Homeless plaintiffs suing Denver get class action status, and the judge tells their lawyer to get some help

In a remarkable passage of the ruling, U.S. District Court Judge William Martinez told attorney Jason Flores-Williams that while he admires his passion, he really needs to find some co-counsel.

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Attorney Jason Flores-Williams (left) and Jones speak before "homeless sweeps" on Nov. 15, 2016. (Kevin J. Beaty/Denverite)

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Attorney Jason Flores-Williams (left) and Jones speak before "homeless sweeps" on Nov. 15, 2016. (Kevin J. Beaty/Denverite)

A group of homeless men suing the city of Denver over how it handled their belongings during a series of homeless sweeps last year have been granted class action status. That means the case can be used to determine whether the city’s policies violate the rights of homeless people as a group, not just whether these particular people had their rights violated.

The class action status applies to injunctive relief — that is, to any rulings that would force the city to change or suspend its policies — but not to damages. Those postcards you get in the mail telling you you’re part of a class and are entitled to $10 because of some corporate wrong-doing? There won’t be any equivalent to homeless people from the city, even if the plaintiffs prevail.

And, in a remarkable passage of the ruling, U.S. District Court Judge William Martinez told attorney Jason Flores-Williams, who is representing the plaintiffs, that while he admires his passion, he really needs to find some co-counsel.

Flores-Williams can be a bit flamboyant and lean heavily on rhetoric, as he did when urging jurors in the homeless camping trial to acquit the defendants in spite of the evidence.

Class action lawsuits are a little unusual in that they require the judge to decide if the lawyer can actually pull off such a complicated case. And Martinez had his doubts about Flores-Williams.

The bad: Flores-Williams cited case law that had been overturned and used rhetoric instead of legal arguments to refute the city’s position, particularly when the city had clear case law on its side.

The good: Flores-Williams is dedicated to his clients and has succeeded in keeping his clients involved despite the challenging circumstances of their personal lives.

“The Court does not fault Mr. Flores-Williams for believing so strongly in the righteousness of his clients’ cause,” Martinez wrote in the ruling on the class certification. “Much good and important work has been done by lawyers with such deep, authentic commitment. But the Court is genuinely concerned that Mr. Flores-Williams will ultimately do his clients a disservice by failing to take seriously Denver’s opposing arguments — or, more fundamentally, losing sight of the fact that lawsuits are decided based on the facts in evidence and legal authorities, and not on rhetoric.”

Martinez said Flores-Williams “has already shown substantial and commendable dedication to the undoubtedly difficult task of organizing a potential class of homeless persons. He has developed and demonstrated experience in an area where most lawyers (including most plaintiffs’ civil rights lawyers) have none.”

But Martinez also expressed concerns that Flores-Williams doesn’t have the financial resources to see the case through. Those cases that had been overturned would have been flagged if Flores-Williams were using one of several common but expensive databases, and the judge wondered if Flores-Williams was relying on free resources to do his research.

He also said Flores-Williams needs to do more to put himself in the city’s position — for his clients’ sake.

“A lawyer likely has no more dangerous blind spot than an inability to see the case from the opposing point of view—a paradigmatic example of ‘confirmation bias’ if there ever was one,” Martinez wrote. “A lawyer who cannot imagine losing the case stands a good chance of losing the case. Such a lawyer tends to do what Mr. Flores-Williams does, namely, ignore or quickly pass over the opposing party’s specific arguments and instead lean on rhetoric intended to shame the opposing party for choosing to oppose.”

If Flores-Williams were representing any other group of people, Martinez probably wouldn’t appoint him class counsel, he said. Instead, he did appoint him but “strongly encouraged” him to find co-counsel. Flores-Williams said he plans to do that.

As for the class certification, Denver tried to argue in court filings that there was no centralized policy of “sweeps,” and each instance of enforcement occurred under different circumstances for different reasons. Therefore, it doesn’t make sense to litigate how a policy might infringe on the rights of a group of people.

Martinez called this “simply wrong.”

“But, says Denver (citing much of its own evidence), every one of the alleged Sweeps took place under differing circumstances, at the direction of differing authorities, and for different reasons — so there is no common question that can generate a common answer,” Martinez wrote. “Denver is simply wrong on this point.”

Martinez said that denying the class certification would amount to agreeing with all of Denver’s factual assertions before the case is even heard. And the class certification is not supposed to be about the merits of the case, per se.

The lawsuit, a civil rights case in federal court, argues that the city has violated the Fourth Amendment, which prohibits unreasonable search and seizure without a warrant, the Eighth Amendment, which prohibits cruel and unusual punishment, and the Fourteenth Amendment, which guarantees equal protection under the law and due process, by taking the personal belongings of homeless people without a warrant.

Flores-Williams said he does take the class certification as a victory because it shows that homeless people can band together to defend their interests and rights in court.

“It recognizes that there is this policy of the city of Denver that affects of thousands of persons and now we are going to have the opportunity to prove what a lot of us have known, which is that this policy of sweeps is unjust, immoral and unconstitutional,” he said.

In a statement, the City Attorney’s Office focused on the fact that class certification does not speak to the facts of the case.

“Today’s ruling had nothing to do with the merits of the Plaintiffs’ claims, which the city has shown to be unsupported,” the city said in a statement. “The city remains confident in its legal position in the case, that its clean-up efforts were consistent with due process and that it will eventually prevail on the merits.”

City officials reiterated their long-standing position that there is a strong public interest in keeping sidewalks and other areas free of encumbrances and that law enforcement interactions with homeless people help connect people to services.

“The city and county of Denver spends nearly $50 million a year on direct and indirect homeless services,” the statement said. “In the last several years, the city has increased direct services, including overnight and day shelter services as well as increased access to housing for all people. Our focus is on connecting people who are on the streets to the individualized assistance needed to help them stabilize their lives and move forward. The city’s practice is to first try and connect people to services and treatment, and if that doesn’t work, people are given notice, usually multiple times, before any enforcement action is taken. These are complex challenges, and we strive to be as compassionate as possible while also ensuring safety and public health for all Denver residents.”

Order on Class Cert Lyall (Text)

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