same for each individual plaintiff. The policies and practices of Defendants that led to this action are plainly alleged and demonstrated by this Motion and the materials proffered in its support. Defendants may argue that their policies and conduct were somehow justified or that they resulted in no harm see Defendant Dreyer s preparation of media talking points in Exhibit D as a way to defray public criticism of the 0 1 Plaintiffs have suffered the same injuries and deprivations caused by the uniform custom and indifferent policy of Defendants so that there is no need for bifurcation, but this Court, of course, has Fed. R. Civ. P. R. (c)() at its disposal as to damages if it would aid in judicial efficiency. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

9 City s policy but what cannot be disputed is that there was, and is, a ratified institutional policy in place that has uniformly affected thousands of homeless in Denver. Whether this policy is constitutional is a merits-based question that does not weigh significantly on class certification Given the profoundly unequal positions of the parties and the especially limited resources of class members limited resources that have been further diminished by Defendants this class is not in a position to protect their own rights. Despite the fact that 0 % of homeless persons in the Denver area have had interactions with law enforcement since passing of the Camping Ban May 1, 01 (Expert Aff. Robison 1) in which they have been told to move along or be subject to arrest negative questionable interaction it appears that not one action has been brought under USC Sec. 1 or any other federal statute in the U.S. District Court of Colorado. The silence is deafening proof that Plaintiffs are not able to seek protection of their fundamental rights without class action treatment in this matter. If 0 % of the U.S. population had potentially colorable interactions with law enforcement, the number of persons would be 1,000,000 million. The courts, to say the least, would be deluged. Yet, because these are the unwanted, it is perhaps easier to think that they are criminals than it is to admit that they have been criminalized. Conservative estimates are that more than,00 homeless persons in Denver have had their property taken from them in the last several years and that, in the last year alone, 0 1 The Tenth Circuit wrote that the phrase no merits inquiry should not be talismanically invoked to limit a district court s inquiry into whether Rule s requirements have been met. Vallario v. Vandehey, F.d 1 (th Cir. 00). Plaintiffs are not invoking it, but a drawing a well-recognized delineation between the procedural class certification phase and the trial phase. See Pl s Compl. FN regarding similarities between the Jim Crow era in the South and the instant matter where under the pretext of municipal ordinances the rights of African Americans were routinely vitiated and denied. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

10 at least 00 homeless persons have had their property confiscated by one or more of the Defendants. (Expert Aff. Robinson 1.) The actual numbers are almost certainly higher as homeless people in Denver have come to fear law enforcement and the legal system, which speaks again to the dearth of federal challenges to Defendants actions and policies, even as the Denver Homeless Sweeps, to put it kindly, have come to be a source of national concern. The absence of constitutional claims against Defendants since the beginning of the sweeps prove that Plaintiffs can not avail themselves of their rights as individuals. Furthermore, considering that this could mean more than perhaps,000 common and similar claims filed under U.S.C Sec. 1 for common and similar harms resulting from the common and similar deprivation of rights and property, individual litigation of these claims would needlessly result in wasteful redundancies and duplicative discovery for all parties concerned. For these reasons, class certification is the superior treatment while being essential to the fair and economical resolution of Plaintiffs rights. 0 1 II. STATEMENT OF FACTS 1. City of Denver and the other Defendants in this case have been engaged in the ongoing, conscious practice based upon official policy of seizing and summarily destroying the personal possessions of essentially all homeless persons living in Denver who even appear to be residing in public space. (Plaintiff Decl s Lyall, Burton, Peterson, Jackson PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

11 and Decl. Howard). The conduct of Defendants has been consistent and uniform as to all homeless persons whom they encounter. Defendants sweep through an area where homeless people are found and intentionally take and destroy essentially all of the possessions of the homeless. The challenged conduct has been repeated over and over and is virtually uniform in nature. Defendant Denver Police Department moves into an area, orders Plaintiffs to move on or be arrested, then Defendant Department of Public Works arrives at the scene with city dump trucks using inmates from county jail to seize property, which is then thrown into the back of the dump trucks and taken away with no effort to determine what is individual property and what is trash. No real notice is given. Plaintiffs are treated as though they have no rights or voice in the process. (Burton Decl. -; Lyall Decl. ; Howard Decl. passim; Peterson Decl. -; Jackson Decl..) Plaintiffs are not told how they can retrieve their property. (Burton Decl. ; Lyall Decl. ; Howard Decl. passim; Jackson Decl..) On the one occasion when Plaintiff Peterson walked more than a mile to retrieve his belongings which included military papers and photos of his children, he was not returned his property. (Peterson Decl..) Being that their property is indiscriminately thrown into sanitation dump trucks and that almost none of the Plaintiffs have ever been able to retrieve their property, one can induce that the property is being disposed of at the dump same as trash. This property is all that these people have for survival and to remind them off their families, their humanity, their lives.. If Plaintiffs attempt to stay with their property and not give it up to seizure, then they are often arrested. (Lyall Decl..) These arrests are particularly troubling being that Defendants have seized Plaintiffs identification such as driver s licenses without which PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

12 they cannot prove who they are, so that once arrested they remain in jail for more hours and days than others who are arrested. (Lyall Decl..). All of the sweeps and seizures are conducted under color of law and as part of a common policy and practice implemented by the City of Denver and remaining Defendants. (Ex s. A-D, & Expert. Aff. Robinson passim.). As a result, homeless people lose most, if not all, of the few possessions they own, including: essential items such as their shelter (often a tent), clothing, and medication; important documents such as military records, identification cards, birth certificates, and medical records; and personal items such as radios, small televisions, bicycles, tools, writing journals, family photos and items of irreplaceable personal value such as photographs of loved ones and personal keepsakes. (See all Plaintiff Decl s passim & Howard Decl. -.). When Plaintiffs have asked Defendant Denver Police why they are doing this to them, a common refrain has been: If you people would just leave, then all of this would stop. (Burton Decl. ; Lyall Decl. ; Peterson Decl. ; Jackson Decl..) Denver is home for lead Plaintiffs and Plaintiff Class, many having resided here for decades, if not their entire lives. (Burton Decl. ; Lyall Decl. ).. Along with constant harassment, Defendants often seize and dispose of Plaintiffs property without citing Plaintiffs for violations of ordinances a subject matter for this litigation in an attempt to make their lives so unbearable that they have to leave the area and go to unknown and unsafe areas where they are unsafe and preyed upon. (Howard Decl. passim.) PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

13 The sweeps and seizure of property track almost perfectly with the economic development taking place in the Downtown Denver area. (Pl s Compl., FN 1. Denver Post article.). The sweeps and seizure of property are the product of planning, implementation and execution of Defendants. (Ex. s A B C D & Mass re Policy, Practice and Implementation. ) In this s, Defendant City of Denver and other Defendants are planning these raids, sweeps, and confiscations of property down to the most minute detail of media talking points. (Ex. D Def. Dep. Chief of Staff Dreyer group to city employees including Mayor s Office Communications Director. ). Plaintiffs have sufficiently shown that that Defendants conduct was undertaken in the execution of customs, policies and practices authorized by policymakers of the Defendant City of Denver (supra). Plaintiffs have also sufficiently alleged that Defendants have acted jointly or conspired with other Defendants to authorize, acquiesce or set in motion the uniform policies and plans at issue in this case. (Ex. s A B C D & Expert Aff. Robinson, passim.) Nb. These s were published as part of an article in the Westword, April 1, 01 in which they were characterized as Denver questioning its own protocols with regard to the sweeps and confiscation of property. The exhibits are part of a larger open records request concerning these raids amounting to a volume of pages that for the sake of judicial efficiency are not attached here. The lead document in this drop, entitled Mass re Policy Practice and Implementation is included, obviously, to evidence policy, practice and implementation, but also for the purpose of showing the relevance of electronic communications and ESI in this litigation, so that a PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

14 Preservation Letter was hand-delivered to Defendants with service of the complaint and The Sedona Principles are attached as Exhibit E.. Being that the City and other Defendants were consistently noticed and informed by media, advocates, citizens, inter alia, that their raids and confiscation of Plaintiffs property were inflicting harms on Plaintiffs, Defendants were indifferent to the consequences of their policies, practices and conduct.. Along with small scale sweeps and raids, these policies and practices have led to customary sweeps, raids property confiscations of homeless and displaced persons that have occurred on October, 01, December 1, 01, March -, 01 and with increasing frequency through July, August and continuing to present. (Burton Decl.; Lyall Decl.; Howard Decl.; Peterson Decl.; Jackson Decl.; Ex. s A-D & Expert. Aff. Robinson.) 1. Googling Denver Homeless Sweeps provides, 0 results. While this is anecdotal, these sweeps and confiscations have occurred so customarily, that thousands of common references to Defendants practices can be elicited in a three-word google search without there having been a class action challenge to it in this district. 1. Plaintiffs claims against all Defendants come from the same course of conduct arising from joint and common policy and practice. As shown herein and via the attached exhibits, Defendants have repeatedly planned and implemented the confiscation and destruction of Plaintiffs property without regard for Plaintiffs rights. Defendants 0 1 Similar class action challenges have been brought in other federal districts and the cities were enjoined. PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

15 ratification and execution of these sweeps and property confiscations October 01, December 01, March 01, July 01, August 01, continuing to present along with the smaller scale but customarily similar confiscations starting May 1, 01 manifests a nuclear course of conduct giving rise to the same liability, based on the same legal arguments, so that Plaintiffs are entitled to the same relief with respect to each individual named Defendant relief which will address and enjoin the common deprivations and harms suffered by all Plaintiffs, so that class certification as maintained here and in the following sections is procedurally superior and appropriate III. ARGUMENT Plaintiffs ask this court to certify a class consisting of: All persons in the City of Denver who were, are, or will be homeless at any time after May 1, 01, whose personal belongings have been or may in the future be taken or destroyed by one or more of the Defendants. As the courts have made clear, whether Plaintiffs have met the Rule requirements for class certification does not involve an inquiry into the merits of the case. See Dukes v. Walmart, Inc., F.d, 1 (th Cir. 00) ( A motion for class certification is not the occasion for a mini-hearing on the merits. ) (citation omitted); Eisen v. Carlisle & Jacquelin, 1 U.S. 1, 1 (1) ( There is nothing in either the language or history of Rule that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action. ). Plaintiffs, per Vallario, (FN, supra) are not seeking to limit the Court s inquiry at class certification phase, but only to move forward efficiently at this stage in PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

16 1 1 1 demonstrating [t]hat the four threshold requirements of Rule (a) are met. If the court determines that they are, it must then examine whether the action falls within one of three categories of suits set forth in Rule (b). Adamson v. Bowen, F.d, (th Cir. 1). Eisen at 1- (1); Anderson v. City of Albuquerque, 0 F.d, (th Cir. 1). In ruling on the motion for class certification, the court must take the substantive allegations of the complaint as true. J.B. ex rel. Hart v. Valdez, 1 F.d 10, 10 n. (th Cir. 1). If the court has some doubt, it should err in favor of certification, since the decision is subject to later modification. Esplin v. Hirschi, 0 F.d, (th Cir. 1); see also Anderson v. Boeing Co., F.R.D. 1, 1 (N.D. Okla. 00) (same, citing Esplin); Harrington v. City of Albuquerque, F.R.D. 0, 0-0 (D.N.M. 00) (same) a. ALL REQUIREMENTS OF FEDERAL RULE (a) ARE SATISIFED 1. For a class to be certified under R. (a), the following well-known requirements must be satisfied: (1) the class is so numerous that joinder of all members is impracticable; () there are questions of law or fact common to the class; () the claims or defenses of the representative parties are typical of the claims or defenses of the class; and () the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. (a). 1. All four requirements R. (a) are satisfied herein. 0 1 PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

17 b. ASCERTAINABILITY AND ADMINISTRATIVE FACILITY 1. Delineating class ascertainability is not required in R. (b)() class certifications in the Tenth Circuit. Shook v. El Paso Cnty., F.d, (th Cir. 00). But in this case, class members are easily ascertainable and can be identified by a simple showing that they are homeless in the City of Denver (or were during the applicable class period) and have personal property that they keep with them while homeless. See Joyce v. City and County of San Francisco, 1 U.S. Dist. LEXIS 0, at *1 (N.D. Cal. 1) (finding that class members who have been cited for violations to challenged program would be easily ascertainable, and it would not be difficult to determine which persons cited were also without shelter and either financially impoverished or mentally incapacitated); Pottinger v. City of Miami, 0 F. Supp., (S.D. Fla. 1) (finding class of homeless individuals who have been or expect to be arrested for certain conduct readily ascertainable). 1. All class members including lead Plaintiffs are a member of this class and have suffered the same harms as a result of Defendants repeated policies and conduct so that this matter is predominantly driven by equitable relief stop the conduct and is thus administratively feasible if not facile. See Marison v. Giuliani, 1 F.d, (d Cir. 1) holding that general class definitions based on a Defendant s conduct or on the alleged harm the class has suffered will suffice. See also Advisory Committee notes to Rule (b)(), which state that the section was designed to cover actions in the civilrights field where a party is charged with discriminating unlawfully against a class, PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

18 usually one whose members are incapable of specific enumeration. Fed. R. Civ. P. advisory committee s note (1) (emph. added) c. THE PROPOSED CLASS IS SUFFICENTLY NUMEROUS SO THAT (A)(1) IS SATISIFED 1. Impracticability of Joinder Rule (a)(1). Rule (a)(1) requires that the class [be] so numerous that joinder of all members is impracticable. According to the studies referenced and sourced in Expert Aff. Robinson, there are right now,00 homeless persons in the Denver Metro area. (See Expert Aff. Robinson providing detailed statistics re Denver homeless population.) All of them are impacted by Defendants policies of confiscating personal property so that joinder is impracticable. Thus, based only on the number of class members, the requirements of Rule (a)(1) are satisfied. See Rex v. Owens ex rel. State of Okla., F.d, (th Cir. 1) ( Class actions have been deemed viable in instances where as few as 1 to 0 persons are identified as the class ); Horn v. Associated Wholesale Grocers, Inc., F.d 0, - (th Cir. 1) (trial court erred in denying class certification on numerosity grounds where class consisted of between 1 and persons). Even if Defendants were to attempt to argue that the class is only comprised of those whose property has actually been taken by the City and remaining Defendants, (a)(1) is satisfied as the number of Plaintiffs is over 0 1 The Metro Denver Homeless Initiative Point in Time Report reporting approximately,00 homeless in the Denver area. Study funded by the U.S. Dep t of Housing and Urban Development. PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

19 ,000 homeless persons not including those who will, sadly, be homeless in the future and are thus affected by the current policies of practices of Defendants if not enjoined. (Expert Aff. Robinson 1.) See Skinner v. Uphoff, 0 F.R.D., (D. Wyo. 00) (finding certification appropriate for class of current and future prisoners seeking injunctive relief; [a]s members in futuro, they are necessarily unidentifiable, and therefore joinder is clearly impracticable ). The situation herein is similar: a significant class somewhat in flux for whom injunctive relief would address Defendants custom, practice and policy and thus cure the constitutional deprivations of the entire class. The requirements of Rule (a)(1) are easily met here. d. THERE ARE MANY COMMON ISSUES OF LAW AND FACT SO THAT (A)() IS SATISIFED 0. Commonality Rule (a)() is satisfied. Rule (a)() requires only a single question of law or fact common to the entire class. D.G. ex rel. Stricklin v. Devaughn, F.d, (th Cir. 0).R. (a)()it does not require that all questions of law or fact be common to every single member of the class. Rather, Plaintiffs need only point to a single issue common to the class. Walmart, F.d at 1. The commonality requirement is easily met. 1 Herbert B. Newberg, Newberg on Class Actions., at (th ed. 00) (hereinafter Newberg ). Courts have not considered commonality a 0 1 Plaintiffs will discuss infra how (b)() shifts the courts analysis from ascertainability of the class to the Defendants policies and actions, but for instant purposes R. (a)(1) is easily satisfied. PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

20 difficult hurdle; the requirement should be construed permissively. Hanlon v. Chrysler Corp., 10 F.d, 1 (th Cir. 1); see Walmart, F.d at Commonality is generally satisfied where, as in this case, the lawsuit challenges a system-wide practice or policy that affects all of the putative class members. Armstrong v. Davis, F.d, (th Cir. 001); See also Milonas v. Williams, 1 F.d 1, (th Cir. 1) (holding that common issue of law concerning legality of Defendant s practices overrode factual differences among class members); see also, DG Ex Rel. Stricklin v. DeVaughn, F.d (th Cir. 0), stating: [f]actual differences between class members claims do not defeat certification where common questions of law exist.. This action arises from challenges to policies and practices that adversely affect homeless persons throughout the City of Denver. Plaintiffs have shown and will further show that the City and the remaining Defendants have adopted a policy and engaged in the common practice of conducting raids that result in the seizure and immediately destruction of the personal property of homeless individuals without adequate notice or an opportunity to retrieve the property after it is taken. This policy treats all homeless persons and their property the same, and each raid is conducted in a nearly identical fashion. As a result, the case presents numerous common issues of law and fact including: (a) the nature of Defendants policies, practices and conduct in conducting these sweeps, including whether Defendants provided adequate notice and whether they were sufficiently justified; (b) whether Defendants policies, practices and conduct violate Class members federal constitutional rights against unreasonable search and seizures; (c) whether Defendants policies, practices and conduct violate Class members due process rights PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 0

21 under the United States Constitution; (d) whether Defendants policies, practices and conduct violate Class members equal protection rights under the United States Constitution; (e) whether Defendants policies, practices and conduct violate the Eighth Amendment ban against cruel and unusual punishment; (e) whether injunctive relief enjoining further unconstitutional and unlawful acts by Defendants should be ordered by the court, and, if so, the nature of that injunctive relief. Each of these issues may be resolved by a showing of common proof for all class members. This controlling questions of law and fact in the instant matter easily satisfy the low standard for commonality under Rule (a)(). e. THE CLAIMS OF THE NAMED PLAINTIFFS ARE TYPICAL OF THE CLASS THEY REPRESENT SO THAT (A)() IS SATISFIED. Typicality Rule (a)(). Fed. R. Civ. P. (a)() requires that the claims or defenses of the representative parties [be] typical of the claims or defenses of the class. In this case, the claims asserted by the class representatives coincide precisely with the claims asserted on behalf of the class. According to the leading treatise on class actions: 0 1 Typicality refers to the nature of the claim or defense of the class representative and not to the specific facts from which it arose or to the relief sought. Factual differences will not render a claim atypical if the claim arises from the same event or practice or course of conduct that gives rise to the claims of the class members, and if it is based on the same legal theory. 1 Newberg,.1, at. PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 1

22 The Tenth Circuit has often reiterated the well-settled principle that individual factual differences do not defeat typicality. [T]ypicality exists where, as here, all class members are at risk of being subjected to the same harmful practices, regardless of any class member s individual circumstances. Stricklin, F.d at ; see also Adamson, F.d at ( differing fact situations of class members do not defeat typicality under Rule (a)() so long as the claims of the class representative and class members are based on the same legal or remedial theory ).. In this case, there is virtually no sunlight between putative class representatives and class members as Defendants planning, and implementation of the property seizure and Homeless Sweeps has been so brutal in their uniformity. Even the property confiscated from Plaintiffs by Defendants has been typical, i.e. clothing, personal items, blankets and other items needed for survival. All lead Plaintiffs are residents of Denver and have suffered the same substantial injuries and harms as the class as a result of the Defendants policy of unlawful seizure and destruction of their personal belongings. There are no standing issues. See Rector v. City County of Denver, F.d, 0 (th Cir. 00). The claims of the class representatives are based on the exact same legal theory as the claims of the class members that Defendant s policy of seizing their property violates their Fourth, Eighth and Fourteenth to the United States Constitution. The typicality requirement of Rule (a)() is satisfied. 0 1 f. THE NAMED COUNSEL AND THEIR PLAINTIFFS ARE ADEQUATE REPRESENTATIVES SO THAT (A)() IS SATISIFED PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

23 Adequacy of Representation Rule (a)(). Adequacy of representation involves two inquiries: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and () will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Rutter & Willbanks Corp. v. Shell Oil Co., 1 F.d 0, - (th Cir. 00). First, there is no conflict between Plaintiffs or their counsel and other class members. Representative Plaintiffs are homeless people who have been both victims and front lines witnesses two of which, Burton and Peterson, served in the military of the wrongs described herein and have decided, despite their economic circumstances, that they have no choice but to stand up on behalf of themselves and the other homeless in Denver. Second, the undersigned counsel is an experienced civil rights litigator dedicating every aspect of his practice and experience to the vigorous prosecution of this cause from a researched concern that the fundamental rights of a vulnerable class of people are being systematically violated. Rutter & Willbanks Corp. v. Shell Oil Co., 1 F.d 0, - (th Cir. 00). The work required to arrive at this point evidences the commitment and competency of the undersigned. Undersigned has taken declarations in homeless shelters, held organizational meetings at the Central Denver Public Library (recognized as the main daytime homeless shelter in the city), vetted Plaintiffs, experts, performed over and above due diligence prior to bringing this putative class action before this Honorable Court. Professionally, undersigned is well-qualified having engaged successfully in some of the most challengingly complex litigation in the federal legal system ranging from postconviction death penalty work (AEDPA, Federal Habeas Corpus), capital appeals in Post- Katrina New Orleans to numerous USC Sec. 1 actions addressing mass solitary PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

24 confinement and the ultra vires behavior of state agencies, international whistleblower defense in which electronic discovery, wikis, metadata, ESI were at issue, lead counsel in a RICO trial with seven defendants and voluminous discovery, asset forfeiture defense, parallel civil-criminal proceedings, air piracy, first degree murder, international extradition, federal Writs of Mandamus navigating constitutional deprivations through the context of U.S. treaties, class action and complex trial work. The undersigned, in good standing with numerous Courts including the U.S. District Court of Washington D.C. and the U.S. Court of Appeals. For Veteran s Claims, is also experienced with the issues facing homeless persons and the veterans, sadly, who make up many of their ranks. Fed. R. Civ. P. (g)(1) provides that unless a statute provides otherwise, a court that certifies a class must appoint class counsel. Factors relevant to the appointment of class counsel are the work counsel has done in identifying or investigating potential claims in the action; counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action; counsel's knowledge of the applicable law; and the resources that counsel will commit to representing the class. Maez v. Springs Automotive Group, LLC, F.R.D. 1, (D.Colo. 0). All required factors of R. (a)() are met. IV. CLASS CERTIFICATION IS APPROPRIATE PURSUANT TO (B)() 0 1. Certification under Rule (b)() is appropriate when the Defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

25 Fed. R. Civ. P. (b)(). "Civil rights cases against parties charged with unlawful, class based discrimination are prime examples" of Rule (b)() classes. Amchem Prods., Inc. v. Windsor, 1 U.S. 1, 1 (1). Indeed, Rule (b)() was adopted in order to permit the prosecution of civil rights actions. Walters v. Reno, 1 F.d, (th Cir. 1. The writers of Rule intended that subsection (b)() foster institutional reform by facilitating suits that challenge widespread rights violations of people who are individually unable to vindicate their own rights. Baby Neal v. Casey, F.d, (d Cir. 1).. Here, the City and remaining Defendants have systematically conducted sweeps of homeless people in Denver in which their property has been confiscated and destroyed. Again, whether their policies, practices and conduct are constitutional is a merits-based question, but what is incontrovertible is that the widespread sweeps and seizures of property are institutional. See Exhibits A-D in which Defendants and other city government officials are using city government group s to plan these orchestrated sweeps. Defendants policy and practice are being applied to a cohesive class of persons so thoroughly disenfranchised that they cannot bring these claims individually and for whom injunctive relief would bring great benefit. Respectfully, this is a textbook R. (b)(). 0. The Tenth Circuit recently summarized the requirements of Rule (b)(): 0 1 Rule (b)() imposes two independent, but related requirements upon those seeking class certification. First, plaintiffs must demonstrate defendants' actions or inactions are based on grounds generally applicable to all class members. Second, plaintiffs must also PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

26 establish the injunctive relief they have requested is appropriate for the class as a whole. Together these requirements demand cohesiveness among class members with respect to their injuries[.] This cohesiveness, in turn, has two elements. First, plaintiffs must illustrate the class is sufficiently cohesive that any class-wide injunctive relief satisfies Rule (d)'s requirement that every injunction state its terms specifically; and describe in reasonable detail... the act or acts restrained or required. Second, cohesiveness also requires that class members' injuries are sufficiently similar that they can be remedied in a single injunction without differentiating between class members. Rule (b)()'s bottom line, therefore, demands at the class certification stage plaintiffs describe in reasonably particular detail the injunctive relief they seek such that the district court can at least conceive of an injunction that would satisfy Rule (d)'s requirements, as well as the requirements of Rule (b)(). Stricklin, F.d at -100 (internal quotation marks, citations, brackets omitted) These requirements are fully satisfied here. All class members have suffered the same injury: deprivation of property due to Defendants policy and conduct. Plaintiffs have described an injunction that would remedy all class members injuries, and that satisfies the strictures of Rule (d). (See Plaintiffs Complaint, Prayer for Relief asking this Court to enjoin the widespread policy of Defendants that is the formally organized and executed conduct of seizing and destroying Plaintiffs property without regard for the Fourth Amendment bar against unreasonable searches and seizures, the Eighth Amendment ban against cruel and unusual punishment and the Fourteenth Amendment requirements of due process and equal protection.) PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

27 1. This case does not involve the Court in individualized inquiries. See Shook v. El Paso County, F.d, 0 (th Cir. 00) (Shook II). This case is consistent with other cases in which (b)() certification has been approved by the Tenth Circuit when Plaintiffs concretely ask that the defendants be ordered to cease certain behaviors. Id. at 0. This is exactly what Plaintiffs are doing here: stop taking and destroying our property without concern for our civil rights. Again, this is textbook Rule (b)(). a. DEFENDANTS HAVE ENGAGED IN A COMMON PRACTICE WITH RESPECT TO THE CLASS AS A WHOLE MAKING INJUNCTIVE RELIEF APPROPRIATE Certification under (b)() is appropriate here because Defendants have acted and refused to act on grounds generally applicable to the entire class. See Walters, 1 F.d at. Defendant s policies regarding their treatment of the property of homeless persons are generally applicable to the entire class defined above. Permanent injunctive and corresponding declaratory relief is appropriate with respect to the class as a whole. V. MONEY DAMAGES ARE SECONDARY AND DO NOT PRECLUDE CLASS CERTIFICATION UNDER (b)() Rule (b)() class actions can include claims for monetary damages so long as such damages are not the predominant relief sought, but are clearly secondary to the primary claim for injunctive or declaratory relief. See In Re: Motor Fuel Temperature Sales Practices Litigation quoting WalMart v Dukes, 0 WL 1, at *0. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

28 The Tenth Circuit has found that where plaintiffs principally seek monetary relief, district courts do not abuse their discretion by refusing to certify a class under Rule (b)(). See Fincher ex rel. Fincher v. Prudential Prop. Cas. Ins. Co., Case Nos. 0-1 and 0-, 0 WL, at *1-1 (th Cir. April 0, 0); Monreal v. Potter, F.d 1, 1- (th Cir. 00); Boughton v. Cotter Corp., F.d, (th Cir. 1) quoting pg. In Re: Motor Fuel Temperature Sales Practices Litigation.. To determine whether money damages predominate, the court should examine the specific facts and circumstances of each case, focusing predominantly on the plaintiff s intent in bringing the suit. Walmart, F.d at 1. The amount of damages at issue is not particularly relevant. Walmart, F.d at 1.. The instant matter is concerned with the dignity of a class of thousands of disregarded homeless being systematically stripped of their rights and property. The injunctive and declaratory relief predominate as the forms of relief sought, while the requested monetary relief is incidental. There is no bar to certification under R. (b)(). VI. SCOPE OF CLASS CERTIFICATION EXTENDS TO (b)() 0 1. Plaintiffs' claims further support certification under Rule (b)() because questions of law or fact common to the class predominate over any questions affecting individual members, and the class action is superior to other available methods for the fair and efficient adjudication of the controversy. Fed. R. Civ. P. (b)(). PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

29 a. COMMON QUESTIONS OF LAW AND FACT PREDOMINATE. The Rule (b)() predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. Amchem Prods., 1 U.S. at. There really are no significant variations in individualized damage issues in this case, but even if there were the Tenth Circuit has held that they are in no way sufficient to defeat a finding of predominance. Wallace B. Roderick Revocable Living Trust, F. d, 10 ( th Cir. 01). 0. There are numerous common issues that predominate in this case that relate to the nature of Defendants policies and practices and the nature and extent of their liability. Specifically, Plaintiffs will establish by common evidence: (a) The nature of Defendants policies and practices toward the homeless, including: the nature of their sweeps or raids upon the homeless, the immediate seizure and destruction of the property of the homeless, the absence of meaningful notice or opportunity to get out of the way of Defendants destructive raids, the failure to store any of the seized property, and the cost and feasibility of that storage; (b) That Defendants policies, which result in the irrevocable destruction of Plaintiffs property, are without probable cause and violate Plaintiffs constitutional rights against unreasonable search and seizure under the Fourth Amendment to the United States Constitution and U.S Code Sec. 1; (c) That Defendants policies fail to give adequate notice or an opportunity to retrieve property once it has been taken and violate Plaintiffs constitutional rights to Due Process of Law under the Fourteenth Amendment of the United States Constitution and U.S. Code Sec. PLAINTIFFS MOTION FOR CLASS CERTIFICATION -

30 ; (d) That Defendants policies are intended to single out homeless people, have the purpose and effect of depriving homeless people of their property and driving homeless people from the city of Denver and are based on Defendants animus towards this disfavored group and lack a rational relationship to any stated legitimate government interest and therefore violate Plaintiffs constitutional rights to Equal Protection of the Laws under the Fourteenth Amendment of the United States Constitution and U.S. Code Sec. 1; (e) That Plaintiffs policies violate the ban against Cruel and Unusual Punishment as they deprive this class of persons of the belongings that they depend on to survive in the extreme climate conditions that commonly exist in Denver therefore violating their Eighth Amendment rights and U.S. Code Sec 1; (f) Whether and to what extent certain Defendants are liable to the Class for punitive damages, and the amount of punitive damages to which the plaintiff Class is entitled. 1. As stated by the court in Dornberger v. Metropolitan Life Insurance Corp., 1 F.R.D. (SDNY 1): Generally speaking, if the action complained of on behalf of the putative class members arises out of a single set of operative facts, then the commonality requirement will have been satisfied. If that common nucleus of operative facts forms the central issue in the case, even if individualized issues of proof are present, the predominance hurdle will have been cleared. Dornberger at para Bottom line: a common nucleus of operative facts forms the central issue of this case, i.e. Defendants policy of seizing and destroying homeless persons property as part of their policy of sweeping homeless out of Downtown Denver. The variations herein are de PLAINTIFFS MOTION FOR CLASS CERTIFICATION - 0