Anti Police-Terror Project v. City of Oakland

Background

The plaintiffs sought certification under Federal Rule of Civil Procedure 23 for claims against the City of Oakland based on tear gas used during George Floyd protests in Oakland from May 29 through June 1, 2020. The case also named Susan Manheimer, Patrick Gonzales, Maxwell D’Orso, and Casey Fought as defendants. The operative complaint asserted claims under 42 U.S.C. § 1983 based on the First, Fourth, and Fourteenth Amendments; supervisory and municipal liability; assault and battery; California’s Bane Act; false arrest and false imprisonment; and negligence. The proposed class did not include the Fourteenth Amendment substantive-due-process claim, which plaintiffs stipulated was being asserted only by non-class plaintiffs.

The plaintiffs’ amended proposed class covered “all persons injured by tear gas deployed by the Oakland Police Department or its mutual aid allies” during the four-day protest period. They sought an injunction and declaratory relief for alleged First Amendment violations, and damages for alleged Fourth Amendment, assault-and-battery, Bane Act, and negligence violations. They asked for certification under Rule 23(b)(2) for injunctive and declaratory relief and under Rule 23(b)(3) for damages.

Rule 23 analysis

Rule 23(a) requires numerosity, commonality, typicality, and adequate representation. The court found numerosity satisfied based on evidence that large crowds were present when tear gas was deployed, declarations describing injuries, and expert evidence about injuries associated with tear gas and pepper spray. The court also found adequate representation satisfied.

The court found commonality and typicality unsatisfied as to the proposed class as defined. The class included people affected by tear gas used by mutual-aid partners, even though the city’s potential liability for those incidents could depend on different policies and practices. It also included people who may not have been peacefully demonstrating, creating different questions about excessive force and interference with protest rights. The named representatives had described peaceful protest and exposure to Oakland police tear gas, but there was no evidence that they engaged in nonpeaceful conduct or were injured by mutual-aid partners. The court stated that narrowing the class, creating subclasses, or identifying a representative injured by mutual-aid tear gas might cure these problems.

For Rule 23(b)(2), the court concluded that the plaintiffs had not shown that all tear-gas uses over the four-day period resulted from a common policy or course of conduct at the command-staff level. The court therefore found the broad proposed class inappropriate for the requested injunction and declaratory relief.

For Rule 23(b)(3), the court held that common questions did not predominate and that a class action was not a manageable method for resolving the damages claims. Determining whether each use of force was excessive would require fact-specific examination of the type and amount of force, the government’s interests, and the circumstances facing officers at each location. The court also noted that the city did not directly order the tear-gas uses, so individual officers’ decisions might need to be examined in deciding municipal liability. Similar individualized questions affected the assault-and-battery, Bane Act, and negligence claims. The court further found serious challenges in determining class membership.

The court also stated that seeking injunctive relief and damages for the same proposed class under Rules 23(b)(2) and 23(b)(3) could confuse class members because the two provisions treat the right to opt out differently. At a minimum, the court said, separate injunctive-relief and damages subclasses would be appropriate if certification were otherwise justified. The court could not rely on two disputed investigative reports because an administrative motion to seal them had been denied and the confidentiality dispute remained unresolved.

Disposition

The court denied without prejudice the motion for class certification. After the scheduled settlement conference, the parties were asked to submit a status report including a proposed briefing schedule for a renewed certification motion if the plaintiffs chose to file one. Judge Joseph C. Spero signed the order.