319 F.R.D. 558
D. Colo.2017Background
- Denver Municipal Code §38-86.2 bans "camping" on public property; plaintiffs are homeless individuals who challenge Denver’s enforcement practices ("Homeless Sweeps") rather than the ordinance facially.
- Plaintiffs allege city agents (police, public works employees, sometimes jail inmates) conducted multiple sweeps (2015–2016), seizing and discarding personal property without notice or process.
- Denver contends it provides advance notice, removes only obvious trash, preserves and stores unclaimed belongings, and provides information for retrieval.
- Plaintiffs moved to certify a class under Fed. R. Civ. P. 23(b)(2) (injunctive/declaratory relief) and 23(b)(3) (damages); Denver opposed.
- The court performed a Rule 23 analysis and: certified a narrowed Rule 23(b)(2) class for prospective injunctive relief; denied certification under Rule 23(b)(3) for damages without prejudice; appointed Jason Flores‑Williams as class counsel but expressed concerns about his litigation practices and urged co‑counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 23(a) prerequisites (numerosity, commonality, typicality, adequacy) | Class of homeless persons affected by sweeps is numerous, shares common legal/factual issues, representatives typical and adequate | Sweeps were varied, not a common policy; class definition is overbroad and fluid | Court found numerosity, typicality, adequacy met; narrowed class definition to cure commonality concerns and found commonality satisfied |
| Certifiability under Rule 23(b)(2) for injunctive relief | Seek classwide injunctive/declaratory relief to stop future unconstitutional property seizures; class membership shifting is acceptable | Argues factual differences among sweeps defeat classwide relief | Court certified a Rule 23(b)(2) class limited to persons whose belongings may in the future be taken/discarded without due process under the alleged practice of sending ≥10 agents to clear encampments |
| Certifiability under Rule 23(b)(3) for damages | Damages can be calculated by average loss formula and common liability | Damages are individualized; class membership and entitlement involve individualized proof and defenses; Wal‑Mart bars "trial by formula" | Court denied Rule 23(b)(3) certification for damages (without prejudice), concluding individual issues would predominate and defendant must be allowed to challenge individual claims |
| Appointment and adequacy of class counsel (Rule 23(g)) | Jason Flores‑Williams has experience and community ties organizing homeless clients | Denver pointed to counsel’s procedural missteps and other concerns | Court appointed Flores‑Williams as class counsel but expressed serious concerns about procedural lapses, research, and advocacy style; encouraged co‑counsel and warned court may require association later |
Key Cases Cited
- Shook v. El Paso Cnty., 386 F.3d 963 (10th Cir. 2004) (describing Rule 23(a) prerequisite analysis)
- Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006) (burden on party seeking class certification)
- Tabor v. Hilti, Inc., 703 F.3d 1206 (10th Cir. 2013) (discretionary nature of class certification)
- Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455 (2013) (limits on merits inquiry at certification stage)
- Wal‑Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) (Rule 23(b)(2) cannot authorize class certification when each member would require individualized monetary awards; rejects "trial by formula")
- D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) (cohesiveness requirement for Rule 23(b)(2) injunctions)
- Pottinger v. City of Miami, 720 F. Supp. 955 (S.D. Fla. 1989) (numerosity inference from homeless population studies)
- Lehr v. City of Sacramento, 259 F.R.D. 479 (E.D. Cal. 2009) (commonality in suits challenging destruction of homeless property)