Dixon et al v. City of St. Louis et al

Filing 243

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' motion to de-certify the class is DENIED. ECF No. 171 . Signed by District Judge Audrey G. Fleissig on 2/17/2021. (AFO)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID DIXON, et al.

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Plaintiffs,
vs.
CITY OF ST. LOUIS, et al.,
Defendants.

Case No. 4:19-cv-0112-AGF

MEMORANDUM AND ORDER
This matter is before the Court on the Defendant Judges’ motion to decertify the
class. ECF No. 171. For the reasons set forth below, the motion will be denied.
BACKGROUND
Named Plaintiffs David Dixon, Jeffrey Rozelle, Aaron Thurman, and Richard
Robards were detained in St. Louis jails because they were unable to afford bail.
Defendants are the City of St. Louis, its Commissioner of Corrections Dale Glass, its
Sheriff Vernon Betts, and several judges of the 22nd Circuit.1 On January 28, 2019,
Plaintiffs filed a class action complaint under 42 U.S.C. § 1983 asserting that Defendants
violated their constitutional rights to equal protection and substantive and procedural due

1

The present motion was filed by the Defendant Judges with the support of the City
Defendants. ECF No. 176. For simplicity, the Court refers simply to “Defendants.”
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process by detaining them after arrest without an opportunity to challenge the conditions
of their release. Plaintiffs’ original complaint alleged as follows.
Plaintiffs’ Claims
Plaintiffs assert that when a person is arrested in the City of St. Louis, a bond
commissioner employed by the City makes a recommendation to a duty judge to set bond
to secure the arrestee’s court appearance. In formulating the recommendation, the
commissioner considers the charges and any prior convictions but does not inquire into
the arrestee’s ability to pay, risk of flight, or danger to the public; the duty judge then sets
bond on the commissioner’s recommendation. If an arrestee can afford to pay the cash
bond in full, then the City will release him upon payment. If not, he remains detained
until a first appearance, which is held within 48 hours of arrest and by videoconference
from the jail. Sheriff’s deputies who escort arrestees to their video hearings instruct them
not to speak. The judge reads the charges, states the bail amount pursuant to the
commissioner’s recommendation, and asks the arrestee whether he intends to retain
counsel. The hearing lasts one to two minutes. If an arrestee attempts to contest his bail
amount, the judge informs him that he cannot request a modification until he obtains
counsel and sets a motion hearing. For indigent individuals eligible for a public defender,
that process takes approximately five weeks. Arrestees who do not qualify for a public
defender but cannot afford to pay a private attorney often remain detained even longer.
Even when arrestees receive the assistance of counsel, the judges’ bail-setting practices
remain constitutionally inadequate in that the judges fail to consider an arrestee’s
financial circumstances or make specific findings as to alternative release conditions.
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Procedural History
Plaintiffs requested declaratory judgment stating that Defendants violated
Plaintiffs’ and class members’ due process rights and injunctive relief in the form of
individualized bail hearings examining an arrestee’s ability to pay and the possibility of
non-monetary release conditions. Concurrent with their complaint, Plaintiffs filed a
motion for temporary restraining order, which they later withdrew after Defendants
agreed to hold Plaintiffs’ bond hearings the next day in accordance with a revised version
of Missouri Supreme Court Rule 33.01, then scheduled to take effect on July 1, 2019.
This revised version of the rule clarifies that a court cannot impose cash bail absent an
individualized assessment of an arrestee’s financial circumstances, flight risk, threat to
public safety, and consideration of alternative release conditions; it further provides the
right to a review hearing on the record within seven days and requires the court to make
written findings supported by clear and convincing evidence.
On January 31, 2019, Defendants held bond hearings for the named Plaintiffs, who
appeared through counsel. At the close of those hearings, two Plaintiffs were released
without bond, with other conditions. Two others did not receive any reduction in bond
but were later released upon payment of bond by a third-party advocacy organization.
On February 21, 2019, Plaintiffs filed a motion for preliminary injunction seeking
to enjoin Defendants’ practice of detaining arrestees who are unable to pay cash bail
without an individualized hearing on their financial circumstances and the necessity of
detention. In April 2019, the parties agreed to submit the matter on the written record.
The evidence before the Court consisted of:
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• 17 declarations by Plaintiffs and other arrestees describing a lack of process
at their initial appearances;
• Nine declarations by arrestees’ family members and other dependents
describing hardships resulting from their absence;
• Bond commissioner reports on the four named Plaintiffs and three other
arrestees, only one of which contained any personal information;
• Three declarations by law student Elizabeth Forester, who observed initial
appearances in the 22nd circuit and collected information from a random
sample of 222 cases;
• 164 bond commissioner reports from Forester’s sample containing virtually
no personal information relevant to individual release conditions;
• The declaration of the 22nd circuit district defender, Mary Fox, who
observes initial appearances on a regular basis;
• A letter from The Bail Project of St. Louis providing statistics about its
clients’ demographics and rate of court appearances; and
• Two affidavits by a bond officer supervisor, Donald Kearbey, generally
describing Defendants’ practices at initial appearances.
Concurrent with their complaint, Plaintiffs filed a motion to certify a class
comprised of “all arrestees who are or will be detained in the Medium Security Institution
(the Workhouse) or the City Justice Center (CJC), operated by the City of St. Louis, postarrest because they are unable to afford to pay a monetary release condition.” ECF No. 3.
The Court granted Plaintiffs’ motion to certify, finding that:
1. The class was so numerous as to make joinder impractical.
2. The class is united by a common question of law or fact in that its members
have suffered the same injury (i.e., detention due to poverty), and the class
action had the capacity to generate a common answer. Though Defendants

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argued that Plaintiffs’ pursuit of individualized bail hearings destroyed
commonality, the Court found that the relief sought was entirely systemic.
3. Plaintiffs’ claims are typical of the class notwithstanding the fact that they
eventually received individualized hearings in order to resolve the pending
TRO motion.
4. Plaintiffs and their counsel will adequately protect the interests of the class.
5. The class is cohesive in that a single injunction or declaratory judgment
would provide relief to each member. The Court again noted that Plaintiffs
seek systemic procedural reforms applicable to all class members.
ECF No. 95; Dixon v. City of St. Louis, 4:19-CV-0112-AGF, 2019 WL 2437026 (E.D.
Mo. June 11, 2019). The Court also found that Plaintiffs were likely to succeed on the
merits and thus granted Plaintiffs’ motion for preliminary injunction. Id.
Defendants filed a motion for clarification to clarify that the preliminary
injunction did not apply to individuals in City custody pursuant to federal court orders or
probation violation warrants. ECF No. 96. Plaintiffs did not oppose this modification of
the Court’s class certification, which the Court granted. ECF Nos. 97, 101. Defendants
also appealed the Court’s preliminary injunction to the Eighth Circuit, which vacated the
injunction and remanded the case with instructions for this Court to consider whether an
injunction served the public interest in comity between the state and federal judiciaries,
particularly in light of the state court’s then-imminent procedural changes. Dixon v. City
of St. Louis, 950 F.3d 1052, 1056 (8th Cir. 2020).
On remand, Plaintiffs renewed their motion for preliminary injunction (ECF No.
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160) and updated the record with more recent evidence concerning Defendants’ bail
hearing practices since the change in Missouri Rule 33.01. Specifically, Plaintiffs’
evidence included (inter alia):
• A declaration by Shannon Besch, the court-watch coordinator for Plaintiffs’
counsel, highlighting observations from hundreds of hearings and docket
audits, noting percentages and select instances where Defendants failed to
conduct a financial inquiry, set unaffordable bail, or relied on payment by
The Bail Project;
• A declaration by arrestee Kenneth Williams, recounting the details of his
bail hearing in February 2020 (e.g., no opportunity to speak, no financial
inquiry);
• A declaration by court-watcher Ariel Troy, who observed 130 hearings in
late 2019, describing the role of counsel and statistics regarding
Defendants’ hearing practices (e.g., bail set in 38% of cases; financial
information absent in 31% of such cases; no articulated basis for rejecting
less restrictive conditions in 96% of cases);
• A declaration by Jane Dusselier, who observed 255 hearings from
September 2019 to March 2020, recounting several specific instances
where Defendants set bond in relation to availability of funds through The
Bail Project; and
• A declaration by Matthew Mahaffey, District Defender for St. Louis City,
recounting his observations of bail hearings since September 2019 (e.g.,
limited role of appointed counsel, setting of bail without financial inquiry,
reliance on The Bail Project).
ECF No. 163-1.
Shortly after Plaintiffs renewed their motion for preliminary injunction,
Defendants filed the present motion to de-certify the class (ECF No. 171). 2 Defendants

2

Defendants have also filed motions for judgment on the pleadings. ECF Nos. 171,
170, 166. Plaintiffs later withdrew their motion for preliminary injunction due to the
unlikelihood of a hearing during the COVID-19 pandemic, instead opting to proceed
toward dispositive motions and trial. ECF No. 199. Proceedings on the merits of
Plaintiffs’ complaint are ongoing. Plaintiffs have sought further discovery to develop the
record with respect to Defendants’ more recent bail hearing practices since
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advance four theories in support of their motion. The Court addresses each in turn below.
DISCUSSION
Rule 23 Criteria
Federal Rule of Civil Procedure 23(a) allows individuals to sue on behalf of a
class if: (1) the class is so numerous that joinder of all members is impracticable
(numerosity); (2) there are questions of law and fact common to the class (commonality);
(3) the claims or defenses of the representative parties are typical of the claims or
defenses of the class (typicality); and (4) the representative parties will fairly and
adequately protect the interests of the class (adequacy). Rule 23(b)(2) permits a class
action where defendants have “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” (cohesiveness). The Court certified the Plaintiff class
under the foregoing paragraphs of the Rule. Plaintiffs did not request, and the Court did
not certify, a class under Rule 23(b)(3), which requires a showing that common questions
predominate individual questions (predominance) and the class action is superior to other
methods of adjudication.
Burden of Persuasion
As an initial matter, Defendants contend that Plaintiffs continue to bear the burden
to justify class certification even on Defendants’ motion for de-certification. But the

implementation of new Missouri Rule 33.01, and the Court has ordered the Defendant
Judges to produce a certain number of hearing transcripts for specific periods. ECF Nos.
186, 214.
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Eighth Circuit precedent they cite does not support their position. Rather, it states that, in
general, a movant bears the burden of showing that the district court mistakenly
maintained class certification. Day v. Celadon Trucking Services, Inc., 827 F.3d 817, 832
(8th Cir. 2016). Defendants are correct that the Court has a duty to ensure that a class
continues to be certifiable, and the Court may modify an earlier order in light of
subsequent developments in the litigation. Id. at 830. Nonetheless, principles of fair
adjudication require that, once a district court has considered the issue, a movant must
provide good reason to revisit it. Id. at 832. “Where litigants have once battled for the
court’s decision, they should neither be required, nor without good reason permitted, to
battle for it again.” Id. This is particularly true where certification-related discovery has
occurred. Id.
Plaintiffs have engaged in significant discovery in this case, including individual
class members’ case records as well as aggregated data on Defendants’ hearing practices.
The Court considers the record sufficiently developed for purposes of Rule 23 analysis.
Guided by the principles articulated in Day, the Court will not entertain a wholesale relitigation of class certification factors previously considered but will re-examine Rule 23
criteria to extent impacted by material subsequent developments in the litigation. In that
regard, Defendants rely on a development in Eighth Circuit precedent as well as updated
factual allegations in Plaintiffs’ renewed (but later withdrawn) preliminary injunction
motion subsequent to the change in Missouri Rule 33.01. ECF No. 160, 163.

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Predominance
First, Defendants assert that Plaintiffs’ class definition creates a fail-safe class –
i.e., one that precludes membership unless the member would prevail on the merits –
which is impermissible under recent Eighth Circuit precedent published shortly after this
Court’s certification order. In Orduno v. Pietrzak, 932 F.3d 710 (8th Cir. 2019), the
Circuit instructed that a fail-safe class is prohibited because it would allow putative class
members to seek a remedy but not be bound by an adverse judgment because they would
be determined not to be a member of the class. Id. at 716. In Orduno, the plaintiff
sought monetary damages under the Driver’s Privacy Protection Act (DPPA). The
plaintiff sought to certify a class of all persons whose personal information was accessed
by the defendant police chief without a legitimate purpose, in violation of the DPPA.
The district court denied certification because the class failed to satisfy the requirements
of numerosity and predominance. More specifically, the court reasoned that the
circumstances under which each member’s information was accessed would vary such
that common questions would not predominate over individual determinations. Id. at
716. On appeal, Orundo argued that the class included only those individuals whose
information was wrongfully obtained, so there would be no need for case-by-case
determinations. The Eighth Circuit disagreed and affirmed the denial of certification,
reasoning that Orundo could not cure the predominance problem by creating a fail-safe

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class. The Circuit further reasoned that the class would be unmanageable because the
court would not know whom to notify of the action. Id. at 717.
Defendants here assert that Plaintiffs’ proposed class is similarly flawed because it
must be read either to include only those whose detention was unconstitutional or to
encompass anyone who was unable to post bond for any reason. In other words,
membership either requires an individual merits determination whether detention was
unconstitutional or is fatally overbroad for including members who suffered no injury
and thus lack standing. Either way, Defendants submit, Plaintiffs’ class fails to satisfy
the predominance criterion of Rule 23(b)(3).
In response, Plaintiffs maintain that (1) Orundo is not new law, and it involved
certification under Rule 23(b)(3), whereas Plaintiffs’ class was certified under Rule
23(b)(2) not dependent on predominance; (2) Defendants distort the class definition by
inserting the word “unconstitutionally,” which does not appear in the actual definition;
(3) Defendants waived their standing argument by failing to raise it earlier; (4)
Defendants conflate standing with the merits as to whether class members’ detention was
unlawful, which will be decided at a later stage; and (5) even if the class definition is
flawed, the solution is modification, not de-certification.
The Court is not persuaded that Orundo warrants de-certification. The Orundo
plaintiffs sought monetary damages under the DPPA, and class certification involved a
predominance analysis under Rule 23(b)(3). Here, by contrast, the Plaintiff class seeks

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injunctive and declaratory relief and is certified under Rule 23(b)(2).3 This Court did not
undertake a predominance analysis in its original order of certification and need not do so
now. Even assuming arguendo that Orundo constitutes a development in the Circuit, and
that its reasoning bears on issues of commonality and cohesiveness under Rule 23(a)(2)
and (b)(2), the Court finds no reason to revise its earlier determination that Plaintiff class
members suffered the same alleged injury and seek singular relief. Defendants have
allegedly acted on grounds generally applicable to the class such that final declaratory
and injunctive relief is appropriate respecting the class as a whole. Specifically, Plaintiffs
claim that class members were detained solely as a result of their poverty and without a
meaningful hearing about their financial circumstances and the possibility of less
restrictive release conditions. The Plaintiff class comprises arrestees who are detained
because they are unable to pay bail. They seek a declaration on the lawfulness of
Defendants’ practices and an injunction requiring Defendants to conduct hearings in
accordance with due process, not flawed by this infirmity. Other district courts have
certified similarly defined classes. See e.g., Daves v. Dallas County, Texas, 3:18-CV0154-N, 2018 WL 4537202, at *1 (N.D. Tex. Sept. 20, 2018) (certifying a class of all
arrestees detained because they are unable to pay bail); Walker v. City of Calhoun,
Georgia, 4:15-CV-170-HLM, 2016 WL 361580, at *10 (N.D. Ga. Jan. 28, 2016)
(certifying a class of arrestees unable to pay for their release).

3

In their original brief opposing certification, Defendants correctly identified Rule
23(b)(2) as the basis for analysis. See ECF No. 60.
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Defendants’ alternate, opposite argument is that, if not treated as a fail-safe class,
the class is necessarily overbroad such that some members lack standing because their
bonds were lawfully set, so they suffered no injury. Defendants’ alternate theory does
not rely on Orundo and could have been raised in their original briefing on certification.4
In any event, this theory begs the ultimate question in this case. Plaintiffs’ alleged classwide injury is detention due to the imposition of bail without a financial evaluation,
which results in detention due to an inability to pay. Any merits determination regarding
the lawfulness of Defendants’ bail orders is premature. “The process, not the result, is
the origin of this dispute.” Daves, 2018 WL 4537202, at *2. Plaintiffs here allege injury
in the form of their detention as a result of inadequate process. The Court is satisfied that
the class is not overbroad insofar as all putative members are detained through the same
process. Whether that process in fact occurred and meets constitutional requirements will
be determined at a later date and need not be resolved as a threshold for certification.
Commonality
Next, Defendants contend that the class should be de-certified because it no longer
satisfies the requirement of commonality. Defendants argue that the systemic nature of
the relief Plaintiffs seek does not necessarily satisfy Rule 23(a)(2) and Supreme Court
precedent, because even a systemic problem can manifest in individual ways, and
Plaintiffs’ pursuit of individualized bail hearings necessarily destroys commonality.
Defendants cite to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Wal-Mart,

4

Defendants did raise a different standing argument in their original briefs in
opposition to certification. ECF No. 60 at pp. 3-7.
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the Supreme Court noted that a rigorous analysis of Rule 23 requirements sometimes
touches on the merits, particularly where commonality reflects a pattern or practice. Id.
at 350-352. There, the plaintiffs sought injunctive relief and damages for gender
discrimination affecting 1.5 million female employees at 3,400 stores nationwide based
on a company policy giving local managers broad, subjective discretion in pay and
promotion. On those facts, the Supreme Court found that it was impossible to identify a
common reason for the allegedly discriminatory employment decisions affecting
members of the proposed class. Here, Defendants assert that Plaintiffs’ class, too, lacks
commonality because Plaintiffs allege not one but several Defendant bail practices
offending due process (e.g., lack of individualized findings, no opportunity to speak,
counsel negotiations without consultation, excessive bond amounts, consideration of
third-party payors). Defendants’ reliance on Wal-Mart is unpersuasive beyond its most
general principles. That case involved millions of plaintiffs seeking monetary damages
for individual employment decisions by thousands of local managers. The present case
involves far more identifiable class, i.e., indigent arrestees, before a single court, applying
a single rule, at a discrete phase of the case.
Defendants’ attempt to fracture Plaintiffs’ claim into individual cases is no more
persuasive now than it was at the time of certification. As the Court stated in its original
order, Plaintiffs allege a widespread and systemic failure to individualize bail
determinations in accordance with due process, and especially a failure to consider an
arrestee’s ability to pay. That Defendants may foreclose or sidestep that examination in
multiple ways, including some new ways arising since the remand of this case or the
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change in Missouri Rule 33.01, does not destroy the commonality of the claim. The
authorities cited in Defendants’ brief do not direct otherwise.
For instance, in Postawko v. Missouri Dep't of Corr., 910 F.3d 1030, 1038 (8th
Cir. 2018), the Eighth Circuit affirmed certification of a class of prisoners alleging an
institutional practice of inadequate treatment for hepatitis. The Circuit rejected the
defendant’s argument that class claims would require individualized inquiries about
members’ medical conditions. In both Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481
(7th Cir. 2012), and DL v. D.C., 713 F.3d 120 (D.C. Cir. 2013), the plaintiff classes
consisted of disabled children who fell through the cracks at multiple stages of a special
education framework intended to identify them and provide services. Though Defendants
are correct that the original classes were overbroad because they encompassed different
practices at different stages of the statutory scheme, Defendants overlook the subsequent
history in DL, where the class was separated into four sub-classes corresponding to the
defendant school district’s failure to provide special education services at distinct stages
of the statutory scheme, which the Circuit deemed proper. See DL v. D.C., 860 F.3d 713,
719 (D.C. Cir. 2017).
The present case involves a distinct stage that takes place early in the proceedings,
often in a matter of minutes, and addresses a single and narrow issue: release on bond.
Defendants cite no similar bail case, of which there are many nationwide, where a class
of arrestees detained due to poverty could not be certified. On the contrary, other district
courts have consistently certified similarly defined classes in similar cases. See e.g.,
Daves v. Dallas County, Texas, 2018 WL 4537202; Walker v. City of Calhoun, Georgia,
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2016 WL 361580; Little v. Frederick, CV 6:17-0724, 2020 WL 605028 (W.D. La. Feb. 7,
2020); O’Donnell v. Harris County, Texas, CV H-16-1414, 2017 WL 1542457, at *1
(S.D. Tex. Apr. 28, 2017).
Notwithstanding changes in Missouri Rule 33.01 since the time of certification,
Plaintiffs still maintain that Defendants’ bail hearing practices continue to fall short of the
new rule and due process in substantially the same manner. The Court is not persuaded
that any evolution in Plaintiffs’ discovery destroys commonality.
Ascertainability
Defendants also argue that the class is not ascertainable because membership
would require individual, subjective determinations, supported by personal financial
information, as to whether a particular arrestee was truly unable to pay bond. This
argument is not based on any subsequent development in the litigation since original
briefing on certification, and Defendants failed to raise it at that time. Additionally,
Defendants’ reasoning appears somewhat circular. The alleged failure to make
individualized bail determinations, based on evidence of an arrestee’s ability to pay, is
precisely the issue here. If that process has occurred, presumably the record will reflect
it.
Moreover, as a general rule, ascertainability requires less precision under Rule
23(b)(2) than under Rule 23(b)(3). Ahmad v. City of St. Louis, Missouri, 4:17 CV 2455
CDP, 2019 WL 2009589, at *2 (E.D. Mo. May 7, 2019) (considering a class comprised
of citizens protesting the police). Members may be identified by reference to objective
criteria. Id. Plaintiffs submit that an inability to pay bond is a reliable objective criterion
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for ascertainment in that most people would not willingly remain incarcerated if their
financial circumstances permitted them to avoid it. Defendants have not presented any
evidence to the contrary. Given the obvious and severe consequences of prolonged
detention, (see ECF No. 95 at pp. 30-31), the Court agrees and accepts that an inability to
pay bond is a reasonable marker of ascertainment.
Typicality and Adequacy
Finally, Defendants contend that the named Plaintiffs cannot establish typicality
and adequacy because they were long ago released and now allege, on behalf of the class,
new and different injuries arising out of Defendants’ more recent practices under the
revised Missouri Rule 33.01.
Defendants’ argument with respect to Plaintiffs’ release status was before the
Court at the time of original certification and is untenable. The detention status of any
given class member is likely to evolve during this litigation; no plaintiff need remain
incarcerated to maintain his claim. County of Riverside v. McLaughlin, 500 U.S. 44
(1991). The Court sees no reason to revisit this argument. See ECF No. 95 at pp. 8-10.
Further, as previously stated, the Court does not find the factual allegations raised
in Plaintiffs’ renewed preliminary injunction motion materially different from their
original allegations.5 Plaintiffs centrally claim injury by virtue of their detention without
an individualized determination of their ability to pay bond. Even according to

5

Plaintiffs may seek leave to add one or more class representatives who were
detained due to their inability to pay bond after the effective date of the new Missouri
Rule 33.01, should they elect to do so.
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Defendants’ own description (ECF No. 171), Plaintiffs’ core due process challenge still
involves the lack of financial inquiry, failure to consider non-monetary conditions, and
excessive bail. Defendants have suggested no adversity or conflict whatsoever among
members of the class, nor any showing of divergent preferences. The Court is not
persuaded that any recent nuances raised in Plaintiffs’ withdrawn motion for preliminary
injunction (e.g., collusion between counsel, consideration of third-party payors) are so
unique as to destroy typicality. The Court is satisfied that the named Plaintiffs’ claims
remain typical of the class and that Plaintiffs continue to adequately represent class
members.
CONCLUSION
The Court concludes that the Plaintiff class, as modified (ECF No. 97), continues
to satisfy the requirements of Rule 23. For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ motion to de-certify the class is
DENIED. ECF No. 171.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 17th day of February 2021.

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