Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 1 of 70 No. 18-35053 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KAYLA WILLIS; REAVY WASHINGTON; LISA HOOPER; BRANDIE OSBORNE, 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; ROGAR MILLAR, Secretary of Transportation for WSDOT, in his official capacity, Defendants – Appellees. APPEAL FROM U.S. D.C. FOR WESTERN WASHINGTON, SEATTLE, No. 2:17-cv-00077-RSM HONORABLE RICARDO S. MARTINEZ APPELLEE CITY OF SEATTLE’S ANSWERING BRIEF PACIFICA LAW GROUP SEATTLE CITY ATTORNEY’S OFFICE LLP Matthew J. Segal, WSBA #29797 Taki V. Flevaris, WSBA #42555 Athanasios P. Papailiou, WSBA #47591 Patrick Downs, WSBA #25276 Gregory Narver, WSBA #18127 Carlton Seu, WSBA #26830 Gary Smith, WSBA #29718 1191 Second Avenue, Suite 2000 Seattle, WA 98101-3404 Telephone: 206-240-1700 Facsimile: 206-240-1750 matthew.segal@pacificalawgroup.com taki.flevaris@pacificalawgroup.com athan.papailiou@pacificalawgroup.com i Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 2 of 70 TABLE OF CONTENTS I. INTRODUCTION .....................................................................................1 II. COUNTERSTATEMENT OF ISSUES ..................................................2 III. COUNTERSTATEMENT OF THE CASE ............................................3 A. The Housing Crisis and Unauthorized Encampments. ...................3 B. The City’s Policies and Practices for Clean-Ups. .............................4 1. The City implements preventive measures as appropriate. ...........5 2. The City provides notice before each clean-up. ............................5 3. The City provides outreach and offers alternative shelter.............6 4. The City stores personal property still on-site...............................7 5. The City stores property for 70 days and offers free return delivery. .........................................................................................9 6. Obstructions and immediate hazards require modified procedures. .....................................................................................9 7. The City continually monitors and improves its practices. .........10 C. D. The Proposed Class Representatives ...............................................12 1. Lisa Hooper .................................................................................12 2. Brandie Osborne ..........................................................................13 3. Kayla Willis .................................................................................14 4. Reavy Washington .......................................................................15 5. Plaintiffs’ goal for this lawsuit is to stop all clean-ups. ..............16 Procedural History ............................................................................18 ii Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 3 of 70 1. Plaintiffs sued the City and WSDOT for alleged constitutional violations......................................................................................18 2. Plaintiffs unsuccessfully moved for a temporary restraining order. .....................................................................................................18 3. The parties engaged in extensive discovery. ...............................19 4. Plaintiffs moved for both class certification and a preliminary injunction. ....................................................................................20 5. The district court denied both class certification and a preliminary injunction. ................................................................25 6. Plaintiffs appealed only the denial of class certification. ............27 IV. SUMMARY OF ARGUMENT ..............................................................28 V. STANDARD OF REVIEW.....................................................................29 VI. ARGUMENT ...........................................................................................30 A. VII. Plaintiffs Did Not Establish a Common Question to Be Litigated on a Class-Wide Basis. ......................................................................30 1. To prove commonality, Plaintiffs had to make a facial attack against a formal policy or prove an arguably unlawful practice. 31 2. Plaintiffs failed to make a genuine facial attack against a formal Seattle policy. ..............................................................................34 3. Plaintiffs failed to prove an arguably unlawful Seattle practice. 38 4. The debate over the “significant proof” standard is tangential and moot. ............................................................................................52 B. Plaintiffs Did Not Show that They Have Typical Claims. .............58 C. Plaintiffs Did Not Show that They Would Be Adequate Representatives. .................................................................................59 CONCLUSION ........................................................................................60 iii Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 4 of 70 TABLE OF AUTHORITIES Federal Cases Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952 (9th Cir. 2013) ................................................................................33 Amador v. Baca, 299 F.R.D. 618 (C.D. Cal. 2014)..........................................................................53 Comcast Corp. v. Behrend, 569 U.S. 27 (2013) ........................................................................................ 30, 33 Corbin v. Time Warner Entm’t-Adv./Newhouse P’ship, 821 F.3d 1069 (9th Cir. 2016) ..............................................................................57 Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304 (9th Cir. 1977) ....................................................................... 30, 55 Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015 (9th Cir. 2012) ..............................................................................33 Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402 (6th Cir. 2012) ......................................................................... 54, 56 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ....................................................................... 59, 60 Hanon v. Dataprods. Corp., 976 F.2d 497 (9th Cir. 1992) ......................................................................... 56, 58 Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003) ................................................................................34 In re Nexium Antitrust Litig., 777 F.3d 9 (1st Cir. 2015) ............................................................................. 54, 56 Jamie S. v. Milwaukee Pub., Schs., 668 F.3d 481 (7th Cir. 2012)......................................................................53 Jiminez v. Allstate Ins. Co., 765 F.3d 1161 (9th Cir. 2014) ..............................................................................33 iv Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 5 of 70 Kamm v. Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975) ................................................................................55 Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012) ...................................................................... passim Marlo v. United Parcel Serv., Inc., 639 F.3d 942 (9th Cir. 2011) ................................................................................54 Martin v. City and Cnty. Of Honolulu, No. 15-00363, 2015 WL 5826822 (D. Haw. Oct. 1, 2015)............... 35, 37, 44, 46 Mazzei v. Money Store, 829 F.3d 260 (2d Cir. 2016) .................................................................................54 Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) .............................................................................................32 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ...................................................................................... 55, 58 Padgett v. Wright, 587 F.3d 983 (9th Cir. 2009) ......................................................................... 44, 45 Parsons v. Ryan, 754 F.3d 657 (9th Cir. 2014) ........................................................................ passim Priddy v. Health Care Serv. Corp., 870 F.3d 657 (7th Cir. 2017) ................................................................................54 Torres v. Mercer Canyons, Inc., 835 F.3d 1125 (9th Cir. 2016) ..............................................................................33 Trevino v. Gates, 99 F.3d 911 (9th Cir. 1996) ..................................................................................32 United States v. Salerno, 481 U.S. 739 (1987) .............................................................................................34 United States v. Wahchumwah, 710 F.3d 862 (9th Cir. 2013) ......................................................................... 51, 52 v Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 6 of 70 United States v. Wilson, 472 F.2d 901 (9th Cir. 1972) ................................................................................44 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ..................................................................................... passim Wang v. Chinese Daily News, Inc., 737 F.3d 538 (9th Cir. 2013) ................................................................................55 Wharton v Danberg, 854 F.3d 234 (3d Cir. 2017) .................................................................................54 State Cases State v. Pippin, 200 Wn. App. 826 (2017) .............................................................................. 45, 46 Federal Statutes 28 U.S.C. § 1292(a)(1) .............................................................................................28 Federal Rules Federal Rule of Civil Procedure 23(a) .................................................. 26, 29, 30, 31 Ninth Circuit Rule 28 ...............................................................................................62 vi Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 7 of 70 I. INTRODUCTION The conditions at unauthorized encampments on public property often threaten the health and safety of both the campers and the community. To address these threats while working to overcome a broader housing crisis, Appellee the City of Seattle (“Seattle” or the “City”) has adopted and applied a set of rules for cleaning up problematic encampments in its jurisdiction. Seattle’s rules are among the most compassionate in the nation. Plaintiffs are unhoused persons and advocates who strongly disagree with Seattle’s policy decision to conduct cleanups of problematic encampments. Plaintiffs sued the City, arguing that its clean-up policies and practices are unconstitutional with respect to the disposition and storage of property. After extensive discovery, however, Plaintiffs failed to provide evidence of any arguably unlawful policy or practice. As a result, the district court denied Plaintiffs’ request for class certification. The district court also found Plaintiffs unlikely to prevail on the merits of their claims, and refused a preliminary injunction, but Plaintiffs have not appealed that ruling. Instead, Plaintiffs claim solely that the district court abused its discretion in denying class certification on the same record. In this interlocutory appeal, Plaintiffs and amici argue that in challenges to governmental programs such as the City’s encampment clean-ups, “significant proof” of allegedly unlawful practices should not be required to obtain class 1 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 8 of 70 certification. This argument is both meritless and moot. For one thing, the Supreme Court has adopted the “significant proof” standard, for reasons that apply whenever class certification is sought to challenge allegedly common practices. More importantly, Plaintiffs’ evidence in this case is inadequate regardless of the particular standard of proof that is applied. Plaintiffs also failed to show that they had typical claims or could serve as adequate representatives. For each of these reasons, the district court properly exercised its discretion to deny certification. The City of Seattle respectfully requests that this Court affirm. II. 1. COUNTERSTATEMENT OF ISSUES Whether the district court’s denial of class certification based on a lack of commonality was within its discretion, when Plaintiffs (a) did not identify any formal Seattle clean-up policy that is arguably unlawful on its face, and (b) failed to present evidence of any common, arguably unlawful City practice. 2. Whether the district court’s denial of class certification based on a lack of typicality was within its discretion, when Plaintiffs lost property in different ways—none due to an unlawful City policy or practice—and admittedly have refused to heed notices or accept services. 3. Whether the district court’s denial of class certification based on a lack of adequate representation was within its discretion, when Plaintiffs showed 2 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 9 of 70 no pattern of unlawful City conduct and disclosed that their underlying motive for this lawsuit is to stop all clean-ups regardless of how they are conducted. III. A. COUNTERSTATEMENT OF THE CASE The Housing Crisis and Unauthorized Encampments. The City has faced an unprecedented housing crisis, which has contributed to a rising number of unhoused individuals living outside in unauthorized encampments on public property. SER 1225. Individuals at such encampments lack adequate shelter, and unfortunately, many struggle with mental illness and drug abuse. See SER 557, 0568-73, 1550. Over time, unauthorized encampments have become increasingly unsafe. See SER 1550. Many encampments have been plagued with increased violence, amplified drug use, covert sex trafficking, large uncontrolled fires, hazardous and biological waste, and other harmful conditions. See SER 1548-50, 1607-10, 161617, 1544-45, 1602-03; see also SER 483-86, 491-95, 514-16. Encampment conditions also present “a substantial risk of a number of infectious diseases,” including tuberculosis, hepatitis, and hantavirus, among others, which can be spread by vermin or other animals, in addition to human-to-human transmission. See SER 560-63, 565-66, 570-72. Unhoused persons living at such encampments have a “much higher” risk of exposure to these health and safety concerns, as do the workers responsible for cleaning up these encampments. SER 567-68, 572-73. 3 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 10 of 70 The encampments also pose a danger to neighboring communities and the public at large, including from the spread of disease, fires, and criminal activities. See, e.g., SER 438-40, 567, 1549-50. Encampments have also obstructed access to public spaces dedicated to other uses—such as parks, playgrounds, sidewalks, or courthouses—or posed an immediate risk of serious injury or death. See SER 1602, 1616-17. For example, the City has had to intervene when two RVs caught fire, resulting in “flames and smoke billowing up directly underneath the Spokane Street Viaduct”; when encampments blocked public sidewalks, forcing pedestrians to walk in the street; and when tents were “partially hanging over a freeway[.]” SER 59, 438-39, 488, 493-95, 500, 518. B. The City’s Policies and Practices for Clean-Ups. In response to the problematic conditions at unauthorized encampments, the City enacted administrative rules—the MDARs 1—for cleaning up such encampments, including procedures governing notice, outreach, and the disposition of personal property. See SER 1200-23. The City developed these rules with input from stakeholders, including advocates for the unhoused. SER 1198. The City implements the MDARs on its own property and on state property within city 1 “MDARs” refers collectively to the adopted Multi-Departmental Administrative Rules 17-01 and the concurrently adopted FAS Encampment Rule 17-01, which reflect the City’s written policies for cleaning up unauthorized encampments. See SER 1200-23. 4 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 11 of 70 limits for the Washington State Department of Transportation (“WSDOT”). SER 908, 1551. As explained below, the City proactively attempts to prevent the need for clean-ups, but when circumstances necessitate a clean-up, the City follows the MDARs. 1. The City implements preventive measures as appropriate. To prevent the need for clean-ups, the City investigates and evaluates unauthorized encampments for problematic conditions on an ongoing basis. See SER 1144-45. Depending on the circumstances, the City has offered various services and resources, including garbage pickup, portable restrooms, wood chips, or litter pickup. SER 70, 483. But even when the City provides such services, conditions may continue to deteriorate and eventually necessitate a clean-up. See,e.g., SER 483-86, 514-16. During a clean-up, the City clears the unauthorized encampment completely to allow for completion of cleaning and decontamination, to identify and make needed repairs, and to protect City workers, among other reasons. SER 484-86. 2. The City provides notice before each clean-up. Once an unauthorized encampment is identified as problematic, the MDARs require the City to provide notice before conducting a clean-up. The City posts written notice between 72 hours and seven days before the clean-up. See SER 487, 1220. The notice includes the day and time the clean-up will start, the location of 5 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 12 of 70 the clean-up, a dedicated phone number for retrieving any property that is stored from the clean-up, and contact information for accessing shelter alternatives. See id. Notice is posted around the perimeter of the encampment; at entranceways; on trees, poles, and other surfaces; and on tents. SER 146. The City has progressed from using stickers to taping “whole sheets” containing the notice onto each tent. See, e.g., SER 116, 1175-78. The City also provides oral notice of the clean-up, including whenever outreach is conducted. SER 146-47, 167-69. 3. The City provides outreach and offers alternative shelter. The MDARs also require the City to provide outreach and offer alterative shelter before each clean-up. SER 1221, 1138. Outreach workers assess “the number of individuals on site and their specific needs.” SER 1138. Outreach may be provided several times before the clean-up. Id.; SER 167-68. In addition to funding and providing “active, individualized problem-solving,” the City supports an array of alternative shelter options, including traditional shelters, tiny houses, authorized encampments, and the Navigation Center, which offers flexible, lowbarrier shelter to unhoused persons. SER 430-31, 1139, 1195. Outreach is also offered during each clean-up. SER 184-86, 428. The morning of a clean-up, outreach staff confirm sufficient slots are available to offer the campers at the site. SER 171-73. Staff will tailor offerings to each individual. 6 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 13 of 70 SER 175-76, 184-86. Through these efforts, the City has helped numerous persons secure alternative housing. See SER 429-31, 442-43, 0514, 1139-40. 4. The City stores personal property still on-site. It is only after this extensive notice and outreach that the City proceeds to the clean-up phase of the process. At each clean-up, the City has at least one designated “Field Coordinator” who oversees the entire clean-up process and oversees the disposition of belongings. See SER 89-93, 488. At the outset, the Field Coordinator confirms that proper notice was provided per the MDARs and that all required workers are present, including outreach, police, and clean-up personnel. See SER 89-93. If the clean-up is allowed to proceed, the Field Coordinator will engage with every camper regarding the disposition of their belongings and offer storage. See SER 89-93, 69-97. Specifically, the City offers campers large storage bags, assists campers to pack their personal property for moving or storage, and helps load and transport property into vehicles or out of the clean-up area. SER 487-88. Once campers are done moving personal property they want to keep or have utilized the City’s offer of storage, they often indicate items to be discarded. Id. Despite the lengthy notice and outreach procedures, unclaimed tents and other items often remain at each clean-up. SER 459, 465, 478, 487-88. Sometimes this is because campers move the items they want to keep, leaving remaining items 7 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 14 of 70 behind to be discarded. See id. In each case, the Field Coordinator inspects all items—including piles of debris—to determine whether the abandoned items should be stored. See SER 92-93, 144; see also SER 64-69. Per the MDARs, the Field Coordinator evaluates if each item (1) “is reasonably recognizable as belonging to a person,” (2) “has apparent utility in its present condition and circumstances,” and (3) is neither “hazardous” nor “reasonably expected to become a hazard during storage[.]” SER 1218, 1222. The MDARs instruct City personnel to err on the side of treating items as property based on “the totality of the circumstances.” SER 1218. Only after this inspection is completed does the Field Coordinator authorize the clean-up crew to enter the encampment. See SER 488, 490, 496-97. During a clean-up, Field Coordinators often encounter various unclaimed items that are hazardous or likely to become hazardous in storage, which the MDARs do not require the City to store. SER 489, 1222. Such items include used drug needles, items contaminated with human or animal waste, moldy items, and soaking wet items that are not dryable during the clean-up. SER 489. Urine is treated as a serious health risk not only due to diseases that humans carry, but also diseases in rats and other animals, which can be transmitted through airborne exposure, especially in wet conditions. Id.; SER 560-63, 565-66, 570-71. In addition to increasing the risk of disease transmission, items that are soaking wet 8 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 15 of 70 are likely to be moldy and to generate mold in storage, raising further concerns over respiratory health and the preservation of property. SER 489, 561, 563-65, 571-72. Thus, items contaminated with urine or soaking wet are generally not stored. SER 489. Otherwise, the Field Coordinator aims to store all property. See SER 62, 75-76, 129. 5. The City stores property for 70 days and offers free return delivery. The City also assists unhoused persons in recovering their stored property. SER 478, 437, 519. The City logs items stored during a clean-up using inventory sheets, whether an unhoused person requested storage or the City determined unclaimed property was storable. See SER 150, 1222. Field Coordinators post notice at the site when unclaimed items have been stored. See SER 478. The notices include a City phone number devoted to calls for retrieving property from clean-ups. SER 487, 525-26. Calls to that number are now routed directly to a Field Coordinator. Id. Once the owner of the stored property is identified, the City will deliver the property for free. See id. The City stores all property from a cleanup for at least 70 days. See SER 89, 1222. 6. Obstructions and immediate hazards require modified procedures. When unauthorized encampments present obstructions or immediate hazards, the MDARs allow the City—on a case-by-case basis—to expedite 9 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 16 of 70 procedures for notice, outreach, and storage. See SER 122-25, 1218. Obstructions are defined as encampments in public parks, sidewalks, rights-of-way, or that otherwise “interfere” with areas “essential to the intended use” of public property. SER 1218. Immediate hazards are defined as encampments that pose a “risk of serious injury or death” to campers or others, other than from “increased exposure to the elements[.]” Id. Even for clean-ups of obstructions or immediate hazards, notice is still provided to the extent practicable. See SER 1219, 521. In some cases, the City has been able to provide a day of notice, a full 72 hours, or more. See SER 58, 74. The City also offers outreach during the clean-up, and sometimes beforehand. See SER 177-78, 180-81. Although campers are asked to remove belongings from the area immediately, the Field Coordinator will offer storage and work with each camper to assist with the move—giving more time as appropriate under the circumstances—and inspect any unclaimed items for storable property. See SER 116-17, 466, 471-72, 475-77. Storage and retrieval procedures remain the same. See SER 1222-23. 7. The City continually monitors and improves its practices. Since the onset of the housing crisis, the City has continued to improve its policies and practices by monitoring its work and correcting any deviations as they are discovered. To promote compliance and consistency, the City documents 10 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 17 of 70 notice, outreach, clean-up, and storage activities in “site journals.” SER 41-42. Many of these are published on a dedicated City website. See SER 1147. The City also tasked its Office for Civil Rights (“OCR”) to monitor clean-ups. SER 441. From September through December 2016, OCR conducted a “critical assessment” to “improve[e] the City’s efforts to respond to unauthorized encampments.” Id. As a result, the City’s practices improved, becoming “more organized and coordinated” over time. See SER 258, 441-42. When the City discovers deviations from the MDARs, it works to correct them. For example, on a few past occasions notices were put up three days before a clean-up, but not a full 72 hours prior. SER 522. When the City’s program manager saw such notices being printed, she caught the error and “exercised additional oversight and quality control” for the “calculation of an accurate 72hour period.” Id. Plaintiffs and their declarants have admitted the City’s clean-ups are being conducted with consistency and clarity, notwithstanding any disagreements over past events. See SER 1118-19 (acknowledging clarity and that “people are not losing as much stuff because they know . . . well ahead of time”); SER 200 (“Q. So the practice of noting a certain day and then not showing up has stopped? A. As far as I know, it has[.]”); SER 253-54 (acknowledging consistency). 11 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 18 of 70 The City strives to conduct all of this work with compassion and care. SER 1226. This is reflected in the City’s decision to hire staff who are firmly committed to helping and respecting unhoused persons. See SER 490, 427-28, 444-445, 83-89, 157-60, 187-190. This is further reflected in the City’s robust training for its personnel, especially its Field Coordinators. See, e.g., SER 490, 4448, 93-103, 164-66. Overall, the MDARs are among the most protective rules nationwide for addressing unauthorized encampments. SER 1198, 1552. C. The Proposed Class Representatives The individuals named as Plaintiffs in this lawsuit have proposed to act as representatives for all unhoused persons who keep belongings on public property in Seattle. ER 1478-79. Yet, as described below, these four unhoused persons have varied and differing complaints about the disposition of their personal belongings in clean-ups, none of which demonstrate unlawful activity by the City much less an unlawful policy or practice. 1. Lisa Hooper In early 2015, Plaintiff Lisa Hooper was expelled from both a “Work for Housing Program” and an authorized encampment known as “Nickelsville” for violating rules, including for abusive behavior. SER 934-40. Ms. Hooper then moved into an area known to her and others as the “Jungle”, where she would “get posted” with a 72-hour eviction notice and then “just move to another area” until 12 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 19 of 70 she “got posted again.” SER 941-43, 1387 n.5. Ms. Hooper did not lose any property in clean-ups during her time in the Jungle, because she would “leave before the 72 hours was up” to “avoid . . . people showing up and having to rush[.]” SER 952-53. Eventually, Ms. Hooper met her current partner and moved to “his site,” a specific location near the Jungle known as “Freedom Hill.” SER 935, 937-38. She then adopted her partner’s method of dealing with clean-ups: waiting until workers “showed up,” only then packing her belongings “in shopping carts,” pushing the carts “down the hill,” and then coming back “as soon as the last personnel left.” SER 938-39. Due to this practice, Ms. Hooper sometimes lost belongings in cleanups, either because she accidentally left items behind to be discarded, or because she intentionally left items behind as garbage simply to create work for the cleanup crew. SER 953-58, 966. She has not lost property any other way in clean-ups. SER 958. 2. Brandie Osborne Plaintiff Brandie Osborne was expelled from two authorized encampments in Kirkland by her peers for rules violations. SER 1007. She then “came to Seattle because this is where the resources are[.]” SER 982; see also SER 988 (“We have a great city to be homeless in[.]”). Ms. Osborne moved into Nickelsville, but was expelled by fellow unhoused persons—again for violating rules. SER0985. She 13 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 20 of 70 then began camping in the Jungle, where she goes to a “spot” until “they come and post,” and then she will “go back” to a previous location or “skip ahead a couple of feet” to her next spot. SER 986-87, 990, 993. Ms. Osborne testified that she lost property in approximately four out of ten clean-ups. SER 997, 999. She remembers “being in several spots that have always been posted” and claims that on occasion, after being given the time to move most of her items off-site, her “last set” of items—such as pallets or tent poles—have been discarded before she could “come back to retrieve” them. SER 998-1000. But she admits that she never asked for such remaining items to be preserved prior to leaving the site. SER 1000-01. 3. Kayla Willis Kayla Willis has camped in various unauthorized encampments, including the Jungle, another area known as the “Field,” in an area near Seattle’s football stadium, and at 10th Avenue and Dearborn Street. SER 1025-28, 1037-39. Ms. Willis has a “very bad memory,” does not “remember any specific dates,” and cannot recall the details of any particular clean-up incidents. SER 1026-27. In general, Ms. Willis claims to have lost property when she was not allowed back onto a clean-up site after moving only some of her belongings. SER 1036. But she admits that she has never asked for more time, has never attempted to retrieve 14 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 21 of 70 allegedly lost items, and refused an offer to have her property stored. SER 1031, 1033, 1052. 4. Reavy Washington Since becoming unhoused in February 2016, Reavy Washington claimed he was subject to four clean-ups. SER 1064, 1076. The first was at an area across the street from the Field near a car dealership. SER 1076, 1078-79, 1081-82. After a fire in March 2016, the City posted a notice to vacate three days before cleaning up that site. SER 1080-81. Mr. Washington and others simply moved across the street to the Field. SER 1081. Mr. Washington claims he lost property at this clean-up because he moved only some of his belongings, then woke up late the morning of the clean-up, had to leave, and returned to find his remaining items missing. SER 1052. He admits that he never asked for his items to be saved and that his property might have been stolen. SER 1084-86. The second clean-up was at the Field, approximately one year later, on March 7, 2017. SER 1089. At the time, Mr. Washington was living out of multiple tents, “a live-in tent” and a “storage tent.” SER 636. He first received notice of this clean-up in late February. SER 1087. Despite receiving notice, Mr. Washington waited until the day of the clean-up to move his belongings—and told others to do so as well—in hopes that the clean-up would be called off. SER 1090, 1099-1100. He acknowledged that the City stored multiple bins of his property 15 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 22 of 70 and some larger items, but claimed he was rushed and did not store all his belongings. SER 1097-98. At the same time, he admitted that he was never told he could not pack more items and he did not ask for more items to be stored. SER 1099. The third clean-up was at Fourth Avenue “by the stadium,” where Mr. Washington moved after the Field because many others had moved there. SER 1106-7. He was in jail when this clean-up occurred. ER 653. He admits that his property could have been stolen, and he never requested any missing items from this clean-up. SER 1108-9. The fourth and final clean-up was at Spokane Street and Marginal Way. SER 1111-12. The City did not forcibly move anyone for this clean-up, and Mr. Washington did not lose any property. SER 1114, 1116. Instead, he was offered and accepted a space at an authorized encampment called “Camp Second Chance,” where he was expelled by fellow unhoused persons for violating rules and using derogatory language against encampment leadership. SER 1065-66, 1114. 5. Plaintiffs’ goal for this lawsuit is to stop all clean-ups. Plaintiffs and their supporters have disclosed that their underlying goal with this lawsuit is to stop all clean-ups regardless of how they are conducted. After acknowledging that she does not “like to be in a house” but instead “wants to be outside” because that’s “how [she] likes to live,” Ms. Willis disclosed that she is 16 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 23 of 70 involved with this suit to get the City “to stop sweeping” encampments. SER 1034, 1051. Likewise, Mr. Washington explained he sees this suit as a way of “asking the City” to “stop” conducting clean-ups. SER 179. The organizations and advocates involved with the suit share the same objective. One of the named organizational plaintiffs admitted its goal is “to help force” the City to “stop” conducting cleanups, explaining that “the way a sweep is conducted doesn’t make a whole lot of difference to [unhoused persons],” and whether or not “the rules are being followed,” or even if perfect notice and storage are being provided, is irrelevant. SER 262-66, 268. Plaintiffs’ counsel, the American Civil Liberties Union (“ACLU”), lobbied to change the City’s clean-up policies through legislation, without success. SER 1552-53. This lawsuit was subsequently billed as a “vehicle” for putting “pressure” on the City. SER 269-70. The premise was “the higher the stakes, the more eager [the City will be] to settle,” i.e., to stop conducting clean-ups. SER 268-71, 274-75. Although the City and the district court urged them to do so, Plaintiffs and their counsel declined to participate in the City’s ongoing collaborative process to update the MDARs. SER 1198; see also SER 1384-85, 1404, 271-72, 1599. 17 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 24 of 70 D. Procedural History 1. Plaintiffs sued the City and WSDOT for alleged constitutional violations. On January 25, 2017, Plaintiffs sued Seattle and WSDOT, seeking declaratory and injunctive relief. ER 1497-1535. The focus of the suit was narrow: Plaintiffs asserted violations of their Fourth and Fourteenth Amendment rights because Seattle and WSDOT allegedly are destroying the belongings of unhoused persons during clean-ups without notice or justification. ER 1531-32. Plaintiffs based these claims on this Court’s opinion in Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012). 2. Plaintiffs unsuccessfully moved for a temporary restraining order. On February 6, 2017, Plaintiffs moved for a temporary restraining order (“TRO”). See ER 1428-53. Plaintiffs’ motion relied on declarations from the named Plaintiffs and others, and argued primarily that Seattle and WSDOT were summarily destroying property. See ER 1240-40, 1394-1426. In response, Seattle and WSDOT disputed and rebutted Plaintiffs’ allegations, documented the significant health and safety concerns associated with unauthorized encampments (such as concentrations of hazardous waste, sex trafficking, and damage to critical infrastructure), and explained the evolution of their policies and practices, which address such concerns while also respecting the property rights of unhoused persons. See, e.g., SER 1753-54; SER 1780-99, SER 1543-1614. 18 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 25 of 70 The district court denied Plaintiffs’ motion, concluding in part that Plaintiffs were unlikely to prevail on the merits of their claims. See SER1509-26. The district court noted that many of the declarations Plaintiffs submitted acknowledged that “notice has been provided before property is seized,” did not identify “whether property was taken and/or destroyed at any particular time,” and did not address “any attempt to recover the items[.]” SER 1522-23. In light of these deficiencies, Plaintiffs’ counsel assured the district court that after discovery, Plaintiffs would present “more detailed, nuanced, and individualized evidence” in support of their claims. See SER 1825. 3. The parties engaged in extensive discovery. Following the denial of Plaintiffs’ motion for a TRO, the parties developed an extensive factual record through months of discovery. Specifically, the City and WSDOT produced over 260,000 pages of documents responsive to Plaintiffs’ two sets of written discovery, which included 32 requests for production and 15 interrogatories. SER 4-6. Plaintiffs also issued subpoenas to nonprofits and businesses that contract with the City or WSDOT to provide services, including Union Gospel Mission, YouthCare, and REACH. The parties also obtained deposition testimony from numerous stakeholders. Plaintiffs deposed several City and WSDOT personnel involved with clean-up work, including the City’s program manager, a Field Coordinator, a police sergeant 19 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 26 of 70 specially assigned to clean-ups, OCR’s training and education coordinator, and a WSDOT maintenance technician. ER 825-27. The City and WSDOT deposed certain of Plaintiffs’ witnesses, including the four proposed class representatives, the organizational plaintiffs, and an advocate who documented clean-ups and submitted declarations on behalf of Plaintiffs. SER 34-34, 927-28. Plaintiffs also inspected the City’s storage facility during an on-site visit. See SER 35. The facility includes multiple storage lockers with numerous bins and various large items stored from clean-ups. See SER 305-313. 4. Plaintiffs moved for both class certification and a preliminary injunction. Plaintiffs initially moved for class certification upon filing this lawsuit, but they cited no evidence in support of their motion. ER 1478-1535. Plaintiffs then moved for a preliminary injunction, noting both motions for the same hearing date. ER 1038-74. Plaintiffs submitted evidence in support of the preliminary injunction motion, which was cited in Plaintiffs’ reply on class certification. ER 421-551. In support of these motions, Plaintiffs’ primary argument was that the City was engaged in “wanton,” “wholesale,” “immediate,” and “summary” destruction of property without notice. ER 1049, 1051; see also ER 542. In an attempt to support this premise, Plaintiffs presented general testimony and audiovisual recordings related to clean-ups, along with a number of declarations focused on four specific clean-ups. ER 1044-70. 20 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 27 of 70 The City rebutted each category of Plaintiffs’ evidence. With respect to the testimony, the City noted that it lacked context or detail. Plaintiffs had pointed to declarations from Reavy Washington, Brandie Osborne, and others regarding the destruction of items at clean-ups, but these declarants did not specify whether notice had been provided, belongings had already been moved or stored, or whether “destroyed” items had been relinquished or deemed unsuitable for storage. See ER 1054-55; see also SER 477-78. To underscore this point, the City submitted a detailed photographic “walkthrough” of an actual clean-up with the City’s program manager, demonstrating the potential for misinterpretation based on limited information or faulty assumptions. SER 491-514. Plaintiffs’ audiovisual recordings suffered from similar defects. Plaintiffs claimed that they submitted 12 videos showing “workers tearing apart [] homes,” 8 videos showing “on-the spot destruction,” and “an additional 19 photos and videos” showing “wholesale destruction of property” as the “norm” at clean-ups. ER 1051-52. But the City provided an individualized examination of each recording, revealing that they showed cleaning crews at a later point in the City’s clean-up process—after campers have relinquished unwanted belongings and a Field Coordinator has inspected any unclaimed items for storage. See SER 488, 490, 496-98, 507-9, 522-25; see also SER 477-78. Again, Plaintiffs’ evidence 21 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 28 of 70 failed to indicate whether items had been relinquished, or the actual condition of discarded items. See SER 500-2, 512-13, 522-25. The City also conclusively addressed Plaintiffs’ allegations tied to the four specific clean-ups they focused on, with detailed testimony, documentation, and photographs. Out of hundreds of clean-ups, Plaintiffs focused on (1) a March 7, 2017 clean-up at the area known as the “Field,” (2) two clean-ups on Columbia Street, on April 7, 2017 and May 22, 2017; and (3) an April 11, 2017 clean-up on Spokane Street under the West Seattle Bridge. ER 1051-52, 1059-60, 1065. In response to Plaintiffs’ generalized and unsubstantiated allegations about these clean-ups, the City explained the circumstances of each clean-up in detail. With respect to the Field, substantially harmful conditions necessitated a clean-up. The conditions included a large rat infestation, biological waste, increased reports of crime in the surrounding area, multiple serious assaults at the camp, and individuals involved in child sex trafficking. SER0516; see also SER0278-86, 0383-91, 0393-0408. The City posted written notices of the clean-up on poles, fences, and trees surrounding the encampment repeatedly and well in advance of 72 hours prior to the clean-up date. SER0516. The City also engaged multiple agencies to conduct daily outreach leading up to the clean-up, offering services and giving supplemental notice. SER0517. 22 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 29 of 70 Multiple Field Coordinators worked with campers and identified storable property. SER0465. Many campers removed their own belongings. Id. Others designated items for storage, with Field Coordinators providing assistance. Id. Campers indicated they were abandoning many items as garbage, including ten tents. SER0517-18. Other tents appeared abandoned and were soaked in mud mixed with human and animal waste, which permeated the site. SER0465. Field Coordinators canvassed the entire site for storable, unclaimed property. SER0517. In total, 70 container bins of items, two bicycles, and four large items were stored. SER0519. After the clean-up, the City posted written notice along the entire perimeter of the site, on fences and light poles, indicating that property had been stored and providing information for its retrieval. SER0465. Moreover, 18 individuals accepted alternative shelter arrangements, ranging from a traditional shelter bed to a substance abuse treatment facility. SER0429. Regarding the area underneath the Alaskan Way Viaduct from Madison Street to South Jackson Street (including Columbia Street), a Field Coordinator observed unauthorized encampments on both April 7 and May 22, 2017. SER 469, 473-75. Tents were blocking sidewalks, in areas of heavy vehicular traffic, and in parking spots. SER 469-71, 473-75. After confirming the encampments should be removed, the Field Coordinator handed out written notice and instructed campers to relocate. SER 471-72, 475. Many campers were present and declined 23 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 30 of 70 storage. SER 469, 472-75. Nonetheless, multiple bins of items were stored, including a typewriter, backpack, and clothing. SER 472. Both times, the Field Coordinator posted notice to facilitate retrieval of stored items. SER 472, 475-77. The area on Spokane Street near the West Seattle Bridge was also problematic and dangerous. On April 6, 2017, a fire consumed two RVs, with flames and smoke directly underneath the Bridge. See SER 438-39 (photo of blaze). In response, City officials—including from the Fire Department— investigated and concluded that the encampment presented a clear and continuing fire hazard, compromising the structural integrity of the Bridge. SER 439-40. In addition to being a fire hazard, the encampment also prevented the City from repairing recently discovered lighting problems that resulted from the theft of wiring. Id. City officials ultimately agreed that the encampment qualified for removal as both an obstruction and an immediate hazard. SER 440. The City then began to provide outreach, including notification of the upcoming clean-up, on a daily basis. SER 430. On April 9, the City posted multiple written notices indicating that property had to be removed from the site as of April 10. SER 520. The next day, the City conducted outreach, gave notice of the option to store property, and encouraged campers to begin moving. SER 459. Unclaimed tents “were left in place in case the owners returned during the process.” Id. 24 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 31 of 70 On April 11, 2017, the City proceeded with a clean-up at the Spokane Street encampment. Id. The City provided outreach again, including mechanic and towing services and fuel. SER 430. Three Field Coordinators worked closely with campers to identify property for storage. SER 459-60. Many tents were expressly relinquished by their owners; others were found damaged or contaminated and apparently abandoned. SER 459. The process spanned several days. SER 460. In total, ten bins of items and seven large items were stored. SER 520. During the clean-up, eight campers accepted alternative housing. SER 430. Plaintiffs did not respond to these detailed accounts of the clean-ups. Instead, Plaintiffs pivoted by raising—for the first time in reply—statistical arguments based on a manipulation of data obtained in discovery. See, e.g., ER 402-03, 410-11. The City then addressed Plaintiffs’ statistical allegations with supplemental declarations. See SER 16-32. Specifically, the City demonstrated that Plaintiffs were misinterpreting and misusing City data—notwithstanding specific warnings regarding the nature of that data. See SER 19-21, 25; ER 30. In further response, the City provided accurate figures based on a review of its records. SER 20-21. 5. The district court denied both class certification and a preliminary injunction. On October 4, 2017, after hearing oral argument on Plaintiffs’ motions for preliminary injunctive relief and class certification, the district court denied both 25 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 32 of 70 motions. ER 105. As to class certification, the court concluded that Plaintiffs had failed to establish commonality, typicality, or adequacy of representation as required under Federal Rule of Civil Procedure (“Rule”) 23(a). See ER 10-17. On commonality, the court found Plaintiffs’ core assertion—that the City is engaged in “unlawful practices”—was “conclusory” and “not supported by the evidence cited.” ER 11. The court correctly noted that Plaintiffs were required to present “significant proof” of any challenged practice, which the court understood to mean “sufficient evidence of systemic issues” rather than “examples of isolated instances” of conduct. ER 10 (internal quotes omitted). The court then found that Plaintiffs’ declarations, photos, and videos lacked “context” and were thus uninformative. Id. The court ultimately concluded that Plaintiffs failed to meet their burden and that commonality was lacking. The district court also found a lack of typicality or adequate representation, in part due to the same overall weakness of Plaintiffs’ evidence. See ER 14, 16. The court further found that Plaintiffs’ admittedly received but failed to act on notices, and that three of them refused to store property with the City, which exposed them to “unique defenses” rendering their potential claims atypical. ER 15. Additionally, the court found that two Plaintiffs admitted their goal for this lawsuit is to stop clean-ups altogether, calling the adequacy of their representation further into doubt. ER 17. 26 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 33 of 70 The district court also denied Plaintiffs’ request for a preliminary injunction, in part because Plaintiffs again failed to establish a likelihood of success on the merits of their claims. ER 18-32. The district court rejected Plaintiffs’ purported facial challenges, finding Plaintiffs had failed to “explain” why the City’s policies were unreasonable or inadequate under all circumstances. ER 20-21, ER 26-28. The court specifically rejected Plaintiffs’ objections to the City’s refusal to store “urine-contaminated items or wet items,” finding that the City’s evidence justifying its practices had gone unrebutted. ER 21-22. The court also found that Plaintiffs had failed to demonstrate any widespread pattern of allegedly unlawful conduct. ER 22-25, 29-31. In addition to the vague nature of Plaintiffs’ declarations, photos, and videos, the court found that Plaintiffs had presented flawed and uninformative statistics, misrepresented an OCR report, and pointed only to isolated mistakes that did not qualify as persistent and widespread misconduct. ER 23-24, 30-31. The court specifically stated that it was “troubled” by Plaintiffs’ “mischaracterizations” of the statistical evidence and report, especially because the limits on the underlying data already had been explained to Plaintiffs’ counsel. ER 30. 6. Plaintiffs appealed only the denial of class certification. On October 18, 2017, Plaintiffs filed for permission to appeal the district court’s denial of class certification. See No. 17-80214, ECF # 1-2. This Court 27 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 34 of 70 granted that request. No. 17-80214, ECF # 11. Abandoning their unsupported allegation of summary destruction of property, Plaintiffs’ interlocutory appeal instead focuses on four narrow issues: (1) wet items; (2) obstructions and immediate hazards; (3) destruction without a warrant or opportunity to contest or retrieve; and (4) inadequate notice. ECF # 16 at 18-31. Based solely on these issues, and the district court’s invocation of the “significant proof” standard for establishing a common practice, Plaintiffs insist that the district court abused its discretion in denying class certification. Plaintiffs have chosen not to appeal the district court’s decision denying a preliminary injunction. See 28 U.S.C. § 1292(a)(1); ER 1. Accordingly, the district court’s merits-based determination arising from the same evidence used to support class certification—that Plaintiffs failed to show a likelihood of proving the City is engaged in an unconstitutional pattern of conduct—is unchallenged in this appeal. See ER 2-35. Plaintiffs have not argued that the district court abused its discretion in making that decision, or any of the detailed findings in support. IV. SUMMARY OF ARGUMENT The district court properly denied class certification. To establish requisite commonality, Plaintiffs were required to mount a genuine facial attack against a formal policy, or submit evidence of an arguably unlawful common practice. Notwithstanding months of in-depth discovery, Plaintiffs did neither. Instead, they 28 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 35 of 70 relied on broad assertions of summary property destruction unsupported by their evidence, which lacked context or key details. Plaintiffs also failed to show that they have typical claims, or that they would be adequate representatives. Because Plaintiffs’ showing on each of these elements was insufficient to justify class-wide litigation, the district court did not abuse its discretion. On appeal, Plaintiffs have altered their challenge to four specific aspects of the City’s clean-up activities. But this does not change the analysis or outcome. Plaintiffs have still failed to identify any formal rule that is arguably unlawful on its face, or to present evidence showing a pattern of arguably unlawful conduct, including with regard to wet items; obstructions and immediate hazards; removal and storage of items; or notice. That remains true under any potential standard of proof. And Plaintiffs have still failed to show they have typical claims, or would be adequate class representatives, given their conduct and motives. For any or all of these reasons, the district court’s decision should be affirmed. V. STANDARD OF REVIEW As the parties seeking class certification, Plaintiffs must affirmatively prove compliance with Rule 23, including satisfying the elements of commonality, typicality, and adequacy of representation. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (noting Rule 23 is more than “a mere pleading standard”). Certification is proper “only if the district court is satisfied, after a rigorous 29 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 36 of 70 analysis, that the prerequisites of Rule 23(a) have been satisfied.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (internal quotes omitted). As the Supreme Court has emphasized repeatedly, such an analysis will “frequently entail overlap with the merits” of the underlying claim “because the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id. In reviewing a district court’s certification decision, this Court is “obligated to defer to the district court’s decision absent a showing that the court abused its discretion.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir. 1977) (stating that a “class action determination under [Rule] 23 is one of a trial court’s considered discretion”). That is “because the district court is in the best position to consider the most fair and efficient procedure for conducting any given litigation.” Id. Moreover, the judgment of the district court “should be given the greatest respect and the broadest discretion[] particularly [when it] has canvassed the factual aspects of the litigation.” Id. (internal marks omitted). VI. A. ARGUMENT Plaintiffs Did Not Establish a Common Question to Be Litigated on a Class-Wide Basis. To obtain class certification, Plaintiffs were required to establish each element required under Rule 23, including commonality, typicality, and adequacy of representation. The primary reason the district court was correct to deny 30 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 37 of 70 certification is that Plaintiffs failed to establish the required element of commonality under Rule 23(a)(2). As explained below, Plaintiffs had to either raise a legitimate facial challenge to a formal policy or prove the existence of an arguably unlawful common practice. Despite ample opportunity to compile a substantial record, Plaintiffs failed on both counts. As such, Plaintiffs failed to identify a common question warranting class litigation. In denying class certification on this basis, the district court acted well within its discretion. 1. To prove commonality, Plaintiffs had to make a facial attack against a formal policy or prove an arguably unlawful practice. In cases challenging policies and practices, as here, commonality is satisfied only if class members are treated uniformly and in a way that is arguably unlawful, such that “‘a classwide proceeding’” will actually generate “‘common answers apt to drive the resolution of the litigation.’” Parsons v. Ryan, 754 F.3d 657, 674-75 (9th Cir. 2014) (quoting Wal-Mart, 131 S. Ct. at 2551). This means plaintiffs in such cases must submit “proof of the existence of systemic policies and practices” that are “allegedly illegal” and form a “plausible” claim for relief on a class-wide basis. Id. at 679, 681, 684 n.28. As reflected in Wal-Mart and Parsons, there are two ways a plaintiff can justify class litigation challenging a given policy or practice: by (1) pointing to a formal policy applicable to the entire class that is arguably unlawful on its face, or (2) proving the existence of a common, arguably unlawful practice affecting the 31 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 38 of 70 entire class. See Wal-Mart, 564 U.S. at 353 (noting plaintiffs could try to identify an improper formal “procedure” or prove the existence of a challenged practice); Parsons, 754 F.3d at 664 n.4, 681, 683-84 & nn.27-28 (distinguishing complaints against “formal . . . written policy” and discussing plaintiffs’ burden to prove existence of allegedly common practice). The extent of plaintiffs’ burden to prove a common practice is tied to the nature of the claims being asserted in the case. See Parsons, 754 F.3d at 676 (noting “commonality cannot be determined without a precise understanding of the nature of the underlying claims”). Here, because Plaintiffs are asserting constitutional claims against a municipality, they were required to show a common practice “so ‘persistent and widespread’ that it constitutes ‘a permanent and well settled city policy.’” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)). In other words, Plaintiffs had to show far more than sporadic incidents of disputed conduct; they had to show “practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.” Id. In turn, those practices had to result in seizures that are arguably unreasonable, or deprivations of property without reasonable steps taken to give notice for potential retrieval. See Lavan, 693 F.3d at 1029, 1031-32. 32 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 39 of 70 In their opening brief, Plaintiffs do not seriously dispute these general requirements. Plaintiffs repeatedly acknowledge that they must prove the existence of disputed practices with “ample evidence,” and that “‘threadbare allegations’” are “not enough.” ECF # 16 at 36, 39 (quoting Parsons, 754 F.3d at 683). Yet Plaintiffs elsewhere suggest that merely alleging a practice is enough. See id. at 37. The cases Plaintiffs cite in support are inapposite, however, because they involved “conceded” practices that were arguably unlawful, Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1029 (9th Cir. 2012); Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 954-63 (9th Cir. 2013), or grants of certification that were affirmed on an abuse-of-discretion standard, without substantial discussion, because plaintiffs had submitted sufficient evidence of challenged practices to justify certification, see Torres v. Mercer Canyons, Inc., 835 F.3d 1125, 1134 (9th Cir. 2016) (noting plaintiffs “presented evidence” of common practice and affirming certification); Jiminez v. Allstate Ins. Co., 765 F.3d 1161, 1163, 1165-66 (9th Cir. 2014) (affirming district court’s finding that plaintiff “had presented sufficient evidence” to establish commonality). These cases did not overrule Wal-Mart or Parsons, which make clear that sufficient proof of challenged practices is required to establish commonality. Beyond Plaintiffs’ inconsistent argumentation on whether proof is required at all, they also take issue with the evidentiary standard that applies when trying to 33 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 40 of 70 prove the existence and scope of a given practice. ECF # 16 at 41-46. As explained below, however, the record supports the district court’s decision on commonality regardless of the standard of proof applied—obviating the need to resolve that particular issue. See Parsons, 754 F.3d at 684 n.29. Regardless, the district court applied the correct standard. Because Plaintiffs failed to mount a legitimate facial attack or establish any arguably unlawful common practice, the district court was right to find commonality lacking. 2. Plaintiffs failed to make a genuine facial attack against a formal Seattle policy. Before the district court, Plaintiffs did not justify class certification on the basis of a facial challenge. At times, Plaintiffs suggested they were making such challenges, ER 1044-49, but as the district court noted, they consistently failed to “explain” them. ER 20, 26. Most importantly, Plaintiffs never argued that any Seattle policy is unlawful in all potential applications—which is required for facial invalidity. See United States v. Salerno, 481 U.S. 739, 745 (1987) (noting facial challenge requires showing “no set of circumstances exists” under which rule can be validly applied); Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 971-72 (9th Cir. 2003) (noting same for vagueness objections other than under First Amendment). Because Plaintiffs never raised a genuine facial attack, the district court had no reason to certify a class on that basis. 34 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 41 of 70 A bona fide facial challenge here would have been groundless in any event, given the substance of Seattle’s formal policies, the MDARs. To demonstrate that the MDARs are facially invalid, Plaintiffs would need to show that seizures of property under those rules necessarily lack justification and are thus unreasonable, or necessarily lack reasonable notice for the retrieval of property. See Lavan, 693 F.3d at 1029, 1032. In Lavan, this Court rejected Los Angeles’s admitted policy of “summarily” destroying “momentarily unattended” belongings that it had no “good-faith belief” were abandoned. Id. at 1024 n.1, 1025. Following the specific holding of Lavan, numerous subsequent courts have ruled that a city may clean up encampments consistent with the Fourth and Fourteenth Amendments—including through the removal of property left on-site—so long as it provides reasonable notice and a reasonable opportunity for retrieval of property that is removed. See Martin v. City and Cnty. Of Honolulu, No. 15-00363, 2015 WL 5826822, at *4 (D. Haw. Oct. 1, 2015). The MDARs are consistent with Lavan and far exceed the requirements emphasized in subsequent decisions. Indeed, Plaintiffs did not appeal the district court’s rulings to that effect. ER 20-22, 26-28. In particular, the MDARs provide numerous protections for unhoused persons—including notice, outreach, alternative shelter, storage, and free delivery of property. See supra, Section III.B. 35 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 42 of 70 Moreover, the health and safety threats necessitating clean-ups are real and significant, something Plaintiffs have not disputed. See supra, Section III.A. Indeed, Plaintiffs conceded that clean-ups can be lawful depending on the circumstances, even the immediate removal of an encampment without advance notice. ER 44, 51; SER 1828. On appeal, Plaintiffs now purportedly challenge two of Seattle’s “official policies,” specifically concerning (1) wet items and (2) encampments deemed to be obstructions or immediate hazards. ECF # 16 at 18, 21. As before, Plaintiffs are unclear as to whether they are attempting a facial attack, as opposed to challenging the way Seattle’s formal policies are applied in practice. To the extent Plaintiffs are attempting a facial attack, however, neither of their challenges qualify in support of class certification. As to wet items, Plaintiffs have simply misstated Seattle’s formal policy and fail to suggest, much less explain, any genuine facial invalidity. Plaintiffs note the MDARs allow for disposal of “hazards” or items reasonably expected to become hazardous in storage, and then assert that this is defined to include wet items. ECF # 16 at 18. Instead, the MDARs only specify “wet bedding materials” as an “example” of an item that might be expected to become hazardous during storage. SER 1222. Plaintiffs quote from an entirely separate portion of the MDARs, and even then, they omit key language specifying that “[h]azardous items may include 36 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 43 of 70 blankets, clothing, sleeping bags, or other items depending upon their condition and site conditions.” SER 1204 (emphases added). In sum, Plaintiffs have misrepresented the contents of Seattle’s formal policy with regard to wet items. More importantly, Plaintiffs have again failed to genuinely argue facial invalidity, never suggesting that disposing of wet items is necessarily and always unlawful. Nor could they make that argument in good faith. Disposing of a given wet item could be justified for any number of reasons, including because (1) the item is wet from human or animal urine or permeated with human or animal waste, with a substantial risk of spreading disease, or (2) the wet item is likely to generate mold in storage, creating both a health risk and a risk of damage to other property. See SER 561, 563-64, 570. The district court recognized such concerns, in a ruling that has not been challenged on appeal. ER 21-22. In sum, there can be no genuine dispute that Seattle’s formal policy regarding wet items is facially lawful. As to obstructions and immediate hazards, Plaintiffs again fail to genuinely argue facial invalidity. ECF # 16 at 21-23. Plaintiffs raise concerns regarding the potential for overuse, but they do not argue that these categories can never be validly applied or understood. Id. Nor could they, given the real-life examples in the record of tents hanging over a freeway, debris and used drug needles strewn across a children’s playfield, and tents blocking entire sidewalks and forcing pedestrians into street traffic. SER 1616-17, 1548-49. Even then, the MDARs 37 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 44 of 70 require prior notice “if reasonably possible,” and subsequent notice if any items have been stored. SER 1219. And as noted above, Plaintiffs conceded to the district court that an encampment might need to be removed immediately and without prior notice. ER 44, 51; SER 1828. As such, Plaintiffs have not made a genuine facial challenge to Seattle’s formal policy on obstructions and immediate hazards. In sum, Plaintiffs could not and did not mount a genuine facial challenge in this case. Accordingly, to establish commonality and justify class litigation, they had to prove the existence of a class-wide and arguably unlawful Seattle practice regarding clean-ups. As explained below, Plaintiffs failed to do so. 3. Plaintiffs failed to prove an arguably unlawful Seattle practice. The district court concluded that Plaintiffs failed to establish a common practice that is arguably unconstitutional. The district court ultimately found that Plaintiffs’ assertion of “the existence of . . . allegedly unlawful practices” was “conclusory” and “not supported by the evidence[.]” ER 11. Plaintiffs failed to present “sufficient evidence of systemic issues” as opposed to “isolated instances” of alleged misconduct. ER 10. A review of the record confirms that these findings were well supported and within the court’s discretion. Before the district court, Plaintiffs insisted that the City engages in a widespread practice of summarily destroying property. See ER 1054. Unable to 38 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 45 of 70 substantiate that accusation, Plaintiffs have now altered their attention to four other allegedly unlawful aspects of Seattle’s clean-ups. As explained below, however, Plaintiffs’ allegations with regard to these discrete aspects of clean-ups were equally unsubstantiated. As the district court found, Plaintiffs failed to establish any common and arguably unlawful practice warranting class litigation. a. Plaintiffs did not establish broad and unthinking destruction of wet items. First, Plaintiffs argue that the City has a “policy and practice” of destroying “all wet property.” ECF # 16 at 18. As noted above, Plaintiffs misstate Seattle’s formal policy, which merely acknowledges that a wet item can qualify as hazardous, depending on the circumstances. See supra, at 36-37. In practice, the City avoids storing wet items only if they are “soaking wet” and cannot be “patted dry” or “dried out during the course of the clean-up[.]” SER 489. Moreover, City workers go to great lengths to salvage items of special significance, such as military or identification papers, even when they are wet. SER 75-76, 136, 138, 142-43. Plaintiffs point to no evidence in the record demonstrating a deviation from this settled approach, much less a widespread pattern of deviation.2 2 As they did before the district court, Plaintiffs cite testimony from a Field Coordinator they excerpted in misleading fashion, skipping a key portion of the deponent’s answer midstream, including important clarifying statements. ECF # 16 at 18-19 (citing ER 194-95). This Court should review the complete testimony. See SER 30-32 (“Q. So basically that means that anything that’s wet just doesn’t get stored; is that right? . . . A. If things are wet, we aren’t able to. Soiled, you 39 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 46 of 70 Nor have Plaintiffs rebutted the legitimate health and safety concerns posed by wet items under certain circumstances. Plaintiffs do not dispute, for example, that storing wet items could cause “molds to grow and spread significantly,” which would raise health concerns and damage property in storage, as confirmed by an epidemiologist with special experience in encampment issues. SER 489, 504-62, 561, 563-65, 571-72. Wet items also increase the risk of disease transmission, including when such items are wet from urine or when urine is nearby. SER 569, 571, 1496.3 Plaintiffs cite to testimony and an audio recording to suggest broad destruction of wet items, but almost all of this evidence relates to a single event, the clean-up at the “Field.” ECF # 16 at 19-20. That encampment had “a serious drainage issue” and “significant rat infestation,” resulting in contaminated water and mud that ultimately required removing “several inches of [] topsoil throughout” the encampment. See SER 437, 465. Even then, the City stored 70 bins of property and numerous large items over the course of the clean-up. SER know, stuff that is not can be dried out. I mean, if it’s an ID, I can wipe it down and store it. . . . Q. But a tent, could you store that if it’s wet? A. Within reason [I] could, if it could dry, yes.” (emphasis added)). 3 Plaintiffs previously objected to the City’s refusal to store urine-soaked items, but as the district court noted, their own expert acknowledged “that diseases can in fact be transmitted by urine from infected persons (and animals), and he further indicate[d] that protective measures can reduce, but not eliminate, the risk of disease posed by contaminated urine. ER 21 (citing SER 607-08; SER 1494-95, 1496-97). 40 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 47 of 70 519. Plaintiffs cite to no evidence showing that the City unthinkingly discarded all wet items at this site, or for that matter, at any other clean-up. Plaintiffs’ argument regarding the frequency of rainfall in Seattle is a red herring. ECF # 16 at 19 Plaintiffs ignore that items generally must be soaked, not merely wet, to be rendered unsuitable for storage. Plaintiffs also ignore that property at unauthorized encampments is often stored within tents, underneath overhangs, or in other spaces protected from the elements. See, e.g., SER 1570. Ultimately, Plaintiffs offer no evidence that rainfall consistently and broadly renders items unsuitable for storage in clean-ups. The record shows otherwise— that the City regularly stores items in clean-ups and attempts to dry and store wet items whenever feasible. SER 30-32, 136, 138, 489, 504-06. Regardless, the rate at which items are too wet to be stored does not undercut the legitimate reasons for being unable to store them. In sum, Plaintiffs have failed to substantiate their claim that Seattle pervasively and unlawfully refuses to store wet items. Plaintiffs have also failed to explain how Seattle’s approach to the disposition of wet items is unreasonable. Plaintiffs have thus failed to prove the existence of an arguably unlawful practice related to wet items. 41 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 48 of 70 b. Plaintiffs did not establish misuse of obstruction or immediate hazard designations. Second, Plaintiffs accuse the City of overusing its abridged procedures for cleaning up unauthorized encampments that present obstructions or immediate hazards. ECF # 16 at 21-22. But Plaintiffs failed to prove any misuse of these designations, much less a widespread pattern of such misuse. The undisputed record confirms the City is restrained and careful when electing to conduct a clean-up on shortened notice, doing so only when necessary. See SER 58-59, 122-25, 438-40, 466-67, 469-76. As the examples in the record show, the City expedites its procedures when encampments obstruct the essential functions of public property or present a risk of serious injury or death. SER 43840, 466-67, 59. Even then, the City provides detailed notice when able and stores personal property as with a standard clean-up. SER 466, 478, 58, 185. Plaintiffs point to no evidence in the record showing a deviation from this established practice. Instead, Plaintiffs cite statistics about clean-ups that occurred between February 22 and May 1, 2017, noting that “more than 55%” qualified as obstructions or immediate hazards. ECF # 16 at 21-22. During that period, however, the City addressed a heightened number of problematic sites due to activation of its Emergency Operations Center, which provided additional 42 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 49 of 70 resources for conducting overdue clean-ups. SER 520. The City subsequently conducted fewer clean-ups overall, see SER 57, and far fewer based on obstructions or immediate hazards, see SER 177-78, 521. Moreover, the sheer number of times the City must address an obstruction or immediate hazard is not evidence of unlawful conduct; the validity of those designations depends on the underlying circumstances being addressed in each instance, regardless of the overall rate. See Wal-Mart, 564 U.S. at 357 (noting mere statistical disparity could not establish underlying practice was unlawful). Plaintiffs also point to a few specific clean-ups, but the events at those cleanups were fully explained with unrebutted evidence. See SER 609-610. In particular, Plaintiffs question obstruction and immediate hazard clean-ups at Columbia Street and Spokane Street, based on their objection that unhoused persons had been there “for months.” ECF # 16 at 22. Plaintiffs ignore, however, that distinct incidents—including tents in areas with vehicular traffic and a large fire that threatened infrastructure—brought those sites to the City’s attention. SER 438-40, 469-77. Clean-ups were immediately necessary to mitigate risk and conduct repairs. See SER 438-40. And again, isolated incidents are insufficient to establish an unlawful common practice. See Wal-Mart, 564 U.S. at 358. In sum, Plaintiffs fail to support their accusation that the City has a common practice of over-designating encampments as obstructions or immediate hazards. 43 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 50 of 70 As the district court found, the uncontroverted evidence shows otherwise. ER 2628. c. Plaintiffs did not establish improper removal or storage practices. Third, Plaintiffs suggest for the first time on appeal that the City improperly destroys property without a warrant. Because Plaintiffs failed to raise this issue before the district court, it is waived. ECF # 16 at 23-34; see, e.g., Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009). Moreover, Plaintiffs cite no evidence regarding the City’s practices on this point. ECF # 16 at 24. On either basis, the argument fails at the outset. Further, the baseline requirements of the Fourth and Fourteenth Amendments are reasonableness and procedural fairness, respectively, which can be satisfied in this context without a warrant. See Lavan, 693 F.3d at 1030, 1032; United States v. Wilson, 472 F.2d 901, 902-03 (9th Cir. 1972) (noting a “seizure of abandoned property, even without a warrant, is simply not unreasonable”); Martin, 2015 WL 5826822, at *4. Contrary to Plaintiffs’ suggestion, Washington law does not require more. See ECF # 16 at 16, 35-36. Again, Plaintiffs failed to raise this issue before the district court, and thus it too has been forfeited. See ER 31-32; Padgett, 587 F.3d at 985 n.2. Regardless, Washington does not require a warrant for an encampment clean-up. Plaintiffs cite to State v. Pippin, 200 Wn. App. 826 (2017), but that case involved a warrantless search of a tent, without notice, for purposes of an 44 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 51 of 70 investigation. Id. at 831-32. The court held the search implicated a right to privacy, given the potential for “intimate and personal details” to be disclosed. Id. at 844, 846. The court specifically stated it was not addressing “whether a privacy right would play any role in an eviction.” Id. at 844 n.6. Here, the City is not conducting a search or investigation. Rather, it is removing unauthorized encampments from public property, to address ongoing health and safety concerns, after giving notice and conducting outreach. As such, Pippin is inapposite. Plaintiffs otherwise generally repeat their assertions that the City does not provide an adequate opportunity to contest the removal of property or to retrieve it. ECF # 16 at 23-29. But to recap, the City provides written and oral notice, outreach, and alternative shelter; assists campers remaining on-site to move or store their items during clean-ups; inspects unclaimed tents and items for potential property, erring in favor of designating items as property; stores any unclaimed property that is not hazardous; gives notice of a dedicated hotline for retrieving property; and offers free delivery of stored property. See supra, Section III.B. These protections provide more than adequate opportunity for campers to avoid losing their belongings: campers can remove items in advance of the clean-up; the only items discarded without express consent are unclaimed items still at the site that are either hazardous or clearly abandoned; and campers can request and 45 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 52 of 70 retrieve items that are stored. See id. Far less protective schemes have withstood constitutional scrutiny. See Martin, 2015 WL 5826822, at *4. As to storage and retrieval, the City has created a dedicated hotline for retrieving property stored from clean-ups and offers free delivery. See SER 525. Previously, campers were directed to call the City’s Customer Services Bureau, but the City received complaints that the re-routing of calls was burdensome. Id. In response, and because the City is “continually monitoring and improving its procedures to connect individuals with lost property,” the City created the hotline. Id. The number is included in posted notices and on cards that are distributed to campers. Id. Likewise, whereas previously campers had to pick up their items at the City’s storage facility, the City now offers free delivery. SER 101-02, 487, 514, 577, 1223. Plaintiffs cite to certain testimony about individual difficulties with retrieval, but even that testimony is outdated, vague, and isolated. ECF # 16 at 27-29. The grievances at issue do not account for the recent improvements to the process. See, e.g., ER 664, 731. Moreover, the testimony lacks detail, see ER 1064, or has been rebutted, compare ER 396-97 with SER 518-19. Plaintiffs point to various declarations suggesting no information is posted on retrieval, ECF # 16 at 28, but the testimony they cite shows otherwise, see, e.g., ER 664 (noting declarant called “the Customer Service Bureau line”), and the record confirms that the City 46 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 53 of 70 provides that information, see, e.g., SER 460, 472, 475-78, 518-19, 525-26. Even if the testimony Plaintiffs cite were to be credited, if anything, it establishes isolated incidents in which items were not retrieved, not a widespread pattern of misconduct. Plaintiffs otherwise complain that “fewer than 12 people have successfully reclaimed property . . . since 2016[.]” ECF # 16 at 28-29. In support of this statistic, Plaintiffs cite to a spreadsheet that was used to manage ongoing tasks— not to track the storage or retrieval of property—and to their own legal briefing, which is not evidence at all. Id. at 29 (citing ER 965-69, 402, 412); SER 17-18. The statistic is outdated in any event, given the City’s more recent improvements. More importantly, a low rate of retrieval could simply mean that the City’s notices are effective and campers are removing valued items prior to clean-ups, that the City is over-storing unclaimed items, that individuals are storing items they later decide are not worth retrieving, or some combination of these factors. The statistic itself proves nothing meaningful. See Wal-Mart, 564 U.S. at 356-57 (noting similar “failure of inference” from superficial statistical evidence). Beyond their unsupported arguments on removal, storage, and retrieval, Plaintiffs merely point again to evidence the City has a practice of discarding items at clean-ups. ECF # 16 at 23-26. As the district court found, this evidence lacks sufficient context. ER 24. Plaintiffs’ declarations and recordings fail to specify 47 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 54 of 70 whether notice was provided, whether belongings were already moved or stored, or whether “destroyed” items had been relinquished or deemed unsuitable for storage. Plaintiffs rely on sweeping statements from Reavy Washington’s declaration, for example, that the City was destroying tents and refusing to store items at the Field clean-up. See ECF # 16 at 10. When asked at his deposition, however, Mr. Washington admitted he was too “busy” to see what the City did or stored at the Field, and that the only thing the City refused to store upon his request was a community tent soiled with fecal matter. SER 1086. Likewise, Plaintiffs’ own investigator admitted it was “plausible” that City workers had already inspected and removed any storable items from the tents being discarded in his recordings. SER 247. Plaintiffs are thus wrong to suggest that the “timing” of their evidence does not matter. See ECF # 16 at 47. As the City demonstrated through its detailed “walkthrough,” Plaintiffs’ evidence is entirely consistent with proper conduct at clean-ups. SER 491-92; see Wal-Mart, 564 U.S. at 356-57. Plaintiffs also cite statistics about the rates of destruction or storage in cleanups, but these are unreliable, inaccurate, and equally uninformative. Plaintiffs again derived their figures from a spreadsheet used to manage tasks, which was not maintained to generate accurate statistics about clean-ups, and their assertions are incorrect. ER 24; SER 18, 20-21 (providing accurate figures). In any case, the mere rate of items being discarded or stored does not establish that any underlying 48 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 55 of 70 conduct at clean-ups is unconstitutional. Again, Plaintiffs’ faulty statistics prove nothing meaningful. See Wal-Mart, 564 U.S. at 356-57. 4 d. Plaintiffs did not establish improper notice practices. Fourth, Plaintiffs argue that the City offers “no evidence of a practice providing the required notice.” ECF # 16 at 31. But as the party seeking class certification, Plaintiffs—not the City—must demonstrate a common practice of unconstitutional conduct. See, e.g., Wal-Mart, 564 U.S. at 350. Moreover, the uncontroverted evidence shows that the City provides notice consistent with the MDARs and improved its practices over time. See, e.g., SER 101-02, 253-54, 258, 441-42, 525. Indeed, as the district court observed, even the Plaintiffs “acknowledge the notice provided” has been “sufficient.” ER 15; see, e.g., SER 200, 629, 669, 704, 716-17, 1046. Plaintiffs claim that their property has been seized or destroyed “with no advance warning,” but they cite testimony regarding the clean-ups at Columbia Street, see ECF # 16 at 29 (citing ER 720, 730, 802-03), which were obstruction and immediate hazard clean-ups conducted consistent with the MDARs and explained in detail, see SER 469-77, 440. Other incidents Plaintiffs point to— 4 Plaintiffs accuse the City of “contest[ing] the accuracy of its own documentation,” but that misstates the record. ECF # 16 at 31. Instead, the City has explained that the data Plaintiffs are relying upon was collected for other purposes and does not support their assertions. See SER 16-32. The City has also provided accurate and reliable figures in response to Plaintiffs’ misstatements. See id. 49 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 56 of 70 including one where a class member claims “all of [her] belongings” were placed “in bags” when she was away, but not taken—lack key details and are isolated at best. ER 1407; see also ER 744-45. Yet another of these incidents did not involve the City. See ER 1397, 1424-27. Finally, Plaintiffs cite their investigator’s declaration, which states he “observed some sweeps where no notice was provided.” ER 1420. When asked about this at his deposition, however, he admitted the opposite. See SER 642 (“I don’t think that there was ever an instance that I witnessed where there was no notice at all.” (emphasis added)). Plaintiffs’ complaints about the clarity and consistency with which notice is provided also fail to show a common unlawful practice. ECF # 16 at 29-30. Most of the allegations Plaintiffs rely on are vague and lack relevant context or details— such as one person’s complaint that the City’s notice does not specify where to relocate. See id. at 30 (citing ER 791-92). Plaintiffs also point to various photographs to argue the City’s notices provide “conflicting or incomplete information” or “retroactive notice,” see id. at 30-31, but these photographs do not show that notice was unclear under the circumstances, see SER 606 (discussing fuller context provided in site journals). Moreover, any errors were “isolated and sporadic,” especially considering the total number of clean-ups conducted and the 50 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 57 of 70 City’s monitoring and improvement over time. ER 30; see supra, at Section III.B.7.5 Plaintiffs further cite to an OCR Report and two spreadsheets regarding clean-ups, see ECF # 16 at 30-31, but the district court was “troubled” by Plaintiffs’ “mischaracterizations” of that evidence. ER 30. Plaintiffs claim that OCR “has halted multiple” clean-ups, ECF # 16 at 30, but ignore that OCR did so under a prior version of the MDARs not at issue in this appeal, see ER 30. Since then, the City responded to those concerns with improved training, see SER 41-42, OCR monitors began to report more consistency and clarity as monitoring progressed, see SER 375-76, and the MDARs were subsequently updated, SER 1198. Plaintiffs also claim “a majority of sweeps in 2016 and 2017 were conducted with inadequate notice.” ECF # 16 at 30. But the spreadsheets Plaintiffs rely on “list complaints, not separate [clean-ups], and ‘may in many cases include multiple references for the same [clean-up] (i.e., not each entry represents a separate [cleanup]).” ER 30 (citing SER 25, 27) (emphasis added). These and other relevant 5 Citing to allegations rather than evidence, amici suggest that the City’s notices do not account for disability, such as blindness, and are provided only “in English or occasionally Spanish.” ECF # 20 at 15-16. This issue is raised only by amici and thus is not properly before the Court. See, e.g., United States v. Wahchumwah, 710 F.3d 862, 868 n.2 (9th Cir. 2013). Regardless, the argument is wrong. The City provides oral notice in addition to written notice, along with outreach, and written notices are posted in “English, Spanish, and any other language the City determines would further the purpose of the notice.” SER 60, 487, 1220-21. 51 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 58 of 70 limitations on the data were specifically explained to Plaintiffs’ counsel in advance. Id. The district court was thus rightly “troubled by Plaintiffs’ counsel’s representations about the data in these spreadsheets,” and their continued misuse of these documents on appeal is even more concerning. Id. In sum, Seattle has taken reasonable steps to provide notice, both in advance of clean-ups and when unclaimed items have been stored. Plaintiffs failed to establish any persistent and widespread practice to the contrary, or for that matter, any Seattle practice that is arguably unconstitutional. As such, the district court properly denied class certification due to a lack of commonality. 4. The debate over the “significant proof” standard is tangential and moot. Rather than acknowledge the district court’s robust order or the limitations of their evidence, Plaintiffs have focused this appeal on an abstract legal concept: the specific quantum of proof required to establish a common practice suitable for class litigation. In Wal-Mart, the Supreme Court required “significant proof” of challenged employment practices to support class certification. 564 U.S. at 353. There, the plaintiffs failed to meet that standard by a large margin because their statistical and anecdotal evidence was inherently flawed and “too weak” to raise a distinct inference of unlawful class-wide conduct. Id. at 353-58. Here, Plaintiffs and amici object to applying the “significant proof” standard—but they fail to explain why the standard should not apply, suggest any 52 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 59 of 70 alternative, or establish why this issue would require reversal. ECF # 16 at 41-45; ECF # 19 at 24-27; ECF # 20 at 6, 16. In Wal-Mart, the Supreme Court demanded significant proof because Rule 23 requires a plaintiff to “prove” that there are “in fact” common questions suitable for class litigation. 564 U.S. at 350 (emphasis in original). That is equally true in any other policy-or-practice cases, including civil rights cases. See, e.g., Parsons, 754 F.3d at 683. Accordingly, the same basic standard should apply whenever proving the existence of a common policy or practice, as courts have held. See, e.g., Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 497-98 (7th Cir. 2012); Amador v. Baca, 299 F.R.D. 618, 624 (C.D. Cal. 2014). The “significant proof” standard signifies there must be adequate proof for the district court to find, in its broad discretion and after a rigorous analysis, that Rule 23 has been satisfied and class litigation is warranted. As this Court held in Parsons, a district court has “considerable discretion” specifically to decide whether or not the evidence presented “adequately demonstrate[s] the existence” of a challenged policy or practice. 754 F.3d at 684. That will remain true regardless of the specific phrase (or phrases) used to guide this inquiry. To add clarity to class certification inquiries, some circuits have broadly spelled out that each certification element, including commonality, typicality, and adequacy of representation, must be established by a preponderance of the 53 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 60 of 70 evidence—the same standard of proof for plaintiffs’ underlying claims. See In re Nexium Antitrust Litig., 777 F.3d 9, 27 (1st Cir. 2015); Mazzei v. Money Store, 829 F.3d 260, 268 & n.8 (2d Cir. 2016); Wharton v Danberg, 854 F.3d 234, 241 (3d Cir. 2017); Priddy v. Health Care Serv. Corp., 870 F.3d 657, 660 (7th Cir. 2017). This is consistent with the Supreme Court’s indication in Wal-Mart that plaintiffs might have to “prove again at trial” the same facts they were required to “prove” for certification. 564 U.S. at 351 n.6 (emphasis in original). In contrast, at least one circuit has decided that further specificity is unwarranted, and that the Supreme Court’s stated standards provide sufficient guidance. See Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 418 n.8 (6th Cir. 2012) (“We see no reason to superimpose a more specific standard than the Supreme Court[.]”). Similarly, in the past this Court has simply addressed whether the record supports the district court’s exercise of discretion, without needing to spell out a more specific evidentiary standard for certification-related decisions. See, e.g., Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 948-49 (9th Cir. 2011). This approach properly reflects the discretionary nature of class certification and should be maintained. See, e.g., Doninger, 564 F.2d at 1309 (noting the district court is in the “best position” to decide how the litigation should be conducted). If this Court instead opts to further elaborate on the “significant proof” standard for establishing a common practice, it should require proof by a 54 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 61 of 70 preponderance of the evidence. As noted above, this would be consistent with the Supreme Court’s discussion in Wal-Mart and the need to “prove” commonality. 564 U.S. at 351 n.6. It would also account for the significance of the commonality inquiry, the district court’s ability to oversee discovery on certification-related issues, and the district court’s ability to revisit certification over the course of the litigation. Kamm v. Cal. City Dev. Co., 509 F.2d 205, 209 (9th Cir. 1975); Wang v. Chinese Daily News, Inc., 737 F.3d 538, 546 (9th Cir. 2013). A lesser standard would convert certification into a process more akin to pleading, disregarding whether the district court is convinced class litigation is warranted. Most importantly for the present case, however, both the Supreme Court and this Court have held that the nuances of the evidentiary standards for class certification are moot when that makes no difference to the outcome of the case on appeal. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 848 n.26 (1999) (noting “it would be premature” to resolve dispute over applicable standard if “class certification . . . cannot stand” regardless); Parsons, 754 F.3d at 684 n.29 (noting application of “significant proof” standard was moot because record placed “the district court’s finding of commonality well within that court’s discretion”); see also Gooch, 672 F.3d at 418 & n.8. Here, for two reasons, the district court’s decision was well within its discretion regardless of where exactly the “significant proof” requirement lies on 55 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 62 of 70 the evidentiary spectrum. First, the district court properly understood its task, which was to determine whether Plaintiffs had submitted “sufficient evidence of systemic issues” to warrant class litigation. ER0010. That the district court cited the “significant proof” standard (among others) in conducting this inquiry does not change the substance of its analysis or its ultimate determination, which were proper. As this Court explained in Parsons, a district court is not expected to “talismanically recit[e]” certain language in deciding class certification, so long as “it clearly understood the law” and “accurately applied it.” 754 F.3d at 675 n.16; cf. Hanon v. Dataprods. Corp., 976 F.2d 497, 508 (9th Cir. 1992) (holding that denial of class certification may be affirmed “on any ground supported by the record”). Second, this was not a close case from an evidentiary standpoint. The district court found that Plaintiffs’ “conclusory” accusations were “not supported by the evidence cited.” Id. at 10 (emphasis added). In other words, Plaintiffs were well short of their burden to justify class litigation. That is also why the court found Plaintiffs unlikely to prevail on the merits and denied a preliminary injunction—a determination that has not been challenged on appeal, and which further confirms that certification in unwarranted here. See Corbin v. Time Warner Entm’t-Adv./Newhouse P’ship, 821 F.3d 1069, 1084-85 (9th Cir. 2016) (noting a 56 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 63 of 70 district court “need not inquire as to whether [a] meritless claim should form the basis of a class action”). This case is the inverse of Parsons: There, the “breadth and consistency” of plaintiffs’ evidence—including “four thorough and unrebutted expert reports,” “hundreds of internal [agency] documents,” and numerous robust declarations— placed “the district court’s finding of commonality well within that court’s discretion,” regardless of whether “a ‘significant proof’ standard or any [other] evidentiary standard” applied. 754 F.3d at 683-84 & n.29. Here, it is the weakness of Plaintiffs’ evidence—from the declarations and recordings lacking context or detail, to the misleading statistics—that places the district court’s finding on commonality well within its discretion. As in Wal-Mart, Plaintiffs fell “well short” of the proof required, due to the many “defects” in their anecdotal and statistical evidence. 564 U.S. at 356-58. Moreover, the City rebutted Plaintiffs’ accusations with detailed, credible evidence of its own. See SER 16-578, 927-1379. The precise standard of proof thus is not determinative, and the district court’s denial of certification based on a lack of commonality was well within its discretion. See Parsons, 754 F.3d at 684 n.29; Ortiz, 527 U.S. at 848 n.26. In sum, the “significant proof” standard should be applied in this policy-orpractice case. Regardless, under any standard, Plaintiffs failed to meet their burden 57 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 64 of 70 to justify class litigation. The district court’s decision on commonality was thus correct and should be upheld. B. Plaintiffs Did Not Show that They Have Typical Claims. In addition to lacking commonality, Plaintiffs also failed to prove typicality under Rule 23(a)(3), a separate requirement for class certification. To establish typicality, Plaintiffs had to demonstrate that their claims are typical of their proposed class and that they are not subject to “unique defenses” that would become the focus of the litigation. Hanon, 976 F.2d at 508. As the district court found, Plaintiffs not only failed to show a risk of injury shared with class members, they also made admissions that would expose them to unique defenses and render any claims they might have “atypical.” ER 15. In particular, Plaintiffs “acknowledged” that they received “sufficient” notice in clean-ups, disclosed a “failure to act upon the notice given,” and three of them “would never accept” the City’s offers to store their property. Id.; see also SER 1432, 1449-51, 1463, 146768. These admissions undercut Plaintiffs’ claims and easily could become the focus of the litigation. In denying class certification on this additional basis, the district court was again within its discretion. Plaintiffs insist that they “never conceded” receiving adequate notice, citing solely to the testimony of one named Plaintiff, Ms. Osborne. ECF # 16 at 52. And yet, Ms. Osborne admitted that the City gives 72 hours’ notice before clean-ups, 58 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 65 of 70 including all the places she has camped. SER 976-77. And even when Ms. Osborne has considered notices to be inadequate, she admits that she “technically” did receive notice. SER 1466. Plaintiffs never explain what else would be required. They also ignore the testimony of Plaintiffs indicating that they received but affirmatively chose to ignore such notices. See SER 629-30, 716-17, 735-37. Plaintiffs further argue that their refusing to accept storage is simply a result of the City’s inadequate practices. ECF # 16 at 57. But the Plaintiffs testified that they would never accept storage, without regard to the City’s specific practices. ER 15; SER 1432, 1449-51, 1463, 1467-68. Moreover, as shown above, Plaintiffs’ arguments about the City’s storage practices are specious. Ultimately, the district court was within its discretion in finding typicality lacking here. C. Plaintiffs Did Not Show that They Would Be Adequate Representatives. Finally, Plaintiffs also failed to prove adequacy of representation under Rule 23(a)(4). To establish this element, Plaintiffs had to show they lack “conflicts of interest” and will “vigorously” prosecute the action. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). The district court found Plaintiffs failed to establish adequate representation, not only because of their failures to demonstrate commonality or typicality, but also because some of them had expressed “interests in bringing this suit [] at odds with the interests of the proposed class.” ER 16. In particular, Plaintiffs admitted they are aiming to “stop Defendants’ cleanups 59 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 66 of 70 altogether,” regardless of how they are conducted. ER 17. This purpose conflicts with the purported interests of the proposed class specifically to ensure protection of their constitutional property rights. Again, the district court was within its discretion to find adequate representation lacking on these grounds. Plaintiffs object that not all the proposed class representatives admitted to the underlying goal for the lawsuit and that any resulting conflict is “speculative.” ECF # 16 at 59. Plaintiffs ignore that the primary basis for the district court’s ruling was their failure to present a legitimate case—their motive of terminating all clean-ups simply added to the inadequacy. ER 8-17. Furthermore, the record shows this motive is shared not only among the proposed class representatives but also by their counsel and other supporting parties. See supra, at Section III.C.5. And the conflict is more than speculative, given Plaintiffs’ decision not to engage the City on refining the MDARs, and various other tactics in the litigation. See id. VII. CONCLUSION Plaintiffs have lodged this partial interlocutory appeal to argue over an evidentiary standard that is not dispositive of their appeal and moot, rather than to address the merits of their unsubstantiated claims, upon which the district court ruled they were unlikely to succeed. As the district court found after canvassing the factual aspects of this litigation, Plaintiffs’ allegations were unsupported and their evidence was nowhere close to establishing the existence of a widespread 60 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 67 of 70 pattern of arguably unlawful conduct. Accordingly, the district court was well within its discretion to deny class certification, regardless of the standard of proof that is applied. Respectfully, the City asks this Court to affirm. DATED this 3rd day of August, 2018. PACIFICA LAW GROUP LLP By s/ Matthew J. Segal Matthew J. Segal, WSBA #29797 Taki V. Flevaris, WSBA #42555 Athan P. Papailiou, WSBA #47591 PACIFICA LAW GROUP LLP 1191 Second Avenue, Suite 2000 Seattle, WA 98101-3404 Telephone: 206-240-1700 Facsimile: 206-240-1750 Attorneys for Defendant-Appellee City of Seattle SEATTLE CITY ATTORNEY’S OFFICE Patrick Downs, WSBA #25276 Gregory Narver, WSBA #18127 Carlton Seu, WSBA #26830 Gary Smith, WSBA #29718 Co-Counsel for Defendant-Appellee City of Seattle 61 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 68 of 70 STATEMENT OF RELATED CASES Appellee the City of Seattle is aware of no related cases currently pending before this Court. 62 Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 69 of 70 Form 8. Certificate of Compliance Pursuant to 9th Circuit Rules 28.1-1(f), 29-2(c)(2) and (3), 32-1, 32-2 or 32-4 for Case Number 18-35053 Note: This form must be signed by the attorney or unrepresented litigant and attached to the end of the brief. I certify that (check appropriate option): This brief complies with the length limits permitted by Ninth Circuit Rule 28.1-1. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-1. The brief is 13,980 words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits permitted by Ninth Circuit Rule 32-2(b). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable, and is filed by (1) separately represented parties; (2) a party or parties filing a single brief in response to multiple briefs; or (3) a party or parties filing a single brief in response to a longer joint brief filed under Rule 32-2(b). The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the longer length limit authorized by court order dated The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 32-2 (a) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32 (f), if applicable. The brief’s type size and type face comply with Fed. R .App. P. 32(a)(5) and (6). This brief is accompanied by a motion for leave to file a longer brief pursuant to Ninth Circuit Rule 29-2 (c)(2) or (3) and is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief's type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). This brief complies with the length limits set forth at Ninth Circuit Rule 32-4. The brief is words or pages, excluding the portions exempted by Fed. R. App. P. 32(f), if applicable. The brief’s type size and type face comply with Fed. R. App. P. 32(a)(5) and (6). Signature of Attorney or s/ Taki V. Flevaris Unrepresented Litigant Date Aug 3, 2018 ("s/" plus typed name is acceptable for electronically-filed documents) (Rev.12/1/16) Case: 18-35053, 08/03/2018, ID: 10966354, DktEntry: 36, Page 70 of 70 9th Circuit Case Number(s) 18-35053 NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator). ********************************************************************************* CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing 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 (date) . Aug 3, 2018 I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. Signature (use "s/" format) s/ Taki V. Flevaris ********************************************************************************* CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing 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 (date) . Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants: Signature (use "s/" format)