United States District Court, D. Arizona
ORDER
John
J. Tuchi, United States District Judge
At
issue is Plaintiffs' Amended Motion for Class
Certification (Doc. 101, Mot.), to which Defendants filed a
Response (Doc. 113, Resp.) and Plaintiffs filed a Reply (Doc.
127, Reply). The Court heard oral argument on the Motion on
June 12, 2019. (Docs. 160, 165.) In this Order, the Court
will also resolve Defendants' Motion for Leave to
Supplement the Class Certification Record (Doc. 138), Motion
to File Exhibit under Seal (Doc. 141), and Motion for Leave
to File a Sur-Reply (Doc. 144), as well as Plaintiffs'
Motion to Strike Portions of Defendants' Supplements or
Alternatively for Leave to Respond to Defendants' Filings
(Doc. 146).
I.
BACKGROUND
On
August 22, 2017, President Donald Trump held a rally at the
Phoenix Convention Center, and approximately 6, 000
demonstrators-both pro-Trump and anti-Trump-gathered outside
the Convention Center. [1] The Phoenix Police Department
(“PPD”) had about a week's advance notice of
the rally, during which it made preparations to try to ensure
the safety of the downtown area during the expected
demonstrations. The preparations included setting up a
“free speech zone” designated for anti-Trump
demonstrators on the north side of the Convention Center,
across Monroe Street. The free speech zone was bordered by
2nd Street to the west, 3rd Street to the east, and Monroe
Street to the south, and demarcated by a three-foot high
pedestrian fence. PPD anticipated that certain groups of
demonstrators would be present, including Antifa-a national,
militant political protest movement opposing fascism and
right-wing ideology whose groups had disrupted several other
demonstrations in the weeks preceding President Trump's
Phoenix visit-as well as Plaintiff Puente-a Phoenix
grassroots organization representing migrant communities
through lobbying, advocacy, and activism-and Plaintiff Poder
in Action (“Poder”)-a Phoenix grassroots
organization with a mission of empowering victims of
injustice through leadership development, civic engagement,
and policy advocacy.
In a
Presidential Visit After-Action Report (Doc. 101-3 at 2-35,
Bates Nos. COP014832-014865, “PPD Report”),
Defendant PPD Chief Jeri Williams stated that, on the day of
the rally, PPD deployed approximately 985 officers around the
Convention Center. According to the report, large crowds of
demonstrators began arriving by 11:00 a. m. and, although PPD
officers observed minor altercations and a few water bottles
being thrown at rally attendees lining up to enter the
Convention Center, the demonstrations proceeded generally
without incident during the day.
The
rally inside the Convention Center began at 6:30 p. m. At
approximately 8:15 p. m., after PPD officers around 2nd
Street and Monroe reported that water bottles were being
thrown at them, PPD used a Long Range Acoustic Device
(“LRAD”) to make announcements instructing
individuals to stop throwing objects. At 8:23 p. m., 15 to 20
individuals PPD had identified as Antifa put up large banners
near the fence along Monroe, which concealed their activities
from PPD officers. PPD deployed Tactical Response Unit
(“TRU”) personnel, including grenadiers trained
in the deployment of chemical munitions, in the area where
Antifa had gathered. Just after 8:32 p. m., President Trump
began to leave the rally, and PPD officers observed Antifa
pushing or shaking the fence.
PPD
deployed its first munition in front of Antifa just before
8:33 p. m. in the form of pepper balls on the ground, which
cleared most individuals from the immediate vicinity.
Thereafter, PPD officers reported that rocks and bottles were
being thrown and, at 8:34, officers reported that canisters
of some kind of tear gas were thrown at them. At that point,
PPD officers donned gas masks and, at 8:35, the grenadiers
deployed inert smoke bombs. Large numbers of demonstrators
began to clear the area.
After
officers noted that some smoke canisters were being kicked
back and a spearlike object and an incendiary device were
thrown at them, the grenadiers deployed CS gas-a type of tear
gas-in what they perceived to be a focused location to target
specific individuals. Plaintiff Gonzalez Goodman alleges she
inhaled gas. The grenadiers also deployed aerial flash bangs
intended to act as auditory warnings. Demonstrators began to
run away and, by 8:39, the area where individuals had been
throwing projectiles was mostly empty, although demonstrators
remained to the east and west of the area.
From
8:36 to 8:45, PPD used additional smoke cannisters and pepper
balls to clear an area so that officers could form lines to
begin dispersing the crowd. Helicopters from the PPD Air Unit
began arriving at 8:40, and they started making announcements
directing the crowd to disperse at 8:52. In this time period,
the grenadiers deployed smoke canisters, pepper balls, and OC
bullets-bullets filled with pepper spray-one of which hit
Plaintiff Guillen. Lines of PPD officers with riot shields
began marching to move the crowd at 8:56. At some point
between 8:42 and 8:47, PPD made the determination that the
crowd was unlawfully assembled, and at 9:02, an official
unlawful assembly announcement was made via a public address
system from a marked police vehicle on the ground.
Thereafter,
the grenadiers deployed munitions in the form of pepper
balls, OC bullets, and CS gas canisters at anyone who
approached a police officer, and Plaintiff Travis was hit
several times. PPD officers told the press to leave the area
at 9:20 p. m. The crowd was dispersed and gone from the free
speech area by 9:56 p. m.
Over
the course of the evening, PPD documented eight Incident
Reports-for criminal damage, disorderly conduct, aggravated
assault on Police, and unlawful assembly-and made five
individual arrests. After the rally, Chief Williams publicly
acknowledged that she directed PPD's actions against the
protestors and that the actions were appropriate.
On
September 4, 2018, Plaintiffs filed suit against PPD and
certain PPD members- including Chief Williams, Field Force
Commander Moore, Grenadier Team Leader McBride, and
Grenadiers Scott, Turiano, Neville, Sticca, White, Howell,
and Herr- raising four claims: (1) a claim under 42 U.S.C.
§ 1983 for excessive use of force during a search or
seizure under the Fourth and Fourteenth Amendments; (2) a
§ 1983 claim for infringement of Plaintiffs' freedom
of speech and association rights under the First and
Fourteenth Amendments; (3) a § 1983 claim for due
process violations under the Fourteenth Amendment; and (4) a
§ 1983 claim for equal protection violations under the
First and Fourteenth Amendments. (Doc. 1, Compl.) Plaintiffs
now move to certify this suit as a class action.
II.
LEGAL STANDARD
Federal
Rule of Civil Procedure 23(a) provides that a class
action-that is, an action in which one or more members of a
class sue on behalf of all members of the class-may proceed
only if four prerequisites are met:
(1) Numerosity: “the class is so numerous that joinder
of all members is impracticable;”
(2) Commonality: “there are questions of law or fact
common to the class;”
(3) Typicality: “the claims or defenses of the
representative parties are typical of the claims or defenses
of the class;” and
(4) Adequacy of Representation: “the representative
parties will fairly and adequately protect the interests of
the class. ”
Fed. R. Civ. P. 23(a).
In
addition, under Rule 23(b), a court may only certify a class
action if there is at least one of the following:
(1) Risk of Inconsistency: the prosecution of separate
actions by individual class members would create a risk of
inconsistent adjudications or adjudications that would be
dispositive of non-party class member interests; or
(2) Appropriate Class-Wide Injunctive Relief: injunctive or
declaratory relief is appropriate respecting the class as a
whole because the conduct of the opposing party applies
generally to the class; or
(3) Predominance and Superiority: “the court finds that
the questions of law or fact common to class members
predominate over any questions affecting only individual
members, and that a class action is superior to other
available methods for fairly and efficiently adjudicating the
controversy. ”
Fed. R. Civ. P. 23(b).
“Rule
23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate
his compliance with the Rule-that is, he must be prepared to
prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc. ”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350
(2011). Thus, “‘sometimes it may be necessary for
the court to probe behind the pleadings before coming to rest
on the certification question. '” Id.
(quoting Gen. Tel. Co. of the Sw. v. Falcon, 457
U.S. 147, 160 (1982)). Class certification “is proper
only if ‘the trial court is satisfied, after a rigorous
analysis, that the prerequisites of Rule 23(a) have ...