Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 1 of 28 No. 18-35053 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LISA HOOPER, BRANDIE OSBORNE, KAYLA WILLIS, REAVY WASHINGTON, individually and on behalf of a class of similarly situated individuals; THE EPISCOPAL DIOCESE OF OLYMPIA; TRINITY PARISH OF SEATTLE; REAL CHANGE, Plaintiffs-Appellants, v. CITY OF SEATTLE, WASHINGTON; WASHINGTON STATE DEPARTMENT OF TRANSPORTATION; ROGER MILLAR, SECRETARY OF TRANSPORTATION FOR WSDOT, in his official capacity, Defendants-Appellees. On Appeal from the United States District Court for the Western District of Washington The Honorable Ricardo S. Martinez Case No. 2:17-cv-00077-RSM BRIEF OF AMICI CURIAE OF DISABILITY RIGHTS WASHINGTON, et al. IN SUPPORT OF APPELLANTS J. Dino Vasquez WSBA #25533 Joshua Howard WSBA #52189 (Admission to 9th Circuit Pending) KARR TUTTLE CAMPBELL 701 Fifth Ave., Suite 3300 Seattle, WA 98104 Telephone: (206) 223-1313 Attorneys for Amici Curiae #1175901 v1 / 99988-500 Eric Tars PA Bar #94857 National Law Center on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Telephone: (202) 638-2535 Attorney for NLCHP Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 2 of 28 TABLE OF CONTENTS I. Statement regarding preparation........................................................................1 II. Introduction........................................................................................................1 III. Argument ...........................................................................................................2 A. B. Failure to certify this class will effectively foreclose the use of class actions to secure the property rights of our most vulnerable populations living outdoors. ....................................................2 1. The increase in the number of unsheltered homeless people is a national issue with a large impact on people living in states within the Ninth Circuit. ...........................................2 2. Unsheltered people are often members of our nation’s most vulnerable and marginalized populations.................................6 3. Sweeps cause serious harm to vulnerable and marginalized people ................................................................................................9 The evidentiary standard used by the District Court sets an impossibly high bar for homeless and unhoused people to meet for class certification. ..............................................................................12 1. The district court erred in finding that the elements of Rule 23(a) were not satisfied ...................................................................13 2. Without the use of class action litigation, the courthouse door is shut on homeless and unhoused people to enforce their property rights.........................................................................20 IV. Conclusion .......................................................................................................22 -i#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 3 of 28 TABLE OF AUTHORITIES Cases Alcantar v. Hobart Service, 800 F.3d 1047 (9th Cir. 2015) .............................. 14, 17 Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360 (7th Cir. 2015) ...................................16 Ellis v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) ........................ 14, 17 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) .................................18 In re D.C., 792 F.3d 96 (D.C. Cir. 2015).................................................................21 Jimenez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014).....................................16 Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150 (9th Cir. 2016) ...............15 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)................................ 13, 15, 16 Other Authorities Applied Survey Research, Seattle/King County Point-in-Time Count of Persons Experiencing Homelessness (2017)....................................................................8, 9 EL Meerwijk, JM Sevelius, Transgender Population Size in the United States: a Meta-Regression of Population-Based Probability Samples, American Journal of Public Health, 2017 ................................................................................................7 Nat’l Law Ctr. on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities (2016) .........................................5 National Institute on Deafness and Other Communication Disorders, U.S. Dept. of Health and Human Services, Aphasia ..................................................................11 National Law Center on Homelessness and Poverty, Tent City, USA: The Growth of America’s Homeless Encampments and How Communities are Responding (2017)..................................................................................................................5, 9 National Network to End Domestic Violence, Domestic Violence Counts 2013: A 24-Hour Census of Domestic Violence Shelters and Services, 1 (Sept. 2013) ......7 Office of Community Planning and Development, U.S. Department of Housing and Urban Development, The 2017 Annual Homeless Assessment Report to Congress, Part 1: Point-in-Time Estimates of Homelessness (2017)....... 3, 4, 7, 8 Regional Parks, Sacramento County, Latest Ranger Activity Data, Ranger Activity Reports....................................................................................................................6 - ii #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 4 of 28 S.F. Coalition on Homelessness, Punishing the Poorest: How the Criminalization of Homelessness Perpetuates Poverty in S.F., (March 2015) ..............................10 Tai Dunson-Strane and Sarah Soakai, The Effects of City Sweeps and Sit-Lie Policies on Honolulu’s Houseless, Univ. of Hawai’I at Manoa, Dep’t of Urban and Regional Planning (June 2015)......................................................... 10, 11, 12 The Yale Center for Dyslexia & Creativity, Dyslexia FAQ ....................................11 U.S. Department of Housing and Urban Development, 2017 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations (2017)..................................................................................................................3, 8 Washington State Department of Commerce, Why is Homelessness Increasing? (January 2017) ........................................................................................................4 Rules Fed. R. App. P. 29(a) .................................................................................................1 Fed. R. Civ. P. 23(a).................................................................................................13 Fed. R. Civ. P. 23(a)(3)............................................................................................17 Fed. R. Civ. P. 23(a)(4)............................................................................................19 Fed. R. Civ. P. 23(b) ................................................................................................21 Fed. R. Civ. P. 23(b)(2)..................................................................................... 13, 21 Fed. R. Civ. P. 23(b)(3)............................................................................................16 - iii #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 5 of 28 I. STATEMENT REGARDING PREPARATION Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), counsel states that this Brief was solely authored and funded by amici curaie and their respective counsel. No parties, parties’ counsel, or any other person, other than the amici curaie, its members, and its counsel have authored or contributed money intended to fund preparing or submitting this brief. II. INTRODUCTION Pursuant to Federal Rule of Appellate Procedure 29(a), the Homeless Rights Advocacy Project, Disability Rights Washington, Columbia Legal Services, Legal Voice, and the National Law Center on Homelessness and Poverty respectfully submit this brief in support of the Plaintiffs-Appellants Lisa Hooper, et al., requesting that this Court reverse the District Court’s Order Denying Class Certification. Descriptions of each amicus organization’s interest is set forth below. The parties have consented to the filing of this Amicus brief. The District Court’s denial of class certification misinterprets the class certification requirements and it creates an unreasonable bar to employing class actions as a vehicle for delivering justice for the individuals Amici seek to represent. Amici respectfully submit this brief to emphasize the harmful impact the District Court’s error will have on poor, vulnerable, and marginalized individuals -1#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 6 of 28 represented by Amici, including homeless people who are forced to live outside due to a lack of affordable housing options. III. A. ARGUMENT Failure to certify this class will effectively foreclose the use of class actions to secure the property rights of our most vulnerable populations living outdoors. People experiencing unsheltered homelessness are often members of our most marginalized groups, such as people with serious mental health or physical disabilities. In this case, which seeks to affirm the Constitutional and civil rights of such vulnerable people, the District Court held Plaintiffs to an impermissibly high evidentiary burden in demonstrating the existence of Defendants’ policies and practices that impact the entire purported class. This decision, if affirmed, would foreclose the use of class action litigation to enforce the rights of thousands of homeless people, who face multiple barriers to accessing the legal system. Without class action litigation, people living outdoors with legitimate and actionable complaints will find the courthouse door closed. 1. The increase in the number of unsheltered homeless people is a national issue with a large impact on people living in states within the Ninth Circuit. During the last ten days in January, when average Fahrenheit temperatures across most of the country range from below zero to the thirties, Continuums of Care -2#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 7 of 28 (COC)1 across the United States conduct Point-in-Time counts of people experiencing homelessness in their communities. Average Monthly Temperatures, The Weather Channel, https://weather.com/maps/averages/normal-temperature. Each COC conducts the count following U.S. Department of Housing and Urban Development (HUD) guidance, and submits the data it collects to HUD, which then compiles this data in its Annual Homeless Assessment Report (AHAR) to Congress. The most recent AHAR to Congress from PIT counts conducted on frigid nights in 2017 reveal a burgeoning national crisis of unsheltered people experiencing homelessness, a crisis with an enormous impact on people living outdoors in the Ninth Circuit. Office of Community Planning and Development, U.S. Department of Housing and Urban Development, The 2017 Annual Homeless Assessment Report to Congress, Part 1: Point-in-Time Estimates of Homelessness, 10 (2017) (available at https://www.hudexchange.info/resources/documents/2017-AHAR-Part-1.pdf) [hereinafter, “AHAR”]. Unsheltered homelessness accounted for the increase, as the number of people counted in unsheltered locations grew nine percent between 2016 and 2017. AHAR at 10. Though homelessness is not strictly an urban problem, most of this increase occurred in the 50 largest cities in the country. AHAR at 1. 1 The Continuum of Care Program is a federal program that provides funding to efforts by nonprofits, States, and local governments to address homelessness. Continuum of Care (COC) Program, HUD Exchange, U.S. Dept. of Housing and Urban Development, https://www.hudexchange.info/programs/coc/. -3#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 8 of 28 Specifically, at the time of the 2017 Point-in-Time count, Seattle was only the eighteenth largest city in the United States, but it had the third-largest population of homeless people. AHAR at 16. States in the Ninth Circuit have been hit especially hard by the increase in unsheltered populations. California, Nevada, Oregon, and Hawaii are the only four states in which more than half of all people experiencing homelessness were staying in unsheltered locations. AHAR at 12. The State of California alone had nearly half of all unsheltered people in the country.2 AHAR at 12. The state of Washington is also experiencing an unsheltered homeless crisis. According to the Washington State Department of Commerce, the number of people experiencing homelessness in Washington State has increased since 2013. See Washington State Department of Commerce, Why is Homelessness Increasing?, (January 2017) http://www.commerce.wa.gov/wp-content/uploads/2017/01/hau-whyhomelessness-increase-2017.pdf. The Washington State Department of Commerce specifically found, after reviewing a number of potential factors such as education, employment, family stability, and substance abuse, that the “main driver” of the state’s increase in homelessness was increasing rents. Id. 2 49% or 91,642 people. AHAR at 12. -4- #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 9 of 28 As the population of unsheltered people experiencing homelessness has increased across the country, so have encampments. The National Law Center on Homelessness & Poverty surveyed media reports to estimate the numbers of homeless encampments each year from 2007 through 2016, and found a 1,342% increase in the number of encampments reported across the country. National Law Center on Homelessness and Poverty, Tent City, USA: The Growth of America’s Homeless Encampments and How Communities are Responding, 21 (2017) (available at https://www.nlchp.org/Tent_City_USA_2017) [hereinafter “Tent City”]. Encampments have been reported in every state and the District of Columbia. Id. at 21. In response to growing encampments, many municipalities, including Defendants and many others in the Ninth Circuit, have criminalized sleeping outdoors and begun conducting “sweeps” of homeless encampments of the type at issue in this case. Nat’l Law Ctr. on Homelessness & Poverty, Housing Not Handcuffs: Ending the Criminalization of Homelessness in U.S. Cities 8 (2016), https://www.nlchp.org/documents/Housing-Not-Handcuffs [hereinafter “Housing not Handcuffs”]; SU Homeless Rights Advocacy Project, Seattle University School of Law Research Paper No. 15-19, Washington’s War on the Visibly Poor: A Survey of Criminalizing Ordinances and Their Enforcement (May 6, 2015), (available at http://web.archive.org/web/20180602011753/https://papers.ssrn.com/sol3/papers.cf -5#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 10 of 28 m?abstract_id=2602318; American Civil Liberties Union of Oregon, Decriminalizing Homelessness: Why Right to Rest Legislation is the High Road for Oregon (2017) (available at https://wraphome.org/wp- content/uploads/2017/08/ACLU-Decriminalizing-Homelessness_Report_v03.pdf); Western Regional Advocacy Project, California’s New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State (2016) (available at https://wraphome.org/wp-content/uploads/2016/06/NVL- Update-2016_Final.pdf.) Sacramento County alone closed 1,579 camps in 2016. Regional Parks, Sacramento County, Latest Ranger Activity Data, Ranger Activity Reports (last visited June 9, 2018) (available at http://www.regionalparks.saccounty.net/Rangers/Pages/Latest-Ranger-ActivityData.aspx). 2. Unsheltered people are often members of our nation’s most vulnerable and marginalized populations. Many people who are forced to live outside due to a lack of affordable and available housing options are members of the most marginalized groups in our society. They are people of color who, even when controlling for poverty, are more likely to experience homelessness than white people. Nat’L Law Ctr. On Homelessness & Poverty, Protect Tenants, Prevent Homelessness, 7 (2018) (available at https://www.nlchp.org/ProtectTenants2018). -6#1175901 v1 / 99988-500 Indeed, Black people Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 11 of 28 represent a full 39 percent of all homeless people, despite making up only 13 percent of the general population. AHAR. Hispanic people comprise 22 percent of the homeless population, but less than 18 percent of the general population. AHAR. Native American people make up nearly 3 percent of the homeless population but are only 1.5 percent of the general population. AHAR. They are members of the LGBTQ community. Indeed, 40% of unaccompanied homeless youth – meaning children who live on their own – identify as LGBTQ. Unaccompanied youth are far more likely to be unsheltered than the general homeless population.1 AHAR at 44. Further, unaccompanied youth experiencing homelessness are much more likely to identify as transgender. EL Meerwijk, JM Sevelius, Transgender Population Size in the United States: a MetaRegression of Population-Based Probability Samples, American Journal of Public Health, (2017) (available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5227946/#bib4).1 They are survivors of abuse and domestic violence. National Network to End Domestic Violence, Domestic Violence Counts 2013: A 24-Hour Census of Domestic Violence Shelters and Services, 1 (Sept. 2013) (available at http://nnedv.org/downloads/Census/DVCounts2013/Census13_FullReport_forweb _smallestFileSizeWhiteMargins.pdf. -7#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 12 of 28 They are people with disabilities, who are also particularly likely to experience unsheltered homelessness. U.S. Department of Housing and Urban Development, 2017 Continuum of Care Homeless Assistance Programs Homeless Populations and Subpopulations, 2 (2017) (available at https://www.hudexchange.info/resource/reportmanagement/published/CoC_PopSu b_NatlTerrDC_2017.pdf). Moreover, a “chronically homeless individual” is “an individual with a disability who has been continuously homeless for one year or more or has experienced at least four episodes of homelessness in the last three years where the combined length of time homeless in those occasions is at least 12 months.” AHAR at 2. In 2017, a shocking seventy percent of “chronically homeless individuals across the United States were staying in unsheltered locations such as under bridges, in cars, or in abandoned buildings.” AHAR at 62. In Seattle/King County, people experiencing chronic homelessness report much higher rates of psychiatric or emotional conditions, addiction disorders, post-traumatic stress disorder, chronic health problems, physical disability, and traumatic brain injury. All Home, Seattle/King County Point-in-Time Count of Persons Experiencing Homelessness, 48 (2017) (available at http://allhomekc.org/wp- content/uploads/2016/11/2017-Count-Us-In-PIT-Comprehensive-Report.pdf) [hereinafter, “King County Count Us In”]. In King County, during the 2017 Point- -8#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 13 of 28 in-Time Count, about 2,773 people were experiencing chronic homelessness, sixtyfour percent of whom were unsheltered. Id. at 12. 3. Sweeps cause serious harm to vulnerable and marginalized people As the number of homeless encampments has grown, local governments have increasingly resorted to policies that punish homeless people for living in public space. Tent City at 8. It is common for these policies to result in evictions of homeless encampments – or “sweeps” - like those conducted by Defendants. Sweeps of the sort engaged in by the Defendants are not new, and their impact on homeless people is sadly predictable. Numerous studies have shown that the primary result of sweeps is that homeless people lose some or all of the few possessions they have, with many secondary harms flowing as a result. In a 2011 survey by the Law Center of homeless service providers, advocates, and homeless individuals in 26 states, over 75% of Respondents reported that sweeps of homeless people in their communities have resulted in the loss of homeless persons’ valuables, medications, identification documents, or other personal items. National Law Center on Homelessness and Poverty, Criminalizing Crisis: The Criminalization of Homelessness in U.S. Cities, 21 (2017) available at https://www.nlchp.org/Criminalizing_Crisis. Similarly, a survey of homeless adults at three large homeless encampments in Honolulu, Hawai`i in February and March of 2015 found that the single largest effect of sweeps in that area was “significant -9#1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 14 of 28 property and economic losses”, including loss of property needed to survive in public space. Tai Dunson-Strane and Sarah Soakai, The Effects of City Sweeps and Sit-Lie Policies on Honolulu’s Houseless, Univ. of Hawai’I at Manoa, Dep’t of Urban and Regional Planning (June 2015) available at http://blog.hawaii.edu/durp/files/2015/06/Houseless-Honolulu-Report.small_.pdf. [hereinafter “Honolulu Report”]. The loss of these items can be devastating to homeless people. For example, the loss of identification documents can make it difficult, if not impossible, for someone to access employment, gain access to housing, or even to exercise their basic right to vote. Housing Not Handcuffs at 36. And, the loss of warm clothing, protective tents, and medication directly threaten the health of homeless people. Meanwhile, sweeps are ineffective at reducing homelessness. California’s state transportation agency eliminated 217 homeless encampments between July 2014 and February 2015, only to have some of them reopen the very same day.3 Housing Not Handcuffs at 30. Sweeps are often conducted, as in Seattle, when there are insufficient adequate alternative places to live. Because this will merely disperse, 3 The cost to taxpayers for this ineffective exercise of governmental power is significant. The City of San Francisco, for example, spends over $3 million a year cleaning encampments, and the state department of transportation spends an additional $1.3 million. S.F. Coalition on Homelessness, Punishing the Poorest: How the Criminalization of Homelessness Perpetuates Poverty in S.F., (March 2015) http://www.cohsf. org/Punishing.pdf. - 10 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 15 of 28 rather than reduce, homelessness, new encampments will inevitably reappear. Id. Indeed, sweeps can actually worsen the problem of unsheltered homelessness and make it less likely for people to enter or remain in homeless services. In a report from the University of Hawaii at Manoa, for example, 21% of homeless people subjected to sweeps reported that they were less able or less likely to seek shelter. Honolulu Report at 19. Neither the MDAR nor WSDOT Guidelines take into account and accommodate disability when providing notice of impending sweeps. ER Vol. 5, pp. 1157-1159. 4 People who are blind or have visual impairments likely cannot read posted notices, if they even know where they are. Id. p. 1167, ¶ 136. (notice, if posted is frequently posted in inconspicuous, out of the way areas). People with cognitive disabilities such as learning disabilities, dyslexia5, or aphasia6 and 4 Amici relies and refers to Appellant’s Excerpts of Records submitted with Appellant’s Brief. 5 Dyslexia is a neuro-cognitive disorder that causes difficulty reading, speaking, spelling, and language acquisition. It affects 20 percent of the general population. The Yale Center for Dyslexia & Creativity, Dyslexia FAQ, http://dyslexia.yale.edu/dyslexia/dyslexia-faq/. 6 Aphasia results from damage to the areas of the brain responsible for language; it can impair the understanding of written language. National Institute on Deafness and Other Communication Disorders, U.S. Dept. of Health and Human Services, Aphasia, https://www.nidcd.nih.gov/health/aphasia. Common causes of aphasia are stroke and traumatic brain injury. Id. - 11 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 16 of 28 intellectual disabilities may not be able to read or understand the notices, which are only provided written in English or occasionally Spanish. Id. p. 1169, ¶ 157. B. The evidentiary standard used by the District Court sets an impossibly high bar for homeless and unhoused people to meet for class certification. Marginalized and vulnerable people are often without the means and capacity to seek court intervention when their rights are violated. Homeless people who are subject to sweeps and the resulting loss of their outdoor homes and few possessions face considerable challenges in marshalling the proof and resources necessary to secure sorely needed relief from systemic rights violations. Navigating the criminal justice system can be difficult for anyone, but it can be nearly impossible for people without a permanent address, regular access to transportation, a safe place to store personal records, and few or no financial resources. Despite the extreme challenges facing Seattle’s unsheltered population, the District Court laid an unjustifiably heavy burden on the shoulders of the few individuals who managed to bring their grievances to the feet of our judicial system on behalf of themselves and others sharing their experiences. If affirmed, the District Court’s evidentiary standard would set an impossibly high evidentiary bar for homeless and unhoused people to meet at the class certification stage when attempting to enforce their civil rights. As a result, class certification for homeless people seeking to end systemic rights - 12 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 17 of 28 violations in states with very high numbers of unsheltered homeless people would be impracticable. 1. The district court erred in finding that the elements of Rule 23(a) were not satisfied A party seeking class certification under Rule 23(b)(2) must show it meets the conditions under Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014). A party seeking class certification must “affirmatively demonstrate” that there are, in fact, questions of law or fact common to the class. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). When analyzing whether the party has shown commonality, the court must conduct a “rigorous analysis” during which “it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. at 351 (internal quotation marks and citations omitted). Frequently, this rigorous analysis will overlap somewhat with the merits of the plaintiff’s claim, as “class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. As this Court recognized, however, “this does not mean that the plaintiffs must show at the class certification stage that they will prevail on the merits.” Parsons, 754 F.3d at 676 n. 19 (emphasis in the original). - 13 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 18 of 28 Yet in this case, the District Court held that Plaintiffs failed to satisfy commonality despite referring to numerous declarations and exhibits including photographs and videos describing and showing Defendants’ practices. ER. 0011. In doing so, the court he court’s held Plaintiffs to an impermissibly high evidentiary burden to demonstrate commonality, a burden more like that required for Plaintiffs to succeed on the merits. This Court has stated repeatedly, however, that a rigorous analysis of the evidence demonstrating a common question of law or fact should not be conflated “with an in-depth examination of the underlying merits. … To hold otherwise would turn class certification into a mini-trial.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011); see also Alcantar v. Hobart Service, 800 F.3d 1047 (9th Cir. 2015). Here, Plaintiffs provided over forty declarations and one hundred exhibits, including photographs and videos, demonstrating Defendants’ policies and practices regarding notice of the encampment sweeps, destruction of Plaintiff class’s property, and storage and accessibility, or lack thereof, of Plaintiff class’s property. Yet the District Court held that this evidence was not enough to demonstrate a common question of law or fact because the video and photographic evidence does not specify at what point during the sweeps the depicted property destruction occurred. ER Vol. 1, p. 0011:17-22. This reasoning errs in two ways. First, the timing of the property - 14 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 19 of 28 destruction is only relevant for Plaintiffs’ due process claims, not the privacy or search and seizure claims. The Supreme Court noted in Wal-Mart that [t”]he Rule “does not require that all questions of law or fact raised in the litigation be common…; indeed, even a single question of law or fact common to the members of the class will satisfy the commonality requirement,” Wal-Mart, 564 U.S. at 36869 (internal quotations and citations omitted) (alteration omitted). Even if the proffered evidence were insufficient to identify a policy or practice of Defendants that allegedly violates the Plaintiffs’ due process rights, the Plaintiffs are still left with two claims that are not dependent on the timing of the property destruction. Second, the District Court in this case asked too much of the Plaintiffs with respect to the evidence they provided. By focusing on the timing of the videos and photographs depicting the property destruction, the District Court ignored the other evidence of improper notice Plaintiffs provided, such as photographs of posted notices and documentation of Defendants’ written policies regarding notice. In doing so, the court’s decision conflated the rigorous analysis required for class certification with an analysis of whether the Plaintiffs would ultimately prevail on their due process claims. This Court (and other circuit courts) routinely presuppose further fact-finding at trial to establish the existence of a policy or practice that, if proven, would establish liability with respect to the class. See e.g., Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1154 (9th Cir. 2016) (“If the company required - 15 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 20 of 28 sales associates to do work not ‘directly involved in selling’ and failed to compensate the sales associates for such work, then it violated California's minimum wage laws for all such employees. Thus, the complaint contains a “common contention” that easily “is capable of classwide resolution”: it is one type of injury allegedly inflicted by one actor in violation of one legal norm against a relatively small number of class members who all generally performed the same work. Dukes, 564 U.S. at 350, 131 S.Ct. 2541.”); see also, Jimenez v. Allstate Ins. Co., 765 F.3d 1161, 1164, 1166 (9th Cir. 2014) (“Under Rule 23(b)(3), the district court held that the common question of whether Allstate had an “unofficial policy” of denying overtime payments while requiring overtime work predominated over any individualized issues regarding the specific amount of damages a particular class member may be able to prove…. Proving at trial whether such informal or unofficial policies existed will drive the resolution of prong one of the Adoma test.”); Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 375 (7th Cir. 2015) (“We need not spend too much time analyzing whether the district court in Ross did or did not come to a conclusion about the merits of the question [of the existence of an unofficial policy], because our case law is clear that such proof is not required, only that it is capable of proof at trial through evidence that is common to the class rather than individual to its members.”). Here, plaintiffs posed a common question, which regardless of the answer, will drive the outcome of this litigation: - 16 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 21 of 28 “Whether Defendants have a practice and policy of seizing and destroying the personal property of people living outside without a warrant, probable cause, adequate notice, an opportunity to have a meaningful pre- or post-deprivation hearing, or an opportunity to retrieve vital personal property before its seizure or destruction?” ER Vol. 1, p. 0012:2-6. Whether proven or disproven, the answer will be foundational to answering questions of whether the defendant’s conduct violated the rights of the class as a whole. Plaintiffs raised a question that is “capable of class-wide resolution” for the 2,000 people affected by the alleged sweeps. Whether the plaintiffs’ factual allegations regarding the city’s conduct are proven true at trial will determine whether the claims for the class will prevail or perish with a single stroke. The District Court erred by making a pre-trial determination that the class claims were false. In essence, the District Court determined in “one stroke” that the class claims lacked sufficient proof of the existence of alleged practices. As held by this Court, evaluating “the merits rather than focusing on whether the questions presented – meritorious or not – were common to the class” constitutes an “error of law” in which a court is “thereby abusing its discretion.” Alcantar, 800 F.3d at 1053. The District Court’s error in finding that Plaintiffs lack commonality contributed to its further error in finding that Plaintiffs failed to establish typicality. Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims of the class.” Fed. R. Civ. P. 23(a)(3). “The test of typicality is - 17 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 22 of 28 ‘whether other members have the same or similar injury, whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class members have been injured by the same course of conduct.’” Parsons, 754 F.3d at 685 (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). The District Court found that the named Plaintiffs’ testimony “implicitly acknowledged” that the notice provided to them by Defendants was constitutionally adequate. ER Vol. 1, p. 0014-0015. Based on this and other specious findings, the District Court determined that Plaintiffs failed to establish that the risk of injury alleged by Plaintiffs is the same, or similar, to the risk of injury which proposed class members may be exposed to. Id. The District Court improperly required Plaintiffs to demonstrate identical risks of injury, rather than apply the appropriate standard which requires only similar risks. Parsons at 685. In doing so, the District Court seemingly ignored the fact that the destruction of wet property – a significant amount of property owned by homeless people in Seattle’s wet climate – is done without any notice at all to Plaintiffs and proposed class members alike. It also placed undue weight on the testimony of lay witnesses about the constitutional adequacy of the notice that they - 18 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 23 of 28 received. Adequate notice is a legal term of art, and a lay person cannot reasonably be expected to evaluate whether a notice complies with due process requirements.7 Moreover, the District Court’s opinion ignores the reality of sweeps. People struggling for survival outside in Seattle are a diverse group, as is any group of thousands of unsheltered homeless people. Some are disabled with limited mobility. Some are mentally ill. Some cannot read. Some do not speak English. The facts of each sweep, such as the type and amount of property at risk of destruction, will not be identical under such circumstances. But Plaintiffs suffer a similar risk of property loss with proposed class members because all are subject to Seattle’s pattern and practice of destroying the property of homeless people who have insufficient alternative locations to live and store their belongings. Finally, the District Court erred in finding that Plaintiffs failed to establish adequacy of representation. Rule 23(a)(4) is satisfied when plaintiffs can demonstrate “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). Because the District Court erroneously found that Plaintiffs’ failed to establish commonality and typicality, it 7 The District Court’s decision suggests, incorrectly, that the provision of some notice is relevant to the question of whether Plaintiffs’ Fourth Amendment rights were violated by Defendants’ challenged sweeps practices. However, provision of some advanced notice – even constitutionally adequate notice - does not defeat Plaintiffs’ Fourth Amendment claims. - 19 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 24 of 28 also found that Plaintiffs cannot represent the proposed class. In so finding, the District Court determined that Ms. Osborne is not an adequate class representative because she indicated she cannot represent anyone but herself. ER Vol. 1, p. 0016. Again, the District Court improperly relied upon the testimony of a lay witness about a legal term of art to deny class certification to Plaintiffs. Ms. Osborne is not a lawyer, and she cannot be expected to understand the legal distinction between recounting her own experiences on behalf of her herself versus on behalf of herself and all others similarly situated. To require such legal sophistication is asking far too much of poor, marginalized, and vulnerable people who are already significantly disadvantaged in their ability to access justice. Housing Not Handcuffs at 37. 2. Without the use of class action litigation, the courthouse door is shut on homeless and unhoused people to enforce their property rights. The District Court’s error must be reversed in order to preserve the viability of using class actions to vindicate the rights of marginalized groups who might otherwise have no hope of bringing their claims before a court. People experiencing homelessness face unique barriers to collecting and maintaining evidence for litigation, especially when they repeatedly lose property such as paperwork and cell phones with cameras in encampment sweeps conducted by Defendants. Amici have considerable experience working with and representing people experiencing and atrisk of homelessness. When people do not have stable housing, it is more difficult - 20 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 25 of 28 for them to keep track of time, collect and maintain paperwork, and get to appointments. These barriers make utilizing the legal system on an individual basis extremely difficult for homeless people to assert their rights; disabilities often magnify these barriers. See generally, Washington State Access to Justice Board Impediments Committee, Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts (2006) (available at www.wsba.org/atj). Further, as amici can attest, pro bono civil legal aid services do not have the capacity and resources to provide individual representation to the thousands of people experiencing homelessness who have had their property rights trampled in encampment sweeps. As the Ninth Circuit has acknowledged, Fed. R. Civ. P. 23(b) was intended for civil rights cases. Parsons v. Ryan, 754 F.3d at 686; see also In re D.C., 792 F.3d 96, 102 (D.C. Cir. 2015) (“And Rule 23(b)(2) was intended for civil rights cases.”). Amici, who generally represent marginalized, low-income, vulnerable populations like the Plaintiffs, use class action litigation to address systemic discrimination and civil rights violations. Yet, if class action litigation is limited to classes that have the capacity to win a “mini-trial” at the class certification stage to prove the practices violating their civil rights, people experiencing homelessness – as well as other similarly marginalized groups of people - will be shut out of the legal system. - 21 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 26 of 28 In requiring Plaintiffs to prove the merits of their claims at class certification, the District Court created a standard that would be difficult for any plaintiff class to meet, let alone a class of individuals struggling to survive without stable shelter. With further investigation and discovery, Plaintiffs may be able to prove the merits of their claims at the appropriate stage of the litigation. However, the District Court erroneously determined class certification is the time to litigate the underlying merits of factual claims, thereby depriving thousands of individuals a practical opportunity to have their legal rights fairly evaluated. IV. CONCLUSION Amici respectfully request that this Court reverse the District Court’s denial of Plaintiffs’ motion for class certification. CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because this brief contains 4727 words, excluding the portions of the brief exempted by Fed. R. App. P. 32(f); and 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface (Times New Roman, size 14 font) using Microsoft Word 2010. - 22 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 27 of 28 Dated this 11th day of June, 2018. s/ J. Dino Vasquez J. Dino Vasquez, WSBA #25533 KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: 206-223-1313 Facsimile: 206-682-7100 Email: dvasquez@karrtuttle.com Eric Tars PA Bar #94857 National Law Center on Homelessness & Poverty 2000 M St., N.W., Suite 210 Washington, DC 20036 Telephone: (202) 638-2535 Attorney for NLCHP - 23 #1175901 v1 / 99988-500 Case: 18-35053, 06/11/2018, ID: 10904819, DktEntry: 20, Page 28 of 28 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on June 11, 2018. I certify that all participants in this case are registered CM/EFC users and that service will be accomplished by the appellate CM/ECF system. Dated this 11th day of June, 2018. s/ J. Dino Vasquez J. Dino Vasquez, WSBA #25533 KARR TUTTLE CAMPBELL 701 Fifth Avenue, Suite 3300 Seattle, WA 98104 Telephone: 206-223-1313 Facsimile: 206-682-7100 Email: dvasquez@karrtuttle.com - 24 #1175901 v1 / 99988-500