Ahmad et al v. St. Louis, Missouri, City of

Filing 157

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that plaintiffs' second motion to certify class 110 is granted only as set forth above. IT IS FURTHER ORDERED that named plaintiffs Maleeha Ahmad, W. Patrick Mobley, and Pamela Lew czuk are appointed as class representatives to represent the following class: persons who will in the future participate in or observe non-violent public demonstrations and/or who record such public demonstrations and/or police activities at the pu blic demonstrations for the exercise of constitutional rights of free speech and assembly in the City of St. Louis. IT IS FURTHER ORDERED that Anthony E. Rothert, Jessie M. Steffan, and Omri E. Praiss of the American Civil Liberties Union of Missouri Foundation, 906 Olive Street, Suite 1130, St. Louis, Missouri 63101 and Gillian R. Wilcox of the American Civil Liberties Union of Missouri Foundation, 406 W. 34th St., Suite 420, Kansas City, Missouri 64111 are appointed as class counsel. Signed by District Judge Catherine D. Perry on 5/7/2019. (CBL)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MALEEHA AHMAD, et al.,
Plaintiffs,
vs.
CITY OF ST. LOUIS, MISSOURI,
Defendant.

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Case No. 4:17 CV 2455 CDP

MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion for class certification.
The matter has been fully briefed and is now ripe for decision.1 For the following
reasons, the motion to certify will be granted, with the class redefined by the Court
as set forth below.
Background
The parties rely upon the Court’s familiarity with the underlying facts and
issues based upon the preliminary injunction hearing held in this matter on October
18, 19, and 23, 2017. As the parties also rely upon evidence submitted at that
hearing and refer to the Court’s November 15, 2017 order granting preliminary
relief, the Court will not restate that evidence here. In further support of
certification plaintiffs offer the following additional evidence: Since the hearing,
1

The parties did not request a hearing on the motion for class certification, and the Court deems
a hearing unnecessary as the issue is one capable of resolution on the briefs.

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four St. Louis City police officers who patrolled the protests at issue here have
been indicted in this Court for allegedly unlawful activities undertaken during the
protests. Case No. 4: 18 CR 975 CDP/JMB. Three of the indicted officers face
federal civil rights charges for beating an undercover detective they mistook for a
protestor.2 These officers allegedly expressed widespread enthusiasm for using
force against protestors and acknowledged that officers routinely destroyed
protestors’ cameras and cell phones during protests. Plaintiffs also offer deposition
testimony from police officers who purport to have little to no recollection or
understanding of the preliminary injunction entered by this Court on November 15,
2017, and who cannot testify to any change in police policy or procedure resulting
from the preliminary injunction.
Plaintiffs Maleeha Ahmad, W. Patrick Mobley, and Pamela Lewczuk seek to
certify a putative class consisting of “persons who will in the future participate in
expressive activity that is intended or perceived as a protest of police at a
traditional public or designated public forum within the City of St. Louis.” Ahmad
participated in the protests and was maced. Mobley allegedly had his cell phone
illegally seized and searched when he was caught filming an arrest during the
protests. Police allegedly deleted the video without his consent, threatened to
manufacture evidence to arrest him, and accused him of property damage before
2

Two of the indicted officers are also charged with interfering with the subsequent investigation
into their conduct by destroying evidence and/or lying to investigating officials.
2

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telling him to leave or face arrest. Lewczuk is a legal observer who was allegedly
exposed to chemical agents by police on several occasions while observing the
protests. She was also arrested during the mass arrest on the evening of September
17, 2017, and alleges that she was subject to unlawful arrest and the gratuitous use
of force, including chemical agents, despite complying with all police commands.
Defendant does not address the post-hearing evidence offered by plaintiffs.
Instead, it argues that class certification is inappropriate for several reasons,
addressed below.3
Standards Governing Class Certification
“To be certified as a class, plaintiffs must meet all of the requirements of
Rule 23(a) and must satisfy one of the three subsections of Rule 23(b).” In re St.
Jude Med., Inc., 425 F.3d 1116, 1119 (8th Cir. 2005) (citing Amchem Prods., Inc.
v. Windsor, 521 U.S. 591, 614 (1997)). Plaintiffs carry the burden of showing that
they have met those requirements. See Luiken v. Domino’s Pizza, LLC, 705 F.3d
370, 372 (8th Cir. 2013). This burden is met only if, “after a rigorous analysis,”
the Court is convinced the Rule 23 requirements are satisfied. Comcast Corp. v.

3

It also invites the Court to reconsider its prior ruling that plaintiffs have standing to bring their
claims, which the Court declines to do. Plaintiffs have standing because they have demonstrated
both an objectively reasonable self-censorship of the exercise of their first amendment rights
based upon defendant’s allegedly unconstitutional conduct and an intent to speak despite a
realistic danger of sustaining retaliatory injury inflicted by defendant as a result of their exercise
of constitutionally protected rights. See Missourians for Fiscal Accountability v. Klar, 830 F.3d
789, 794 (8th Cir. 2016).
3

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Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 341 (2011)). Rigorous analysis may further “entail overlap with the merits of
the plaintiff’s underlying claim,” because “[t]he class determination generally
involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff's cause of action.” Comcast, 569 U.S. at 33-34 (internal
quotation marks and citations omitted). However, the Court’s inquiry on a motion
for class certification is “tentative,” “preliminary,” and “limited.” In re Zurn Pex
Plumbing Prod. Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). “Rule 23 grants
courts no license to engage in free-ranging merits inquiries at the certification
stage.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 568 U.S. 455, 466
(2013). “Merits questions may be considered to the extent—but only to the
extent—that they are relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.” Id. “[The Court’s] primary task is not to
determine the final disposition of a plaintiff’s claims, but instead to examine
whether those claims are appropriate for class resolution.” Postawko v. Missouri
Department of Corrections, 910 F.3d 1030, 1037 (8th Cir. 2018) (citing In re Zurn,
644 F.3d at 613).
Ascertainability
Defendant argues that class certification should be denied because the
proposed class is not adequately defined and ascertainable. Defendant contends
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that the class cannot be adequately defined because it uses the vague terms of
“protest,” “protest of police,” “expressive activity,” and “public forum.”
Defendant also complains that the class definition is not directed to the issues
raised in the case or limited in time or to lawful activity. Ascertainability is not a
“separate, preliminary requirement” of class certification, but rather an implicit one
enforced through a rigorous analysis of Rule 23’s requirements. Sandusky
Wellness Ctr., LLC v. Medtox Sci., Inc., 821 F.3d 992, 996 (8th Cir. 2016);
McKeage v. TMBC, LLC, 847 F.3d 992, 998 (8th Cir. 2017). One way for a class
to be ascertainable is for “its members [to] be identified by reference to objective
criteria.” Id. “As a general matter, less precision is required of class definitions
under Rule 23(b)(2) than under Rule 23(b)(3), where mandatory notice is required
by due process.” Multi-Ethnic Immigrant Workers Organizing Network v. City of
Los Angeles, 246 F.R.D. 621, 630 (C.D. Cal. 2007).
While the Court disagrees that the terms used in the proposed class
definition are vague, it concludes that the class definition should be redefined to
make the class more readily ascertainable and to better reflect the issues in the
case, which does not include protestors engaged in violent, unlawful activity. It is
well within the discretion of the Court to redefine the proposed class definition to
address the problems raised by defendant rather than to simply deny class
certification, and plaintiffs request the Court do so if the class definition is deemed
5

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inappropriate. See Rawlings v. ADS Alliance Data Sys., Inc., 2015 WL 3866885,
at *4 (W.D. Mo. June 23, 2015). Therefore, the Court will redefine the proposed
class as follows:
persons who will in the future participate in or observe non-violent public
demonstrations and/or who record such public demonstrations and/or police
activities at the public demonstrations for the exercise of constitutional
rights of free speech and assembly in the City of St. Louis.
Class definitions should avoid criteria that are subjective, but the terms
“demonstration” and “non-violent” are objectively determinable descriptors of
class members’ behaviors which do not depend upon the state of mind of class
members. See Multi-Ethnic Immigrant Workers Organizing Network, 246 F.R.D.
at 630; Vietnam Veterans Against the War v. Benecke, 63 F.R.D. 675, 679-80
(W.D. Mo. 1974). It also ensures that any injunctive relief awarded will apply
only to those protestors engaged in or observing non-violent activity and to those
who lawfully record it.
Defendant’s objection to the lack of a temporal time limit lacks merit. The
very nature of an injunctive class contemplates that there will be class members
who can only be determined in the future and does not preclude certification. See,
e.g., Postawko, 910 F.3d at 1035-36 (affirming class including future inmates who
will be diagnosed with HCV). Plaintiffs have met their burden of demonstrating
that the proposed class, as redefined, is adequately defined and ascertainable.

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Rule 23(a)’s Requirements
A.

Numerosity
Rule 23(a)(1) requires that the class be sufficiently numerous such that

joinder of all members would be impracticable. Rule 23(a)(1) “must be read
liberally in the context of civil rights suits.” Ahrens v. Thomas, 570 F.2d 286, 288
(8th Cir. 1978). In assessing whether the numerosity requirement has been met,
courts examine factors such as the number of persons in the proposed class, the
nature of the action, the size of the individual claims, and the inconvenience of
trying individual claims. Paxton v. Union Nat’l Bank, 688 F.2d 552, 561 (8th Cir.
1982). Joinder of all members may be impracticable where the class includes
individuals who may become members in the future but who are currently
unidentifiable. See Phillips v. Joint Legis. Committee on Performance and
Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir. 1981) (finding
that “joinder of unknown individuals is certainly impracticable”). “It is not
necessary to specify an exact number or to prove the identity of each class
member, rather the plaintiffs must only show a reasonable estimate of the number
of class members.” Halbach v. Great-West Life & Annuity Ins. Co., 2007 WL
1018658, at *3 (E.D. Mo. Apr. 2, 2007) (internal quotation marks and citation
omitted).

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Defendant does not challenge numerosity, and the Court finds that plaintiffs
have met their burden of establishing that the numerosity requirement is met in this
case. The evidence submitted to the Court demonstrates that hundreds of people
participated in the protests and will likely do so in the future. The identity of these
future protestors and observers is unknown, making joinder impracticable. “In
such a case the requirement of Rule 23(a)(1) is clearly met . . . .” Phillips, 637
F.2d at 1022. Moreover, having each putative plaintiff file a separate suit would
constitute a waste of judicial resources, as the trials would involve duplicative
witnesses and evidence. For these reasons, the Court concludes the numerosity
requirement has been satisfied.
B.

Commonality
Rule 23(a)(2) requires that there be “questions of law or fact common to the

class.” Fed. R. Civ. P. 23(a)(2). Plaintiffs must show that their class claims
“depend upon a common contention” that “is capable of class wide resolution,”
such that “determination of its truth or falsity will resolve an issue that is central to
the validity of each one of the claims in one stroke.” Dukes, 564 U.S. at 350. But,
commonality “‘does not require that every question of law or fact be common to
every member of the class . . . and may be satisfied, for example, where the
question of law linking the class members is substantially related to the resolution
of the litigation even though the individuals are not identically situated.’”
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Downing v. Goldman Phipps PLLC, 2015 WL 4255342, at *4 (E.D. Mo. July 14,
2015) (quoting Paxton, 688 F.2d at 561). “[A] single common question will do for
purposes of Rule 23(a)(2).” Ebert v. General Mills, Inc., 823 F.3d 472, 478 (8th
Cir. 2016) (internal quotation marks and citation omitted). The key inquiry is “the
capacity of a class-wide proceeding to generate common answers apt to drive the
resolution of the litigation.” Dukes, 564 U.S. at 350.
Plaintiffs have met their burden of establishing that the commonality
requirement is met in this case. Plaintiffs’ claims for prospective injunctive relief
present common questions of law and fact with respect to defendant’s
unconstitutional policies and practices relating to protests against the police,
including the following: defendant’s alleged custom or policy permitting any
officer to declare an unlawful assembly in the absence of the force or violence
requirement of St. Louis City Ordinance 17.16.275 and Mo. Rev. Stat. § 574.060,
in violation of plaintiffs’ first and fourth amendment rights; defendant’s alleged
custom or policy permitting officers to issue vague dispersal orders to protestors
exercising their first amendment rights in an arbitrary and retaliatory way and then
enforcing those dispersal orders without sufficient notice and opportunity to
comply before subjecting plaintiffs to uses of force or arrest, in violation of the
First and Fourth Amendment; defendant’s alleged custom or policy of using
chemical agents without warning on plaintiffs engaged in expressive activity that is
9

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critical or police or against plaintiffs who are recording police in retaliation for the
exercise of their first amendment rights, in violation of the First, Fourth, and
Fourteenth Amendments; and defendant’s alleged custom or policy of macing and
using gratuitous force on plaintiffs who are recording police activity and/or voicing
criticism of police and for no readily apparent, legitimate law enforcement
purpose, contrary to official written policy regarding the recording of police
activity set out in Special Order 1-06. “While a putative class seeking damages for
such claims might struggle to satisfy Rule 23(a)(2), a class certified under Rule
23(b)(2) seeking only injunctive and declaratory relief suffers no such difficulty.”
Postawko, 910 F.3d at 1038.
The commonality requirement is satisfied here because plaintiffs are
challenging only the customs and policies of defendant relating to protests against
the police and not any particular officer’s treatment of any particular plaintiff. See,
e.g., Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014)
(certification proper because defendant had a specific company policy – the
payment of K-code time for donning, doffing, and walking – that applied to all
class members.); In re Zurn, 644 F.3d at 619 n.7 (evidence of a universal defect
raised critical question common to all members of the certified classes).
Defendant argues that the commonality element is not satisfied because
plaintiffs cannot demonstrate that the injury to future class members will be the
10

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same. The Eighth Circuit rejected this argument in Postawko, finding that it
mischaracterized the nature of plaintiffs’ claims, which were based on exposure to
the same policy. 910 F.3d at 1038. The “same injury” requirement requires only
that class members face a violation of their constitutional rights by the same
unlawful customs or policies, which is clearly present in this case, not that each
class member suffer identical resulting harm. Id. As in Potawsko, plaintiffs allege
the same constitutional injury, which is exposure to the same unconstitutional
policies and customs of defendant. The Court finds that plaintiffs have met their
burden of establishing that the commonality requirement is met in this case.
C.

Typicality
The typicality requirement is met when the claims or defenses of the

representative party are typical of those of the class. Fed. R. Civ. P. 23(a)(3). The
requirement “is fairly easily met so long as other class members have claims
similar to the named plaintiff.” DeBoer v. Mellon Mortgage Co., 64 F.3d 1171,
1174 (8th Cir. 1995). In determining typicality, courts consider whether the named
plaintiffs’ claim “arises from the same event or course of conduct as the class
claims, and gives rise to the same legal or remedial theory.” Alpern v. UtiliCorp
United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).
Plaintiffs have met their burden of establishing that the typicality
requirement is met in this case. Plaintiffs’ claims and the claims of putative class
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members are for prospective injunctive relief only and based on the same policies
and customs of defendant. The named plaintiffs allegedly experienced the same
harms as the putative class members, including exposure to chemical munitions
without adequate warning or justification, arbitrary enforcement of ordinances and
orders, and gratuitous and excessive uses of force in retaliation for the exercise of
constitutionally protected rights, and those harms are typical of those allegedly
suffered by the putative class as demonstrated by the evidence submitted at the
preliminary injunction hearing.
Defendant contends that the typicality requirement is not satisfied because
the named plaintiffs were subjected to the challenged policies and customs under
varying circumstances and suffered different resulting harms. This argument was
rejected by the Eighth Circuit in Postawko, which emphasized that “‘factual
variations in the individual claims [for prospective injunctive and declaratory
relief] will not normally preclude class certification if the claim arises from the
same event or course of conduct as the class claims, and gives rise to the same
legal or remedial theory.’” 910 F.3d at 1039 (quoting Alpern, 84 F.3d at 1540).
As plaintiffs’ claims arise from the same events and course of conduct as the class
claims and rely upon the same legal or remedial theory as the class claims, the
typicality element is met in this case.

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D.

Adequacy
Rule 23(a)(4) requires that the class representative and class counsel will

“fairly and adequately protect the interests of the class.” The adequacy
requirement is met where: “(1) the representatives and their attorneys are able and
willing to prosecute the action competently and vigorously; and (2) each
representative’s interests are sufficiently similar to those of the class that it is
unlikely that their goals and viewpoints will diverge.” Carpe v. Aquila, Inc., 224
F.R.D. 454, 458 (W.D. Mo. 2004) (internal quotation marks and citation omitted).
This requirement “serves to uncover conflicts of interest between named parties
and the class they seek to represent.” Amchem Products, Inc. v. Windsor, 521 U.S.
591, 625 (1997).
Defendant does not dispute that plaintiffs’ counsel can adequately represent
the putative class members, as proposed class counsel has extensive experience
prosecuting complex civil rights class actions seeking prospective relief. The
Court also finds that the proposed class counsel will vigorously represent the
plaintiffs in this action. However, defendant challenges the adequacy of the named
representatives, claiming that Ahmad engaged in unlawful activity while the others
claimed only “observer status.” Defendant’s arguments are without merit. The
proposed class representatives fall within the class as redefined by the Court. As
the named plaintiffs’ interests are aligned with and not antagonistic to those of the
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proposed class, the Court concludes that plaintiffs have met their burden of
demonstrating that the adequacy of representation requirement is satisfied in this
case.
Rule 23(b)(2)’s requirements
To certify the class, plaintiffs must also prove satisfaction of the Rule
23(b)(2) requirements: that “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). Although a Rule 23(b)(2) class is not required to satisfy
the additional predominance and superiority requirements of Rule 23(b)(3), “‘the
class claims must be cohesive.’” Ebert, 823 F.3d at 480 (quoting Barnes v. Am.
Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998)). For purposes of 23(b)(2),
cohesiveness requires that “the relief sought must perforce affect the entire class at
once.” Dukes, 564 U.S. at 361-62. In contrast, cohesiveness is lacking where
“each individual class member would be entitled to a different injunction or
declaratory judgment against the defendant.” Id. at 360 (alteration omitted).
“Because one purpose of Rule 23(b)(2) was to enable plaintiffs to bring lawsuits
vindicating civil rights, the rule must be read liberally in the context of civil rights
suits.” Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980) (internal quotation
marks and citation omitted).
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Here, plaintiffs are challenging defendant’s implementation of and
adherence to unconstitutional customs and policies relating to protest activity
directed at police. Plaintiffs allege that these customs and policies will continue to
be applied to individuals in the future who participate, observe, or record this type
of protest activity in traditional or designated public fora within the City of St.
Louis. As the putative class seeks only declaratory and prospective injunctive
relief, “a single injunction or declaratory judgment would provide relief to each
member of the class.” Ebert, 823 F.3d at 480 (internal quotation marks and
citation omitted).
The case at bar is similar to the case Multi-Ethnic Immigrant Workers
Organizing Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007), in
which the district court certified a class of protestors challenging police customs
and policies relating to protest activity. In granting class certification, the court
found that it was “patently obvious” that the defendants had “acted or refused to
act on grounds generally applicable to the class” based on the protestors’
allegations that the police had unconstitutionally declared an unlawful assembly
and dispersed the protestors and had failed to adopt and implement policies to
prevent the infringement of the protestors’ constitutional rights. Id. at 633. The
same is true in this case, and defendant does not dispute that plaintiffs have met the
requirements of Rule 23(b)(2). Plaintiffs have met their burden of demonstrating
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that defendant has acted – and continues to act – on grounds generally applicable
to the members of the putative class. Therefore, plaintiffs satisfy Rule 23(b)(2)’s
requirements. Class certification is therefore appropriate.
Defendant’s Remaining Arguments
Finally, defendant argues that class certification is inappropriate because it
may have a preclusive effect in other pending actions for damages arising out of
the protests at issue here. This argument cannot defeat class certification as such a
ruling is not one on the merits and therefore has no preclusive effect. Any
concerns regarding the preclusive effect that a final judgment in this case might
have on other, later-filed cases is appropriately raised in those cases and is not an
issue properly before this Court.
Conclusion
For the foregoing reasons, the putative class, as redefined, is appropriate for
certification under Rule 23(b)(2).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ second motion to certify class
[110] is granted only as set forth above.
IT IS FURTHER ORDERED that named plaintiffs Maleeha Ahmad, W.
Patrick Mobley, and Pamela Lewczuk are appointed as class representatives to
represent the following class:
16

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persons who will in the future participate in or observe non-violent public
demonstrations and/or who record such public demonstrations and/or police
activities at the public demonstrations for the exercise of constitutional
rights of free speech and assembly in the City of St. Louis.

IT IS FURTHER ORDERED that Anthony E. Rothert, Jessie M. Steffan,
and Omri E. Praiss of the American Civil Liberties Union of Missouri Foundation,
906 Olive Street, Suite 1130, St. Louis, Missouri 63101 and Gillian R. Wilcox of
the American Civil Liberties Union of Missouri Foundation, 406 W. 34th St., Suite
420, Kansas City, Missouri 64111 are appointed as class counsel.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 7th day of May, 2019.

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