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Lyall v. City of Denver

United States District Court, D. Colorado

March 26, 2018

CITY OF DENVER, a municipal corporation, Defendant.


          William J. Martinez United States District Judge

         Plaintiffs are homeless persons living on Denver's streets. Proceeding via 42 U.S.C. § 1983, they bring this class action lawsuit against Defendant “City of Denver” (actually, the City and County of Denver; hereinafter, “Denver”), arguing that Denver clears homeless encampments through unconstitutional means.

         Currently before the Court are three motions: (1) Plaintiffs' Motion for Summary Judgment (ECF No. 124); (2) Denver's competing Motion for Summary Judgment (ECF No. 125); and (3) Denver's Motion to Strike Evidence Submitted by Plaintiffs in Support of their Motion for Summary Judgment (“Motion to Strike”) (ECF No. 137, as amended by ECF No. 152-1). For the reasons explained below, the Motion to Strike is largely denied as moot, and otherwise denied. As for the parties' summary judgment motions, they are both denied save for Denver's challenge to Plaintiffs' equal protection cause of action. The Court will order the parties to proceed with trial preparations.


         At the outset, the Court surprisingly must resolve a disagreement between the parties over what this lawsuit is actually about.

         Plaintiffs brought this lawsuit to challenge the alleged method by which Denver enforces its “urban camping ban, ” i.e., Denver Municipal Code § 38-86.2. (ECF No. 54 ¶¶ 1-9.)[1] Plaintiffs say that under that ordinance and sundry others, Denver “began [in 2015] to systematically . . . seiz[e] and destroy[] their property in what has sadly come to be known as ‘The Homeless Sweeps.'” (Id. ¶ 9.) Plaintiffs specifically focused on “mass sweeps w[h]ere Plaintiff[s'] and Plaintiff Class's rights civil rights [sic] have been eviscerated, ” and Plaintiffs cabined the idea of “mass sweeps” as follows:

Since the enactment of the “Camping Ban, ” there have been innumerable instances of unreasonable searches of homeless persons and seizure of their property by Defendants. But for purposes of these Common Alleged Facts, we are focusing on instances of mass sweeps where more than 10 Denver Police, workers at the Dep't of Public Works and, sadly, inmates at the local county jail, are sent in by the City of Denver to seize the possessions of Plaintiffs and Plaintiff Class without regard for their rights.

(Id. ¶ 55 & n.7.)

         At the class certification stage, however, Plaintiffs proposed a broader class definition: “All persons in the City of Denver who were, are, or will be homeless at any time after [August 26, 2014], whose personal belongings have been or may in the future be taken or destroyed by one or more of the Defendants.” (ECF No. 15 at 15.)[2] The Court rejected this definition because it would undermine Federal Rule of Civil Procedure 23(a)(2)'s “commonality” requirement: “A class of homeless persons ‘whose personal belongings have been or may in the future be taken or destroyed by one or more of the Defendants' encompasses persons who may have never been subject to the Homeless Sweeps, thus eliminating commonality.” Lyall v. City of Denver, 319 F.R.D. 558, 564 (D. Colo. 2017) (citation omitted) (ECF No. 106 at 10). The Court therefore exercised its discretion to narrow the proposed class to track Plaintiffs' definition of “mass sweeps” involving ten more Denver officials or their agents. See id. (ECF No. 106 at 10-11). The Court ultimately approved the following class definition:

All persons in the City and County of Denver whose personal belongings may in the future be taken or destroyed without due process on account of the City and County of Denver's alleged custom or practice (written or unwritten) of sending ten or more employees or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there[.]

Id. at 571 (ECF No. 106 at 26).[3] This was explicitly a Rule 23(b)(2) class for purposes of resolving whether Denver in fact had a policy, custom, or practice of carrying out the alleged mass sweeps; and, if so, to determine the appropriate injunctive relief. Id. at 564, 566-67, 571 (ECF No. 106 at 10, 16-17, 26).[4]

         Plaintiffs' summary judgment motion explicitly seeks to hold Denver liable to the class members (ECF No. 124 at 1 & n.2), and not, for example, to a specific named plaintiff. But according to Plaintiffs, the unconstitutional policy now at issue is Denver's alleged de facto custom of generally disregarding homeless persons' property rights. (ECF No. 124 at 28-39; ECF No. 143 at 39-40.) Plaintiffs do not specifically argue that Denver has a policy of “mass sweeps” as defined in their complaint and as adopted in the class definition. In other words, they make no explicit argument that the common question justifying class treatment-“whether Denver is engaging in the Homeless Sweeps in the manner alleged, ” Lyall, 319 F.R.D. at 564 (ECF No. 106 at 10)-should be answered in their favor.

         Attempting to justify this approach, Plaintiffs assert that the portion of the class definition about “sending ten or more employees or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there” is “merely one aspect of the alleged custom alleged here, and is derived not from the Complaint, but rather from the class definition the Court crafted in certifying the class.” (ECF No. 143 at 40 n.50 (emphasis in original).) This is, of course, wrong on all counts. The class definition itself is no “mere aspect” of the case. The Court “crafted” the class definition-and saved it from a lack of commonality- specifically with reference to the parameters Plaintiffs self-imposed in their complaint (presumably to avoid a much more complicated lawsuit about all of Denver's interactions with the homeless and their property).

         Plaintiffs nonetheless go on to say that this Court's

class certification order specifically noted [that it] was subject to further refinement throughout the litigation. Indeed, amendment of the class definition is something that is well within the discretion of the district court up until final judgment. Accordingly, requiring Plaintiffs to adhere to the Court's high-level summary of the Complaint's “policy or custom” from the class definition as the full description of the alleged custom would be both prejudicial and arbitrary; this definition was crafted without the benefit of the summary judgment briefings and full discovery, and it could very well be amended at a later point.

(Id.) This is irrelevant. The Court indeed left open the possibility that it could revisit class certification in certain circumstances, [5] and the Court would have power to do so even if it had never said so. See Fed. R. Civ. P. 23(c)(1)(C); DG ex rel. Stricklin v. Devaughn, 594 F.3d1188, 1201 (10th Cir. 2010). And yes, considered in the abstract, the class definition “could very well be amended at a later point, ” just as in any class action lawsuit.

         But Plaintiffs have not moved to amend it. Unless and until Plaintiffs do so (and the Court expresses no opinion on whether such a motion would have merit), the class definition requires the Court to focus on the common question that justified class certification in the first place. That common question was not “a high-level summary of the Complaint's ‘policy or custom.'” (ECF No. 143 at 40 n.50.) It was, again, a very specific narrowing of the lawsuit to focus on Denver's alleged large-scale efforts to break up homeless camps, to the exclusion of “innumerable” smaller-scale alleged violations. (ECF No. 54 ¶ 55 n.7.) Accordingly, the only potential classwide summary judgment relief in Plaintiffs' favor that the Court can appropriately consider at this time is a ruling that Denver indeed has a policy, custom, or practice of sending ten or more officials or agents to clear away an encampment of multiple homeless persons by immediately seizing and discarding the property found there. The Court's rulings, below, reflect this limitation.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).[6]


         Before the Court can distill the undisputed facts, the Court must first resolve Denver's Motion to Strike, which presents numerous challenges to Plaintiffs' summary judgment evidence.[7]

         A. Unsigned/Unsworn Declarations

         Plaintiffs have re-submitted declarations they filed early on in this case that display e-filing signatures, i.e., “s/” followed by the declarant's typewritten name. Denver argues that “unsigned and unsworn statements are not competent summary judgment evidence.” (ECF No. 152-1 at 3.) What Denver really means to argue is a statement either must be “sworn” (made in a notarized affidavit) or signed under penalty of perjury (which is considered “unsworn”). See 28 U.S.C. § 1746 (establishing that any federal legal requirement to submit a “sworn” document may be satisfied by an “unsworn declaration” that states it is made under penalty of perjury).

         The Court has routinely rejected this argument in the context of unsworn expert reports submitted as evidence of what an expert would say at trial. See Olivero v. Trek Bicycle Corp., __ F.Supp.3d __, __, 2017 WL 5495817, at *4 (D. Colo. Nov. 16, 2017); Sanchez v. Hartley, F.Supp.3d,, 2017 WL 4838738, at *12 (D. Colo. Oct. 26, 2017); Pertile v. Gen. Motors, LLC, 2017 WL 4237870, at *2 & n.3 (D. Colo. Sept. 22, 2017); Miller v. BNSF Ry. Co., 2017 WL 1880603, at *2 (D. Colo. May 9, 2017); Gunn v. Carter, 2016 WL 7899902, at *2 (D. Colo. June 13, 2016). But expert reports are potentially a special case, “because an expert's report is usually a mandatory disclosure that must contain, among other things, ‘a complete statement of all opinions the witness will express and the basis and reasons for them, ' and because an expert's trial testimony generally may not exceed the scope of this report.” Id. (quoting Fed.R.Civ.P. 26(a)(2)(B)(i); citing Fed.R.Civ.P. 26(e)(2), 37(c)(1)).

         Before the 2010 amendments to Rule 56, the Rule essentially assumed that an affidavit was the primary vehicle for presenting summary judgment evidence, although it could “be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits.” Fed.R.Civ.P. 56(e)(1) (2009); see also id. 56(f) (regarding “when affidavits are unavailable” (capitalization normalized)). The rule further required that an affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. Id. 56(e)(1).

         The 2010 amendments created the version of Rule 56 still operative today. The amended language removes any obvious preference for affidavits and instead states that a moving or responding party may “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). Moreover, rather than requiring that an affidavit set out facts that would be admissible in evidence, the amended rule states only that “[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence, ” id. 56(c)(2)-of course meaning “admissible in evidence at trial.”

         Most affidavits and declarations are not themselves admissible at trial because such documents are usually hearsay, unless the affiant or declarant is a party to the lawsuit. Thus, there is a fair argument that the 2010 amendments eliminated the need for an affidavit or declaration. Or to put it slightly differently, neither a sworn affidavit, a signed declaration, nor an unsigned witness statement is itself admissible at trial (usually), but that says nothing about whether the facts asserted can or cannot be presented in a form that would be admissible at trial. The latter inquiry would seem to turn on whether there is some basis to believe that the source of the asserted facts will be available and willing to testify at trial consistent with those assertions. The formalities of affidavits and declarations tend to provide such assurance, but nothing in Rule 56 makes those formalities the exclusive method.

         That said, given pre-2010 practice, many cases naturally continue to assume that any statement prepared for summary judgment purposes as evidence of what a witness will say at trial must at least be a “declaration” as defined in 28 U.S.C. § 1746. See, e.g., Richardson v. Gallagher, 553 F. App'x 816, 827 (10th Cir. 2014); Estrada v. Cook, 166 F.Supp.3d 1230, 1238 (D.N.M. 2015); Leathers v. Leathers, 2013 WL 1873275, at *3 (D. Kan. May 3, 2013).

         The Court need not resolve this issue here. The Court finds that, with one exception, the relevant facts needed to resolve the parties' motions are not confined to a challenged declaration, but are supported by deposition testimony and by Denver's own facts and evidence. As to these declarations, Denver's Motion to Strike is denied as moot.

         The exception is an allegation that, during a cleanup operation on March 8-9, 2016, no one from Denver was ensuring that important personal or otherwise valuable items were preserved. (See ECF No. 124 at 12, ¶ 52.) This allegation is supported only by declarations from named Plaintiff Lyall and non-party Alexandra Binder. (Id.)[8]Both of these declarations begin with, “Pursuant to 28 U.S.C. § 1746, I hereby declare as follows.” (ECF Nos. 124-13 (Lyall), 124-23 (Binder).) Lyall's declaration also concludes, “I declare under penalty of perjury that the foregoing is true and correct.” (ECF No. 124-13 ¶ 11.) Binder does not specifically mention “penalty of perjury” but she states in the first paragraph of her declaration, “I hereby swear to the following statements and am willing to swear to them at trial.” (ECF No. 124-23 ¶ 1.) The Court finds that this substantially complies 28 U.S.C. § 1746's requirement to make a declaration under penalty of perjury.

         Thus, the only remaining question is the validity of Lyall's and Binder's e-signatures. The Court could locate no binding authority on the question of whether an e-signature is appropriate for a declaration made under 28 U.S.C. § 1746. Unpublished authority among the district courts is generally against it, even if the party directed the attorney to write the declaration, had the declaration read back to him, and authorized the attorney to affix the signature. See Dietle v. Miranda, 2017 WL 387253, at *3 (E.D. Cal. Jan. 26, 2017) (citing cases), report and recommendation adopted, 2017 WL 714390 (E.D. Cal. Feb. 22, 2017). But Denver has not made this specific argument (i.e., that a handwritten signature is always required), nor cited any cases about this specific problem. (See ECF No. 152-1 at 3.) Accordingly, the Court will not address the issue. Cf. Richardson, 553 F. App'x at 828 (“we decline to address the issue of the use of e-signatures, given Mr. Richardson's failure to contest the use of such signatures before the district court or adequately address the issue on appeal”).

         Given this lack of a proper and well-supported objection, the Court finds that Lyall's and Binder's declarations are admissible for present purposes. Through discovery it became clear that Lyall dictated his declaration to Plaintiffs' lead attorney (Mr. Flores-Williams), and Lyall reviewed the declaration after it was typed. (ECF No. 137-6.) Binder typed her declaration and then e-mailed it to Mr. Flores-Williams (ECF No. 137-2), who apparently typed Binder's signature, although he mistakenly typed it as “Alex Lawson” (ECF No. 124-23 at 2).[9] Denver does not point to any discrepancy between Lyall's declaration and his deposition testimony, or Binder's declaration and her deposition testimony, in contrast to other declarants. (See ECF No. 152-1 at 4.) For these reasons, and under the specific circumstances of this case, Lyall's and Binder's declarations are admissible for summary judgment purposes, and so Denver's Motion to Strike is denied as to these two declarations.[10]

         B. Jerry Burton's Declaration, the Thomas Peterson Retrieval Video, and Various Other Objections Based on Hearsay, Personal Knowledge, Etc.

         Denver argues that former Plaintiff Jerry Burton's declaration should be stricken because Burton failed to show up for his deposition. (ECF No. 152-1 at 5-7.) Denver also argues that a video of a man named Thomas Peterson attempting to retrieve his property from a Denver storage location should be stricken as unauthenticated. (Id. at 10-12.) And Denver states various objections-mostly hearsay and personal knowledge objections-to certain of Plaintiffs' assertions of fact. (Id. at 12-14.)

         The Court has examined all of these objections and finds, similar to most of the declarations discussed above, that the facts asserted are either irrelevant or are supported by evidence to which Denver does not object. Accordingly, as to all of these arguments, Denver's Motion to Strike is denied as moot.

         C. Incidents Not Alleged in the Complaint

         Denver complains that Plaintiffs' summary judgment motion includes assertions regarding alleged sweeps that took place on March 25, November 15, and November 28, 2016, none of which was mentioned in the complaint (the November 2016 incidents post-date the complaint). (ECF No. 152-1 at 7.) Denver says that allowing evidence of these three incidents would cause prejudice because

Denver has relied on the [complaint] as defining the scope of this action and has shaped its defense accordingly. Had Denver known that Plaintiffs intended to claim that these incidents violated their rights and formed the basis for their municipal liability claim, Denver would have altered its discovery and disclosed defense witnesses to testify about those events along with supporting documents. Denver also would have moved for summary judgment on these additional incidents. Denver is now precluded from doing so, as discovery is closed and the dispositive motion deadline has passed. Denver has already been prejudiced by the need to respond to Plaintiffs' new allegations, re-interviewing witnesses and otherwise gathering evidence regarding dates and incidents that, until now, were not at issue in the case.

(ECF No. 152-1 at 9.) Denver also argues that post-complaint conduct is simply irrelevant to whether a constitutional violation occurred as alleged in the complaint. (ECF No. 160 at 5.)

         Denver's argument somewhat misapprehends what is currently at stake. As the Court will discuss in greater detail below, the questions currently before it are “whether Denver [has a custom, practice, or policy of] engaging in the Homeless Sweeps in the manner alleged, ” Lyall, 319 F.R.D. at 564, and whether such sweeps are likely to recur such that Plaintiffs have standing to seek a permanent injunction, see City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (“Lyons”). All alleged sweeps, whenever they happened, are relevant to that inquiry. Indeed, later-in-time incidents, including incidents that post-date the complaint, are particularly relevant to the standing question. See, e.g., Farmer v. Brennan, 511 U.S. 825, 845 (1994) (in the prison conditions context, noting that availability of an injunction “should be determined in light of the prison authorities' current attitudes and conduct: their attitudes and conduct at the time suit is brought and persisting thereafter”). In other words, Plaintiffs have not inserted new theories of liability or new claims for relief through which they hope to be awarded damages. They have instead asserted evidence that they believe demonstrates what they sought to prove in the first place-an ongoing pattern or practice of unconstitutional sweeps that should be enjoined.

         Even so, if this evidence truly came as a surprise to Denver, Denver may still have a claim of prejudice. Plaintiffs assert, however, that all three of the newly inserted incidents were discussed in various depositions through questioning elicited by Denver's attorney. (ECF No. 148 at 8-9.) Denver, in reply, does not deny this, but simply claims that discussion at a deposition is not sufficient. (ECF No. 160 at 6.) Moreover, Denver indeed gathered evidence to rebut Plaintiffs' allegations concerning these three incidents. (See ECF No. 138 at 11, 15-21.) And, notably, Denver has not submitted a Rule 56(d) affidavit or declaration that “it cannot present facts essential to justify its opposition.”

         Denver admittedly did not receive an opportunity to attempt to affirmatively demonstrate, through its own summary judgment motion, that these incidents were not mass sweeps. However, the Court's review of the evidence, discussed more fully below, convinces it that Denver could not have eliminated all genuine disputes of material fact as to these incidents.

         For all of these reasons, Denver's motion to strike is denied as to allegations concerning sweeps that took place on March 25, November 15, and November 28, 2016.

         IV. FACTS

         The following facts are undisputed unless attributed to a party, or otherwise noted.

         A. December 15, 2015: Denver Rescue Mission

         The first notable sweep, according to Plaintiffs, occurred in the early morning of a particularly cold day, December 15, 2015, and affected at least fifteen homeless persons sleeping outside the Denver Rescue Mission. Plaintiffs' testimony regarding the sweep itself is hearsay; their only eyewitness arrived after it ended. (See ECF No. 124 at 6-9, ¶¶ 16-33; ECF No. 138 at 4-7, ¶¶ 16-33.) But it is undisputed that a Denver police officer from the police department's Homeless Outreach Unit, Ligeia Craven (“Officer Craven”), was present, and at ...

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