[00:00:02] Speaker 00:
Good morning Judge Robinson, Judge Lee, Judge Bress.

[00:00:04] Speaker 00:
May it please the court, Jonathan Eisenman for the City of Los Angeles.

[00:00:08] Speaker 00:
I'd like to reserve three minutes for rebuttal.

[00:00:11] Speaker 00:
The most straightforward reason why the city should win this appeal is the district court certification order does not contain the necessary rigorous analysis of the class certification criteria.

[00:00:20] Speaker 00:
The district court made no predominance findings when it certified three classes under Rule 23b-3, and it made no commonality finding for the class it certified under Rule 23b-2.

[00:00:30] Speaker 00:
My friends readily concede that the district court's order contains no explicit predominance findings.

[00:00:35] Speaker 00:
To be clear, the order contains, for the B3 classes, no predominance findings at all.

[00:00:40] Speaker 00:
It contains instead findings that the district court expressly and repeatedly called only commonality findings.

[00:00:46] Speaker 00:
Those findings are not supported by an analysis that considers the class's claims and weighs individualized questions against common ones as a predominance inquiry requires.

[00:00:56] Speaker 00:
But I don't want to belabor points that are made in the city's briefing and effectively conceded in my friends, unless there are questions about the order's shortcomings, which are themselves sufficient reason to vacate it.

[00:01:05] Speaker 00:
I'd prefer to focus on what I think are likely to be intractable problems with ever certifying at least some of the classes that my friends have in mind.

[00:01:12] Speaker 02:
And it does get to a question I wanted to ask you, which is what are you asking?

[00:01:15] Speaker 02:
Are you asking for this to be remanded for the district court to

[00:01:18] Speaker 02:
evaluate rule 23 in in a more comprehensive you would say way or are you asking us to rule on the rule 23 questions here so I think what I'm asking I think I am asking that the order be vacated at least as a baseline and remanded based on these shortcomings however I think given

[00:01:40] Speaker 00:
the intractable problems that will present themselves as to some of the classes that my friends are seeking to certify, the court can go further and express holdings or at least advise the district court in that regard.

[00:01:51] Speaker 00:
I would point to the court's opinion in Wang versus Chinese Daily News as an example of a case where the court did that.

[00:01:57] Speaker 01:
Well, I would say give direction, not advise, because we generally don't do advisory opinions.

[00:02:02] Speaker 00:
Thank you, Judge Rawlinson.

[00:02:03] Speaker 00:
Give direction.

[00:02:05] Speaker 00:
I think a more straightforward and better way of putting it, so I appreciate that.

[00:02:08] Speaker 00:
To give the district court direction, because I think if you're presented with a case where there are claims that require someone to prove that a government official behaved unreasonably under the circumstances, the under the circumstances bit is going to almost paradigmatically, close to universally, it's hard to imagine a case where it doesn't mean you'll have individualized questions about those circumstances.

[00:02:29] Speaker 00:
That's why the 11th Circuit said that excessive force claims are, quote, especially unsuited to class disposition.

[00:02:35] Speaker 00:
It's why the 7th Circuit decertified a B3 class of plaintiffs who complained that they were detained too long, which is similar to a claim in this case, on fine-only arrests.

[00:02:44] Speaker 00:
There, the 7th Circuit held that, and I quote, because reasonableness is a standard rather than a rule, and because one detainee's circumstances differ from another's, common questions do not predominate and class certification is inappropriate.

[00:02:57] Speaker 00:
And I think you'd see that here with the arrest class.

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If you look at the class definition, it sort of springs right out to say people who were detained for some lengthy amount of time, subject to prolonged, tight handcuffing,

[00:03:09] Speaker 00:
Those are words that, as a Fourth Amendment claim, call to mind the reasonableness of the length of detention.

[00:03:15] Speaker 03:
Can you address the plaintiff's point that they're making at least Monell claims, that they're challenging the city's policy or custom, and therefore they meet, if not predominance, at least a commonality standard?

[00:03:30] Speaker 00:
I think it would certainly be a common question among the plaintiffs.

[00:03:35] Speaker 00:
The way I conceive of the predominance inquiry, just surveying the case law, is it's really about controlling variables and whether you can control significant variables enough that you can meaningfully try a case.

[00:03:45] Speaker 00:
The problem is if you control the Monell variable, so you just say, OK, there's a policy, you still have to litigate then whether that policy caused an injury

[00:03:55] Speaker 00:
to any of the possible representative plaintiffs, and that becomes an individualized question.

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Parenthetically, the 11th Circuit case Kerr and the 7th Circuit case Portis that I just referenced were also both cases with Monell claims.

[00:04:08] Speaker 00:
And the courts in both those cases in one held these shouldn't be certified, and the other decertified the class.

[00:04:14] Speaker 00:
So I don't think Monell is enough to get you there.

[00:04:17] Speaker 00:
And even just looking at this court's jurisprudence when it comes to employment policies,

[00:04:21] Speaker 00:
Judge Lee, I know you authored a case maybe two months ago, Miles versus Kirkland, where you had an employment policy, one, that forbade employees from leaving the workplace on their breaks, at least for some period of time, and another case required them to undergo bag checks when they were coming and going from the workplace.

[00:04:38] Speaker 00:
And I believe the court's holding was, as to the inability to leave the premises,

[00:04:44] Speaker 00:
where you could control the variable that turns out based on the evidence, no one left the premises during at least some period of that time, you can say, okay, this policy applied universally, predominance is satisfied.

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As to the bag check claim where you couldn't control for variables such as who has a bag, who doesn't have a bag, how much time is spent searching the bags, you could not certify a class under B3 for that claim.

[00:05:05] Speaker 00:
I appreciate that this is not an employment claim.

[00:05:09] Speaker 00:
It's in many respects a much more serious claims involved here.

[00:05:13] Speaker 00:
And you have, I think, the vast majority of the significant variables uncontrolled for.

[00:05:21] Speaker 00:
If you wanted to then distinguish this case from the district court cases on which my friends rely, cases like, and I probably mispronounce this, I'm sorry, A. Kelly, Chua, or the Multi-Ethnic Immigrant Workers Organizing Network, MIWON.

[00:05:34] Speaker 00:
At least in those cases, you're dealing with

[00:05:38] Speaker 00:
one act that took place in one place at one time.

[00:05:42] Speaker 00:
Parenthetically, I think at least Mywan is probably wrongly decided for the same reason that I think the district court erred here or would err here if it attempted to do the predominance analysis that it didn't do, which is to say that the Mywan case only says, hey, we're focused on a policy.

[00:05:57] Speaker 00:
It cites no authority for the proposition that a common policy is enough for predominance and then finds predominance.

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These cases, I should point out,

[00:06:06] Speaker 00:
the ones that I mentioned, were never reviewed on appeal.

[00:06:10] Speaker 00:
And that is, I think, the problem with relying on a lot of the non-precedential district court authority for these propositions.

[00:06:17] Speaker 00:
It's never reviewed, the cases settle, and the city is stuck in a position where it's being hauled into court, these cases are cited against it, and it's really never given a fair shake on predominance in these sorts of cases.

[00:06:32] Speaker 01:
Council, opposing counsel had indicated that similar cases had been settled by the city.

[00:06:40] Speaker 01:
Do you agree with that?

[00:06:41] Speaker 00:
That they'd been settled?

[00:06:42] Speaker 00:
Yes, I do agree that they'd been settled.

[00:06:43] Speaker 01:
Have the parties pursued mediation in this case?

[00:06:47] Speaker 00:
I believe that they have.

[00:06:48] Speaker 00:
Candidly, my colleagues who handled the case in the trial court would have dealt with my opposing counsel on that.

[00:06:53] Speaker 00:
I'm confident that they've talked settlement at least.

[00:06:56] Speaker 00:
I don't know what the details of those conversations were.

[00:06:58] Speaker 03:
Related to that, this lawsuit was filed in June of 2020, and now we're in 2024.

[00:07:05] Speaker 03:
We're not even close to trial, if it does ever go to trial.

[00:07:09] Speaker 03:
What's taken so long here?

[00:07:12] Speaker 00:
I think part of it is probably a stay for this process.

[00:07:17] Speaker 00:
I can't speak to what's taken so long generally to litigate the case.

[00:07:21] Speaker 00:
I do know that there's some complexity obviously involved when you're talking about this many possible plaintiffs.

[00:07:27] Speaker 00:
You're talking about arrests or use as a force that happened across days in different places in the city.

[00:07:32] Speaker 00:
There is a lot to deal with in discovery, but I don't know that that's totally responsible for the delay and I can't speak to the full breadth of it.

[00:07:42] Speaker 00:
I'm sorry for that.

[00:07:46] Speaker 00:
I don't know that there's any real reason for me to go on.

[00:07:50] Speaker 00:
If the panel doesn't have questions, I'm happy to answer them, or else to reserve the remainder of my time, or at least the three minutes that I requested for rebuttal.

[00:07:59] Speaker 01:
Perhaps on rebuttal, we may have some questions after we hear from opposing counsel.

[00:08:03] Speaker 00:
Thank you, Judge Olson.

[00:08:04] Speaker 01:
All right, thank you.

[00:08:26] Speaker 04:
Pardon my voice, it's gone out, but I'll do my best.

[00:08:32] Speaker 04:
May it please the court, Barry Witt, for the appellees.

[00:08:37] Speaker 04:
So I want to begin briefly with what Judge Marshall did find.

[00:08:43] Speaker 04:
And I realize that she did not make an explicit predominance finding.

[00:08:48] Speaker 04:
And if I'd had my druthers, she would have.

[00:08:53] Speaker 04:
Having said that, she did make several statements.

[00:08:56] Speaker 04:
She articulated the rule 23 standards, B3 standards correctly.

[00:09:04] Speaker 04:
She quoted from Torres versus Mercer canyons the same language that

[00:09:13] Speaker 04:
Judge Lee used in Miles, which is that predominance is a question of whether or not there are important questions apt to drive the resolution of the case.

[00:09:26] Speaker 04:
That's a quote from what she said.

[00:09:28] Speaker 04:
She cited that part of Merceral Canyons in that same sentence.

[00:09:34] Speaker 04:
That sentence is discussing predominance.

[00:09:37] Speaker 04:
Similarly, the court's reference to Mee Wan

[00:09:41] Speaker 04:
is to the section within B1 that was discussing predominance.

[00:09:48] Speaker 04:
So I realize she did not use the word predominance, but it's clear from when you read textually what she's saying and what that means in the law and the cases that she's referencing for her findings that she's making a finding of predominance.

[00:10:06] Speaker 04:
She also discussed Monell.

[00:10:10] Speaker 04:
and the Monell issues under both Oleon and Tyson Foods.

[00:10:14] Speaker 04:
The question is whether or not one or more central issues.

[00:10:19] Speaker 04:
are susceptible to 23B3 treatment in this case.

[00:10:27] Speaker 04:
That's why the, and she also made findings on the Monell issues where we had established evidence regarding failure to train.

[00:10:39] Speaker 04:
We had established evidence regarding custom and practice.

[00:10:44] Speaker 04:
And I do want to spend a minute on the evidence.

[00:10:47] Speaker 01:
Well, before you go there, counsel,

[00:10:49] Speaker 01:
In light of your concession that the predominance findings weren't made, if we are of the view that the findings are not sufficiently explicit for us to review them, wouldn't that require us to remand to the

[00:11:06] Speaker 01:
district court to make the required findings?

[00:11:10] Speaker 04:
If you concluded that the findings were not sufficient, then yes, the remedy would be to remand for further consideration by the district court.

[00:11:20] Speaker 04:
Our argument is that what the appellant's argument really is is that

[00:11:31] Speaker 04:
the word predominance is like a talismanic incantation.

[00:11:35] Speaker 04:
That's a quote from Duckworth versus Eggers where the Supreme Court is talking about Miranda and defendants arguing that you have to use this exact language.

[00:11:47] Speaker 04:
So the point that we're arguing is that once you

[00:11:53] Speaker 04:
say, okay, did she in fact make a predominance finding?

[00:11:58] Speaker 04:
We think she did, but I agree with you.

[00:12:00] Speaker 01:
Where in the record can we go to discern the predominance finding?

[00:12:07] Speaker 01:
Where is that in the record?

[00:12:10] Speaker 04:
In the record?

[00:12:10] Speaker 01:
In the record.

[00:12:11] Speaker 01:
Point us to where in the record we can go to assure ourselves that the predominance finding was made.

[00:12:19] Speaker 01:
Well, if you- Could you give us the excerpts of record, site?

[00:12:25] Speaker 04:
My colleague will pull that out while we continue.

[00:12:30] Speaker 01:
What I would say is, if you're asking about what evidence is in the record- No, I ask you, where in the record can we go to the court's order to ascertain or confirm that the predominant finding was made?

[00:12:45] Speaker 01:
What part of the order?

[00:12:47] Speaker 04:
So the part of the order, the order begins, I'm doing this from memory, but- Well, I would really like to have a record site so we can go to the- Okay, Ms.

[00:12:57] Speaker 01:
Soba will- Okay, that's okay, if you don't have it, that's fine.

[00:13:00] Speaker 03:
Okay.

[00:13:00] Speaker 03:
Can you address, I mean, most other cases, similar cases, usually it's a single protest, maybe it's a sit-in, and the police act in a certain way.

[00:13:10] Speaker 03:
Here, after the protests, after George Floyd's death, was historic.

[00:13:16] Speaker 03:
And there were thousands of people across the country, and specific here to LA.

[00:13:19] Speaker 03:
There were thousands, even in LA, thousands of people protesting across several days, different parts.

[00:13:25] Speaker 03:
People were behaving in different ways, some peacefully, some less so.

[00:13:30] Speaker 03:
I mean, how can you adjudicate this as a class when you have so many different events, so many different places, so many different people, and the police response also varying so much?

[00:13:40] Speaker 03:
I mean, it just seems very difficult to proceed as a class action.

[00:13:44] Speaker 04:
Well, it's basically been conceded by the city, not in the pleadings, but by the Chalice report.

[00:13:51] Speaker 04:
The Chalice report was a report

[00:13:54] Speaker 04:
commandeered by the city.

[00:13:57] Speaker 04:
It was by a former high official within the LAPD.

[00:14:02] Speaker 04:
And he goes exhaustively through what happened.

[00:14:06] Speaker 04:
And if you look at the evidence in the record, what happened here is that the police used less lethal weapons as a means of crowd control.

[00:14:17] Speaker 04:
That's what they did and they did it consistently throughout.

[00:14:21] Speaker 04:
The Chalif report criticizes the lack of preparation for crowd control.

[00:14:29] Speaker 04:
More importantly, the weapons that were used

[00:14:33] Speaker 04:
There are two main types of weapons of the less lethal.

[00:14:37] Speaker 04:
There are the 37 millimeters, which may be used for crowd control.

[00:14:41] Speaker 04:
They have to be skipped off the ground to be used that way.

[00:14:45] Speaker 04:
And then the 40 millimeters, which can only be used, cannot be used for crowd control at all.

[00:14:54] Speaker 04:
They were really only designed for an individual situation.

[00:14:58] Speaker 04:
where force is justified.

[00:15:01] Speaker 04:
What happened here was indiscriminate use throughout the days of protest because the Chalice report details that they were not ready, they were not trained, they did not have the skills.

[00:15:15] Speaker 04:
Michael Moore was out there the first two days.

[00:15:20] Speaker 03:
But probably in some instances, probably the force was justified, right?

[00:15:23] Speaker 03:
And I guess that's a problem here proceeding this as a class.

[00:15:26] Speaker 04:
No, not under Nelson v. City of Davis.

[00:15:31] Speaker 04:
You can't use undifferentiated force against a crowd.

[00:15:35] Speaker 04:
You have to use it against an individual.

[00:15:37] Speaker 03:
What happened here and what the chair of the report said... If the name plaintiffs here pursued individual Section 1983 lawsuits,

[00:15:44] Speaker 03:
We would have to analyze individual circumstances of the case.

[00:15:49] Speaker 03:
We have to look at what did the plaintiffs do?

[00:15:51] Speaker 03:
What was happening?

[00:15:53] Speaker 03:
What did the police officer respond?

[00:15:55] Speaker 03:
What was the situation?

[00:15:55] Speaker 03:
Were there other people around?

[00:15:56] Speaker 03:
Was there potential urgency?

[00:15:58] Speaker 03:
I mean, it seems so fact-specific, even for individual claim.

[00:16:01] Speaker 03:
How can we do that?

[00:16:03] Speaker 04:
But defendants did not put in the record, with one exception which I can explain, of a person who's not part of the class.

[00:16:12] Speaker 04:
They did not put in the record any cases where they could present that the use of force against an individual was justified.

[00:16:22] Speaker 04:
The record is devoid of such facts.

[00:16:25] Speaker 04:
And under Olian, the question is whether or not, based on a preponderance of the evidence,

[00:16:32] Speaker 03:
The plaintiffs have the burden to prove that.

[00:16:36] Speaker 04:
We have the burden to prove, and we did that.

[00:16:38] Speaker 04:
We did that through declarations of numerous declarations, none of which were rebutted.

[00:16:44] Speaker 04:
We did that through the Chalice report.

[00:16:48] Speaker 04:
We did that through the declaration of Carol Sobel, which is in volume 12 of the excerpts of record.

[00:16:55] Speaker 04:
And it's a very lengthy, over 100 page declaration that walks through the events, explains what happened,

[00:17:02] Speaker 04:
and attached numerous exhibits, none of which the defendants attempted to rebut, much less actually rebutted.

[00:17:13] Speaker 02:
So the record in this case... How many people would you say are in these classes?

[00:17:18] Speaker 04:
So in their

[00:17:21] Speaker 04:
So in the arrest class, it's approximately 4,000.

[00:17:26] Speaker 04:
Those are the people.

[00:17:28] Speaker 04:
That's the bus conditions.

[00:17:31] Speaker 04:
And it's admitted that basically even though

[00:17:37] Speaker 04:
They had had a history of the same problems.

[00:17:39] Speaker 04:
They did the same thing.

[00:17:41] Speaker 04:
They zip-tied people behind their back.

[00:17:43] Speaker 04:
They had no plans for getting them.

[00:17:45] Speaker 02:
The 4,000 people, how many incidents or protests were there?

[00:17:50] Speaker 02:
These 4,000 weren't all at the same protest.

[00:17:53] Speaker 02:
They were spread out.

[00:17:53] Speaker 04:
They were not the same protest.

[00:17:55] Speaker 04:
It's over the five days, as gentlemen indicated.

[00:17:58] Speaker 04:
It's over the five days.

[00:17:59] Speaker 02:
The records show in terms of how many protests there were that were the subject of this lawsuit.

[00:18:04] Speaker 04:
There were

[00:18:07] Speaker 04:
There are several because there are process over several days and there are different locations.

[00:18:14] Speaker 04:
So I do not dispute that there were

[00:18:20] Speaker 04:
It's true that this is over several days, but I think what is unique about this situation is that given this history on all of these issues, that the LAPD had been sued, had entered into agreements not to do the things that they were doing, that they repeated doing in these protests.

[00:18:40] Speaker 04:
So it's true that there are lots, there are several different incidents, but what's clear from the evidence is that in this case, they simply repeated doing those things and they haven't presented any evidence that the force was ever used other than just to break up a crowd, which you're not supposed to do.

[00:19:01] Speaker 04:
That's not how you're supposed to use these weapons.

[00:19:04] Speaker 04:
And so, and the bus conditions, even though they had been sued on these exact issues,

[00:19:10] Speaker 04:
they did exactly the same thing again.

[00:19:13] Speaker 04:
People didn't have water, they didn't have access to bathroom facilities, they didn't have food, they were zip-tied tightly behind their back.

[00:19:24] Speaker 04:
That was all the standard protocol.

[00:19:26] Speaker 04:
There's not a declaration in the record that says, no, in my bus, that's not how it worked.

[00:19:32] Speaker 04:
So at a certain point, it still becomes a question of what is the evidence?

[00:19:37] Speaker 04:
And the evidence is this was their MO.

[00:19:41] Speaker 03:
Could, to the extent that the LAPD violated past whatever consent decrees or settlement agreements, could that be remedied outside of the class action context?

[00:19:53] Speaker 03:
I don't think so.

[00:19:54] Speaker 04:
First of all, for damages purposes, that wouldn't be a basis.

[00:19:59] Speaker 04:
by itself, it could be evidence to prove a 1983 violation, but it's not.

[00:20:05] Speaker 04:
At most, it would be an injunctive relief remedy.

[00:20:08] Speaker 04:
And so for that purpose, it could be used as evidence.

[00:20:14] Speaker 04:
But those were agreements that the LAPD would not do it.

[00:20:19] Speaker 04:
One was an injunction in, I believe, Mee Wan.

[00:20:26] Speaker 04:
I don't recall whether that had a time limit or not.

[00:20:29] Speaker 04:
I don't know that off the top of my head.

[00:20:32] Speaker 04:
Let me just take a break to get from Ms.

[00:20:34] Speaker 04:
Syllable, if we can get the record site to the order.

[00:20:39] Speaker 04:
To the judge's order.

[00:20:40] Speaker 04:
Because Judge Rowland said that.

[00:20:42] Speaker 01:
In having the judge's order, I wanted you to point me to the language in the order that you think apprises us of the predominance finding.

[00:20:51] Speaker 04:
All right, so let me, give me a minute here.

[00:20:55] Speaker 01:
If you don't have it, don't take your time to find it.

[00:20:59] Speaker 04:
So I think that the main thing is that

[00:21:06] Speaker 04:
what I described, and that is in the section of the order that starts on page six.

[00:21:13] Speaker 04:
And it goes for several pages where the court discusses the different classes.

[00:21:19] Speaker 04:
And that ends at page 13 or 14.

[00:21:28] Speaker 04:
Thank you.

[00:21:31] Speaker 04:
And in that order, the judge discusses the Monell issues, the judge discusses its sites to the cases that I described before.

[00:21:42] Speaker 04:
It also discusses what the pattern of conduct was.

[00:21:49] Speaker 04:
So I think that's the part of the order that we rely on to say that substantively, and again, I concede in those sections the word predominant was not used, but I think it's clear that that's what the judge was saying given the citations to Mercer Canyons.

[00:22:11] Speaker 04:
The other thing I did want to spend a minute on, because I know my time is running short, is

[00:22:19] Speaker 04:
It's a little unclear what the defendant's position is, but it seems to be that they are arguing that all of these classes could not be certified, although they only briefed it on the fourth class.

[00:22:33] Speaker 04:
So I did want to point out that

[00:22:37] Speaker 04:
They themselves concede that if you make out a prima facie case, we've carried our burden.

[00:22:43] Speaker 04:
We briefed it under Torres versus Madrid.

[00:22:46] Speaker 04:
When you seize a person by force, that is an arrest and if there's a warrant with arrest constitutes a prima facie case of a Fourth Amendment violation.

[00:22:58] Speaker 04:
In addition, under Nelson versus the City of Davis,

[00:23:04] Speaker 04:
The court says very clearly that the undifferentiated use of force against a crowd is a prima facie.

[00:23:13] Speaker 04:
It doesn't use the word prima facie, but basically that makes out a seizure and makes out a Fourth Amendment violation.

[00:23:19] Speaker 02:
Is there any case that's certified a class action in this kind of mass protest situation?

[00:23:24] Speaker 04:
That was not a class action at all.

[00:23:26] Speaker 04:
It was an individual, but what the court found.

[00:23:29] Speaker 01:
But his question was, is there any case

[00:23:32] Speaker 01:
that has certified a class action in circumstances where there are mass protests?

[00:23:39] Speaker 04:
Oh, yes.

[00:23:39] Speaker 04:
Well, in district courts, yes.

[00:23:42] Speaker 04:
Miwan did it.

[00:23:46] Speaker 04:
Chua did it.

[00:23:49] Speaker 04:
I'm forgetting one of them.

[00:23:50] Speaker 02:
How about at the Court of Appeals?

[00:23:56] Speaker 04:
In these cases, the best case that I can think of is if I remember right, there's the chain case in the District of Columbia, which I believe was in the circuit.

[00:24:12] Speaker 01:
in the DC circuit?

[00:24:14] Speaker 04:
I believe it's in the DC circuit.

[00:24:16] Speaker 04:
It's definitely in the District of Columbia, and I believe it was in the DC circuit.

[00:24:20] Speaker 04:
There were also, and I'm forgetting the name of the case right now, but there are, and I can submit it after the argument, but there were cases

[00:24:30] Speaker 04:
in the 70s in the District of Columbia during Vietnam War protests where there were classes certified and they're pretty well known.

[00:24:41] Speaker 04:
I think it's Dellums is the name of the case.

[00:24:44] Speaker 04:
I haven't looked at it in quite a while, so I can't guarantee it.

[00:24:50] Speaker 01:
Counsel, what are we to make of the fact that you cited us to pages 6 through 13 of the District Court's decision

[00:24:58] Speaker 01:
And so what do you make of the fact that the court did have specific titles for numerosity and for commonality, and for typicality, but didn't do it for predominance?

[00:25:13] Speaker 01:
Why do you think the district court used those particular words that are in the statute in those sections and didn't have a section for predominance?

[00:25:23] Speaker 04:
I think it was an oversight if I had to guess.

[00:25:26] Speaker 04:
My guess is that a clerk drafted the opinion and it didn't get scrutinized sufficiently.

[00:25:32] Speaker 04:
And I say that because the court set out at the beginning, it's in page one or two, the elements, which includes predominance, so the court was aware of it.

[00:25:44] Speaker 04:
I just think it was

[00:25:47] Speaker 04:
I think it was a drafting error, but I think substantively the discussion shows that in fact the court understood and was making a predominance finding and overlooked the fact that it didn't say that word in its findings.

[00:26:03] Speaker 04:
find a predominance under those sections that's titled other things, that's titled typicality?

[00:26:09] Speaker 04:
I believe the section that is entitled commonality or common issues, I forget which, I believe that when you look at the substance of what the court said and what does tracks to what cases, in particular Mercer Canyons, when it quoted Mercer Canyons using the predominant standards cited by Mercer Canyons,

[00:26:32] Speaker 04:
that the court was in fact making a predominance finding and overlooked the fact that it didn't make that separate finding and just included it in the commonality section.

[00:26:43] Speaker 01:
Thank you, counsel.

[00:26:45] Speaker 04:
Any questions?

[00:26:47] Speaker 01:
Thank you.

[00:26:57] Speaker 00:
Thank you.

[00:26:58] Speaker 00:
I'll work backwards.

[00:27:00] Speaker 00:
The Chang case is a district court case, and it was certified under 23B2, even though the district court spoke a bit about predominance.

[00:27:09] Speaker 00:
The actual certification was under 23B2.

[00:27:13] Speaker 00:
You can find that at 217 FRD 262.

[00:27:16] Speaker 00:
The pin site is page 273.

[00:27:18] Speaker 00:
The D.C.

[00:27:19] Speaker 00:
Circuit cases from the 70s, Dellums is one of them.

[00:27:22] Speaker 00:
McCarthy, which we cited in our brief, is the other.

[00:27:25] Speaker 00:
They are Vietnam War protests.

[00:27:26] Speaker 00:
There was a class certified in Dellums, not in McCarthy.

[00:27:30] Speaker 00:
The reason for that was, in Dellums, there was evidence that protesters were all in one place.

[00:27:35] Speaker 00:
The basis for their arrest was common, with the exception of, I think, eight people.

[00:27:41] Speaker 00:
So there was evidence in the record that the arrest was made based on

[00:27:47] Speaker 00:
I would imagine, I guess, the lack of probable cause for some crime that the arresting officer thought was committed, with the exception of eight people who were doing something that would have provided other probable cause to arrest them.

[00:27:59] Speaker 00:
In McCarthy, in contrast, you had an undifferentiated group of people across DC, and the DC Circuit held you could not find predominance in that case because you would have to undertake individualized inquiries for probable cause for all those officers.

[00:28:15] Speaker 00:
speak to Tours versus Madrid, my friend said that it effectively shifted the burden to the city by finding a seizure whenever there's use of force.

[00:28:27] Speaker 00:
Actually that case held that there also has to be some objective indicia of an intent to seize, which I think is

[00:28:35] Speaker 00:
I'll have to make individualized findings again.

[00:28:37] Speaker 00:
It's also contradicted a bit by the evidence in the record if my friend's point is that the officers were using force to disperse a crowd.

[00:28:44] Speaker 00:
It's not an intent to seize any person.

[00:28:47] Speaker 00:
Backing up from that to the state of the evidentiary record, you could consider Ms.

[00:28:55] Speaker 00:
Sobel's declaration, which my friend, I'm glad he pointed out.

[00:28:59] Speaker 00:
At the state of the record 2582, there's a chart that shows for the arrest class, the varying times

[00:29:05] Speaker 00:
broken up into groups of hundreds of people for which people were detained.

[00:29:09] Speaker 00:
So you have groups who, my friends represent, were detained for two hours, up to seven hours.

[00:29:15] Speaker 00:
And if the inquiry is, is the length of detention reasonable, combining people who were detained for two hours with people who were detained

[00:29:22] Speaker 00:
for seven hours on a standard that is just what is reasonable under the circumstances, kind of makes no sense.

[00:29:28] Speaker 00:
In and of itself, the plaintiff's evidence shows the weakness of the class certification.

[00:29:32] Speaker 00:
You see it again.

[00:29:33] Speaker 01:
Well, Counsel, if the city has a policy about how to manage these crowd conditions and that policy was applied to all of the people, why wouldn't that be a legitimate basis for a class action certification?

[00:29:51] Speaker 00:
The problem would be that even if you considered here's a consistent policy that the city applies across the board.

[00:29:58] Speaker 00:
The effect of it in any different situation is different.

[00:30:01] Speaker 00:
It might be reasonable to apply the policy if the result is it takes two hours to process somebody.

[00:30:06] Speaker 00:
Maybe not if it takes seven hours to process somebody.

[00:30:09] Speaker 00:
It may also depend on what the conditions were for the people for whom it took two hours and the people for whom it took seven hours.

[00:30:15] Speaker 00:
And I don't think you can make that kind of judgment on a class-wide basis.

[00:30:19] Speaker 00:
If you look at it in terms of the uses of force, there's something else I wanted to speak to because even as my friend argued, he pointed out that the 40 millimeter weapon that they describe and the 37 millimeter weapon that they describe are used for different things.

[00:30:31] Speaker 00:
You can look at just the evidence that the representative plaintiffs put on about the injuries they suffered

[00:30:36] Speaker 00:
where you have some folks who were very seriously injured, probably by being struck in the face with a 40 millimeter projectile, and others who claim that they were stung in the legs by pellets or bruised by being prodded by a baton.

[00:30:49] Speaker 00:
This court's authority holds that those uses of force and those injuries, the uses of force themselves, are for different types of conduct.

[00:30:58] Speaker 00:
So an officer might

[00:31:00] Speaker 00:
push someone, for example, to get them to leave an area, or prod them to get them to leave an area if they didn't follow a command to leave the area, probably could not shoot them with a 40 millimeter foam weapon for the same conduct.

[00:31:13] Speaker 00:
But these things are all being lumped together in a class.

[00:31:15] Speaker 00:
And my friend's proposed to litigate them together, which gets back to Judge Lee's question, I believe, at the beginning to my friend, which was, how do you litigate this?

[00:31:25] Speaker 00:
I mean, that's really what this predominance inquiry goes to.

[00:31:27] Speaker 00:
How can you coherently litigate this case?

[00:31:30] Speaker 00:
And I don't think there's an answer for these classes, certainly not for the ones that turn on reasonableness.

[00:31:34] Speaker 00:
So that would be the arrest class and the direct force class specifically.

[00:31:40] Speaker 00:
Unless the panel has any other questions, I'm prepared to submit.

[00:31:42] Speaker 01:
It appears not.

[00:31:43] Speaker 01:
Thank you, counsel.

[00:31:43] Speaker 01:
Thank you to both counsel for your arguments.

[00:31:46] Speaker 01:
The case just argued is submitted for decision by the court.