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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2155-WJM-CBS
RAYMOND LYALL,
GARRY ANDERSON,
THOMAS PETERSON,
FREDRICK JACKSON,
BRIAN COOKS, and
WILLIAM PEPPER,
Plaintiffs,
v.
CITY OF DENVER, a municipal corporation,
Defendant.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION, AND CERTIFYING A RULE 23(b)(2) CLASS

Before the Court is Plaintiffs’ Motion for Class Certification. (ECF No. 15.)
Defendant “City of Denver” (in reality, the City and County of Denver, hereinafter
“Denver”) opposes this motion. (ECF No. 58.)
For the reasons explained below, Plaintiffs’ motion is granted in part and denied
in part. More particularly, Plaintiffs’ motion is denied without prejudice to the extent
Plaintiffs seek damages and/or class certification under Federal Rule of Civil Procedure
23(b)(3). Plaintiffs’ motion is granted, however, to the extent Plaintiffs seek injunctive
relief, and the Court will therefore certify a Rule 23(b)(2) class. Finally, Plaintiffs’ Motion
to Stay Proceedings Pending Adjudication of Plaintiffs’ Motion for Class Certification
(ECF No. 105) is denied as moot.

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I. BACKGROUND
Denver bans camping on public or private property without express permission
from someone with authority over the property in question. See Denver Muni. Code
§ 38-86.2. Under this ordinance, “camp” (as a verb) means
to reside or dwell temporarily in a place, with shelter. The
term “shelter” includes, without limitation, any tent, tarpaulin,
lean-to, sleeping bag, bedroll, blankets, or any form of cover
or protection from the elements other than clothing. The
term “reside or dwell” includes, without limitation, conducting
such activities as eating, sleeping, or the storage of personal
possessions.
Id. § 38-86.2(d)(1). The public property to which this ban extends expressly includes
any street, alley, sidewalk, pedestrian or transit mall, bike
path, greenway, or any other structure or area encompassed
within the public right-of-way; any park, parkway, mountain
park, or other recreation facility; or any other grounds,
buildings, or other facilities owned or leased by the city or by
any other public owner, regardless of whether such public
property is vacant or occupied and actively used for any
public purpose.
Id. § 38-86.2(d)(3).
Plaintiffs are all homeless individuals living on Denver’s streets who believe they
have been unlawfully affected by this ordinance. They do not challenge the ordinance
itself as unconstitutional. (See ECF No. 54 at 3 n.2 (“The constitutionality of Denver
Municipal Code 38[-]86.2 is not expressly challenged here.”).) They instead challenge
Denver’s actions apparently to enforce the ordinance through what Plaintiffs call the
“Homeless Sweeps.” (Id. ¶ 9.) Plaintiffs define “Homeless Sweeps” more specifically
as “where more than 10 Denver Police, workers of the [Department] of Public Works
and, sadly, inmates at the local county jail, are sent in by the City of Denver to seize the
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possessions of Plaintiffs and Plaintiff Class without regard for their rights.” (Id. at 19
n.7.) Plaintiffs accordingly focus on what they regard as the seizure and destruction of
their personal property during the Homeless Sweeps, allegedly in violation of their
Fourth Amendment right against unreasonable searches and seizures; their Fourteenth
Amendment right to due process of law; and their Fourteenth Amendment right to equal
protection. (Id. at 31–34.)
Plaintiffs assert that Homeless Sweeps have taken place on October 24, 2015;
December 15, 2015; March 8–9, 2016; July 13, 2016; and August 20, 2016. (Id.
¶¶ 53–60.) With the exception of the July 13 and August 20 incidents, Plaintiffs claim
they personally witnessed these Sweeps and that persons working for or on behalf of
Denver seized and discarded their property during these Sweeps. (See ECF Nos. 15-7
¶ 6 (declaration of Plaintiff Jackson discussing the December 15 Sweep), 15-8 ¶¶ 5–7
(declaration of former plaintiff Jerry Burton discussing the December 15 and March 9
Sweeps), 15-9 ¶¶ 7–10 (declaration of Plaintiff Lyall discussing the October 24,
December 15, and March 8–9 Sweeps).)
Plaintiffs’ information regarding the July 13 Sweep comes through non-party
Terese Howard, who is not homeless, but advocates on behalf of the homeless. (See
ECF No. 15-11.) Howard reports witnessing the police ticketing homeless individuals
on July 13, and then hearing “from friends on the streets” that a particular encampment
in the same place was cleared out, apparently later that day. (Id. ¶ 7.)
It is not clear whether any Plaintiff, or any person known to Plaintiffs, witnessed
the August 20 Sweep.

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According to Plaintiffs, each Sweep follows essentially the same pattern. Usually
without warning, various individuals working on Denver’s behalf (Denver Police,
Department of Public Works employees, and sometimes work-release inmates from the
Denver County Jail) arrive and order the homeless individuals to vacate the premises
with their belongings. If a homeless individual does not vacate, his or her possessions
are allegedly seized and thrown immediately into garbage trucks brought in by the
Public Works employees.1
Denver disputes most every aspect of Plaintiffs’ story. Denver claims that most
of the Sweeps were unconnected from any organized enforcement of the camping ban
ordinance, and, in any event, that Denver always provides advance notice of its
intention to clean up a homeless encampment; that it only immediately disposes of
obvious trash; that it preserves and stores all other unclaimed belongings; that it gives
homeless individuals information on where and how to retrieve those belongings; and
that Plaintiffs’ own evidence demonstrates all of this. (See ECF No. 58 at 2–8.)
II. LEGAL STANDARD
As the party seeking class certification, Plaintiff must first demonstrate that all
four prerequisites of Federal Rule of Civil Procedure 23(a) are clearly met. Shook v. El
Paso Cnty., 386 F.3d 963, 971 (10th Cir. 2004); see also Tabor v. Hilti, Inc., 703 F.3d
1206 (10th Cir. 2013). These threshold elements consist of the following: (1) the class
is so numerous that joinder of all members is impracticable; (2) there are questions of

1

The parties’ filings routinely refer to these trucks as “dump trucks.” From the
photographs in the record, it is clear that these are typical garbage collection trucks, not the sort
of open-topped dump trucks used for hauling dirt or debris. (See ECF No. 54 at 21, 26.)

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law or fact common to the class; (3) the claims or defenses of the representative party
are typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a).
If Plaintiffs prove they have met these threshold requirements, they must then
demonstrate that the action falls within one of the three categories set forth in Rule
23(b). Shook, 386 F.3d at 971. Here, Plaintiffs seek certification pursuant to Rules
23(b)(2) and (3).
The party seeking to certify a class bears the strict burden of proving the
requirements of Rule 23. Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006). In
determining the propriety of a class action, the question is not whether a plaintiff has
stated a cause of action or will prevail on the merits, but rather whether the
requirements of Rule 23 are met. Anderson v. City of Albuquerque, 690 F.2d 796, 799
(10th Cir. 1982). When deciding whether the proposed class meets the requirements of
Rule 23, the Court accepts the plaintiff’s substantive allegations as true, though it need
not blindly rely on conclusory allegations and may consider the legal and factual issues
which the complaint presents. Shook, 386 F.3d at 968; see also Vallario v. Vandehey,
554 F.3d 1259, 1265 (10th Cir. 2009). T he Court should not pass judgment on the
merits of the case, but must conduct a “rigorous analysis” to ensure that the
requirements of Rule 23 are met. D.G. ex rel. Stricklin v. Devaughn, 594 F.3d 1188,
1194 (10th Cir. 2010).
The decision whether to grant or deny class certification “involves intensely
practical considerations and therefore belongs within the discretion of the trial court.”

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Tabor, 703 F.3d. at 1227.
III. PROPOSED CLASS
Plaintiffs propose the following class definition: “All persons in the City of Denver
who were, are, or will be homeless at any time after [August 26, 2014], whose personal
belongings have been or may in the future be taken or destroyed by one or more of the
Defendants.” (ECF No. 15 at 15.) 2
IV. ANALYSIS
A.

Relation to the Merits of Plaintiffs’ Claims
A major portion of Denver’s opposition to Plaintiffs’ certification motion could be

summarized as follows: “Nothing happened in the way Plaintiffs say it did and here is
how we are going to prove it.” For example, Denver argues that “Plaintiffs’ purported
common issues of law and fact—the nature of Denver’s policies, practices and conduct,
whether these policies, practices and conduct violate the class members’ constitutional
rights, and whether injunctive relief should be ordered—are wholly dependent upon the
presumed existence of this alleged policy.” (ECF No. 58 at 14.) But, says Denver
(citing much of its own evidence), every one of the alleged Sweeps took place under
differing circumstances, at the direction of differing authorities, and for different
reasons—so there is no common question that can generate a common answer. (ECF

2

Plaintiffs originally proposed that the class period begin on May 14, 2012, which would
be well outside the two-year statute of limitations for a damages claim under 42 U.S.C. § 1983.
See Colo. Rev. Stat. § 13-80-102(1)(g); Escobar v. Reid, 668 F. Supp. 2d 1260, 1286 (D. Colo.
2009). Plaintiffs’ Amended Complaint, filed after their certification motion, clarifies that they are
only seeking relief on behalf of “all homeless persons in the City of Denver from August 26,
2014 forward” (ECF No. 54 ¶ 46 (emphasis removed)), which is apparently tied to Plaintiffs’
original filing date of August 25, 2016.

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No. 58 at 14–17.)
Denver is simply wrong on this point. “The class certification rule requiring a
showing that questions common to the class predominate does not require that those
questions will be answered, on the merits, in favor of the class.” 7AA Charles Alan
Wright et al., Federal Practice & Procedure § 1785 (3d ed., Apr. 2017 update) (“Wright
& Miller ”). Denver will receive an opportunity to put forward its evidence, at summary
judgment and/or at trial. In that context, Denver may succeed in proving that all of the
alleged Sweeps were different and that no homeless person’s belongings were
confiscated and discarded in an unconstitutional manner. But Plaintiffs claim to the
contrary, and a number of them have submitted declarations attesting that they
personally witnessed the conduct that they allege. The Court cannot resolve that
dispute through class certification proceedings, but when it does resolve the dispute,
there is more than a fair chance that the resolution will generate a common answer.
“Rule 23 grants courts no license to engage in free-ranging merits inquiries at the
certification stage. Merits questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds,
133 S. Ct. 1184, 1194–95 (2013). None of Denver’s challenges on the merits relates to
the class certification standard. Accordingly, for the remainder of this order, the Court
will mostly ignore any argument from Denver that relies on proving that some event
happened differently than Plaintiffs claim, or that Plaintiffs have left out important
additional facts.

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B.

Rule 23(a)
The Court’s first task is to ensure that the Federal Rule of Civil Procedure 23(a)

requirements are satisfied as to the proposed class: (1) the class is so numerous that
joinder of all members is impracticable (“numerosity”); (2) there are questions of law or
fact common to the class (“commonality”); (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class (“typicality”); and
(4) the representative parties will fairly and adequately protect the interests of the class
(“adequacy”). The Court will address each of these considerations in turn.
1.

Numerosity

Plaintiffs claim that the numerosity requirement is satisfied because “there are
right now 5,500 homeless persons in the Denver Metro area” and the number whose
property has been seized “is over 3,000.” (ECF No. 15 at 18–19.) Denver has a
number of responses.
First, it claims that “the Denver Metro area” is the wrong geographic constraint,
given that the phrase normally refers to Denver itself along with the counties that
surround it, yet the camping ban ordinance applies only within Denver. (ECF No. 58 at
12.) But a homeless person who spends tonight in, say, Arapahoe County may be in
Denver tomorrow night—that is the nature of homelessness. Thus, the homeless
population within the Denver Metro area is a relevant consideration in the numerosity
analysis.
Second, Denver claims that Plaintiffs’ 3,000 figure contradicts Plaintiffs’ expert’s
calculations that about 600 homeless persons per year have their property seized in the
allegedly unconstitutional manner at issue here. (ECF No. 58 at 13 (citing ECF
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No. 15-12 ¶ 15).) But Denver never explains why 600 is too small a group to satisfy the
numerosity requirement.
Denver’s real objection appears to be that a class of homeless persons is
probably something that could never be accurately counted ahead of time, or during the
lawsuit itself. (See id. at 8 (attacking Plaintiffs’ proposed definition because it would
create a class “in a constant state of flux”), 12 (quoting inapposite case law for the
proposition that Plaintiffs must offer “some evidence of established, ascertainable
numbers” (internal quotation marks omitted)).) But Denver also understands that such
an argument is meritless, at least to the extent Plaintiffs seek to certify a Rule 23(b)(2)
class, as discussed in Part IV.C.2, below. (ECF No. 98 at 1–2 (disavowing any
challenge to ascertainability).) Indeed, a Rule 23(b)(2) class is “well suited for cases
where the composition of a class is not readily ascertainable; for instance, in a case
where the plaintiffs attempt to bring suit on behalf of a shifting prison population.”
Shook, 386 F.3d at 972.
The homeless population in Denver is likewise “shifting,” and the Court is
satisfied that it exists in sufficient numbers to reasonably infer that a sufficiently
numerous subset have been and will be exposed to enforcement of the camping ban in
a way that Plaintiffs claim is unconstitutional. For present purposes, the Court f inds
Plaintiffs’ expert’s estimate of 600 per year to be sufficiently credible. The Court does
not mean to suggest that something less than 600 would be insufficient, and the Court’s
ruling does not rest on the specific number alleged. The Court finds only that Plaintiffs
have met their burden at this stage to establish the Rule 23(a) numerosity requirement.
Cf. Pottinger v. City of Miami, 720 F. Supp. 955, 958 (S.D. Fla. 1989) (“the numerosity
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requirement has been met based upon a reasonable inference of the studies conducted
of the homeless population and the nature of homelessness”).
2.

Commonality

Denver’s commonality attack has already been summarized and rejected in Part
IV.A, above. Plaintiffs have established that common questions exist classwide, most
notably, whether Denver is engaging in the Homeless Sweeps in the manner alleged.3
Cf. Lehr v. City of Sacramento, 259 F.R.D. 479, 483 (E.D. Cal. 2009) (“There is no
question that the instant case presents common legal issues as to whether the City has
taken and destroyed the property of homeless individuals. Thus, commonality exists
because the evidentiary and legal arguments necessary to prosecute the instant claims
are nearly identical as to all class members.”).
Nonetheless, the Court finds that Plaintiffs’ proposed class definition, without
more, fails to satisfy the commonality requirement. A class of homeless persons
“whose personal belongings have been or may in the future be taken or destroyed by
one or more of the Defendants” (ECF No. 15 at 15) encompasses persons who may
have never been subject to the Homeless Sweeps, thus eliminating commonality.
The Court in its discretion finds that a narrower class definition would satisfy

3

In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), the Supreme Court analyzed
the evidence put forth by the putative class of a common policy of employment discrimination
and then announced that the class had “provide[d] no convincing proof of a companywide
discriminatory pay and promotion policy”; therefore, “they have not established the existence of
any common question.” Id. at 359. Contrary to Denver’s suggestion (see ECF No. 58 at 11,
14), the Wal-Mart decision does not give this Court authority to examine the merits in the way
Denver apparently wishes. In Wal-Mart, the Supreme Court concluded that the types of
evidence offered by the plaintiffs could never prove a common pattern of discrimination. See
564 U.S. at 349–60. It did not resolve a plain factual disagreement over whether any specific
action took place as the plaintiffs alleged.

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commonality, namely, “All persons in the City and County of Denver who were, are, or
will be homeless at any time after August 26, 2014, whose personal belongings have
been or may in the future be taken or destroyed without due process on account of the
City and County of Denver’s alleged custom or practice (written or unwritten) of sending
ten or more employees or agents to clear away an encampment of multiple homeless
persons by immediately seizing and discarding the property found there.” As will
become clear in the Rule 23(b) analysis, below, this definition will need further refining.
For present purposes, however, Plaintiffs satisfy the commonality requirement under
this class definition.
3.

Typicality

Plaintiffs allege that Denver has seized their property unconstitutionally, and that
is the practice they challenge on behalf of all other potential class members. Denver’s
contention that it may have had a lawful basis for seizing an individual Plaintiff’s
property in a particular instance (see ECF No. 58 at 18–19) is a merits question and
does not destroy typicality. Plaintiffs have met their burden on this requirement under
the Court’s revised class definition, above.
4.

Adequacy

Historically, the Tenth Circuit has framed the adequacy inquiry as follows: “(1) do
the named plaintiffs and their counsel have any conflicts of interest with other class
members and (2) will the named plaintiffs and their counsel prosecute the action
vigorously on behalf of the class?” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d
1180, 1187–88 (10th Cir. 2002). A year after this decision, however, the Supreme
Court added subdivision (g) to Rule 23, which deals specifically with the adequacy of
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counsel. See Fed. R. Civ. P. 23, Advisory Committee Notes to 2003 Amendments
(“Rule 23(a)(4) will continue to call for scrutiny of the proposed class representative,
while this subdivision [Rule 23(g)] will guide the court in assessing proposed class
counsel . . . .”). Accordingly, the Court will address Plaintiffs’ adequacy in this Part, and
will defer questions regarding Plaintiffs’ counsel’s adequacy to the Rule 23(g) analysis
in Part IV.D, below.
Denver’s adequacy challenge is essentially the same as its commonality and
typicality challenges (see ECF No. 58 at 19–20), and these challenges fail for the
reasons already stated. Moreover, the named Plaintiffs have so far shown themselves
to be adequate, including appearing at hearings before the Magistrate Judge. (See
ECF Nos. 39, 41, 47, 49, 52.) Plaintiffs have thus satisfied their burden to show
adequacy.
C.

Rule 23(b)
Plaintiffs must now establish that their proposed class action matches one of the

scenarios described in Rule 23(b). Plaintiffs argue that the scenarios described in
Rules 23(b)(2) and 23(b)(3) are both present here. As described in m ore detail below,
Rule 23(b)(2) addresses situations in which classwide injunctive relief is the most
appropriate remedy, while Rule 23(b)(3) requires a more complicated analysis into
whether common questions predominate over individual ones and whether a class
action would be superior over individual adjudication. Importantly, Rule 23 “provides no
opportunity for . . . [23(b)(2)] class members to opt out, and does not even oblige the
District Court to afford them notice of the action,” while 23(b)(3) class members “are

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entitled to receive ‘the best notice that is practicable under the circum stances’ and to
withdraw from the class at their option.” Wal-Mart, 564 U.S. at 362 (quoting Rule
23(c)(2)(B)).
1.

Effect of Seeking Certification Under Both Rules 23(b)(2) and 23(b)(3),
and of Seeking Both an Injunction and Damages

Plaintiffs’ request for certification under Rules 23(b)(2) and 23(b)(3) raises
difficulties that substantially overlap with their request both for an injunction against
future unlawful property seizures and for damages based on past unlawful seizure and
destruction. (See ECF No. 54 at 35.)
For many years, the prevailing wisdom has been that
if the court determines that both Rule 23(b)(2) and Rule
23(b)(3) apply, then it should treat the suit as having been
brought under Rule 23(b)(2) so that all the class members
will be bound. To hold otherwise would allow the members
to utilize the opt-out provision in Rule 23(c)(2), which in
some cases would thwart the objectives of representative
suits under Rule 23(b)(2).
7AA Wright & Miller § 1784.1, text accompanying nn.7 & 8 (footnotes omitted).
However, Rule 23(b)(2) does not, by its terms, contemplate money damages. Thus,
courts have long wrestled with the proper treatment of money damages when Rule
23(b)(2) was the most appropriate vehicle for the class action.
The Advisory Committee Notes state that Rule 23(b)(2) it is not intended f or
“cases in which the appropriate final relief relates exclusively or predominantly to
money damages.” Fed. R. Civ. P. 23, Advisory Committee Notes to 1966
Amendments. Based on this, courts have developed a number of methods for deciding
whether money damages “predominate” in a proposed Rule 23(b)(2) class. See 7AA
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Wright & Miller § 1784.1, text accompanying nn.15–42. These approaches have
involved various considerations, including whether damages automatically flowed from
a particular form of liability (such as statutory penalties) and whether reasonable
plaintiffs would still sue if the potential to recover damages did not exist. See id.4
The Supreme Court’s Wal-Mart decision partially resolved the question of the
appropriate predominance inquiry, holding that Rule 23(b)(2) “does not authorize class
certification when each class member would be entitled to an individualized award of
monetary damages.” Wal-Mart, 564 U.S. at 361. “[I]ndividualized monetary claims
[instead] belong in Rule 23(b)(3).” Id. at 362.5
A proposed class cannot avoid this dichotomy by offering some calculation that
extrapolates a supposedly representative individual damages claim to which each class
member would be entitled upon a finding of common liability. Wal-Mart explicitly
rejected such “Trial by Formula,” at least where the defendant has made a case that it
could have individual defenses to individual class members’ claims. 564 U.S. at 367.
Here, Plaintiffs’ certification motion entirely ignores the question of whether
damages are individualized. For the first time in their reply brief, however, they propose
“an inquiry into the average proprietary loss to Plaintiffs” because their alleged losses
are “highly uniform—blankets, sleeping bags, papers—[with] some factoring in for the

4

The Tenth Circuit has apparently never declared the appropriate analysis. See
Monreal v. Potter, 367 F.3d 1224, 1237 n.12 (10th Cir. 2004) (noting competing views but
avoiding the question).
5

Even so, the number and type of individual damages issues may counsel against
certification under Rule 23(b)(3). See Stender v. Archstone-Smith Operating Trust, 2015 WL
5675304, at *9–12 & n.5 (D. Colo. Sept. 28, 2015).

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seizure and destruction of priceless belongings along with the damages for mental and
emotional suffering.” (ECF No. 59 at 9.) Even assuming this argument is not forfeited
for untimeliness, it appears to be precisely the sort of Trial by Formula disapproved of in
Wal-Mart. Accordingly, the Court may not consider it when evaluating Rule 23(b)(2)
certification.
Nonetheless, this Court may certify a class action “with respect to particular
issues.” Fed. R. Civ. P. 23(c)(4). Thus, nothing prevents the Court from considering
the certifiability of Plaintiffs’ request for an injunction under Rule 23(b)(2) and the
certifiability of Plaintiffs’ request for damages under Rule 23(b)(3). Cf. Aho v.
AmeriCredit Fin. Servs., Inc., 277 F.R.D. 609, 619–20 (S.D. Cal. 2011) (certifying the
plaintiff’s declaratory and injunctive claims under Rule 23(b)(2) and plaintiff’s monetary
claims separately under Rule 23(b)(3)). The Court elects that approach.
2.

Rule 23(b)(2)

Rule 23(b)(2) permits class certification where “the party opposing the class has
acted or refused to act on grounds that apply generally to the class, so that final
injunctive relief or corresponding declaratory relief is appropriate respecting the class as
a whole.” “[T]hese requirements demand cohesiveness among class members with
respect to their injuries.” D.G., 594 F.3d at 1199 (internal quotation marks omitted).
This cohesiveness, in turn, has two elements. First,
plaintiffs must illustrate the class is sufficiently cohesive that
any classwide injunctive relief satisfies Rule 65(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 23(b)(2)’s bottom line,
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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 65(d)’s requirements,
as well as the requirements of Rule 23(b)(2).
Id. at 1199–200 (citations and internal quotation marks omitted; alterations
incorporated). Under these requirements, “[t]he fact that there is a factual dispute
concerning whether the requirement that defendant acted on grounds generally
applicable to the class is satisfied will not bar class certification.” 7AA Wright & Miller
§ 1775.
As to the first “cohesiveness” element, the Court has no difficulty forecasting the
specific terms of an injunction that would remedy Plaintiffs’ alleged injury. The
injunction could flatly bar the Sweeps. Or it could, for example, require Denver to post
notices of a certain type with specific language in certain places for a specific amount of
time ahead of any Sweep. The injunction could also establish procedures for handling
seized property. Thus, the first element is satisfied.
As to the second element, Plaintiffs claim that they have had property seized
without notice and/or without due process during the Sweeps. Thus, an injunction with
terms such as those just described could remedy their alleged injury and that of the
class as a whole. Plaintiffs have met their burden as to Rule 23(b)(2). However, given
that this analysis excludes retrospective relief (i.e., damages), the class certified under
Rule 23(b)(2) must be revised as follows: “All persons in the City and County of Denver
whose personal belongings may in the future be taken or destroyed without due
process on account of the City and County of Denver’s alleged custom or practice
(written or unwritten) of sending ten or more employees or agents to clear away an
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encampment of multiple homeless persons by immediately seizing and discarding the
property found there.”6
3.

Rule 23(b)(3)

Rule 23(b)(3) permits class certification where “questions of law or fact common
to class members predominate over any questions affecting only individual members,
and . . . a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.” As noted above (Part IV.C.1), the Court limits its analysis
here to Plaintiffs’ damages claim, meaning that any class certified under Rule 23(b)(3)
would need to be defined essentially as follows: “All persons in the City and County of
Denver whose personal belongings have been taken or destroyed without due process
at any time after August 26, 2014 on account of the City and County of Denver’s
alleged custom or practice (written or written) of sending ten or more employees or
agents to clear away an encampment of multiple homeless persons by seizing and
discarding the property found there.”
Plaintiffs proposed for the first time in their reply brief that damages may be
calculated through “an inquiry into the average proprietary loss to Plaintiffs, which are
highly uniform—blankets, sleeping bags, papers—[with] some factoring in for the
seizure and destruction of priceless belongings along with the damages for mental and
emotional suffering—all of which are easily ascertained according to testimony and
proof.” (ECF No. 59 at 10.) The Court could deem this argument forfeited. See United

6

Given the alleged injury and the proposed injunctive remedy, this definition need not
turn on whether the affected individual is actually homeless at the time of any alleged Sweep.
Therefore, the Court has excluded Plaintiffs’ proposed language limiting the class definition to
those who are or will be homeless.

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States v. Harrell, 642 F.3d 907, 918 (10th Cir. 2011) (arguments raised for the first time
in a reply brief are usually forfeited). The Court in its discretion reaches the argument
anyway and finds that it does not justify Rule 23(b)(3) certification.
Plaintiffs’ proposal smacks of the “Trial by Formula” that the Supreme Court
rejected in its Wal-Mart decision. To be sure, Wal-Mart specifically dealt with
certification under Rule 23(b)(2). Nonetheless, it grounded its reasoning in the Rules
Enabling Act’s prohibition against federal procedural rules that “‘abridge, enlarge or
modify any substantive right.’” Wal-Mart, 564 U.S. at 367 (quoting 28 U.S.C.
§ 2072(b)). Such a prohibition would appear to apply equally well to any attempt under
Rule 23(b)(3) to reduce damages to some sort of average per class member—depriving
Denver of the opportunity to challenge any particular class member’s claim.
Moreover, even if Plaintiffs’ proposed damages formula is appropriate, it could
still be overwhelmed by an antecedent question, namely, whether any particular class
member actually had property seized and destroyed in one of the Homeless Sweeps—
or in other words, whether a claimant actually falls within the class definition.
Consistent with due process, the Court can see no legal basis for depriving Denver of
an opportunity to make such a challenge. Accordingly, on this record, individual issues
would predominate in any Rule 23(b)(3) damages class, and certification is therefore
inappropriate.
The Court is aware, however, that from Plaintiffs’ perspective the difficulty
Denver might face in challenging a particular class member’s claim is due to Denver’s
own actions. In other words, if Denver in fact seized and destroyed Plaintiffs’
belongings, including forms of identification (as Plaintiffs allege), Denver should not
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then be able to claim that no Plaintiff can adequately prove his or her membership in
the class for purposes of seeking damages. If at summary judgment or trial it becomes
clear that Denver behaved as Plaintiffs allege, the Court may reconsider the potential of
a Rule 23(b)(3) damages class. Thus, the Court’s denial of certification in this respect
is without prejudice.
D.

Rule 23(g)
Finally, the Court must evaluate the adequacy of class counsel. In this analysis,

the Court “must consider”:
(i) the work counsel has done in identifying or investigating
potential claims in the action;
(ii) counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in the
action;
(iii) counsel’s knowledge of the applicable law; and
(iv) the resources that counsel will commit to representing
the class[.]
Fed. R. Civ. P. 23(g)(1)(A). Furthermore, this Court “may consider any other matter
pertinent to counsel’s ability to fairly and adequately represent the interests of the
class.” Id. 23(g)(1)(B).
As to items (i) and (iv) from the “must consider” list, 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
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proceedings in this case. The Court is somewhat concerned about Mr. FloresWilliams’s financial ability to pursue this case, for reasons explained below, but the
Court has no clear evidence of inability at this point.
As for item (ii), regarding Mr. Flores-Williams’s experience in class and complex
litigation, he represents that he 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 42 USC Sec. 1983
actions addressing mass solitary 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.
(ECF No. 15 at 23–24.) Mr. Flores-Williams does not attach a resume or any
documentation to back up this description, but the Court will accept his statements in
the briefing as an officer of the Court.
As for item (iii), and as for the catch-all of “any other [pertinent] matter,” the Court
has serious concerns. To begin, Mr. Flores-Williams has frequently displayed
ignorance of or dismissiveness towards rules and procedures, as illustrated by the
following:
•

He filed the certification motion at issue before any attorney for Denver
had made an appearance, and used that f act to justify his noncompliance
with the obligation to confer under D.C.COLO.LCivR 7.1(a). (See ECF
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No. 15-15.)
•

He again treated the duty to confer lightly with a discovery-related motion,
sending a conferral e-mail to Denver’s counsel on a Saturday and then
filing the motion on the afternoon of the same day, claiming, “No
response.” (ECF No. 31 ¶ 7.)

•

In the same motion, he simply announced his own interpretation of the
duty to confer, with no basis in law. (Id.)

•

Having elected to file the class certification motion so early in the case,
Mr. Flores-Williams then began filing additional or “supplemental” exhibits
in support of that motion, but without leave of Court. (See ECF Nos. 16,
28, 30.)

Although each of these, in isolation, might be considered a minor infraction, they
collectively suggest that Mr. Flores-Williams sees no value in attempting to cultivate a
useful working relationship with opposing counsel.
This unwillingness to work cooperatively is further illustrated by Mr. FloresWilliams’s response to Denver’s motion to dismiss individuals sued in their official
capacities. Denver’s motion cited long-standing authority for the notion that individuals
sued in their official capacities are redundant if the governmental entity for whom they
work is also a defendant (as Denver is here). (See ECF No. 61 at 3.) Denver’s position
was essentially irrefutable, but instead of acknowledging as much and choosing not to
oppose the motion, Mr. Flores-Williams argued—entirely without relevant authority—
that dismissing the individuals sued in their official capacity would mean that any victory
on his clients’ behalf would look less impressive (because of fewer Defendants) and
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perhaps would reduce his attorneys’ fee award under 42 U.S.C. § 1988. (See ECF
No. 63 ¶¶ 1–4.)
Mr. Flores-Williams’s approach to that motion mirrors a problem evident in his
class certification motion and causes the Court to question his ability to find and present
relevant legal authorities. The certification motion, thankfully, is not entirely devoid of
relevant authority, but Mr. Flores-Williams does not help his cause when the very first
case cited in his Argument section is Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir.
2007), which would not be good law even if the Supreme Court had never granted
certiorari on the Ninth Circuit’s eventual en banc decision.7 (See ECF No. 15 at 15; see
also id. at 20, 28.) Even assuming that Mr. Flores-Williams performs his research
through a resource (e.g., Google Scholar) that is not integrated with an automatic citechecking service,8 it is difficult to conceive how anyone experienced in class action
litigation—as Mr. Flores-Williams claims to be (see id. at 24)—could see “Dukes” and
“Wal-Mart” in a pre-2011 caption and assume without further investigation that any
portion of the case remains good law.

7

The 2007 Wal-Mart decision that Mr. Flores-Williams cites was withdrawn and
superseded by an amended panel opinion. See 509 F.3d 1168 (9th Cir. 2007). That amended
panel opinion was later declared non-citable when the Ninth Circuit elected to hear the case en
banc. See 556 F.3d 919 (9th Cir. 2009). The eventual en banc opinion more-or-less agreed
with the amended panel opinion, see 603 F.3d 571 (9th Cir. 2010), but the en banc opinion, of
course, was reversed by the Supreme Court in the decision discussed above.
8

This is the primary reason why the Court questions Mr. Flores-Williams’s financial
resources. If he had been using a service such as Westlaw or LexisNexis, it would have been
nearly impossible for him to miss the red flag or stop sign icons. These services are expensive,
however, prompting the Court to wonder whether Mr. Flores-Williams has avoided paying that
money and has instead relied on free online resources. The Court cannot fault such thrift, if
that is indeed the motive, but it does raise questions generally about his ability to sustain a
class-action lawsuit.

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The Court is reasonably convinced that all of the foregoing concerns flow from a
broader problem. From his filings, it is unmistakable that Mr. Flores-Williams is
thoroughly convinced of the moral righteousness of his clients’ cause. That is not
blameworthy in itself. It is, to the contrary, evidence that he will devote the necessary
time and energy to this lawsuit. In Mr. Flores-Williams’s case, however, it manifests
itself in troubling ways. A lawyer likely has no more dangerous blind spot than an
inability to see the case from the opposing point of view—a paradigmatic example of
“confirmation bias” if there ever was one. A lawyer who cannot imagine losing the case
stands a good chance of losing the case. Such a lawyer tends to do what Mr. FloresWilliams does, namely, ignore or quickly pass over the opposing party’s specific
arguments and instead lean on rhetoric intended to sham e the opposing party for
choosing to oppose.
One example, out of many possible examples, will suffice. As addressed above,
Denver has argued that the proposed class is not sufficiently definite. As also
addressed above, established legal authorities demonstrate that Denver is incorrect in
this instance. But instead of citing those legal authorities, Mr. Flores-Williams responds
as follows:
. . . Defendants[] want the Court to believe that this class is
impossible to cognize.
This class was certainly cognizable when Defendants were
meticulously planning sweeps and issuing media talking
points. This class certainly was cognizable when the City of
Denver used public donations meant for their food, shelter
and comfort to deprive them off [sic] food, shelter and
comfort. And this class was most certainly cognizable when
Defendants sent out a group email saying: “We MUST Take
Our River Back!!”
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From who[m]? Systemic civil rights violations are always
replete with this kind of “take-it-back” language. It is the
language of the dominant group that believes this is their
river, their land, their country and that the minority group
doesn’t belong here. When they say “take our river back”
down at the border, they are talking about Latinos. When
they say “take our river back” in Denver, they are talking
about the homeless. But then when the minority group
stands up for itself and says Ya basta, then ordinances are
suddenly benign, law enforcement is class and color blind,
there are no homeless people whom the city wants to sweep
out of certain areas in the name of business and economic
development—the law is just the law. In the Loving case
[i.e., Loving v. Virginia, 388 U.S. 1 (1967), in which the
Supreme Court declared laws prohibiting interracial marriage
to be unconstitutional], the state attorney had the temerity to
go in front of the Supreme Court and say that the Virginia’s
law wasn’t about race. Here, it’s an attempt to spin facts in
a way to make it appear that nothing has been going but the
mere enforcement of the law.
***
Well, sir, it is not your river to take back. It is the river of
truth and justice that belongs to everyone, that flows
throughout our best history, and waters the land with human
rights and dignity. If you stop by its banks and quietly listen,
you can sometimes hear the old refrain: this land is your
land, this land is my land….
(ECF No. 59 at 7–8, 10 (record citations omitted; emphasis and ellipses in original).)
Again, the Court does not fault Mr. Flores-Williams for believing so strongly in the
righteousness of his clients’ cause. Much good and important work has been done by
lawyers with such deep, authentic commitment. But the Court is genuinely concerned
that Mr. Flores-Williams will ultimately do his clients a disservice by failing to take
seriously Denver’s opposing arguments—or, more fundamentally, losing sight of the
fact that lawsuits are decided based on the facts in evidence and legal authorities, and
not on rhetoric.
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Having said all of this, the Court is aware that most of these instances of
troubling advocacy come from relatively early in this lawsuit, and Mr. Flores-Williams’s
more recent filings provide some hope that he is now approaching this case more
professionally. The Court repeats, moreover, that 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.
Ultimately, this is a very close call. If it were not for Mr. Flores-Williams’s unique
success in working specifically with the homeless population—in other words, if
Mr. Flores-Williams had been seeking to represent a class of laborers or investors or
even of prisoners—the Court would have refused to appoint him as class counsel, or at
least as sole class counsel. In these specific circumstances, however, the Court will
appoint him as class counsel, trusting that he will take seriously the concerns
expressed above and continue to improve his advocacy.
The Court nonetheless strongly encourages Mr. Flores-Williams to voluntarily
seek class co-counsel now to assist him in the future prosecution of this case. With this
Order, Mr. Flores-Williams is on notice that if the quality of his representation from this
point forward continues to display the sorts of deficiencies described above, the Court
may require him to associate class co-counsel. See Fed. R. Civ. P. 23(g)(1)(E)
(empowering court to “make further orders in connection with the appointment [of class
counsel]”); cf. Linney v. Cellular Alaska P’ship, 151 F.3d 1234, 1239 (9th Cir. 1998)
(approving district court’s decision to remedy a potential conflict of interest by
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appointing additional class counsel, while permitting original class counsel to remain as
such in light of their experience with the case).
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiffs’ Motion for Class Certification (ECF No. 15) is GRANTED IN PART and
DENIED IN PART to the extent stated below;

2.

The Court CERTIFIES a class under Federal Rule of Civil Procedure 23(b)(2)
defined as follows: “All persons in the City and County of Denver whose personal
belongings may in the future be taken or destroyed without due process on
account of the City and County of Denver’s alleged custom or practice (written or
unwritten) of sending ten or more employees or agents to clear away an
encampment of multiple homeless persons by immediately seizing and
discarding the property found there”;

3.

Mr. Jason Flores-Williams is APPOINTED as Class Counsel;

4.

Plaintiffs’ Motion for Class Certification is DENIED WITHOUT PREJUDICE to the
extent Plaintiffs seek damages and/or class certification under Federal Rule of
Civil Procedure 23(b)(3); and

5.

Plaintiffs’ Motion to Stay Proceedings Pending Adjudication of Plaintiffs’ Motion
for Class Certification (ECF No. 105) is DENIED AS MOOT.

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Dated this 27th day of April, 2017.
BY THE COURT:

William J. Martínez
United States District Judge

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