PASADENA - A federal appeals panel has pulled the plug on a class action launched by Black Lives Matter activists against the city of Los Angeles, which faulted L.A. police their response to unruly and often violent protests that often spawned riots and looting in the wake of the death of George Floyd in the spring and summer of 2020.
The decision, issued Sept. 5, a three-judge panel of the U.S. Ninth Circuit Court of Appeals overturned the decision of a L.A. federal judge.
In the decision, the federal appeals court judges said the lower court in allowing the claims to move forward collectively had essentially glossed over "a plethora of circumstance-dependent and fact-specific constitutional violations that occurred during 10 chaotic days of civil unrest across the City."
U.S. Ninth Circuit Court of Appeals Judge Kenneth K. Lee
| United States Senate Committee on the Judiciary, Public domain, via Wikimedia Commons
The ruling spells significant legal trouble for the claims lodged against the city of L.A. by the Black Lives Matter Los Angeles organization and a collection of BLM activists.
The lawsuit was launched in 2020 in the wake of the riots and civil unrest that characterized a period of weeks that began in late May following the death of Floyd, a black man, at the hand of police in Minneapolis.
As the country grappled with the Covid pandemic and the strenuous government lockdown-style response to the virus, Floyd's death jolted the nation, producing race-fueled protests in many cities across the U.S.
Some of the first were launched in L.A., where thousands quickly filled the streets for days of unrest and violence, particularly aimed at police.
Protests resulted in significant disturbances including blocked freeways and other major roadways, while also generating riots and looting in L.A. and elsewhere in the country. Police were also routinely targeted for outbursts and violence. In L.A., for instance, protestors regularly overwhelmed officers attempting to restore order, including assaulting officers, slashing the tires on police vehicles and even setting some police vehicles ablaze.
According to court documents and published reports, after days of the unrest, police believed rioters intended to mimic actions by BLM activists in other cities and attempt to storm and take over a police station.
Amid the unrest, BLM alleged the LAPD response grew increasingly harsh, with police using pellets, tear gas, batons and other measures, while engaging in mass arrests of hundreds, in an attempt to disperse the crowds, discourage rioters and restore orders in the city.
They assert this resulted in police allegedly injuring many protestors and rioters, while holding many on buses or other facilities without access to food, water or bathrooms for hours and allegedly denying medical care to those in need.
The lawsuit sought to move ahead with plaintiffs grouped into four different groups, including classes of people who claimed to have been injured by police non-lethal projectiles, like rubber bullets, and batons; those swept up in mass arrests and detentions; those detained even though they were allegedly arrested for charges for which they should have been swiftly processed and released; and one seeking an injunction against the city and LAPD on behalf of all who participated in the 2020 protests and "may in the future" again engage in similar protests in L.A.
The lawsuit was similar to a class action filed by BLM against the city of Santa Monica and other southern California police agencies for their responses to the 2020 demonstrations and riots.
In the action against L.A., U.S. District Judge Consuelo B. Marshall rejected the city's attempts to stop the class action from moving forward, saying it was enough that all plaintiffs accused L.A. police of violating their constitutional rights and other alleged misconduct.
But on appeal, Ninth Circuit judges said Marshall was wrong.
While agreeing that the claims could represent valid accusations of unconstitutional behavior by LAPD, the appellate judges said the claims are far too different and circumstance-specific to allow them to move forward all at once.
They said, for instance, that the claims under the so-called "direct force" class could improperly sweep up legitimate uses of force by police in response to violent rioters along with potential excesses.
"On the one hand, the LAPD might legitimately use batons to break up protestors attacking a public bus with passengers inside," Lee wrote. "But spraying rubber bullets at people obeying a dispersal order would probably necessitate a different analysis. These situations thus require individual fact-finding and separate analyses."
They said the same reasoning should apply to other claims against the LAPD, including those in the so-called "arrest class."
"Like the Direct Force Class, each member of the Arrest Class must prove that he or she was injured by an LAPD officer’s objectively unreasonable use of force as a result of an LAPD custom or policy," Lee wrote.
"The district court apparently accepted the plaintiffs’ argument that these elements can be established on a class-wide basis because the plaintiffs had alleged that 'arrestees were uniformly tightly handcuffed,' 'uniformly without water or bathroom access,' and 'endured lengthy bus stays.'"
But rules governing class actions require more than that, Lee and his colleagues said, including requiring "plaintiffs to prove—not just assert—that this case raises common issues that can be decided on a class-wide basis and that these common issues predominate over individual ones."
The appellate judges chided Judge Marshall for insufficiently examining these differences.
They noted that "most courts faced with George Floyd protest classes ... have denied certification for similar reasons."
The appellate judges said the L.A. class action "encompasses thousands of people who attended the Los Angeles George Floyd protests, including anyone who falls into any of the damages classes, as well as (1) protestors who were not hit with direct force, arrested, or harmed in any way; (2) protestors who were arrested for felonies or looting violations; and (3) protestors who threw water bottles and fireworks at police, among other acts of violence.
"It is hard to imagine what all these people have in common," Lee wrote.
The appellate panel reversed Marshall on the question of class certification and sent the case back to the lower court with instructions to this time acknowledge the differences and more closely examine if there are any claims common enough that could advance as a class action.
BLM LA and the activists are represented by attorneys Barrett S. Litt, of McLane Bednarski & Litt, of Pasadena; Carol A. Sobel, of Santa Monica; Paul Hoffman, of Schonbrun Seplow Harris Hoffman & Zeldes LLP, of Hermosa Beach; Monica A. Alarcon, Bijan Esfandiari, Pedram Esfandiary, and R. Brent Wisner, of Wisner Baum LLP, of Los Angeles; Lindsay B. Battles, of Kaye McLane Bednarski & Litt LLP, of Pasadena; Colleen Flynn, of Mann & Cook, of Los Angeles; Denisse O. Gastelum, of Gastelum Law APC, of Long Beach; James D. Kim, of Schonbrun DeSimone Seplow Harris & Hoffman, of Venice,; John C. Washington, of Schonbrun Seplow Harris Hoffman & Zeldes LLP, Los Angeles; Olu K. Orange, of Orange Law Offices, of Los Angeles; and Matthew D. Strugar, of Los Angeles.
The city of L.A. was represented by attorney Jonathan H. Eisenman, and others with the Office of the Los Angeles City Attorney.