Kayla Willis v. City of Seattle

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KAYLA WILLIS; REAVY No. 18-35053
WASHINGTON; LISA HOOPER;
BRANDIE OSBORNE, individually and D.C. No.
on behalf of a class of similarly 2:17-cv-00077-
situated individuals; THE EPISCOPAL RSM
DIOCESE OF OLYMPIA; TRINITY
PARISH OF SEATTLE; REAL CHANGE,
Plaintiffs-Appellants, OPINION

v.

CITY OF SEATTLE; WASHINGTON
STATE DEPARTMENT OF
TRANSPORTATION; ROGAR MILLAR,
Secretary of Transportation for
WSDOT, in his official capacity,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding

Argued and Submitted February 4, 2019
Seattle, Washington

Filed November 29, 2019
2 WILLIS V. CITY OF SEATTLE

Before: Sandra S. Ikuta and Morgan Christen, Circuit
Judges, and Jennifer Choe-Groves,* Judge.

Opinion by Judge Choe-Groves;
Partial Concurrence and Partial Dissent by Judge Christen

SUMMARY**

Civil Rights

The panel affirmed the district court’s denial of class
certification in an action challenging the procedures by which
the City of Seattle and the Washington State Department of
Transportation remove unauthorized encampments, camping
equipment, and personal property left on city-owned
property.

Appellants asserted in their motion for class certification
that the City and the Department of Transportation engaged
in an alleged policy and practice of “sweeps” that destroyed
property, violating the unreasonable seizure and due process
clauses under both the U.S. Constitution and the Washington
State Constitution.

The panel held that Appellants failed to proffer sufficient
evidence and articulate a practice that was common to the

*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 WILLIS V. CITY OF SEATTLE 3

claims of the proposed class in their motion for class
certification. The panel concluded that it was not an abuse of
discretion for the district court to hold that an alleged practice
affecting each of the Appellants was not discernable from the
record and to deny Appellants’ class action certification
accordingly. The panel disagreed with the dissent’s assertion
that Appellants’ motion for class certification raised a facial
challenge to defendants’ policies as a basis for establishing
commonality for purposes of Fed. R. Civ. P. 23(a).

Concurring in part and dissenting in part, Judge Christen
agreed, under the circumstances of this case, that plaintiffs
failed to show that their as-applied claims posed common
questions for purposes of Fed. R. Civ. P. 23(a). Judge
Christen stated, however, that plaintiffs also presented
distinct facial challenges to defendants’ camp cleanup
policies and the order denying class certification did not
address these policies. Because the order denying class
certification made no mention of plaintiffs’ facial claims,
Judge Christen would remand for the district court to consider
this issue in the first instance.
4 WILLIS V. CITY OF SEATTLE

COUNSEL

Toby J. Marshall (argued), Terrell Marshall Law Group
PLLC, Seattle, Washington; Emily Chiang, Nancy Talner,
and Breanne Schuster, ACLU of Washington Foundation,
Seattle, Washington; Eric A. Lindberg, Kristina Markosova,
and Todd T. Williams, Corr Cronin Michelson Baumgardner
Fogg & Moore, Seattle, Washington; for Plaintiffs-
Appellants.

Matthew J. Segal (argued), Taki V. Flevaris, and Athanasios
P. Papailiou, Pacific Law Group LLP, Seattle, Washington;
Patrick Downs, Gregory Narver, Carlton Seu, and Gary
Smith, Seattle City Attorney’s Office, Seattle, Washington;
for Defendant-Appellee City of Seattle.

Alicia O. Young (argued) and Matthew D. Huot, Assistant
Attorneys General; Robert W. Ferguson, Attorney General;
Office of the Attorney General, Olympia, Washington; for
Defendants-Appellees Washington State Department of
Transportation and Rogar Millar.

J. Dino Vasquez and Joshua Howard, Karr Tuttle Campbell,
Seattle, Washington; Eric Tars, National Law Center on
Homelessness & Poverty, Washington, D.C.; for Amici
Curiae Disability Rights of Washington, et al.

Shenoa Payne and Zachariah Allen, Richardson Wright LLP,
Portland, Oregon, for Amici Curiae Civil Procedure
Professors.
 WILLIS V. CITY OF SEATTLE 5

OPINION

CHOE-GROVES, Judge:

Multi-Departmental Administrative Rules 08-01 (“MDAR
08-01”), enacted by the City of Seattle in 2008, establish, in
part, standard procedures for the removal of unauthorized
encampments, camping equipment, and personal property left
on city-owned property. The City of Seattle amended its
encampment rules in 2017 by promulgating Multi-
Departmental Administrative Rules 17-01 (“MDAR 17-01”).
The Washington State Department of Transportation
(“WSDOT”) has adopted guidelines instituting similar
removal procedures for unauthorized encampments on state
property, titled “WSDOT’s Guidelines to Address Illegal
Encampments within State Right of Way” (“WSDOT
Guidelines”). Kayla Willis, Lisa Hooper, Brandie Osborne,
and Reavy Washington (collectively, “Appellants”) are four
individuals who live outside on public property and seek to
represent a class of approximately 2,000 other people
similarly situated. They appeal the district court’s order
denying a motion for class certification under Rule 23(b)(2)
of the Federal Rules of Civil Procedure.

Referencing the MDARs and the WSDOT Guidelines
(collectively, “Defendants’ written policies”), Appellants
asserted in their motion for class certification that the City of
Seattle and WSDOT engaged in an alleged policy and
practice of “sweeps” that destroyed property, violating the
unreasonable seizure and due process clauses under both the
U.S. Constitution and the Washington State Constitution. By
bringing this action on behalf of themselves and all others
similarly situated, Appellants sought declaratory and
injunctive relief from the “sweeps.” The district court found
6 WILLIS V. CITY OF SEATTLE

that Appellants satisfied the numerosity requirement of
Rule 23, but concluded that Appellants failed to establish
sufficiently the existence of a practice that applied uniformly
to all proposed class members and was subject to resolution
in a single action. The district court denied the motion for
class certification for failure to satisfy all the requirements of
Rule 23(a).

We have jurisdiction pursuant to 28 U.S.C. § 1292(e) and
Rule 23(f) of the Federal Rules of Civil Procedure, and
review a district court’s order on class certification for an
abuse of discretion. Parra v. Bashas’, Inc., 536 F.3d 975,
977 (9th Cir. 2008) (citing Molski v. Gleich, 318 F.3d 937,
946 (9th Cir. 2003)).

To receive class action treatment, the proposed lead
plaintiffs must meet the four requirements of Rule 23(a) and
at least one requirement of Rule 23(b). Under Rule 23(a), a
party must show: “(1) the class is so numerous that joinder of
all members is impracticable; (2) there are questions of law
or fact common to the class; (3) the claims or defenses of the
representative parties are typical of the claims or defenses of
the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.” Fed. R. Civ.
P. 23(a). To meet the second prong, commonality, a party
must demonstrate that they and the proposed class members
have suffered the same injury and have claims that depend on
a common contention capable of class-wide resolution. Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011).
Capable of class-wide resolution “means that determination
of its truth or falsity will resolve an issue that is central to the
validity of each one of the claims in one stroke.” Id. at 350.
The commonality element may be fulfilled if the court can
determine “in one stroke” whether a single policy or practice
 WILLIS V. CITY OF SEATTLE 7

which the proposed class members are all subject to “expose
them to a substantial risk of harm.” Parsons v. Ryan,
754 F.3d 657, 678 (9th Cir. 2014). “These policies and
practices are the ‘glue’ that holds together the putative class
. . . either each of the policies and practices is unlawful as to
every [proposed member] or it is not.” Id. Allegations of
individual instances of mistreatment, without sufficient
evidence, do not constitute a systemic deficiency or
overarching policy of wrongdoing. See id. at 683–84 & n.28
(stating that “precedent does not hold that utterly threadbare
allegations that a group is exposed to illegal policies and
practices are enough to confer commonality,” and concluding
that inmates provided “sufficient evidence of systemic and
centralized policies or practices in a prison system that
allegedly expose all inmates in that system to a substantial
risk of serious future harm” to meet the requirements of
Rule 23(a)).

Here, Appellants failed to proffer sufficient evidence and
articulate a practice that was common to the claims of the
proposed class in their motion for class certification.
Appellants presented five bases for commonality before the
district court in their motion, and each basis relates to
whether Defendants’ course of conduct, such as failing to
provide adequate notice and removing or destroying personal
property, raises a common question. Although the record
contains voluminous declarations, photographs, and videos in
support of a broad description of “sweeps,” Appellants
notably do not point to a specific practice that applies
uniformly to all proposed class members. Despite the broad
allegations in their complaint, there is no evidence that every
Appellant has experienced the same challenged practice or
suffered the same injury due to the implementation of the
MDARs or the WSDOT Guidelines. In fact, Appellants
8 WILLIS V. CITY OF SEATTLE

themselves acknowledged that “each sweep is different.” We
conclude that it was not an abuse of discretion for the district
court to hold that an alleged practice affecting each of the
Appellants was not discernable from the record and to deny
Appellants’ class action certification accordingly.

We cannot agree with our dissenting colleague that
Appellants’ motion for class certification raises a facial
challenge to the MDARs or the WSDOT Guidelines as a
basis for establishing commonality for purposes of
Rule 23(a). “A facial challenge is an attack on a law itself as
opposed to a particular application.” City of Los Angeles v.
Patel, ___U.S. ___, ___, 135 S. Ct. 2443, 2449 (2015). Such
challenges are considered the most difficult to mount
successfully. See id. A facial challenge is a claim that a law
or policy is unconstitutional in all of its applications. See id.
at 2451. When assessing whether a law or policy meets this
standard in the context of a Fourth Amendment challenge, a
court considers only those applications of the law in which it
actually authorizes conduct. See id.

Appellants articulated only the following five questions
of fact and law in support of their commonality argument in
their motion for class certification:

(1) whether Defendants have a practice and
policy of seizing and destroying the personal
property of people living outside without a
warrant, probable cause, adequate notice, an
opportunity to have a meaningful pre- or post-
deprivation hearing, or an opportunity to
retrieve vital personal property before its
seizure or destruction; (2) whether
Defendants’ policy and practice violates
 WILLIS V. CITY OF SEATTLE 9

Plaintiffs’ constitutional rights against
unreasonable search and seizures under the
U.S. Constitution; ([3]) whether Defendants’
custom, policy, or practice violates class
members’ right to privacy under Article I,
Section 7 of the Washington State
Constitution; and ([4]) whether Defendants’
custom, policy, or practice violates class
members’ constitutional rights to due process
under the U.S. Constitution; and ([5]) whether
Defendants’ custom, policy, or practice
violates class members’ constitutional rights
to due process under Article I, Section 3 of the
Washington State Constitution.

None of these five questions of fact or law challenges a
written law or policy as unconstitutional. The “practice and
policy” to which these questions allude is Defendants’ alleged
pattern of destroying personal property “with utter disregard
of even their own regulations.”1 Appellants have not
suggested that an attack on the regulations themselves
supplies a common question of fact or law.

In making their commonality argument, Appellants also
did not claim that Defendants’ policies are unconstitutional in

1
In their motion for class certification, Appellants claimed that
“Defendants have conducted these sweeps sporadically, unpredictably,
and with utter disregard of even their own regulations . . . . Defendants
have failed to follow any consistent procedure . . . . Rather, Defendants
frequently intentionally and summarily seize and/or destroy personal
property and possessions within a targeted area, without a warrant or
probable cause, without providing adequate and effective notice, without
affording an opportunity to be heard, and without providing a meaningful
opportunity for people to retrieve their belongings.”
10 WILLIS V. CITY OF SEATTLE

all relevant applications, which is required for a facial
challenge. See Patel, ___ U.S. at ___, 135 S. Ct. at 2451. On
the contrary, Appellants acknowledge that Defendants’
allegedly unconstitutional “pattern or practice is a usual
course of conduct, and the fact that Defendants may have
occasionally deviated from that course does not defeat
certification.”

Appellants themselves have dismissed the relevance of a
facial challenge as a basis for commonality, stating that “[t]he
City’s argument that Plaintiffs have not facially challenged
Defendants’ policies or practices is irrelevant to class
certification because Plaintiffs have shown that Defendants’
conduct places all unhoused persons in Seattle at risk.”

Because Appellants’ commonality argument before the
district court rested upon extra-regulatory conduct, we decline
to read Appellants’ argument as premised upon a facial
challenge. We also decline to rewrite Appellants’
commonality argument for them to include a facial challenge.
See Just Film, Inc. v. Buono, 847 F.3d 1108, 1115 (9th Cir.
2017) (“The party seeking class certification bears the burden
of demonstrating that the class meets the requirements of
Federal Rule of Civil Procedure 23.”). Doing so would run
contrary to the fundamental principle that courts should
neither anticipate a question of constitutional law in advance
of the necessity of deciding it nor formulate a rule of
constitutional law broader than is required by the precise facts
to which it is to be applied. See Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 450
(2008).

The dissent cobbles together statements from the “Factual
Background” section of Appellants’ motion for class
 WILLIS V. CITY OF SEATTLE 11

certification to argue that Appellants adequately presented a
facial challenge to the MDAR and WSDOT Guidelines as a
basis for establishing commonality. We disagree. Appellants
mention in passing in their motion that sweeps were
conducted “pursuant to official policies,” and later that the
policies “fail on their face to provide requisite procedural
safeguards.” The Appellants’ Second Amended Complaint
also makes general and conclusory statements about the
Guidelines’ deficiencies, without arguing that a single policy
would be unconstitutional in all its applications.2 But when
Appellants actually provide their argument to the district
court regarding why class members share common questions
of law and fact, Appellants do not explain how any alleged
facial deficiencies in the Guidelines raise such common
questions, or how any such deficiencies caused class
members to suffer the “same injury.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). Because it was not
presented with a distinct argument regarding how facial
deficiencies in the Guidelines raise questions of law or fact
common to the class, the district court did not err in declining
to rule on this issue when deciding the motion for class
certification. Instead, it properly addressed arguments relating
to facial challenges only when ruling on the Appellants’
motion for preliminary injunction, where such facial
challenges were raised.

Even if the isolated statements that the dissent has
plucked from the Appellants’ motion had been argued in the
motion as a basis for commonality, Appellants’ claim would

2
The dissent claims that the Appellants argue that “the policy
allowing the destruction of property valued at less than $100 cannot be
carried out in a constitutional manner.” No such cognizable argument
appears in the operative complaint.
12 WILLIS V. CITY OF SEATTLE

not present a cognizable facial challenge. Appellants’
arguments primarily focus on how the Guidelines give
employees too much discretion, rather than identify how any
alleged deficiency resulted in a common injury to the
constitutional or statutory rights of all class members. Under
Dukes, such challenges do not “provide the commonality
needed for a class action.” Id. at 355.

Based upon Appellants’ failure to proffer sufficient
evidence of a practice that was common to the claims of the
proposed class members or lodge a facial challenge in
satisfaction of the Rule 23(a) commonality requirement, we
readily conclude that the district court’s refusal to grant class
certification was not an abuse of discretion.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring in part and dissenting
in part:

Under the circumstances of this case, I agree that
plaintiffs failed to show their as-applied claims pose common
questions for purposes of Fed. R. Civ. P. 23(a), but plaintiffs
also presented distinct facial challenges to defendants’ camp
cleanup policies and the order denying class certification did
not address them. My colleagues respond to plaintiffs’ facial
challenges in two ways. First, they decide plaintiffs failed to
present any. Then, they pivot and acknowledge plaintiffs
raised facial arguments but decide that the district court was
not required to rule on them. Because the record plainly
shows that plaintiffs brought facial challenges, and because
 WILLIS V. CITY OF SEATTLE 13

I know of no authority allowing the claims to be overlooked,
I respectfully dissent.

* * *

Plaintiffs filed a motion for class certification and a
motion for preliminary injunction. Plaintiffs based both
motions on the allegations found in the Second Amended
Complaint. The motions were argued simultaneously and the
district court issued one order. The transcript of the hearing,
as well as the district court’s order, confirm that the court
recognized plaintiffs presented facial challenges.

The written order denying plaintiffs’ motions discussed
and summarized plaintiffs’ facial constitutional claims:

Plaintiffs contend they are likely to succeed
on the merits of their Fourth and Fourteenth
Amendment claims for two reasons. Plaintiffs
first argue the City’s Updated Encampment
Rules are unconstitutional on their face. To
support this argument, Plaintiffs contend the
Updated Encampment Rules’ definitions of
“personal property,” and “hazardous items,”
violate the Fourth Amendment. Plaintiffs also
contend the Updated Encampment Rules are
facially unconstitutional under the Fourteenth
Amendment because their definitions of
“obstruction,” “immediate hazard,” and the
creation of “emphasis areas,” essentially do
away with pre-seizure notice and provide City
personnel with too much discretion.
14 WILLIS V. CITY OF SEATTLE

(emphasis added). The district court inquired about these
claims at the hearing on plaintiffs’ motions. The district court
stated, “plaintiffs’ concern is . . . based on the city’s policies,”
correctly observed that “Plaintiffs are basically raising an
official challenge to the MDARs,” and asked the City why
that claim was not “common to all the proposed class
members here[.]” Leaving no doubt that facial challenges
were on the table, the City conceded “a facial challenge
would be common[,]” but urged the district court to deny
plaintiffs’ motion for class certification because there was
“really essentially no merit to the facial challenge” plaintiffs
asserted. The City was right to concede the existence of the
facial claims, but it badly missed the mark when it conflated
the merits of the facial claims with whether the claims
presented a common question. Whether a facial challenge is
meritorious is the answer to a common question; it is not a
reason to deny class certification. See Amgen, Inc. v. Conn.
Ret. Plans & Tr. Funds, 568 U.S. 455, 466 (2013) (“Rule 23
grants courts no license to engage in free-ranging merits
inquiries at the certification stage.”).

A cursory review of plaintiffs’ motion for class
certification shows that they did indeed articulate distinct
facial challenges to defendants’ cleanup policies. Plaintiffs
argued that the City’s “official policies fail on their face to
provide requisite procedural safeguards to ensure that the
rights of people living outside are not violated when a sweep
is conducted[,]” and “Defendants’ policies contemplate on
their face arbitrary enforcement and unbridled employee
discretion, and lack meaningful oversight and enforcement
mechanisms.” (emphasis added). The majority initially
asserts that plaintiffs did not raise a facial challenge at all.
 WILLIS V. CITY OF SEATTLE 15

Majority Opinion at 8 (“We cannot agree . . . that Appellants’
motion for class certification raises a facial challenge . . . .”).1

After denying that plaintiffs raised facial challenges, the
majority retreats, acknowledges that plaintiffs did raise such
claims, but decides the court was not obliged to rule on them.
The majority contends that plaintiffs’ facial arguments were
made in the wrong section of plaintiffs’ motions, or were
made only in passing. Majority Opinion at 10–11. The
salient point is that the district court correctly recognized that
plaintiffs raised facial challenges in the operative complaint
and in connection with their motion for class certification.
Despite the majority’s attempts to wave these arguments
away, I know of no rule permitting them to be brushed aside
without a ruling.

The majority cites City of Los Angeles v. Patel, 135 S. Ct.
2443 (2015), and concludes that plaintiffs must not have
raised facial challenges because they “did not claim
Defendants’ policies are unconstitutional in all relevant
applications, [as] required for a facial challenge.” Majority
Opinion at 9–10. But the complaint alleged precisely that.
Specifically, plaintiffs alleged “[e]ven if Defendants’ sweeps
were conducted fully in accordance with both the MDAR and
the WSDOT Guidelines, they would still be unconstitutional.”
(emphasis added). There is no way to read this allegation as
anything other than a contention that defendants’ policies are
unconstitutional no matter how they are applied. In the

1
The majority also argues that “[n]one of the[] five questions of fact
or law [presented by plaintiffs] challenges a written law or policy as
unconstitutional.” Majority Opinion at 8–9. This is puzzling, as the
majority makes this assertion after enumerating several practices, policies,
and customs challenged by plaintiffs as unconstitutional.
16 WILLIS V. CITY OF SEATTLE

language of Patel, this was an unambiguous assertion that
defendants’ policies are unconstitutional “in all of [their]
applications.” Patel, 135 S. Ct. at 2451 (quotation marks
omitted). Plaintiffs were not required to incant magic words,
and the pleading undoubtedly gave defendants fair notice of
plaintiffs’ facial claims.

Plaintiffs’ facial challenges were not afterthoughts raised
for the first time in their motions for class certification or
preliminary injunction; they were included in the operative
complaint. See Updike v. Multnomah Cty., 870 F.3d 939, 952
(9th Cir. 2017) (observing that Fed. R. Civ. P. 8(a)(2)
requires only that “allegations in the complaint give the
defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests” (internal quotation marks
omitted)). Plaintiffs’ Second Amended Complaint includes
the allegation that defendants’ policy allowing the destruction
of property valued at less than $100 cannot be carried out in
a constitutional manner—i.e., the policy is unconstitutional in
all relevant applications. See Brief of Civil Procedure
Professors as Amici Curiae In Support of Plaintiffs-
Appellants, at 7 (citing Mathews v. Eldridge, 424 U.S. 319
(1976), and observing “due process challenges to government
policies . . . lend themselves to class certification because
they often raise generic questions about how system-wide
procedures impact a group of people who depend on those
procedures for relief”). Plaintiffs’ due process argument is
certainly colorable. Whether plaintiffs could ultimately
prevail is beside the point. Rule 23(a)’s commonality inquiry
is concerned with whether the facial validity of the policy
raises a common question that can be resolved in one stroke,
and this one plainly can.
 WILLIS V. CITY OF SEATTLE 17

The majority contends that “[n]o such cognizable
argument [concerning the $100 policy] appears in the
operative complaint.” Majority Opinion at 11 n.2.
Unquestionably, it does. In a section of the complaint entitled
“Defendants’ Official Policies Governing Sweeps are
Unconstitutional,” the complaint identifies a laundry list of
policies that plaintiffs contend violate due process even if
“conducted fully in accordance with” defendants’ official
policies. In a subsection entitled “Defendants’ Official
Policies Fail to Provide for Adequate and Effective Notice,”
the complaint describes how the notice requirements of the
MDAR and WSDOT Guidelines were constitutionally
deficient. There, the complaint specifically identifies the
policy allowing for the destruction of property valued at less
than $100 as an exception to the guidelines’ notice
requirements that “on [its] face make[s] it impossible for
people living outside to safely live and store their belongings
without constant risk that everything will be taken from them
with no notice.”

The majority takes issue with plaintiffs’ contention that
defendants’ policies grant too much discretion to employees
tasked with clearing camps. But it does not adequately
explain why a facial challenge alleging that public officials
have been given too much discretion cannot supply a
common question for purposes of Rule 23(a). See Brief of
Civil Procedure Professors as Amici Curiae In Support of
Plaintiffs-Appellants, at 9 (observing that plaintiffs contend
defendants’ policies are impermissibly vague and opining that
this case “raises system-wide questions about the
constitutionality of a government policy, [and] is precisely
the kind of suit that will allow the court to answer . . . claims
‘in one stroke’”). The majority relies on a flawed extension
of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).
18 WILLIS V. CITY OF SEATTLE

Majority Opinion at 11–12. In Dukes, the plaintiffs did not
allege the corporate policy granted managers too much
discretion; they alleged that store managers discriminated on
the basis of sex. 564 U.S. at 343–45. Their attempt to certify
a class failed because there was no common issue regarding
the managers’ individual decisions. Id. at 349–55. Here,
plaintiffs do not allege the discriminatory application of a
discretionary policy; they allege—among other things—that
defendants’ official policy fails to satisfy due process
regardless of how it is applied. Plaintiffs’ contentions were
not so indistinct that they did not warrant consideration.

Rule 23 provides a “means of vindicating the rights of
groups of people who individually would be without effective
strength to bring their opponents into court at all.” Benjamin
Kaplan, A Prefatory Note, 10 B.C. Indus. & Com. L. Rev.
497, 497 (1969). It provides a critical procedural device for
important cases like this one. Among other allegations,
plaintiffs argue their due process rights were violated by a
written policy providing that seized property did not need to
be stored if it was valued at less than $100. Plaintiffs’ as-
applied challenges illustrated this policy’s real world
consequences, including examples in which putative class
members were left without their identification or
medication—including insulin. It is not hard to imagine the
Catch-22 nightmare of being denied life-sustaining benefits
for failure to show proof of identification, and being unable
to obtain replacement identification because all of one’s
worldly possessions were lost in a camp sweep.

In recent years, class action litigation has more often been
initiated to vindicate large numbers of small-dollar consumer
claims, but as the amici curiae civil procedure professors
explain, courts have long recognized that facial constitutional
 WILLIS V. CITY OF SEATTLE 19

challenges present the archetypal common question for class
certification. See Brief of Civil Procedure Professors as
Amici Curiae In Support of Plaintiffs-Appellants, at 7–9.
Where a proposed class faces substantial harm caused by a
governmental policy, Rule 23 can provide an effective
vehicle for determining whether the policy, on its face,
violates the federal Constitution. Such facts present issues
ripe for class action resolution because they can “resolve an
issue that is central to the validity of each one of the claims
in one stroke.” See Dukes, 564 U.S. at 350.

The district court concluded that plaintiffs were not likely
to succeed on the merits of their facial challenges and denied
plaintiffs’ motions in an order that focused entirely on their
failure to offer evidence of the common practices they
challenged on an as-applied basis. The court did not rule on
the antecedent question posed by plaintiffs’ motion to certify
the proposed class: whether plaintiffs’ facial claims presented
common questions for Rule 23(a) purposes. Because the
order denying class certification made no mention of
plaintiffs’ facial claims, I would remand for the district court
to consider this issue in the first instance. See Edwards v.
First Am. Corp., 798 F.3d 1172, 1177 (9th Cir. 2015) (legal
errors in class certification orders are “per se” abuses of
discretion).