Puente v. City of Phoenix

          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 ...