Berry v. Hennepin County

Background

The plaintiffs were Patrick Berry, Henrietta Brown, Nadine Little, Dennis Barrow, Virginia Roy, Joel Westvig, Gina Mallek, Daniel Huiting, and ZACAH. The opinion describes the Individual Plaintiffs as people who had experienced unsheltered homelessness in Hennepin County, and ZACAH as a nonprofit organization assisting Minnesota residents on the verge of homelessness. The plaintiffs alleged that Hennepin County, the City of Minneapolis, the Minneapolis Park and Recreation Board, certain officials, and unnamed police officers conducted encampment sweeps that seized and destroyed property belonging to people living in Minneapolis public-park encampments.

The amended complaint asserted five counts: unlawful seizure of property under the Fourth Amendment and Minnesota law; violation of privacy under the Fourth Amendment and Minnesota law; violation of procedural due process under the Fourteenth Amendment and Minnesota law; violation of substantive due process under the Fourteenth Amendment and the Minnesota Constitution; and conversion under Minnesota law. The plaintiffs moved to certify a class under Federal Rule of Civil Procedure 23(b)(2) for injunctive relief. The defendants opposed certification.

Standing and mootness

The defendants argued that the Individual Plaintiffs could not represent a class seeking prospective injunctive relief because they had obtained housing and could not show that future harm from an encampment sweep was certainly impending. The court applied the “inherently transitory” exception, which can allow a plaintiff to continue representing a class when the plaintiff’s injury is likely to end before certification but continues for other class members.

Based on expert evidence about the recurring nature of homelessness, the court held in its analysis that the Individual Plaintiffs retained standing to seek prospective injunctive relief on behalf of the proposed class. The court also held that the exception prevented the claims from becoming moot.

Rule 23 requirements

Rule 23(a) requires numerosity, commonality, typicality, and adequacy of representation. Rule 23(b)(2) permits certification when the opposing party has acted on grounds generally applicable to the class and a single injunction or declaration would provide relief to the class as a whole. The court stated that it must conduct a rigorous analysis and may examine evidence beyond the pleadings to determine whether these requirements are met.

Numerosity

The plaintiffs relied on estimates of the overall homeless population in Hennepin County, including point-in-time counts ranging from 400 to 730 people, and testimony that homeless encampments existed throughout Minneapolis. The court found that this evidence did not sufficiently estimate the narrower group of people residing in Minneapolis and subject to the challenged policies. Because the plaintiffs did not provide a reasonable method for estimating that group, the court found that they failed to satisfy numerosity.

Commonality

The plaintiffs alleged that the defendants had common practices of providing inadequate notice before sweeps, failing to inventory seized property properly, and immediately destroying belongings. The defendants presented evidence that closure procedures, notice, property protocols, decision-making authority, and policies varied among the City, County, and MPRB, and from one encampment closure to another. The court also identified differences in the Individual Plaintiffs’ experiences with notice, property destruction, and choices after closures.

The court found that these variations created too many individualized issues and prevented the plaintiffs from showing common questions capable of class-wide answers. In the court’s view, the evidence did not establish the continuing, widespread, and persistent unconstitutional conduct needed for the plaintiffs’ municipal-liability theory to support class treatment.

Typicality

The court found that the Individual Plaintiffs’ claims differed because their notice, departures from encampments, property-loss allegations, and other circumstances were not the same. Resolving the Fourth Amendment property-seizure claims would require examining the circumstances of each person’s situation, including whether officials reasonably believed property had been abandoned. The due-process claims likewise would require person-specific analysis of notice and the risk of erroneous property deprivation. The court therefore found that the plaintiffs failed to satisfy typicality.

Adequacy

The court found that the plaintiffs had shown a continuing personal stake in the requested injunction through expert evidence concerning the recurring nature of homelessness. It also noted their active participation in the litigation. The court rejected the argument that potential individual damages claims made the plaintiffs inadequate representatives because the proposed class sought only injunctive relief, and the court concluded that a judgment on that relief would not bar later individual damages claims. The court therefore found that the plaintiffs satisfied adequacy under Rule 23(a)(4).

Rule 23(b)(2)

The court found that the proposed class also failed Rule 23(b)(2). Evidence showed that encampments differed in size, location, hazards, health and safety risks, and danger to the public. Those differences meant that reasonable notice periods, storage periods, and property-handling procedures could require different treatment. The court concluded that the requested relief would need to be tailored to each encampment rather than supplied through one injunction covering the entire class.

Disposition

The court ordered that the plaintiffs’ motion for class certification, docket entry 397, was denied.

The opinion contains an internal inconsistency: its standing analysis says that the Individual Plaintiffs retained standing, and its adequacy analysis says that they satisfied adequacy, but its conclusion states that they failed the standing, commonality, typicality, and adequacy requirements. The conclusion also does not list numerosity, even though the analysis finds that numerosity was not satisfied. The supplied case metadata identifies Eric Tostrud as the judge, but the opinion is signed by Wilhelmina M. Wright; this summary uses the signing judge.