J W et al v. Birmingham Board of Education et al

Filing 187

MEMORANDUM OPINION AND ORDER: As further set out in order, 75 , Motion for Class Certification, is GRANTED. 82 and 90 , Motions to Strike, are found to be MOOT. Signed by Judge Abdul K Kallon on 08/31/12. (CVA)

FILED
2012 Aug-31 PM 02:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

J.W. et al.,
Plaintiffs,
v.
BIRMINGHAM BOARD OF
EDUCATION, et al.,
Defendants.

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Civil Action Number
2:10-cv-03314-AKK

MEMORANDUM OPINION AND ORDER
The court has for consideration J.W., G.S., P.S., T.L.P., T.A.P., B.J., B.D.,
and K.B.’s (“Plaintiffs”) Motion for Class Certification, doc. 75, which is fully
briefed, docs. 83, 84, and 86.1 In its discretion, and, after considering the parties’
written submissions and arguments at the December 6, 2011, hearing, doc. 105,
the court GRANTS Plaintiffs’ motion to certify a class of all current and future
high school students of Birmingham City Schools. The issues for class resolution

1

Plaintiffs ask the court to disregard Defendant Anthony Moss’s (“Moss”) Opposition to
Motion for Class Certification, doc. 84, because only Plaintiff T.A.P. has a claim remaining
against Moss and T.A.P.’s claims are not asserted on behalf of the proposed class. Doc. 86, at 23. Plaintiffs assert that Moss he cannot respond to their motion since Moss is not a party to the
class claim. Id. In its discretion, the court will consider Moss’s arguments because they aid the
court in resolving the class issues. Also, Defendants’ Motion to Strike Exhibit #1 and Exhibit #5
and Legal Arguments Associated Therein to Plaintiffs’ Motion for Class Certification, doc. 82,
and Motion to Strike Exhibit #4 and Legal Arguments Associated Therein to Plaintiffs’ Reply
Brief, doc. 90, are MOOT because the court did not rely on the exhibits in question.

are whether the Birmingham Police Department Policy for the use of chemical
spray in school settings and the training provided to School Resource Officers
(“SROs”) are constitutionally defective.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs, who are current and former students enrolled in Birmingham City
high schools (the “schools”), allege a number of claims arising from the use of
chemical spray by SROs, who are Birmingham police officers assigned to the high
schools. Doc. 52. Plaintiffs, on behalf of the proposed class, seek declaratory and
injunctive relief against Defendant A.C. Roper (“Chief Roper”), in his capacity as
Chief of the Birmingham Police Department (“BPD”), to limit the use of chemical
spray against high school students (“students”) through training of the SROs and a
revision of policy. Doc. 75-1; doc. 105, at 20-21. The proposed class includes all
current and future students who “are at risk of injury as a result of Defendant Chief
Roper’s unconstitutional policy and practices that permit [SROs] . . . to use mace
against Birmingham high school students . . . .” Doc. 75-1, at 2. According to
Plaintiffs, Chief Roper’s implementation of alleged unconstitutional policies and
practices relating to the use of chemical spray in the schools violates all students’
Fourth and Fourteenth Amendment rights against excessive force. Doc. 52, at 1-2
¶ 1; doc. 75, at 2.
2

A.

Introduction of Chemical Spray in Birmingham City High Schools
In January 1996, the Birmingham Board of Education approved the

stationing of SROs at the high schools to conduct arrests and to assist in
discipline. Id., at 12 ¶¶ 35-36. SROs are permitted to carry and use chemical
spray, if necessary, to address any criminal or breach of the peace violations. Doc.
83-3, at 1; doc. 52, at 16 ¶ 46. Over a five-year period beginning in 2006, SROs
used chemical spray on approximately 100 students.2 Doc. 83-4, at 1-2.
The BPD has no specific policy regarding SROs’ use of chemical spray.
Rather, SROs are subject to BPD’s general policy on Chemical Spray Subject
Restraint: Non-Deadly Use of Forces, which provides:
C.

The chemical spray may be used in an arrest situation where
the weapon’s use offers the possibility of lessening the
likelihood of physical injury to the arresting officer, citizens on
the scene and/or the suspect.

D.

The use of chemical spray is intended solely as a control device
to enable the officer to carry out his or her duties in the safest,
most efficient and most professional manner with the least
chance of injury to either the officer or suspect.
1.

At no time will an officer unnecessarily brandish, or use
chemical spray as an intimidation device unless the

2

Allegedly, over the same period, similar officers stationed at high schools run by the
Jefferson County Board of Education have only used chemical spray once on students. Doc. 105,
at 31.
3

officer is attempting to prevent further escalation of
force.
2.

Chemical spray is not[,] under any circumstances, to be
used as punishment or as a coercive tool once an
individual is under control and in custody.

3.

The chemical spray is not to be used by officers unless
they have a reasonable belief that a crime has been
committed and that the intended target committed the
crime.

E.

Any time chemical spray is used for controlling an offender[,]
the application of the chemical spray will end when the subject
discontinues resistance or aggression.

F.

The chemical spray is best employed in one to two second
bursts. The spray must be directed to the facial area of the
assailant, with the bridge of the nose being the best target area.
This weapon is primarily an inflammatory agent, producing the
following results:
1.

Involuntary closing of the eyes.

2.

Swelling of the mucous membranes, which results in
shallow breathing ability.

3.

Intense burning on sensitive parts of the body.

...
H.

It should be kept in mind by all concerned that any actual
contact with chemical spray to the face or sensitive skin areas
will result in the officer being adversely affected by its
properties. Caution must be taken while handcuffing prisoners,
placing them in automobiles, etc. If contact is made with the
actual substance, the officer shall refrain from touching his face
4

with the contacted area until he can wash that area with warm
soapy water.
III.

AFTER USE PROCEDURE

A.

Following the use of chemical spray the officer will ensure that
the subject receives adequate decontamination as soon as
practical. The officer should supply immediate medical
attention if requested by the subject.

B.

Birmingham Fire and Rescue will be called and will determine
whether or not the subject needs further medical attention or
hospital treatment.

D.

[sic] Any time an officer uses chemical spray for subject
control, the officer will notify the on-duty supervisor and
complete a Use of Force Information and Statement Report.

Doc. 83-2, at 2-4. Plaintiffs contend this policy is constitutionally defective as it
relates to the utilization of chemical spray in the school setting and filed this
lawsuit, in part, to force Chief Roper to implement a policy specifically for SROs.
The parties disagree about whether the current policy allows SROs to subject
students to abusive and excessive use of chemical spray and whether the policy
gives SROs unfettered discretion to use chemical spray. Doc. 75-1, at 1; doc. 83,
at 3.
B.

Named Class Representatives
The representatives of the proposed class are six of the eight named

5

Plaintiffs3 and are in two distinct groups. The first group is comprised of students
intentionally chemically sprayed (T.L.P., G.S., K.B., and B.D.), and the second is
comprised of the innocent bystanders accidently exposed to the effects of chemical
spray (P.S. and J.W.). Doc. 75-1, at 14-15; doc. 75-1, at 3-28. The court outlines
the specific incidents involving both groups below.
i.

Group One – Class Representatives Intentionally Sprayed with
Chemical Spray
1.

T.L.P.

On November 29, 2009, while walking past the lunch room at Woodlawn
High School, T.L.P., then an 11th grader, heard another student call her a “bitch.”
Doc. 75-5, at 18 ¶ 4. As is generally the case amongst this age group, T.L.P.
engaged the student in a verbal argument, which unfortunately escalated to a fight.
Id. Although athletic coaches intervened and successfully separated and restrained
both girls, a SRO responding to the incident allegedly sprayed T.L.P. nonetheless
with chemical spray.4 Id., at ¶ 6-7. The SRO then handcuffed T.L.P. and
transported her to Family Court. Id., at ¶ 8. Interestingly, this was the second
incident involving a SRO spraying T.L.P. with chemical spray while a teacher

3

The class representatives are T.L.P., G.S., K.B., B.D., P.S., and J.W.

4

The SRO also accidently sprayed the coach restraining T.L.P. Doc. 75-5, at 18 ¶ 7.
6

restrained her. Id., at ¶ 6. On both occasions, the chemical spray burned T.L.P.’s
throat and caused her to cough. Id., at 19 ¶ 9.
2.

G.S.

On December 8, 2009, as seventeen-year-old G.S. jogged across the lawn at
Huffman High School, a SRO grabbed her from behind. Doc. 75-5, at 12 ¶ 4.
Naturally, before she recognized the individual as a SRO, G.S. tried to free herself
from her attacker. Id., at ¶ 5. Allegedly, the SRO immediately sprayed chemical
spray directly in G.S.’s eyes and face. Id. G.S. contends the SRO sprayed her a
second time even after she fell to the ground due to the pain caused by the first
spray. Id., at ¶ 6.
Although the school called the paramedics, G.S. recalls only that the
paramedics asked her questions related to her age and allegedly does not
remember much else because of the pain. Id., at ¶ 7. At some point, the SRO
transported G.S. to Cooper Green Hospital where a nurse told G.S. the pain would
eventually subside. Id., at ¶ 8. Allegedly, the nurse also made G.S. sign a medical
treatment waiver without disclosing the contents of the document. Id. As a result
of the chemical spray, G.S. allegedly sustained multiple injuries, including swollen
eyes, burned facial skin, and difficulty breathing. Id., at ¶ 9.

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3.

K.B.

On or around February 21, 2011, a male student allegedly approached K.B.,
then a tenth grader at Woodlawn and four months pregnant, and started making
inappropriate sexual comments. Doc. 75-5, at 25-26 ¶ 4. Although K.B. cried and
walked away, the male student followed K.B. and continued the barrage of
opprobrious epithets. Id., at 26 ¶ 5. As K.B. walked to her next class in tears, a
SRO allegedly grabbed K.B. and told her to calm down. Id. at ¶ 6. When K.B.
continued crying, the SRO allegedly turned K.B. around and told her in a stern
voice, “you really need to calm down.” Id., at ¶ 7. Immediately thereafter, the
SRO allegedly sprayed K.B. with chemical spray and handcuffed her. Id. at ¶ 8-9.
The SRO then transported K.B. to Cooper Green Hospital, where K.B. signed a
medical release form even though K.B. alleges she was partially blind due to the
effects of the chemical spray. Id., at 27 ¶ 11. K.B. contends the chemical spray
made her nauseous, burned her eyes and face, and impacted her breathing. Id., at
¶¶ 13-15.
4.

B.D.

On February 22, 2011, B.D., then a senior at Woodlawn, had a
disagreement with a teacher that caused the teacher to ask the principal to escort
B.D. to the office. Doc. 75-5, at 21 ¶ 5. While in route to the office, B.D.
8

informed the principal that she wanted to talk to an assistant principal B.D. knew
well. Id., at ¶ 6. Allegedly, this request prompted the principal to page a SRO to
assist her with an “outrageous student on the second floor.” Id. Shortly thereafter,
a SRO responding to the page grabbed B.D. by the arm and pulled her down the
hallway. Because of the pain, B.D. tried three times to escape from the SRO’s
grip. On the third attempt, the SRO pushed B.D. against the wall and applied
chemical spray directly in B.D.’s eyes, id., at ¶ 8, causing them to burn and
aggravating a preexisting health condition that causes B.D.’s heart to beat
abnormally fast, id., at 20 ¶ 3. Allegedly, the chemical spray also caused the SRO
to start coughing and struggling to catch his breath. Id., at 22 ¶ 9. Sometime
thereafter, the SRO escorted B.D. to Family Court and then to Cooper Green
Hospital, where a nurse “told” B.D. to sign a form declining medical treatment.
Id., at ¶ 11. B.D. alleges that she signed the form because the chemical spray
affected her ability to see fully. Id. Finally, B.D. contends her face and eyes
burned and that bumps formed on her neck and chin. Id., at 23 ¶¶ 13-15.
ii.

Group Two – Class Representatives Accidently Exposed to
Chemical Spray
1.

P.S.

P.S. is the sister of Group One class representative G.S. and was exposed

9

accidently in the incident involving G.S. Specifically, on December 8, 2009, P.S.,
then fifteen years old, saw G.S. walking across the Huffman High School grounds.
Doc. 75-5, at 15 ¶ 4. As P.S. ran towards her sister, P.S. saw a SRO spray
chemical spray directly in G.S.’s eyes. Id., at ¶ 5. Another SRO grabbed P.S.
from behind to prevent P.S. from reaching G.S. Unfortunately, despite this second
SRO’s efforts, when the other SRO sprayed G.S. a second time, P.S. felt the
effects of the chemical spray. Id., at ¶ 8. Specifically, the chemical spray burned
P.S.’s eyes and impacted her breathing. Id.
2.

J.W.

In April 2010, J.W., then a tenth grader at Woodlawn, saw two students
fighting. Doc. 75-5, at 8 ¶¶ 1, 3. As is generally the case amongst this age group,
J.W. and other students gathered nearby to watch. Around that same time, two
SROs responded and one allegedly directed his chemical spray into the crowd
before the spectators could walk away. Id., at ¶¶ 5-6. J.W. alleges that the student
onlookers started coughing and screaming from the pain, that his eyes and nose
started stinging and burning, and that he had difficulty breathing. Id., at ¶ 6.
C.

Class Claims
Plaintiffs moved the court for class certification under FED. R. CIV. P. 23(a)

and 23(b)(2) on October 19, 2011. Doc. 75. On December 6, 2011, the court
10

heard arguments only since neither side requested an evidentiary hearing. Doc.
105. During the arguments, in response to the court’s questions, counsel for
Plaintiffs clarified that Plaintiffs are not asking this court to issue an outright ban
on the use of chemical spray:
THE COURT: The plaintiff is not asking the Court in this case
to bar the SROs from ever using mace in school settings.
MS. HOWARD: Right. Your Honor, we’re just asking that the
Court bar the unlawful use of mace in school settings.
See id., at 21-22. In fact, it is clear Plaintiffs recognize and embrace the school
system’s legitimate interests in preserving order and protecting students and
teachers from harm while on school property. Plaintiffs challenge instead the
specific uses of chemical spray here which Plaintiffs claim constitute excessive
force. As it relates to the class question currently before this court, Plaintiffs claim
that the use of chemical spray is constitutionally flawed because Chief Roper
allegedly failed to adequately train SROs and to implement a policy specifically
for the utilization of chemical spray by SROs. Essentially, Plaintiffs contend that
the school setting is unique and requires police procedures tailored specifically to
such an environment. In other words, Chief Roper’s general policy on the use of
chemical spray and the training he provides to officers is purportedly geared
towards the adult population and, consequently, applying it in the school setting
11

without any modifications is tantamount to excessive force. Plaintiffs seek to
challenge these alleged constitutional deficiencies on behalf of themselves and a
class of similarly situated students, and ask this court to certify a class and appoint
them as representatives of the class.
II.
A.

CLASS CERTIFICATION ANALYSIS

Class Certification Standard
Rule 23 of the Federal Rules of Civil Procedure outlines the requirements

for class certification. Initially, Plaintiffs must satisfy the four Rule 23(a)
prerequisites:
One or more members of a class may sue or be sued as representative
parties on behalf of all members only if:
(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). Courts often refer to these prerequisites as the numerosity,
commonality, typicality, and adequacy requirements. They are “designed to limit
class claims to those fairly encompassed by the named plaintiffs’ individual
12

claims.” Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1188 (11th Cir.
2003) (citing Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir. 2000)).
“These four requirements serve as guideposts for determining whether under the
particular circumstances maintenance of a class action is economical and whether
the named plaintiff’s claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately protected in their
absence.” Piazza v. Ebsco Industries, Inc., 273 F.3d 1341, 1346 (11th Cir. 2001)
(quotations and citations omitted).
If Plaintiffs succeed in establishing the Rule 23(a) prerequisites, the analysis
then shifts to Rule 23(b), which states in pertinent part that:
A class action may be maintained if Rule 23(a) is satisfied and if:
(2) the party opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive relief or
corresponding declaratory relief is appropriate respecting the class as
a whole . . .
FED. R. CIV. P. 23(b)(2). In reviewing the motion, “[a] district court must conduct
a rigorous analysis of the Rule 23 prerequisites before certifying a class.” Sher v.
Raytheon Co., 419 F. App’x 887, 889 (11th Cir. 2011) (citing Falcon, 457 U.S. at
161). While class certification naturally focuses on the requirements of Rule 23,
“the trial court can and should consider the merits of the case to the degree

13

necessary to determine whether the requirements of Rule 23 will be satisfied.”
Valley Drug Co., 350 F.3d at 1188 n.15. Signficantly, “[i]t is inescapable that in
some cases there will be overlap between the demands of Rule 23(a) and (b) and
the question of whether plaintiff can succeed on the merits.” Rutstein v. Avis RentA-Car Sys., 211 F.3d 1228, 1234 (11th Cir. 2000). Finally, the movant bears the
burden of proving that she satisfies one of the Rule 23(b) requirements. Valley
Drug Co., 350 F.3d at 1187.
B.

Rule 23(a) Analysis
Consistent with the established procedures for analyzing motions for class

certification, the court will begin its analysis with an assessment of whether this
matter is appropriate for class certification by examining the “numerosity,
commonality, typicality, and adequacy of representation” requirements contained
in Rule 23(a). Because the court answers the question in the affirmative, the court
will then address the requirements of 23(b) fully in section C.
i.

Numerosity

Under Rule 23(a)(1), a class action may be maintained only if the class is so
numerous that joinder of all class members is impracticable. Dujanovic v.
MortgageAmerica, Inc., 185 F.R.D. 660, 666 (N.D. Ala. 1999); Terazosin
Hydrochloride Antitrust Litig., 203 F.R.D. 551, 553 (S.D. Fla. 2001). Whether
14

joinder is practicable depends on many factors, including “the size of the class,
ease of identifying its numbers and determining their addresses, facility of making
service on them if joined and their geographic dispersion.” Kilgo v. Bowman
Transp., Inc., 789 F.2d 859, 878 (11th Cir. 1986) (finding that class of at least 31
individual class members from a wide geographic area met the numerosity
requirement). “While there is no fixed numerosity rule, generally less than
twenty-one is inadequate, more than forty adequate, with numbers between
varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d
1546, 1553 (11th Cir. 1986) (quotations omitted). If the court can draw
reasonable inferences from the facts before it as to the approximate size of the
class and the infeasibility of joinder, the numerosity requirement is satisfied.
Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (“Although
mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff
need not show the precise number of members in the class”); Dujanovic, 185
F.R.D. at 666 (“This court may ‘make common sense assumptions’ to support a
finding of numerosity.”).
Here, Plaintiffs maintain that all students are at risk of either direct or
indirect exposure to chemical spray and, accordingly, seek declaratory and
injunctive relief on behalf of all current and future high school students. Doc. 7515

1, at 4. Moreover, because approximately 8,000 students attended Birmingham
city high schools during the 2009-2010 school year, doc. 77-1, at 7-8, doc. 83, at
11, Plaintiffs allege the 8,000 current students, plus the future students, make the
class “so numerous that joinder of all the class members is impracticable.” FED. R.
CIV. P. 23(a); doc. 75-1, at 7. Furthermore, Plaintiffs contend the class is clearly
defined and identifiable because all potential class members are currently
attending or will attend one of the eight high schools in the Birmingham system.
Doc. 75-1, at 8.
Defendants disagree and assert that the proposed class is too broad and
should only include the 100 students SROs sprayed with chemical spray from
2006-2011. Doc. 83, at 11-12. Furthermore, Defendants contend that 100
students over a five-year period, when compared to the approximate 35,000
students attending the eight high schools during this period, is too small a number
to meet the numerosity requirement.
Defendants’ focus on the 100 students directly targeted by the SROs
overlooks the bystander students impacted indirectly by the use of chemical spray.
Although SROs are trained professionals who make an effort to restrict the
chemical spray to the specific student in question, chemical spray is nonetheless
an aerosol that knows no boundaries and makes no distinction between
16

misbehaving and compliant students. As such, any student in the vicinity can
suffer from the effects of the chemical spray. Indeed, this is the subset of students
the second group of class representatives seeks to represent. While the precise
number for this group is speculative, it is safe to assume nonetheless that the
innocent bystander group is fairly significant given that SROs directly sprayed 100
students, including while in close proximity to other students. See Dujanovic, 185
F.R.D. at 666 (“This court may ‘make common sense assumptions’ to support a
finding of numerosity.”). Therefore, the court rejects Defendants’ contention that
the chemical spray only impacted 100 students.
Moreover, even if the court ignores the innocent bystander subset and
focuses only on the group of 100, Plaintiffs still satisfy the numerosity
requirement because generally more than forty is sufficient. Cox, 784 F.2d at
1553. Thus, under Rule 23(a)(1), it is insignificant whether the class is comprised
of 8,000 as Plaintiffs contend or 100 students as Defendants contend because
either amount is so “numerous that joinder of all class members is impracticable.”
Dujanovic, 185 F.R.D. at 666.

17

ii.

Commonality and Typicality5

“Traditionally, commonality refers to the group characteristics of the class
as a whole and typicality refers to the individual characteristics of the named
plaintiff in relation to the class.” Prado-Steiman, 221 F.3d at 1266. Commonality
under Rule 23(a)(2) requires that the named plaintiff and the class members’
grievances share common questions of law or fact, while typicality under Rule
23(a)(3) requires that “the claims or defenses of the representative parties [are]
typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(2), (a)(3).
Commonality is satisfied whenever “[t]he claims actually litigated in the suit [are]
fairly represented by the named plaintiffs.” Cox, 784 F.2d at 1567. Indeed,
commonality requires “‘that there be at least one issue whose resolution will affect
all or a significant number of the putative class members.’” Williams v. Mohawk
Indus., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Stewart v. Winter, 669 F.2d
328, 335 (5th Cir. 1982)). Likewise, typicality exists when the named plaintiffs’
claim arises “from the same event or pattern or practice and are based on the same
legal theory” as the claims of the class. Kornberg v. Carnival Cruise Lines, Inc.,

5

The court addresses these two prerequisites together because they involve similar
considerations and “tend to merge.” See e.g., General Telephone Co. of Southwest v. Falcon,
457 U.S. 147, 158 n.13 (1982).
18

741 F.2d 1332, 1337 (11th Cir. 1984). “Typicality also encompasses the question
of the named plaintiff’s standing, for ‘[w]ithout individual standing to raise a legal
claim, a named representative does not have the requisite typicality to raise the
same claim on behalf of a class.’” Piazza, 273 F.3d at 1346. Significantly,
commonality and typicality do not require that the named plaintiffs’ claims are
identical to each class member’s claims, but they must share “the same essential
characteristics.” Prado-Steiman, 221 F.3d at 1279 n.14 (citations and quotation
marks omitted).
a.

Commonality

Plaintiffs allege they satisfy the commonality requirement because “this
action raises questions of law and fact that are common to the class and arise from
a Police policy that is generally applicable to Birmingham City high school
students.” Doc. 75-1, at 9. Plaintiffs frame the common questions of law and fact
as follows:
•

Whether Defendant Roper’s policy governing the use of mace on
children attending Birmingham high schools permits and encourages
SROs to use . . . mace against students in inappropriate situations and
in an unconstitutional manner in violation of the Fourth and
Fourteenth Amendment.

•

Whether the practices and customs related to use of mace employed
by SROs . . . are impermissible under the Fourth and Fourteenth
Amendments.
19

•

Whether Defendant Roper’s uniform training and supervision SROs
in the use of mace provides insufficient guidance on application of
the chemical in school settings and against children . . . .

•

Whether Defendant Roper’s decontamination procedures for students
who have been exposed to mace are inadequate to reduce the risk of
prolonged pain, injury, or other serious harm to exposed students.

•

Whether SROs’ use of mace on students constitutes an unreasonable
seizure in violation of the Fourth Amendment.

•

Whether Defendant Roper is liable under 42 U.S.C. § 1983 for failing
to adequately train and supervise SROs who are authorized to use
mace on children.

Doc. 75-1, at 10-11.
Defendants disagree and contend the “primary issue is whether the use of
mace by Defendants against teenagers engaging in criminal activity in the
Birmingham High School is excessive on its’ face.” Doc. 83, at 14. Moreover,
Defendants allege that this matter is inappropriate for class certification because
excessive force cases involve numerous factual disputes that require an individual
fact intensive review on each allegation of alleged excessive force. Doc. 83, at 14.
These factual differences, according to Defendants, include:
•
•
•
•
•

Different Police Officers
Different Officers’ perception of the events involving the Plaintiffs
Reasonableness of the Officer’s actions
Various and different Officers’ training, background and experiences
Different uses of force by the Officers for each incident
20

•
•
•
•
•
•
•

Whether the Plaintiffs were violating the law
Different criminal charges that resulted from each incident
Different criminal and disciplinary history of the Plaintiffs
Different students as witnesses to each incident
Different actions by the Plaintiffs for each incident
Different locations (schools) and physical makeup of the area of each
incident
Numerous other different witnesses, including principles, teachers
and faculty to the events

Doc. 83, at 14.
Although Defendants are correct about factual differences in Plaintiffs’
individual claims, they overlook that Rule 23(a)(2) “demands only that there be
questions of law or fact common to the class. This part of the rule does not require
that all the questions of law and fact raised by the dispute be common.” Vega v. TMobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (citations and quotation
marks omitted). Indeed, here, all of Plaintiffs’ claims, including the Plaintiffs
accidently subjected to chemical spray, stem from whether Chief Roper’s
implementation of policies and practices and the alleged failure to train SROs
specifically relating to the use of chemical spray in a school setting violate
students’ Fourth and Fourteenth Amendment rights. See doc. 75, at 3-28.
Furthermore, potential class members’ claims will also stem from the intentional
or accidental affects of chemical spray as a result of policies and training
procedures implemented by Chief Roper. Therefore, Plaintiffs claims “are
21

premised on the same legal theories ” of whether the policy and practices
governing the use of chemical spray are inadequate, whether Chief Roper failed to
properly supervise and train the SROs, and whether these alleged inadequate
policies and training violated students’ constitutional rights. Doc. 75-1, at 16.
Resolving this issue will not require witnesses from each school or witnesses of
each incident, nor an inquiry into the alleged criminal charges levied on each class
member. In fact, the class may be able to present their case on this issue based
solely on policies and training records. Since the resolution of this constitutional
issue will depend primarily on policies and training related to SROs and will not
require an extensive assessment of each specific chemical spray incident, the court
finds the commonality requirement is satisfied.
b.

Typicality

A class representative must possess the same interest and suffer the same
injury as the class for her claims to be typical of the class under Rule 23(a)(3). See
Prado-Steiman, 221 F.3d at 1279. However, typicality can exist despite
substantial factual differences when there is a “strong similarity of legal theories.”
Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001); see also Appleyard v.
Wallace, 754 F.2d 955, 958 (11th Cir.1985). To establish typicality, plaintiffs
must show there is “a nexus between the class representative’s claims or defenses
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and the common questions of fact or law which unite the class.” Kornberg, 741
F.2d at 1337. “A sufficient nexus is established if the claims or defenses of the
class and the class representatives arise from the same event or pattern or practice
and are based on the same legal theory.” Id.; see also Prado-Steiman, 221 F.3d at
1279 n.14. (“[A] strong similarity of legal theories will satisfy the typicality
requirement despite substantial factual differences.”).
As previously stated, the proposed class and Plaintiffs’ claims arise from the
same allegedly unconstitutional practices. Doc. 75-1, at 16. Because the class
representatives consist of four students actually sprayed with chemical spray and
two students accidently affected by the effects of chemical spray, their claims are
consistent with the proposed class’s injury or risk of injury from the use of
chemical spray by SROs. Thus, the court finds the typicality requirement is
satisfied because the class representatives and members’ claims are premised
around the same injury or threat of injury and the same legal theory of the
unconstitutionality of Chief Roper’s policies, practices and training.
iii.

Adequate Representation

Rule 23(a) also requires the named plaintiffs to demonstrate adequacy of
representation, which courts extend to two areas: (1) the competency of class
counsel to handle the case; and (2) the absence of disabling conflicts of interest
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between the named plaintiffs and the class members. Griffin v. Carlin, 755 F.2d
1516, 1532-33 (11th Cir. 1985). Thus, “adequacy of representation means that the
class representative has common interests with unnamed class members and will
vigorously prosecute the interests of the class through qualified counsel.” Piazza,
273 F.3d at 1346 (quotation marks omitted). Therefore, “[i]f substantial conflicts
of interest are determined to exist among a class, class certification is
inappropriate.” Valley, 350 F.3d at 1189.
a.

Adequacy of Class Counsel

“Counsel will be deemed adequate if they are shown to be qualified,
adequately financed, and possess sufficient experience in the subject matter of the
class action.” City of St. Petersburg, et al., v. Total Containment, Inc., et al., 265
F.R.D. 630, 651 (S.D. Fla. 2008) (citing Dahlgren’s Nursery, Inc. v. E.I. DuPont
De Nemours & Co., No. 91-8709-CIV, 1994 WL 1251231, at *6-7 (S.D. Fla.
1994). Here, Plaintiffs contend class counsel Ebony Howard and Mary Bauer are
fully qualified to pursue this action. Doc. 18, at 22; doc. 75-8. Although
Defendants do not challenge Ms. Bauer’s qualifications, they question whether
Ms. Howard, who has no class litigation experience, is qualified to handle this
matter. Doc. 19, at 21.
Defendants’ concerns about Ms. Howard’s experience would carry the day
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if Ms. Howard is lead counsel for the class. However, Ms. Howard is assisting
Ms. Bauer whom Defendants acknowledge is competent to adequately represent
the proposed class. Indeed, Ms. Bauer has prior experience serving as class
counsel in at least four cases. Doc. 75-8, at 3. Moreover, The Southern Poverty
Law Center, where Ms. Bauer and Ms. Howard work, has extensive experience as
class counsel in at least twenty cases and has sufficient funds to finance this
litigation. Id. at 3-4. In other words, because Ms. Howard will have the assistance
of Ms. Bauer and The Southern Poverty Law Center, Ms. Howard’s participation
will not handicap the class adversely. Furthermore, Ms. Howard has almost five
years of litigation experience which, although not class action related, will be a
benefit to the class nonetheless. Finally, the court adds that Ms. Howard can only
gain experience by working on a class case under the guidance and tutelage of an
experienced counselor like Ms. Bauer, and it might as well be this one especially
since Ms. Howard has proved to be an effective advocate thus far in this case.
Therefore, the court finds that counsel are adequate to represent the proposed
class.
b.

Adequacy of Class Representatives

The Eleventh Circuit has held that “[t]he existence of minor conflicts alone
will not defeat a party’s claim to class certification: the conflict must be a
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‘fundamental’ one going to the specific issues in controversy.” Valley, 350 F.3d at
1189. “A fundamental conflict exists where some party members claim to have
been harmed by the same conduct that benefitted other members of the class.” Id.
Plaintiffs contend no conflict exists between them and the proposed class
because they want to make all students safer by ensuring that Chief Roper
implements adequate policies and training for the SROs. Doc. 75-1, at 17; 75-5, at
3-28. Defendants disagree and contend that Plaintiffs may have “interests
antagonist to those of the class” because some Plaintiffs are no longer students,
doc. 83, at 18, and some class members may actually want SROs to continue their
current practice given that SROs are in the schools to protect students from
misbehaving students, doc. 84, at 11.
Defendants’ arguments fail for several reasons. First, as it relates to the
graduation or drop-out argument, Defendants seem to limit this contention solely
to T.A.P. Specifically, Defendants state “[T.A.P’s] interest are not in a line with
the interest of the class” because she is no longer in school. Doc. 83, at 18.
However, T.A.P.’s interests do not need to align with the class because she raises
claims against Defendant Moss only and is not seeking to serve as a class
representative. Doc. 84, at 2. Moreover, even if some of the proposed class
representatives have graduated or no longer attend Birmingham schools, to the
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extent that their departure causes a conflict, the conflict is not fundamental. The
proposed class representatives were either directly or indirectly harmed by the
chemical spray. Doc. 75-5, at 3-28. Each representative described the pain he or
she suffered and wants to ensure that no other student experiences similar trauma.
That some have since graduated or left Birmingham schools does not diminish the
trauma they claim they endured and which current and future students may endure
as well. In short, no fundamental conflict exists between the named Plaintiffs and
the proposed class simply because some named Plaintiffs may no longer attend
Birmingham City Schools.
Likewise, no conflict exists between the named Plaintiffs and any potential
class members who advocate for or favor the presence of SROs in the schools.
Again, the named Plaintiffs are not seeking to remove SROs from city schools, nor
do they contend that SROs can never use chemical spray. Doc. 105, at 21-22.
Rather, as it relates to the class, they challenge only Chief Roper’s policies and the
training Chief Roper provides for the use of chemical spray by SROs, which the
named Plaintiffs contend are inadequate and encourage SROs to violate the
constitutional rights of students. To the extent that Plaintiffs prevail, all students
will benefit from the implementation of revised policies and more effective
training, if, in fact, the current policies and training are ineffective. Therefore, the
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court finds that the named representatives are adequate to represent the class.
C.

Rule 23(b)(2) Standard
In light of the court’s finding that the named Plaintiffs satisfy Rule 23(a),

the court turns now to Rule 23(b)(2), which provides that to maintain a class,
Plaintiffs must show that “(1) the party opposing the class must have acted or
refused to act or failed to perform a legal duty on grounds generally applicable to
all class members; and (2) the class must seek final injunctive or declaratory relief
with respect to the class as a whole.” FED. R. CIV. P. 23(b)(2); see also Murray,
244 F.3d at 812.
Plaintiffs contend Chief Roper failed to implement a policy for the use of
chemical spray by SROs and to train and supervise SROs. Doc. 75-1, at 19.
Therefore, Plaintiffs assert that the alleged deficiencies of Chief Roper’s training
and policies affect all students who attend and will attend a Birmingham high
school. Id. Defendants disagree and contend Plaintiffs “have failed to prove that
Defendant Roper’s policy of using mace on teenagers in the Birmingham high
Schools is unconstitutional or a danger.” Doc. 83, at 20. Furthermore, Defendants
rely on Kerr v. City of West Palm Beach, 875 F.2d 1546 (11th Cir. 1989), for the
proposition that “district courts tend to deny class certification when the
allegations show factual differences among the putative class members in

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excessive force cases.” Doc. 83, at 15. Indeed, the Eleventh Circuit stated in
Kerr:
As we have already discussed, when presented with allegations that a police
officer used excessive force in the apprehension of a suspect, the federal
courts must assess the reasonableness of the office’s actions in light of the
essentially unique factual circumstances accompanying the arrest. Such
determinations cannot be made en masse, and such suits therefore are
especially unsuited to class disposition.
Kerr, 875 F.2d at 1558 (citations omitted). However, Defendants overlook that
this court will not decide on a class basis whether each use of chemical spray was
justified under the circumstances. That determination is one that indeed the court
can only assess “in light of the essentially unique factual circumstances
accompanying” each incident. Rather, the class determination here is whether
Chief Roper’s alleged failure to implement a policy specifically for the use of
chemical spray by SROs and the alleged failure to train SROs on the use of
chemical spray in a school setting violated the constitutional rights of the
Plaintiffs. Therefore, the Kerr holding is not applicable here. Moreover, Kerr is
also distinguishable because it involved Rule 23(b)(3), which requires that “the
questions of law or fact common to the members of the class [must] predominate
over any questions affecting only individual members.” FED. R. CIV. P. 23(b)(3).
Conversely, under Rule 23(b)(2), “there is no requirement . . . that issues subject to
29

generalized proof predominate over those subject to individualized proofs.”
Murray, 244 F.3d at 811; see also Rutstein v. Avis Rent-A Car Sys., Inc., 211 F.3d
1228, 1233 (11th Cir.2000); Barnes v. American Tobacco Co., 161 F.3d 127, 143
(3rd Cir.1998) (“While 23(b)(2) class actions have no predominance . . .
requirements, it is well established that the class claims must be cohesive.”).
To satisfy the first requirement of 23(b)(2), Plaintiffs allege Chief “Roper
has acted or refused to act on grounds applicable to the proposed class by
subjecting Birmingham high school students to an unconstitutional policy and
deficient police training program on mace.” Doc. 19, at 21. As previously stated,
Plaintiffs only need to show general questions of law or fact are common to the
members of the class, which Plaintiffs have done. Plaintiffs and the proposed
class’s claims are based on the same legal theory that Chief Roper allegedly failed
to perform his constitutional legal duty to implement a policy for the use of
chemical spray by SROs and to train and adequately supervise SROs. Doc. 75-1,
at 19. Therefore, although there may be some factual disputes about the
circumstances surrounding each specific incident, Chief Roper’s legal duty to
Plaintiffs is generally applicable and cohesive to the class members. Furthermore,
the exclusive relief sought in the Complaint under class action is injunctive and
declaratory relief; thus, the second requirement of Rule 23 (b)(2) is satisfied. See
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Doc. 52.
V. CONCLUSION
For the reasons stated above, the court finds that Plaintiffs satisfy the Rule
23(a) and (b)(2) requirements. Accordingly, the court GRANTS Plaintiffs’ motion
for class certification.
DONE this the 31st day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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