Brown v. Kelly

Full title: Michael BROWN, on Behalf of Himself and Others Similarly Situated…

Court: United States District Court, S.D. New York.

Date published: Jul 24, 2007

244 F.R.D. 222 (S.D.N.Y. 2007)

Opinion

[Copyrighted Material Omitted]

         Matthew D. Brinckerhoff, Esq., Katherine R. Rosenfeld, Esq., Emery Celli Brinckerhoff & Abady, LLP, New York, NY, J. McGregor Smyth, Jr., Esq., The Bronx Defenders, Bronx, NY, for Plaintiff.

          Rachel Seligman, Assistant Corporation Counsel, New York, NY, for Defendants.

          OPINION & ORDER

          SCHEINDLIN, District Judge.

          Michael Brown brings this putative class action against, inter alia, New York City Police Commissioner Raymond W. Kelly and the City of New York, alleging that they have unlawfully continued to arrest, summons and prosecute individuals such as himself for violating a, statute that was declared unconstitutional by the Second Circuit in 1993.¹ This statute, New York Penal Law § 240.35(1), provides that a person is guilty of " loitering when he ... [l]oiters, remains or wanders about in a public place for the purpose of begging ...." ² It is undisputed that for over a decade, notwithstanding the Second Circuit's ruling, defendants continued to enforce section 240.35(1) at a largely unabated rate.³ Although to this day, a handful of officers of the New York City Police Department (" NYPD" ) persist in issuing unconstitutional summonses for violations of section 240.35(1), in an Opinion dated May 31, 2007, familiarity with which is assumed, the Court denied plaintiff's motion for an Order adjudging municipal defendants in civil contempt.⁴

1 See Loper v. New York City Police Dep't, 999 F.2d 699, 701 (2d Cir.1993).

2 N.Y. Penal Law § 240.35(1).

3 See Brown v. Kelly ( " Brown I" ), No. 05 Civ. 5442, 2007 WL 1573957, at *1-2 (S.D.N.Y. May 31, 2007) (providing statistics on the unlawful enforcement of section 240.35(1)).

4 See id.

         Plaintiff now requests leave to amend his First Amended Class Action Complaint and moves for class certification, pursuant to Federal Rule of Civil Procedure 23. By his proposed Second Amended Class Action Complaint (" Complaint" ), plaintiff seeks to add the following six individuals as plaintiff class representatives: Xavier J. Grant, Bobby Wells, Michael Louis Brown, Edgar Turner, Keith Anderson and Llewellyn Rudy (" named plaintiffs" ). ⁵ Additionally, the Complaint adds nine individual police officers as defendants,⁶ supplements plaintiff's allegations against the proposed defendant class, adds a cause of action for violations of the Equal Protection Clause of the United States Constitution, and updates allegations to reflect data adduced in discovery and remedial relief to date.⁷

5 See Memorandum of Law in Support of Plaintiff's Motion to Amend the Complaint and for Class Certification (" Pl.Mem." ) at 2.

6 These individuals are James Essig, Ronald Mercandetti, Dwayne Montgomery, Thomas J. Acito, John Picone, Christopher Lagrasta, Dennis Palinkas, Gerald McCoy and Karl Harris. All nine are members of the NYPD who either wrongfully arrested or summoned plaintiffs, or supervised officers who did. See id.

7 See id.

         Plaintiff seeks certification of the following classes: (1) a plaintiff class consisting of all persons who have been or will be arrested, charged or prosecuted for a violation of section 240.35(1) in the State of New York from October 7, 1992 onward; (2) a plaintiff subclass of all persons arrested, charged or prosecuted for a violation of section 240.35(1) by employees, agents or representatives of New York City (" City" ) from October 7, 1992 onward; and (3) a defendant class of " all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge or prosecute a person with a violation under New York Penal Law." ⁸ For the reasons stated below, plaintiff's motion is granted in its entirety.

8 Id.

         I. BACKGROUND

         A. Continued Enforcement of Section 240.35(1)

          The background facts of this case are thoroughly set forth in Brown I and therefore I summarize them only briefly.⁹ In 1992, Judge Robert W. Sweet of this Court issued a permanent injunction barring the NYPD from enforcing section 240.35(1), which the Second Circuit affirmed in Loper v. New York City Police Department. ¹⁰ Nevertheless, on multiple occasions from 2002 to June 2005, uniformed police officers wrongfully arrested former plaintiff Eddie Wise for peacefully begging on the streets of the Bronx. ¹¹ Wise was charged with loitering in violation of section 240.35(1) and prosecuted for this offense by the Bronx District Attorney's Office.¹² On June 9, 2005, Wise commenced the instant action by filing an Order to Show Cause and Temporary Restraining Order seeking relief against City and state defendants for unlawfully enforcing section 240.35(1). ¹³ Soon thereafter, the municipal defendants entered into a stipulation in which they agreed to take steps aimed at preventing future enforcement of the statute.¹⁴ This Court " so ordered" that stipulation on June 23, 2005 (hereafter " June 23, 2005 Order" ). ¹⁵ Pursuant to that Order, defendants notified various City law enforcement officials and employees that section 240.35(1) had been declared unconstitutional. That Order further stated that the City and its employees " shall cease enforcement of [section 240.35(1) ]." ¹⁶

9 See 2007 WL 1573957, at *1-2.

10 999 F.2d at 706.

11 See First Amended Class Action Complaint ¶ 2.

12 See id.

13 On November 22, 2006, Wise accepted defendants' Rule 68 Offer of Judgment, subsequent to which a judgment was entered dismissing all of his claims. Prior to the dismissal, Wise requested and received leave to amend his complaint to add Michael Brown as a plaintiff and class representative. See 11/22/06 Stipulation and Order, Docket No. 49.

14 In January 2006, plaintiff Wise settled his claims with the state defendants, including the Office of Court Administration (" OCA" ). Pursuant to that settlement, OCA was subpoenaed to produce information contained in its electronic data system, which tracks and stores summonses issued pursuant to section 240.35(1). Hereafter, I use the term " defendants" to refer to the remaining City defendants.

15 See June 23, 2005 Order, Docket No. 5.

16 Id. ¶ 1.

         Notwithstanding the clear command of the June 23, 2005 Order, defendants continued to arrest, prosecute, issue bench warrants and issue an alarming number of summonses for violations of section 240.35(1). Beginning in December 2006, however, City law enforcement officials began taking affirmative steps to quash enforcement, including vacating all outstanding bench warrants based solely on violations of section 240.35(1) and sending notices to officers reminding them that the statute is unenforceable.¹⁷ As a result, prosecutions and arrests for section 240.35(1) have dwindled, although summonses for violations of section 240.35(1) were still being issued regularly as recently as March of this year.¹⁸

17 See Brown I, 2007 WL 1573957, at *4-5.

18 By defendants' own admission, from January 2, 2007 through March 14, 2007, members of the NYPD issued summonses for section 240.35(1) at an average rate of approximately one every other day. See Memorandum of Law in Opposition to Plaintiff's Motion for Contempt (filed April 14, 2007) at 11.

         B. Proposed Plaintiff Class Representatives ¹⁹

19 The following facts are taken from the Complaint.

         Michael Brown is a forty-six year-old African-American man. On June 14, 2003, he was peacefully begging on the streets of the Bronx when he was arrested and charged with violating section 240.35(1). The police took Brown to the precinct, where he was held pending arraignment. At arraignment, Brown pled guilty and was sentenced to a term of conditional discharge of one year.

         Xavier J. Grant is a twenty-three year-old African-American man. On July 17, 2003, he was standing at an intersection in the Bronx, peacefully talking with his friends, when police officers approached and told him to " move along" because " you can't be here." The officers then issued Grant a summons charging him with loitering in violation of section 240.35(1) and directing him to appear in court on August 25, 2003, to answer to the charge. When Grant failed to appear on the summons, a bench warrant was issued for his arrest. Grant did not learn of this until November 2006, when he applied for a job at TOYS " R" US, which conducted a background check that revealed the active warrant. Soon thereafter, in an effort to resolve this outstanding warrant, Grant went to the Bronx Criminal Court, where the judge sentenced him to an Adjournment in Contemplation of Dismissal on the still extant charge.

         Bobby Wells is a forty-nine year-old African-American man who was peacefully walking around his neighborhood in the Bronx on April 21, 2004, when he was stopped by a police officer, arrested and charged with loitering in violation of section 240.35(1) and disorderly conduct. At arraignment, Wells pleaded guilty and received conditional discharges of one year for each charge, to be served concurrently. Thereafter, on or about March 30, 2005, Wells was again arrested and charged with violating section 240.35(1) and disorderly conduct, to which he again pleaded guilty.

         Michael Louis Brown is a forty-eight year-old African-American man. On March 1, 2004, Michael Louis Brown was peacefully asking passers-by for money in the Bronx when he was stopped by police officers, arrested and charged with loitering in violation of section 240.35(1) and with disorderly conduct. The officers took Michael Louis Brown to the police station, where he was held pending arraignment. Later that day, Michael Louis Brown pleaded guilty to both charges and was sentenced to a term of imprisonment of time served.           Keith Anderson is a forty-two year-old African-American man who was peacefully standing on a street in the Bronx on August 20, 2002, when he was arrested and charged with loitering in violation of section 240.35(1). He was taken to the precinct and held pending arraignment. The Bronx prosecutor charged Anderson with loitering and aggressive solicitation. At arraignment, Anderson pleaded guilty to violating section 240.35(1) and received a sentence of a conditional discharge of one year. On September 8, 2004, Anderson was again arrested and charged with violating section 240.35(1) and with disorderly conduct; he pleaded guilty to those charges and was sentenced to one day in jail, ninety-five dollars in fees and surcharges, and civil judgments for these amounts.

         Edgar Turner is a forty-eight year-old African-American man. In October 2006, Turner was standing at an intersection in Manhattan, waiting for an office in a nearby building to open, when he was approached by police, questioned and ordered to produce identification. He was then issued a summons charging him with loitering in violation of section 240.35(1). On December 8, 2006, Turner appeared in Manhattan Criminal Court to answer the charge, and the summons was dismissed.

         II. APPLICABLE LAW

         A. Leave to Amend a Complaint

         Leave to amend a complaint " will be freely given when justice so requires." ²⁰ The liberality in granting leave to amend applies to requests to amend a complaint to add new parties.²¹ " The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith." ²²

20 Fed.R.Civ.P. 15(a).

21 See Staggers v. Otto Gerdau Co., 359 F.2d 292, 296-97 (2d Cir.1966).

22 Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993). Accord Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (it is " rare" that leave to amend should be denied).

         B. Rule 23 Class Certification Requirements

         1. Rule 23(a)

         Rule 23 of the Federal Rules of Civil Procedure governs class certification. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a). Plaintiffs bear the burden of demonstrating that the class meets these requirements-commonly referred to as numerosity, commonality, typicality, and adequacy.²³ The numerosity requirement mandates that the class be " so numerous that joinder of all members is impracticable." ²⁴ Commonality requires a showing that common issues of fact or law affect all class members.²⁵ Typicality exists where the named plaintiffs' claims and the absent class members' claims arise from " the same course of events," and where each class member makes " similar legal arguments" to prove defendant's liability.²⁶ The adequacy requirement demands that " the representative parties will fairly and adequately protect the interests of the class." ²⁷ Finally, although " ‘ Rule 23(a) does not expressly require that a class be definite in order to be certified[,] a requirement that there be an identifiable class has been implied by the courts.’ " ²⁸          2. Rule 23(b)

23 See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 573 (2d Cir.2000).

24 Fed.R.Civ.P. 23(a)(1).

25 See Fed.R.Civ.P. 23(a)(2). See also Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y.1992).

26 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001) (citing Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997)).

27 Fed.R.Civ.P. 23(a)(4).

28 In re Methyl Tertiary Butyl Ether Prods. Liab. Litig, 209 F.R.D. 323, 336 (S.D.N.Y.2002) (quoting Zapka v. Coca-Cola Co., No. 99 Civ. 8238, 2000 WL 1644539, at *2 (N.D.Ill. Oct.27, 2000)). This implied requirement is often referred to as " ‘ ascertainability.’ " Id. (quoting Van West v. Midland Nat'l Life Ins. Co., 199 F.R.D. 448, 451 (D.R.I.2001)).

         In addition to showing that the proposed class satisfies the four prerequisites of Rule 23(a), plaintiffs must also show that the class is " maintainable" under Rule 23(b). A class satisfies this requirement if it in fits into one of the three alternative categories delineated by Rule 23(b), subdivisions (1), (2) and (3). A class may be certified under more than one category, and in the case at bar plaintiff moves for class certification pursuant to subdivisions (b)(2) and (b)(3).

         Under Rule 23(b)(2), class litigation is appropriate where " the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." ²⁹ The Advisory Committee Note suggests that in this context, " [d]eclaratory relief ‘ corresponds' to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief." ³⁰

29 Fed.R.Civ.P. 23(b)(2).

30 1966 Advisory Committee Note to Rule 23(b)(2).

         Although subdivision (b)(2) was designed with an eye towards equitable relief, certification of a class seeking both equitable and monetary relief may be appropriate " in light of the relative importance of the remedies sought, given all of the facts and circumstances of the case." ³¹ The Second Circuit has instructed that in assessing whether subdivision (b)(2) applies, a district court's first inquiry is whether " ‘ even in the absence of possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought.’ " ³² The court's next inquiry is whether " ‘ the injunctive or declaratory relief would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits.’ " ³³

31 Parker v. Time Warner Entm't Co., 331 F.3d 13, 20 (2d Cir.2003) (quotation marks and citation omitted).

32 Id. (quoting Robinson, 267 F.3d at 164).

33 Id. (quoting Robinson, 267 F.3d at 164).

         Under Rule 23(b)(3), certification is appropriate where " questions of law or fact common to the members of the class predominate over any questions affecting only individual members," and the court finds that class litigation " is superior to other available methods for the fair and efficient adjudication of the controversy." ³⁴ Generally, the " ‘ predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ " ³⁵ The Second Circuit has observed that this subdivision

34 Fed.R.Civ.P. 23(b)(3).

35 In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.2006) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir.2001)).

encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.³⁶

36 Id. (quotations and citation omitted).

         " Regardless of whether [an action] as a whole satisfies Rule 23(b)(3)'s predominance requirement," courts may employ Rule 23(c) (4)(A) to certify a class on a particular issue.³⁷

37 Id. at 227.Rule 23(c)(4)(A) provides that " [w]hen appropriate ... an action may be brought or maintained as a class action with respect to particular issues ...."

         In determining whether the class action mechanism is the most " fair and efficient" method of resolving a case, courts must consider the following four nonexclusive factors: (1) class members' interest in maintaining individual actions; (2) " the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; " (3) " the desirability or undesirability of concentrating the litigation of the claims in the particular forum; " and (4) " the difficulties likely to be encountered in the management of a class action." ³⁸          3. Standard of Proof

38 Id. at 230 (quotation marks omitted) (citing Fed.R.Civ.P. 23(b)(3)).

         Prior to certifying a class, a court must assess " all the relevant evidence admitted at the class certification stage" and find that " each of the Rule requirements has been met." ³⁹ Furthermore,

39 Miles v. Merrill Lynch, 471 F.3d 24, 41 (2d Cir.2006).

such determinations can be made only if the [court] resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met.⁴⁰

40 Id.

         A court's " obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue" -even where the two are " identical." ⁴¹ In making this determination, courts should refrain from considering " aspect[s] of the merits unrelated to a Rule 23 requirement." ⁴²

41 Id.

42 Id.

         III. DISCUSSION

         A. Leave to Amend

         Defendants have failed to show that plaintiff's request to amend the First Amended Class Action Complaint should be denied on grounds of prejudice, bad faith or futility. Accordingly, leave to amend is granted.

         B. Proposed Plaintiff Class and Subclass

         1. Rule 23(a) Prerequisites

         a. Numerosity

          The named plaintiffs seek to represent a(b)(2) injunctive class " consisting of all persons who have been or will be arrested, charged, or prosecuted for a violation of [section 240.35(1) ] in the State of New York from Oct. 7, 1992 onward." ⁴³ They also seek to represent a(b)(3) damages subclass " consisting of all persons arrested, charged, or prosecuted for a violation of [section 240.35(1) ], by employees, agents, or representatives of the City of New York" during that same time period. ⁴⁴ By conservative assessments of available data, both proposed classes consist of thousands of people and therefore easily satisfy the numerosity requirement.⁴⁵

43 Pl. Mem. at 11.

44 Id. at 21. As a threshold consideration, I find plaintiff's proposed class definitions sufficiently definite. Both OCA and the NYPD maintain databases which collectively make it " administratively feasible" to identify nearly all members of the class and subclass. Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y.1983).

45 It is undisputed that thousands of people have been unlawfully charged with violating 240.35(1) by City law enforcement. Although plaintiff lacks comprehensive information on non-City incidents of enforcement, available data shows that since 1992, over six hundred individuals have been charged with violating section 240.35(1) elsewhere in New York State. See Complaint ¶ ¶ 125-128.

         b. Commonality and Typicality

          Although commonality and typicality are two separate criteria, in this action they " tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)." ⁴⁶ They are also well-suited for joint discussion here because defendants present an umbrella theory addressing both requirements.

46 Marisol A., 126 F.3d at 373.

          The thrust of defendants' opposition is that " the substantive law underlying plaintiff's claims requires individualized, highly fact-specific analysis to establish liability for each individual claim." ⁴⁷ Defendants assert that each plaintiff's claims must be analyzed individually in order to determine distinct legal issues such as each defendant's liability and/or unique defenses vis-à-vis each claimant.⁴⁸ These arguments, however, all derive from defendants' erroneous assumption that merely because " all class members were charged with [section 240.35(1) ] does not make their claims common or typical." ⁴⁹ While it is true that a handful of " individual" issues exist, these issues do not undermine the commonality and typicality of plaintiff's core claims.

47 Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Class Certification (" Def.Mem." ) at 9.

48 See id. at 10-11.

49 Id. at 9.

         Defendants start with the conclusion that their liability (if any) cannot be established solely on the basis that the enforcement of section 240.35(1) is per se unlawful in light of Loper. As a result, defendants insist that the fact that a person is charged with violating section 240.35(1) should not automatically identify him as a class member.⁵⁰ Defendants theorize as to how each claim alleged in the Complaint could turn on the particular facts and circumstances surrounding each arrest, summons, and prosecution predicated on section 240.35(1).⁵¹ For example, the Complaint includes a class claim under the Fourth and Fourteenth Amendment that defendants' practice of arresting and prosecuting individuals for section 240.35(1) violations-referred to as defendants' " Arrest & Prosecution Policy" -resulted in individuals being falsely arrested, imprisoned, and maliciously prosecuted without probable cause.⁵² Seizing on the term " probable cause," defendants argue that since the existence of probable cause is a fact-specific inquiry,⁵³ if class certification is granted the fact-finder will be forced to engage in mini-trials in order to determine the extent of defendants' liability as to each putative class member. Defendants contend the same is true of plaintiff's substantive due process claims-burdensome mini-trials will be required in order to determine whether defendants' conduct during each episode of enforcement was so deliberate and unjustifiable so as to " shock the conscience." ⁵⁴

50 See id. at 3.

51 See id. at 4-6.

52 See Complaint ¶ 40.

53 See Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir.2006) (concluding that a claim for false arrest turns on whether or not probable cause existed for the arrest, as opposed to the actual charges invoked by the arresting officer).

54 Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir.2007) (citing County of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).

         Defendants also argue that plaintiff's proposed classes fail to satisfy the commonality and typicality requirements because they improperly amalgamate individuals who received summonses with those who were arrested and prosecuted. In support, defendants point out that a summons cannot be the basis for a malicious prosecution claim,⁵⁵ and that in order to prevail on a claim of malicious prosecution, each plaintiff will have to show that the underlying action resulted in a favorable disposition indicative of innocence. ⁵⁶

55 See Def. Mem. at 5 (citing Garrett v. Port Auth. of N.Y. and N.J., No. 04 Civ. 7368, 2006 WL 2266298, at *7 (S.D.N.Y. Aug.8, 2006) (" Absent the initiation of proceedings, a court appearance pursuant to the summons alone cannot give rise to a malicious prosecution claim." )). See also Katzev v. Newman, No. 96 Civ. 9138, 2000 WL 23229, at *4 (S.D.N.Y. Jan.12, 2000) (" [A] charge and a warrantless arrest-concluding with the issuance of the desk appearance ticket-may be a sufficient deprivation of liberty to support a claim for false arrest, but do not amount to a prosecution and cannot alone support a claim for malicious prosecution." ).

56 See Def. Mem. at 5 (citing Fulton v. Robinson, 289 F.3d 188 (2d Cir.2002)).

          But if such factual distinctions could preclude findings of commonality and typicality under Rule 23(a), they would be the death knell for class actions challenging the systemic enforcement of an unconstitutional statute. This is an unacceptable result. As the Supreme Court has instructed, " class relief is consistent with the need for case-by-case adjudication," especially where " [i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue." ⁵⁷ With respect to commonality, Rule 23(a)(2) does not require all questions of law or fact be common to the class.⁵⁸

57 Califano v. Yamasaki, 442 U.S. 682, 701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). Accord In re NTL Sec. Litig., No. 02 Civ. 3013, 2006 WL 330113, at *6 (S.D.N.Y. Feb. 14, 2006) (commonality requirement met if the class shares even one common question of law or fact).

58 Injunctive classes governed by Rule 23(b)(2) " have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendant's conduct [was] central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct." Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58 (3d Cir.1994) (citation omitted).

         Although not all prospective class members experienced the same constitutional violation, their central claim is " ‘ that their injuries derive from a unitary course of conduct by a single system.’ " ⁵⁹ Specifically, plaintiff alleges that defendants' blanket Arrest & Prosecution Policy chilled free speech and facilitated the unlawful enforcement of an unconstitutional statute. It follows from this premise that this class action involves numerous common questions of both law and fact.⁶⁰

59 Daniels v. City of New York, 198 F.R.D. 409, 417 (S.D.N.Y.2001) (quoting Marisol A., 126 F.3d at 377).

60 See, e.g., Port Auth. Police Benevolent Assoc., Inc. v. Port Auth. of N.Y. & N.J., 698 F.2d 150, 154 (2d Cir.1983) (certification improperly denied where plaintiffs challenged a practice of defendants, as opposed to defendants' conduct with respect to each individual plaintiff); Mitchell v. County of Clinton, No. 06 Civ. 00254, 2007 WL 1988716, at *2 (N.D.N.Y. July 5, 2007) (in civil rights class action challenging correctional facilities' strip search policy, common issues included " what strip search policy and practice existed, whether the policy and/or practice was unconstitutional, and whether some or all of the defendants are liable" ); Ventura v. New York City Health and Hosps. Corp., 125 F.R.D. 595, 600 (S.D.N.Y.1989) (" Several other courts in this Circuit similarly have held that the existence of individualized factors or variations does not preclude [a] finding of [the] existence of common questions where pattern, practice or policy exists." ) (collecting cases).

         As plaintiff observes, many of the distinctions defendants draw between putative class members' claims actually support certification. For instance, defendants argue that because named plaintiffs Rudy and Grant were issued summonses but never charged at arraignment, they cannot establish Fourth Amendment violations.⁶¹ But this is a legal question-whether a summons charging an unconstitutional statute violates the Fourth Amendment-that is common to thousands of proposed class members.⁶² Quite clearly, the named plaintiffs' complained-of injuries arose from the same practice/policy which now gives rise to the claims of absent class members, and thus proves the existence of common factual and legal issues. Common questions of fact include:

61 See Def. Mem. at 4.

62 See Pl. Mem. at 12-13 (arguing that all putative class members have Fourth Amendment claims regardless of whether they were summoned, arrested or prosecuted under 240.35(1)).

(i) whether defendants enforced or failed to prevent the enforcement of [section] 240.35(1), after the statute was declared unconstitutional; (ii) the existence of a widespread pattern, policy or practice of enforcement ... (iii) whether defendant Kelly had knowledge of the unlawful acts of his subordinates; (iv) whether [the City] failed to train supervise, and discipline the personnel in the NYPD and district attorneys' offices such that they are liable to members of the subclass for damages; ... and [ (v) ] what protocols existed in the NYPD regarding enforcement of [section 240.35(1) ]. ⁶³

63 Id. at 16.

         Common questions of law include:

(i) whether defendants' enforcement of the statute during the class period violated class members' First and Fourteenth Amendment rights;

(ii) whether liability against the City is appropriate pursuant to controlling precedent on the basis of either (a) defendants' custom, pattern and practice or (b) supervisory policy-maker liability; ⁶⁴

64 See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 693-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

(iii) whether individual defendants are entitled to qualified immunity or liable for punitive damages; ⁶⁵ (iv) whether the City is collaterally estopped from contesting liability in light of its admissions as to instances of wrongful enforcement of section 240.35(1);

65 Curiously, defendants argue that qualified immunity defenses will require mini-trials to determine the reasonableness of each defendant's actions vis-à-vis each plaintiff in light of the " established law at the time." Def. Mem. at 11 (citing Saucier v. Katz, 533 U.S. 194, 203-03, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). However, because plaintiff's proposed class definitions concern only post- Loper enforcement, and Loper clearly established the unconstitutionality of section 240.35(1), to the extent that qualified immunity does become an issue in this case it will likely be amenable to class-wide adjudication.

(v) whether defendants' conduct was discriminatory in violation of the Equal Protection Clause; and

(vi) whether plaintiffs are entitled to various forms of equitable relief, such as a disgorgement of fines paid or the expunging of unlawful arrests from the public record.⁶⁶

66 See Pl. Mem. at 16.

         Whether certain common issues are legal or factual or a mixture of both is irrelevant for present purposes; the critical point is that they are common.

         Nor do the legal and factual distinctions drawn by defendants vitiate the typicality of putative class members' claims. Typicality is determined by the nature of the claims brought by the class representatives, not by the particular fact patterns from which they arose. This is particularly true with respect to plaintiff's request for (b)(2) certification, for " where plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them ... [there is] no need for individualized determinations of the propriety of injunctive relief." ⁶⁷

67 Id.

         The named plaintiffs' claims are typical of those of the absent class members because they arise from the same course of unconstitutional conduct-the post- Loper enforcement of section 240.35(1)-that affected all class members. If absent class members were to assert their claims individually, they would presumably rely on the same legal theories plaintiff espouses here.⁶⁸ And if plaintiff succeeds on his claims, all members of the putative class will benefit.⁶⁹ Moreover, the fact that some absent class members may have suffered greater injuries than their proposed representatives or fellow class members ( i.e., by virtue of being jailed or prosecuted for violating section 240.35(1), as opposed to merely receiving a summons), and are thus able to bring additional claims or seek greater damages, does not make the proposed representatives' claims atypical. As a result, plaintiff's proposed class and subclass satisfy Rule 23(a)(3)'s typicality requirement.

68 See Robinson, 267 F.3d at 155 (typicality present where proposed class representative's claims arise from the same general " course of events" as those of the absent class members and rely on " similar legal arguments" to prove defendant' liability); Mitchell, 2007 WL 1988716, at *3 (typicality satisfied where named plaintiff and all putative plaintiffs had strip searched pursuant to defendants' blanket policy and practice).

69 See Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir.1993) (typicality present where employer discriminated " in the same general fashion" against proposed class representatives and putative class). See also Baby Neal, 43 F.3d at 58 (" [C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfies the typicality requirement." ); Ouellette v. International Paper Co., 86 F.R.D. 476, 480 (D.Vt.1980) ( " Proof of defendant's liability ... will benefit all members of the proposed classes." (citation omitted)); Sanders v. Faraday Labs., Inc., 82 F.R.D. 99, 101 (E.D.N.Y.1979) (the fact that damages could reach a de minimis level at some point among the absent class members did not make class representatives' claims atypical).

         c. Adequacy

          Defendants have attacked both the adequacy of class counsel and the proposed class representatives. As to the former, defendants assert that The Bronx Defenders is inadequate because it has a conflict of interest with putative class members who it represented in criminal actions, including prosecutions occurring after 1992 where the class member pled guilty to violating section 240.35(1).⁷⁰ Defendants assert that they (as defendants) are entitled to discover whether The Bronx Defenders was on notice of Loper at the time it represented these individuals because this information is potentially relevant to the City's defense against plaintiffs' claims of deliberate indifference. If such relevance is adduced, defendants may call The Bronx Defenders as a fact witness, who would then be in violation of ethical rules forbidding lawyers from acting as witnesses.⁷¹ Additionally, information adduced at discovery may suggest that The Bronx Defenders are contributorily liable for damages, giving rise to an additional conflict of interest proscribed by the disciplinary rules.⁷²

70 See Def. Mem. at 18.

71 See id. (citing 22 N.Y. Comp.Codes R. & Regs. § 1200.21(b)).

72 See id.

         Defendants' sudden concern for the best interests of the class is as ironic as it is unconvincing. First, it must be remembered that The Bronx Defenders are appearing as co-counsel. The class is also represented by Emery Celli Brinckerhoff & Abady LLP, a preeminent civil rights firm that defendants do not challenge. Second, The Bronx Defenders represented forty clients who were charged with section 240.35(1) at arraignments in forty-nine cases; only seventeen of these resulted in convictions under the statute.⁷³ Out of a putative class numbering in the thousands, this number is de minimis. And even assuming, arguendo, that the defense attorneys appearing in those seventeen actions were or should have been on notice of Loper, the circumstances surrounding their representation have no bearing on the illegality of the summonses and arrests underlying those prosecutions. ⁷⁴ Furthermore, disqualification on these ethical grounds requires " a high standard of proof" that the court's usurpation of a party's right to choose his counsel freely is necessary in order to maintain the highest standards of the profession.⁷⁵ Defendants do not meet this burden.

73 See Reply Declaration of J. McGregor Smyth, counsel for plaintiff, in Support of Plaintiff's Motion for Class Certification (" Smyth Reply Decl." ) ¶ 30.

74 Defendants also contend that Bronx Defender McGregor Smyth has breached the " advocate-witness" rule by submitting declarations to the Court containing summaries and analyses of OCA's statistical data. See Def. Mem. at 19 (" [T]o the extent that Mr. Smyth is acting in the capacity of an expert, the ethical rules prohibit his involvement as both an advocate and witness." (citation omitted)). This argument is frivolous. Defendants' counsel submitted similar declarations summarizing the same data, see, e.g., Declaration of Rachel A. Seligman, Assistant Corporation Counsel, in Opposition to Plaintiff's Motion to Amend the Complaint and for Class Certification (" Seligman Decl." ) at ¶ ¶ 9-10.

75 Government of India v. Cook Indus., Inc., 569 F.2d 737, 739 (2d Cir.1978).

         As to the adequacy of the proposed class representatives, defendants provide a litany of purported reasons why the named plaintiffs are too unreliable or incompetent to represent absent class members. These reasons boil down to two primary concerns-missed court appearances and/or past substance abuse. ⁷⁶ Neither of these concerns disqualify any of the named plaintiffs from adequately representing the proposed classes. Indeed, if this Court were to rule out proposed class representatives on these grounds there would likely be nobody left to bring suit on behalf of persons charged with " loitering for the purpose of begging." ⁷⁷ Such rigidity would undermine " a principal objective of the class action mechanism-to facilitate recovery for those least able to pursue an individual action." ⁷⁸

76 Rudy admitted to missing two scheduled court appearances, one arising from an unpaid ticket, the other from an assault charge. See 3/27/07 Deposition of Llewelyn Rudy (" Rudy Dep." ), Ex. J to Seligman Decl., Ex. F to Smyth Reply Decl., at 150-52. Wells admitted to missing approximately ten court appearances, including those arising out of his April 2004 and March 2005 arrests for violating section 240.35(1). See 3/29/07 Deposition of Bobby Wells, Ex. K to Seligman Decl., Ex. H to Smyth Reply Decl., at 268. Two proposed class representatives have been in drug treatment programs. See Def. Mem. at 14.

77 N.Y. Penal Law § 240.35(1).

78 Noble v. 93 University Place Corp., 224 F.R.D. 330, 344 (S.D.N.Y.2004).

          Moreover, in the course of a discovery dispute, defendants had already raised the issue of named plaintiffs' prior use of illegal drugs. At that time, the Court held that " given the makeup of this putative class-primarily homeless people panhandling for subsistence-the fact that individuals have suffered from ... drug addiction is not relevant to their adequacy to act as class representatives." ⁷⁹ Neither the facts nor law have changed since that explicit and unambiguous ruling.

79 Brown v. Kelly, No. 05 Civ. 5442, 2007 WL 1138877, at *2 (S.D.N.Y. April 16, 2007) (collecting cases). This Court has previously expressed its reluctance to deny class certification based on allegations of immorality or improper conduct not " arising out of or touching upon the very prosecution of the lawsuit." Jane B. ex rel. Martin v. New York City Dep't of Soc. Servs., 117 F.R.D. 64, 71 (S.D.N.Y.1987). For " [i]f the courts prevent persons with questionable moral characters from acting as class representatives, [classes of] prisoners, mental patients, juvenile offenders, or others capable of socially deviant behavior could never ... be certified. This is an unacceptable result." Id.

         Defendants further argue, without explanation, that because the named plaintiffs' claims arose in New York City, an impermissible conflict of interest exists between them and absent class members whose claims arose outside of the City.⁸⁰ This argument is without merit. The critical purpose of the adequacy inquiry is to determine whether a class representative's interests are antagonistic to those of absent class members. ⁸¹ That some absent class members were charged with violating section 240.35(1) elsewhere in New York may lead to a geographically dispersed class, but suggests no antagonism whatsoever.⁸² To the contrary, it is obvious that the named plaintiffs' motives for pursuing this litigation are commensurate with those of all proposed class members, and satisfy the requirements of Rule 23(a)(4).⁸³

80 See id. at 17.

81 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (" The adequacy inquiry under Fed.R.Civ.P. 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members." ). See also In re Visa Check, 280 F.3d at 142.

82 Adequacy is not defeated by " conclusory assertions [that] raise a hypothetical rather than an actual, conflict." Burley v. City of New York, No. 03 Civ. 735, 2005 WL 668789, at *4 (S.D.N.Y. Mar. 23, 3005).

83 The Court is also satisfied that the named plaintiffs are sufficiently familiar with this case and their role as class representatives. See, e.g., 3/28/07 Deposition of Michael Brown, Ex. G to Smyth Reply Deck, at 7, 65 (" I'm representing it for those that can't be here today ... I just really want the police to stop arresting us for panhandling because I don't see it as no crime." ); Rudy Dep. at 128 (" I understand that I have to be reliable, that it's up to me to see that this does not happen to anyone else and that the law is properly followed by the NYPD and to set an example ...." ); 3/30/07 Deposition of Keith Anderson, Ex. E to Smyth Reply Decl., at 52, 68 (" [W]hat happened to me I don't want it to happen to anybody else .... [I]t is against the law to lock people up for pan handling, that was what the whole fight was all about." ). See also Pl. Mem. at 3 (quoting additional deposition excerpts).

         2. Rule 23(b)(2)

          Certification of a state-wide plaintiff class falls squarely within the purview of Rule 23(b)(2), for even in the absence of possible monetary recovery, reasonable individuals charged with violating an unconstitutional and unenforceable criminal statute would bring suit to obtain the extensive injunctive relief plaintiff seeks.⁸⁴ They would seek to have their wrongful criminal convictions and bench warrants expunged, and to have their fines repaid.⁸⁵ Civic-minded citizens would also, quite reasonably, seek ongoing monitoring of police officer training and any continuing enforcement of section 240.35(1).⁸⁶

84 See Parker, 331 F.3d at 20.

85 See Pl. Mem. at 21.

86 See id.

          Plaintiff seeks a declaratory judgment that all post- Loper instances of enforcement of section 240.35(1) violated class members' federal, state and constitutional rights.⁸⁷ Although it may be true that plaintiff seeks this judgment as a prelude to a request for damages, such declaratory relief is nevertheless " ‘ reasonably necessary and appropriate were plaintiff to succeed on the merits.’ " ⁸⁸ This is par for the course in civil rights cases where a plaintiff class seeks systematic reform through injunctive relief in addition to monetary relief.⁸⁹

87 See Complaint at 39, " Wherefore" Clause ¶ 1.

88 Parker, 331 F.3d at 20 (quoting Robinson, 267 F.3d at 164). Accord Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 764 (7th Cir.2003) (noting that " a declaratory judgment is normally a prelude to a request for other relief," as " [nobody] wants an empty declaration" ). Accord Marisol A., 126 F.3d at 378 (certification under 23(b)(2) appropriate where a claim seeks both injunctive relief and non-incidental money damages).

89 See Marisol A., 126 F.3d at 378 (" ‘ [C]ivil rights cases seeking broad declaratory or injunctive relief for a large and amorphous class ... fall squarely into the category’ of 23(b) (2) actions." (quoting Jeanine B. ex rel. Blondis v. Thompson, 877 F.Supp. 1268, 1288 (E.D.Wis.1995))); Latino Officers Ass'n of New York v. City of New York, 209 F.R.D. 79, 93 (S.D.N.Y.2002) (certifying a 23(b)(2) class where plaintiffs sought " significant" injunctive relief including training of NYPD officers). There is indeed a " long line of cases in the Second Circuit allowing class actions that seek to enjoin governmental actions." Alexander A. v. Novello, 210 F.R.D. 27, 34 (E.D.N.Y.2002) (collecting cases). See also Fed.R.Civ.P. 23(b)(2), Advisory Committee Notes to 1966 Amendment (civil-rights actions " illustrative" of those well-suited for (b)(2) certification).

         Defendants oppose (b)(2) certification on the ground that plaintiff lacks standing to seek injunctive relief under Galvan v. Levine, a seminal case in which the Second Circuit found class certification unnecessary because the state defendant, prior to judgment, withdrew the challenged rule and represented that it had no intention of reinstating it.⁹⁰ The court explained that

90 490 F.2d 1255 (2d Cir.1973).

insofar as the relief sought is prohibitory, an action seeking declaratory or injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality, at least for the plaintiffs. As we have recently noted in Vulcan Society v. Civil Service Comm'n, 490 F.2d 387, 399 ( [2d Cir.] 1973), what is important in such a case for the plaintiffs or, more accurately, for their counsel, is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated ... as the judgment did here. The State has made clear that it understands the judgment to bind it with respect to all claimants; indeed even before entry of the judgment, it withdrew the challenged policy even more fully than the court ultimately directed and stated it did not intend to reinstate the policy. ⁹¹

91 Id. at 1261 (citations omitted). The Second Circuit has re-affirmed the Galvan doctrine on several occasions. See, e.g., Berger v. Heckler, 771 F.2d 1556 (2d Cir.1985) (class certification unnecessary where defendant agreed to the enforcement of a decree in favor of nonparties); Forts v. Ward, 621 F.2d 1210, 1217 (2d Cir.1980) (class certification " largely a formality" where State defendants explicitly indicated a willingness to comply with the court's order); Davis v. Smith, 607 F.2d 535, 540 (2d Cir.1978) (" Where retroactive monetary relief is not at issue and the prospective benefits of declaratory and injunctive relief will benefit all members of a proposed class to such an extent that the certification of a class would not further the implementation of the judgment, a district court may decline certification." ).

          A number of lower courts have applied Galvan in denying class certification.⁹² On the other hand, many lower courts have distinguished Galvan and granted class certification.⁹³ Judge Charles S. Haight of this Court addressed this issue in Blecher v. Department of Housing Preservation and Development of the City of New York :

92 See, e.g., Daniels, 198 F.R.D. at 420 (collecting cases). See also Langer v. New York State Office of Court Admin., No. 98 Civ. 0413E, 1998 WL 799153, at *6 (W.D.N.Y. Nov. 13, 1998) (" The doctrine that class certification is unnecessary in these circumstances arises out of the presumption that the State and its agents will not act to enforce against any person a regulation which has been found and declared to violate the Constitution, whether or not that person participated in the action which resulted in such declaration." ); Green v. Borg-Warner Protective Servs. Corp., No. 95 Civ. 10419, 1998 WL 17719, at *4 (S.D.N.Y. Jan.16, 1998) (" The declaratory and injunctive relief sought against the State and Municipal defendants would make class action designation largely a formality since the relief sought, if warranted, would confer a benefit on all persons similarly situated without any class designation." ); Feld v. Berger, 424 F.Supp. 1356, 1363 (S.D.N.Y.1976) (finding class certification superfluous because the court " assumes these public officials, mindful of their responsibilities, will apply the determination here made equally to all persons similarly situated" ).

93 See, e.g., Daniels, 198 F.R.D. at 421 (collecting cases).

Courts have focused on four factors in determining whether class certification is necessary under Galvan . First, notwithstanding the presumption that government officials will abide by a court's decision as to similarly situated individuals, an affirmative statement from the government defendant that it will apply any relief across the board militates against the need for class certification.

* * *

Second, withdrawal of the challenged action or nonenforcement of the challenged statute militates against the need for class certification.

* * *

Third, the type of relief sought can affect whether class certification is necessary. Courts have found that where the relief sought is merely a declaration that a statute or policy is unconstitutional, denial of class certification is more appropriate than where plaintiffs seek complex, affirmative relief.

* * *

Fourth, courts also consider whether the claims raised by plaintiffs are likely to become moot, making class certification necessary to prevent the action from becoming moot.⁹⁴

94 No. 92 Civ. 8760, 1994 WL 144376, at *4-5 (S.D.N.Y. April 19, 1994) (citations omitted).

         Focusing on the third factor, numerous courts have distinguished Galvan on the basis of the type of relief sought, namely whether it is prohibitionary or affirmative. Although this distinction is often " somewhat illusory," ⁹⁵ it is useful and illuminating as applied here. Defendants argue that in light of their recent efforts to cease the continuing enforcement of section 240.35(1), plaintiff " cannot hope to achieve more [equitable relief] via a (b)(2) class." ⁹⁶ Yet clearly he does, for the Complaint expressly seeks complex affirmative relief which neither state nor municipal law enforcement has ever agreed to provide-either to him or to all persons similarly situated.⁹⁷ The NYPD's recent actions aimed at ceasing enforcement do not moot, for example, plaintiff's prayer for the disgorgement of fines that were levied under section 240.35(1), or for the expungement of wrongful convictions from public records.

95 Daniels, 198 F.R.D. at 421.

96 Def. Mem. at 22

97 See Jane B., 117 F.R.D. at 72 ( Galvan inapplicable where plaintiffs sought more than merely prohibitory relief declaring a statute or administrative practice unconstitutional).

         Another way to frame the Galvan test is by looking at " the level of commitment expressed by the defendants." ⁹⁸ With respect to the City defendants, the record in this case establishes their patterned unwillingness to voluntarily modify internal procedures in order to ensure compliance with court orders.⁹⁹ In view of this past resistance to redressing constitutional wrongs, I harbor serious doubts that all potential plaintiffs whose claims arose in New York City will automatically benefit ( i.e., have their criminal records expunged) absent additional action on their part. ¹⁰⁰

98 Daniels, 198 F.R.D. at 421.

99 See Brown I, 2007 WL 1573957, at *4-5.

100 See Connecticut State Dep't of Soc. Servs. v. Shalala, No. 03:99 Civ. 2020, 2000 WL 436616, at *3 (D.Conn. Feb. 28, 2000) ( Galvan inapplicable where (1) plaintiff sought an order requiring state defendant to take corrective action in addition to ceasing conduct; and (2) state defendant had neither committed to granting class-wide relief nor taken affirmative steps to address plaintiff's concerns); Brown v. Giuliani, 158 F.R.D. 251, 269 n. 23 (E.D.N.Y.1994) (class certification necessary where defendants, who had a history of failing to abide by court orders, did not agree that underlying judgment against them would bind them with respect to all putative class members).

          With respect to the proposed absent defendants who are scattered around the State, although they have never been ordered to cease enforcing section 240.35(1), the record suggests that absent a court-issued mandate, they will not take affirmative action to remedy past incidents of illegal enforcement of the statute.¹⁰¹ According to available OCA data, notwithstanding Loper, over six hundred individuals have been prosecuted for violating section 240.35(1) in Rockland, Suffolk, Erie and Nassau Counties. ¹⁰² Quite simply, the class action device is the most efficient and appropriate method for vindicating the rights of individuals throughout New York who were subject to an unlawful section 240.35(1) charge. Additionally, as a consequence of being poor and homeless, most absent plaintiffs are uninformed, disenfranchised and without the means to bring individual actions in the hope of having their convictions overturned or their extant warrants vacated.¹⁰³ Bringing non-City parties into this litigation via bilateral (b)(2) class certification is the only way to achieve uniformity of equitable relief for past enforcement, and to effectively prevent any future enforcement across the state.

101 See Hundreds Busted Under Bogus Law, N.Y. Daily News, July 3, 2005 (Erie County deputy District Attorney indicating that her office would " go along" with anyone who sought to overturn a conviction based on section 240.35(1), but would otherwise " do nothing" with respect to hundreds of unjust convictions).

102 See Declaration of J. McGregor Smyth in Support of Plaintiff s Motion for Class Certification (" Smyth Decl." ) ¶ ¶ 16-17 (citing OCA data). See also supra Part III.C.2.

103 See Cutler v. Perales, 128 F.R.D. 39, 47 (S.D.N.Y.1989) (certifying a class of all New York City Medicaid applicants where defendants " have made no representation of willingness to change internal procedures" and " most putative class members [were] either [too] old or infirm" to effectively bring individual actions).

         In sum, certification of a state-wide (b)(2) plaintiff class is appropriate because law enforcement agencies throughout New York State, including New York City, continued charging individuals with violating section 240.35(1) after it was declared unconstitutional. Given the import and necessity of plaintiff's prayers for affirmative injunctive relief, Galvan does not preclude certification here.

         3. Rule 23(b)(3)

         a. Predominance

          Certification of a damages subclass consisting of all persons arrested, charged, or prosecuted for a violation of section 240.35(1) by employees, agents or representatives of the City of New York, from October 7, 1992 onward, is appropriate because core common issues predominate over individual issues. Two predominating issues at the heart of this litigation are: (1) whether defendants maintained an unconstitutional policy of enforcing a void statute that criminalized " loitering for the purpose of begging," and (2) whether defendants violated individuals' constitutional rights by arresting, summoning, or prosecuting them under this same statute.¹⁰⁴ These central questions predominate, require no individualized analysis, and are common to the entire subclass, making them ideally suited for resolution in a(b)(3) class action.

104 See Reply Memorandum of Law in Further Support of Plaintiff's Motion for Class Certification (" Pl. Reply Mem." ) at 10.

         Defendants oppose (b)(3) certification with the same arguments they employed in attempting to defeat commonality and typicality under (a)(4), to wit, that common issues fail to predominate because each incident of enforcement requires an individualized analysis. As set forth above, this argument is a red herring in light of the core constitutional issues underlying the claims of each putative plaintiff.¹⁰⁵ That some claimants may prevail on more constitutional claims than others " does nothing to alter the fundamental cohesion of the proposed class, which is the central concern of the predominance requirement." ¹⁰⁶

105 See supra Part III.B.1.a.

106 In re Nassau County Strip Search Cases, 461 F.3d at 228.

          With respect to predominance, defendants reargue their earlier point that established law requires a case-by-case determination of whether probable cause to arrest existed based on any criminal activity regardless of whether or not it was charged. In presenting this argument, defendants ignore leading Circuit law on 23(b)(3) Fourth Amendment class actions. This case is remarkably similar to In re Nassau County Strip Search Cases, where the Second Circuit rejected defendants' argument that predominance was defeated by the individualized liability issue of whether each plaintiff had been strip-searched based on reasonable suspicion.¹⁰⁷ The court concluded that " [i]n light of the pervasive character of the common liability issues and the admittedly de minimis nature of individualized liability issues," the district court erred in finding that individual issues predominated.¹⁰⁸ Defendants are correct that probable cause is a complete defense to a false arrest claim, but the fact that this defense " may arise and affect different class members differently does not compel a finding that individual issues predominate over common ones." ¹⁰⁹ Here, the common liability issues (Fourth Amendment, First Amendment, Due Process) are so pronounced and pervasive they overwhelmingly outweigh the more narrow inquiries that may be required to resolve a subset of certain Fourth Amendment claims.¹¹⁰

107 See id. at 229.

108 Id.

109 In re Visa, 280 F.3d at 138.

110 One hotly contested Fourth Amendment issue that is common to hundreds of class members is whether the issuance of a summons without probable cause violates the Fourth Amendment. Compare Pl. Reply Mem. at 12-13 (arguing that " all putative class members have uniform claims that defendants violated their Fourth Amendment rights" no matter how they were charged and citing Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir.1997)), with Def. Mem. at 17 (concluding that because named plaintiffs Rudy and Grant received summonses but were never arrested, they " cannot establish that [their] Fourth Amendment rights were violated" ).

         In arguing that predominance is lacking, defendants also reassert their earlier contention that plaintiff's First Amendment claims will require mini-hearings to determine whether each claimant was actually panhandling at the time he was charged with violating section 240.35(1). But regardless of whether or not each putative class member was engaging in protected speech or expression at the time he was charged, by virtue of the charge itself, he was accused of engaging in such activity and penalized based on that accusation. Under Rule 23, plaintiff may allege on behalf of himself and others similarly situated that these charges sent a message to all New Yorkers that peaceful begging was a criminal offense and thereby had the effect of chilling future protected speech and expression. This First Amendment claim is sufficient for class certification.¹¹¹

111 See Latino Officers Ass'n, 209 F.R.D. at 86 (granting class certification where only some members of putative plaintiff class were subject to employer retaliation, but complaint alleged that " all class members were chilled in the exercise of their First Amendment rights by the threat of retaliation" ).

         In sum, the gravamen of plaintiff's claims attacks the systemic enforcement of a single unconstitutional statute by police officers and district attorneys in New York City. All members of the damages subclass " will presumably rely on the same proof to establish the existence and legality, or lack of legality of this practice," and thus their claims are ideally suited for (b)(3) certification. ¹¹²

112 Coco v. Village of Belle Terre, 233 F.R.D. 109, 115-16 (E.D.N.Y.2005) (certifying a plaintiff class alleging that defendants, " without authority to do so, purported to enforce traffic and other laws and collect purported fines for alleged violations of those laws" ). Accord In re Visa Check, 280 F.3d at 146 (where plaintiffs are " aggrieved by a single policy of the defendants," the action " presents precisely the type of situation for which the class action device is suited" ).

         b. Superior Method of Adjudication

          Plaintiff is also correct in his contention that given the demographics of the proposed subclass, the class action device is not just a superior method of adjudication, it is the " only method of adjudication." ¹¹³ As noted above, most members of the damages subclass lack the resources necessary to bring individual lawsuits and therefore, absent class certification, their rights will go unvindicated.¹¹⁴ However, even assuming that some subclass members possess the means and initiative to file individual actions, certification will allow them to enforce their rights in unison, thereby avoiding the expense and burden of duplicative lawsuits.

113 Pl. Mem. at 26.

114 See, e.g., D'Alauro v. GC Servs. Ltd. P'ship, 168 F.R.D. 451, 458 (E.D.N.Y.1996) (appropriate to consider the " inability of the poor or uninformed" ).

         C. Proposed Bilateral 23(b)(2) Defendant Class

         Plaintiff's proposed defendant class encompasses " all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge or prosecute a person with a violation under New York Penal Law." ¹¹⁵ This includes all sixty-two counties throughout New York State as well as an estimated 553 law enforcement agencies.¹¹⁶

115 Complaint ¶ 46.

116 See Pl. Mem. at 30 (citing to the New York State Division of State Police website, at http:// www. troopers. state. ny. us/.).

         1. Named Plaintiffs' Standing to Sue Non-City (Absent) Defendants

          As a threshold issue, defendants argue that because all named plaintiffs were charged by the NYPD with violating section 240.35(1), they do not have a live case or controversy with any non-City agency or official, and thus lack standing to prosecute class claims against the absent members of the proposed defendant class.¹¹⁷ This is a specious argument. Although prior to seeking class certification putative class representatives must first demonstrate individual standing to sue,¹¹⁸ it is well-established that traditional standing requirements do not apply to absent parties when a representative party brings suit on behalf of-or against-similarly situated absent class members.¹¹⁹ " In a class action context, adequate representation and typicality of claims or defenses, as required by procedural due process and Rule 23 standards, serve as a substitute for application of normal standing requirements with respect to the relationship between absent class members and the party representing or opposing the class." ¹²⁰ Because I find that the proposed defendant class satisfies each Rule 23(a) criterion, the fact that under a traditional standing analysis no representative plaintiff has suffered personal injuries with respect to each absent defendant does not preclude bilateral certification.

117 See Def. Mem. at 16. Most courts certifying bilateral (b)(2) classes never address the issue of whether the representative plaintiff has standing to prosecute class claims against each absent member of the defendant class. Courts that have addressed this issue have often done so in the context of analyzing whether the proposed plaintiff class satisfies Rule 23(a), although they variously frame the issue as being relevant to commonality (a) (2), typicality (a)(3), or adequacy (a)(4). See generally Newberg on Class Actions § 3:19 (4th ed.) (collecting cases). From a standing perspective, these criteria certainly overlap. For ease of discussion, I raise the standing issue here because it arises only with respect to named plaintiffs' standing to sue absent members of the proposed (b)(2) defendant class.

118 See Allee v. Medrano, 416 U.S. 802, 829, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (Burger, J., concurring in part, dissenting in part) (" Standing cannot be acquired through the back door of a class action." ).

119 Compare Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979) (approving a statewide plaintiff class of pretrial detainees, to be represented by two inmates of the Monroe County Jail, and a statewide defendant class of county sheriffs, to be represented by the sheriff of Monroe County) with Henson v. East Lincoln Twp., 814 F.2d 410 (7th Cir.1987) (plaintiff class representative lacked standing to sue absent class defendants with whom plaintiff had no business contact). See generally Newberg on Class Actions § 4:53 (citing, inter alia, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)).

120 See Marcera, 595 F.2d at 1235 (finding that the named defendant sheriff would adequately represent absent defendant sheriffs scattered across the state and embracing the bilateral class action as means by which court could finally extend the " practical impact" of its decrees on inmates' rights beyond " one institution at a time" ). See generally Newberg on Class Actions § 4:53 (citing, in support, Supreme Court rulings on mootness avoidance in situations where the claims of the representative plaintiff became moot prior to class certification). See id. (characterizing as " questionable" cases that deny class certification on the ground that absent class members failed traditional standing tests and advising courts to " not lose sight of the fact that class actions are special types of litigation that represent an exception to normal personal jurisdiction due process safeguards before a judgment may be entered against an absent party" ).

         2. Rule 23(a)

          The requirements of Rule 23 apply " equally to plaintiff and defendant classes." ¹²¹ The proposed defendant class satisfies the four criteria of Rule 23(a).

121 Consolidated Rail Corp. v. Town of Hyde, 47 F.3d 473, 483 (2d Cir.1995) (affirming certification of a(b)(3) defendant class).

          Because the proposed defendant class encompasses hundreds of law enforcement agencies which are scattered throughout New York State, the numerosity prerequisite is satisfied.¹²² The commonality prong is also easily satisfied, as the central issues of this litigation- i.e., whether the continued enforcement of section 240.35(1) violates individuals' constitutional rights-are common to all class members. Accordingly, the simple fact that section 240.35(1) remains on the books and subject to state-wide enforcement provides the requisite commonality.¹²³ In light of the common legal issues, I need not find that there are also questions of fact common to the class. Nonetheless, I note that because plaintiff seeks to have all members of the proposed defendant class enjoined from enforcing section 240.35(1), to the extent that they ultimately refrain from doing so, their practices and procedures will mirror each other in respects pertinent to plaintiff's claims.¹²⁴

122 According to OCA data, between 1992 and May 9, 2006, over six hundred prosecutions charging violations of section 240.35(1) were brought by prosecutors outside the City. See Smyth Decl. ¶ ¶ 16-17.

123 See Gibbs v. Titelman, 369 F.Supp. 38, 52 (E.D.Pa.1973) ( " The validity of the statutory scheme ... as it pertains to both classes, comprises the substance of the action .... It is the same procedures [authorized by the statute] that form the bond of legal commonality between the plaintiffs and defendants." ), rev'd on other grounds, 502 F.2d 1107 (3d Cir.1974).

124 See Luyando v. Bowen, 124 F.R.D. 52, 58 (S.D.N.Y.1989) (finding certification a(b)(2) defendant class appropriate where each class member was required by law to enforce the regulations being challenged and holding that minor differences in enforcement did not defeat commonality); CBS Inc. v. Smith, 681 F.Supp. 794, 801 (S.D.Fla.1988) (certifying (b)(1) defendant class of all sixty-seven county supervisors of elections, where one core question of law-whether a statute violated the First Amendment-was common to the class).

          As to Rule 23(a)'s typicality and adequacy requirements, both are satisfied here under the juridical link doctrine.¹²⁵ A juridical link is " some independent legal relationship which relates all defendants in such a way that a single resolution of the dispute is preferred to a multiplicity of similar actions." ¹²⁶ A particularly strong juridical relationship exists in cases " ‘ [w]here all members of the defendant class are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional.’ " ¹²⁷ That section 240.35(1) has already been found unconstitutional does not sever this link.

125 See La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 466 (9th Cir.1973) (describing the bond between members of a defendant class who are " juridically related in a manner that suggests a single resolution of the dispute would be expeditious" ).

126 DeAllaume v. Perales, 110 F.R.D. 299, 303 (S.D.N.Y.1986) (citation omitted) (juridical link between commissioners who promulgated the same policy state-wide). Accord Monaco v. Stone, 187 F.R.D. 50, 66 (E.D.N.Y.1999) (juridical link between all criminal court judges bound to enforce same statute).

127 Thompson v. Board of Educ. of the Romeo Cmty. Schs., 709 F.2d 1200, 1205 (6th Cir.1983) (quoting Mudd v. Busse, 68 F.R.D. 522, 527-28 (N.D.Ind.1975)).

          The City defendants assert that they are inadequate class representatives because they are unable to raise a defense that is unique to absent members of the defendant class. Specifically, because the City defendants were parties to Loper and are currently enjoined from enforcing section 240.35(1), they are precluded from arguing what non-City defendants could argue, namely that Loper is merely persuasive rather than binding authority on state courts.¹²⁸ Regardless of the viability of this defense, the fact that an absent defendant possibly could or would raise it does not destroy the City defendants' adequacy as class representatives.¹²⁹ State law enforcement agencies will be put on notice of this litigation, and if any wish to oppose a permanent injunction on the ground that they are not bound by Loper, they may do so.

128 See Def. Mem. at 28-29 (citing New York v. Kan, 78 N.Y.2d 54, 60, 571 N.Y.S.2d 436, 574 N.E.2d 1042 (1991), for the proposition that the interpretation of a federal constitutional question by a lower federal court is persuasive but not binding authority on state courts).

129 Defenses need not be identical in order to maintain a defendant class action. See Oneida Indian Nation of Wis. v. New York, 85 F.R.D. 701, 705 (N.D.N.Y.1980).

         Rule 23(a)(4) " does not require a willing representative but merely an adequate one." ¹³⁰ The City defendants, including Commissioner Kelly, will adequately represent the interests of the absent defendants. The City has been a named party in this lawsuit since the day it was filed, and its thorough familiarity with the factual background and legal issues of this litigation will enable it to effectively represent the defendant class.¹³¹ It is not surprising that defendants object to representing a class, for " named defendants almost never choose their role as class champion [as] it is a potentially onerous one thrust upon them by their opponents." ¹³² But acceding to the wishes of defendants and allowing them to abdicate this responsibility so easily would gut the effectiveness of Rule 23(b)(2) as an instrument for preventing the recurrence of unconstitutional conduct. ¹³³ Because the overwhelming number of incidents of unlawful enforcement of section 240.35(1) were carried out by the NYPD, the City defendants have the greatest stake in this litigation. Quite naturally then, they have the greatest incentive to litigate vigorously, which makes them and their counsel more than adequate representatives of the defendant class.

130 Marcera, 595 F.2d at 1239.

131 See Marcera v. Chinlund, 91 F.R.D. 579, 584 (W.D.N.Y.1981).

132 Marcera, 595 F.2d at 1239. Accord Consolidated Rail Corp., 47 F.3d at 474 (the appropriate inquiry is whether, " in defending their own interests, the designated representatives will adequately and fairly protect the interests of the remaining class members" ).

133 See Marcera, 595 F.2d at 1239.

         Defendants also argue, against no Rule 23(a) criterion in particular, that the proposed defendant class is so overly broad it raises due process concerns which caution against certification.¹³⁴ While a heightened sensitivity to due process is warranted in the class action context, it does not dictate a denial of certification here. First, defendants' assertion that procedural due process is lacking because absent defendants were not on notice of Loper is at best a frivolous argument. At worst, this argument pushes the envelope of hypocrisy, for defendants elsewhere argue that absent plaintiffs should be deemed on notice of Loper as of October 1992 because the story received " significant coverage in the local New York City newspapers." ¹³⁵ Second, defendants argue that the defined defendant class is " so over-broad and unfair that it amounts to a deprivation of due process," but offer no examples or reasoning in support of this conclusion. ¹³⁶ If there are counties in New York State that have never unlawfully enforced section 240.35(1), any remedies imposed on these defendants will do them no harm. Third, what constitutes procedural fairness to absent defendants varies with respect to different types of defendant class suits. In a civil rights class action such as this-where certification of a defendant class will achieve uniform injunctive relief and avoid enforcement problems; ¹³⁷ where exposing absent defendants to liability will not impose upon them a significant out-of-pocket financial risk; and where adequate representation is ensured-due process is satisfied and the defendant class can be maintained.

134 See Def. Mem. at 33.

135 Id. at 10 n. 14. The idea that a class of mostly homeless individuals knew and appreciated the ramifications of Loper, but that state law enforcement officials did not, is untenable.

136 See id. at 33.

137 See Markel v. Blum, 509 F.Supp. 942, 948 (N.D.N.Y.1981) (certifying defendant class of administrators of New York's public assistance program in order to avoid enforcement problems).

         3. Rule 23(b)(2)

          There is currently a split in the circuits as to whether defendant classes are permissible in class actions governed by Rule 23(b)(2). ¹³⁸ Courts ascribing to a literal reading of the Rule have held that it only permits plaintiff classes to seek injunctive and declaratory relief from individual defendants, as opposed to defendant classes.¹³⁹ However, the Second Circuit-the only appellate court that binds this Court-has expressly rejected such a narrow interpretation of the Rule. In Marcera v. Chinlund, the court affirmed certification of a defendant class of county sheriffs and stated " it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials." ¹⁴⁰ Although it is employed rarely for this purpose, both before and after Marcera, Rule 23(b)(2) has been the cornerstone of bilateral civil rights class actions.

138 The Supreme Court has not spoken on this issue. In Zablocki v. Redhail, 434 U.S. 374, 380 n. 6, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978), the Court noted that the appellant had not appealed the district court's certification of a(b)(2) defendant class, but did not otherwise address this point.

139 See Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir.1980) ( " As is clear from the language of the Rule, it is applicable to situations in which a class of plaintiffs seeks injunctive relief against a single defendant .... To proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as ‘ the party opposing the class,’ and would create the anomalous situation in which the plaintiffs' own actions or inactions could make injunctive relief against the defendants appropriate." ). Accord Tilley v. TJX Cos., Inc., 345 F.3d 34, 40 (1st Cir.2003); Henson, 814 F.2d at 415-17; Thompson, 709 F.2d at 1204.

140 595 F.2d at 1238. Accord Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023 (10th Cir.1993) (affirming certification of a(b)(2) defendant class); Baker v. Wade, 743 F.2d 236, 244 (5th Cir.1984) (certification of a(b)(2) defendant class was proper where the named defendants would adequately represent the class and " the true interest at stake" was " that of the State of Texas in the constitutionality of its duly enacted legislation" ). See also Luyando, 124 F.R.D. at 58 (certifying a(b)(2) defendant class); Follette v. Vitanza, 658 F.Supp. 492, 506 (N.D.N.Y.1987) (same); DeAllaume, 110 F.R.D. at 304 (same). The Second Circuit's decision in Marcera was vacated on grounds completely distinct from the court's holding with respect to certification of the (b)(2) defendant class. See Marcera, 442 U.S. at 915, 99 S.Ct. 2833 (remanding the case for further consideration in light of recent precedent regarding inmate confinement facilities). Indeed, on remand, the district court, in applying the new substantive law, again certified a(b)(2) defendant class, which was not disturbed on appeal. Accordingly, Marcera remains good law in this Circuit and is binding on this Court.

          Defendants also balk at the size of plaintiff's proposed defendant class, but a large class is not an uncommon feature of (b) (2) civil rights classes. ¹⁴¹ Nor is the size of this defendant class surprising given the particular circumstances Nor is the size of this defendant class surprising given the particular circumstances of this case, namely that the criminal statute at issue was declared unconstitutional over a decade ago but still remains on the books.¹⁴² While the City has taken positive steps toward vacating all outstanding bench warrants issued under section 240.35(1) and by removing it as a chargeable offense from the NYPD's computer program (thereby precluding any future arrests and prosecutions), as noted above, this does not vitiate plaintiff's request for further affirmative relief.¹⁴³

141 See, e.g., Callahan v. Wallace, 466 F.2d 59 (5th Cir.1972) (defendant class of justices of the peace, sheriffs and state troopers); Monaco, 187 F.R.D. 50 (defendant class of local criminal court judges); Ragsdale v. Turnock, 734 F.Supp. 1457 (N.D.Ill.1990) (defendant class of all State's Attorneys in Illinois's 102 counties), aff'd, 941 F.2d 501 (7th Cir.1991); Luyando, 124 F.R.D. at 58 (voicing agreement with the Fourth and Sixth Circuits, but nonetheless certifying a defendant class of all commissioners of social service districts in New York State on the ground that it is bound by the Second Circuit's interpretation of Rule 23(b)(2)); Akron Ctr. for Reprod. Health v. Rosen, 110 F.R.D. 576 (N.D.Ohio 1986) (defendant class of state prosecutors); Harris v. Graddick, 593 F.Supp. 128 (M.D.Ala.1984) (defendant class of state election officials); Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984) (defendant class of state court judges); Doss v. Long, 93 F.R.D. 112 (N.D.Ga.1981) (defendant class of state court judges); Leist v. Shawano County, 91 F.R.D. 64 (E.D.Wis.1981) (defendant class of municipalities); Hobson v. Pow, 434 F.Supp. 362 (N.D.Ala.1977) (defendant class of voting registrars); Redhail v. Zablocki, 418 F.Supp. 1061 (E.D.Wis.1976) (defendant class of county clerks), aff'd, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978); Kidd v. Schmidt, 399 F.Supp. 301 (E.D.Wis.1975) (defendant class of state commitment officials). See generally Note, Defendant Class Actions and Federal Civil Rights Litigation, 33 UCLA L.Rev. 283 (1985).

142 Cf. Callahan, 466 F.2d at 60-61 (upholding a defendant class of all justices of the peace, sheriffs and state troopers in the State of Alabama where plaintiff class-comprised of approximately 50,000 persons fined injustice courts for highway law violations-sought an injunction against all defendants who continued to engage in a law enforcement practice after the Supreme Court had declared it unconstitutional).

143 See supra Part III.B.2.

         Furthermore, certification of a state-wide defendant class is appropriate because incidents of unlawful enforcement of section 240.35(1) are not limited to the NYPD. According to available OCA data, since 1992 there have been at least 673 criminal prosecutions by District Attorneys' Offices charging violations of section 240.35(1) in Rockland, Suffolk, Erie and Nassau Counties.¹⁴⁴ Repealing section 240.35(1) is the province of the New York State Legislature, not the federal courts. Nonetheless, this Court may issue a permanent injunction barring all state law enforcement officials from enforcing 240.35(1) so as to foster state-wide uniformity of protection and respect for free expression. Rule 23(b)(2) allows plaintiff to seek state-wide injunctive relief that will not only vacate outstanding warrants, dismiss pending prosecutions and overturn unlawful convictions, but also prevent further illegal actions before they occur.¹⁴⁵

144 This data does not include sealed cases, which are largely those that failed to result in a conviction. See Smyth Decl. ¶ ¶ 16-17.

145 See Akron Ctr. for Reprod. Health, 110 F.R.D. at 580 (recognizing " the utility of [defendant class] actions to enjoin government officials from enforcing locally-administered state statutes which are defective" ); Redhail, 418 F.Supp. at 1066 (" Where ... a statute with statewide application is challenged on the ground of its unconstitutionality, allowing the action to proceed against the class of officials charged with its enforcement is in accordance with the interests of judicial administration and justice which Rule 23 is meant to further." ).

         IV. CONCLUSION

         For the reasons stated above, plaintiff's request to amend the complaint is granted. Plaintiff's motion for certification of bilateral state-wide classes under Rule 23(b)(2) and for certification of a City-wide plaintiff subclass under Rule 23(b)(3) is also granted. The Clerk of Court is directed to close this motion [Docket No. 63]. A conference in this action is scheduled for July 30, 2007, at 4:30 p.m.

         SO ORDERED.