Davis et al v. The City of New York et al

Filing 289

OPINION AND ORDER: re: 271 MOTION to Certify Class. For the foregoing reasons, the Stopped Class and Resident Class are certified under Rule 23(b)(2). (Signed by Judge Shira A. Scheindlin on 8/29/2013) (js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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KELTON DAVIS, WILLIAM TURNER,
EDWIN LARREGUI, ANTHONY
ANDERSON, SHAWNE JONES, HECTOR
SUAREZ, ADAM COOPER, DAVID
WILSON, GENEVA WILSON, ELEANOR
BRITT, ROMAN JACKSON, KRISTIN
JOHNSON, LASHAUN SMITH, ANDREW
WASHINGTON, PATRICK LITTLEJOHN,
RAYMOND OSORIO, VAUGHN
FREDERICK, and R.E., by her parent D.E.,
individually and on behalf of a class of all
others similarly situated,

OPINION AND ORDER
10 Civ. 0699 (SAS)

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SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Plaintiffs allege that the New York City Police Department ("NYPD")

uses unlawful stops, searches, and arrests to enforce the prohibition against
trespassing in New York City Housing Authority ("NYCHA") buildings. I This

See Davis v. City ofNew York ("Davis If'), No.1 0 Civ. 0699,2013
WL 1288176, at * 1 (S.D.N.Y. Mar. 28,2013). This case is one of three putative or
1

.

Court has granted in part and denied in part the parties’ motions for summary
judgment.2 Plaintiffs now move for certification of the following class and
subclass:
Class: All African-American and Latino NYCHA residents and/or
family members, authorized guests or visitors of NYCHA
residents, who, since January 28, 2007, have been or will be
unlawfully stopped, seized, questioned, frisked, searched, and/or
arrested for trespass by New York City Police Department
(“NYPD”) officers in or around NYCHA residences, including on
the basis of race and/or ethnicity.
Resident Subclass: All members of the class who are authorized
NYCHA residents.3
Because plaintiffs satisfy the legal standard for class certification,
their motion is granted, subject to amendment of the class definition as described

certified class actions challenging aspects of the NYPD’s “stop and frisk”
practices. Compare Davis II, 2013 WL 1288176, at *1, with Floyd v. City of New
York (“Floyd Liability Opin.”), No. 08 Civ. 1034, 2013 WL 4046209 (S.D.N.Y.
Aug. 12, 2013), and Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL
628534 (S.D.N.Y. Feb. 14, 2013).
2

See Davis II, 2013 WL 1288176, at *3 (granting in part and denying
in part the parties’ motions for summary judgment based on defendants’ policies
and practices); Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 145584
(S.D.N.Y. Jan. 14, 2013) (denying NYCHA’s motion for summary judgment on
two individual plaintiffs’ section 1981 claims); Davis v. City of New York (“Davis
I”), 902 F. Supp. 2d 405, 410 (S.D.N.Y. 2012) (granting in part and denying in part
the parties’ motions for summary judgment based on the individual circumstances
of plaintiffs’ arrests and tenancies).
3

5/3/13 Memorandum of Law in Support of Plaintiffs’ Motion for
Class Certification (“Pl. Mem.”) at 2.
2

below.
II.

FACTUAL BACKGROUND
At the class certification stage, district courts must engage in a

rigorous analysis of the underlying facts in order to determine whether the
plaintiffs have satisfied the requirements of Rule 23. The following factual
findings, based on a preponderance of the evidence, are made only for the purpose
of adjudicating this motion and will not be binding on the jury at trial.4
A.

Evidence of Unlawful Trespass Enforcement Policies and
Practices
The City provides policing services to NYCHA under a 1994

Memorandum of Understanding. As part of these services, NYPD officers conduct
vertical patrols in NYCHA buildings. The procedures for conducting vertical
patrols are described in the NYPD’s Interim Order 23 of 2010 (“IO 23 of 2010”)
and associated training materials. These materials direct officers to approach and
question individuals in NYCHA buildings without reasonable suspicion of
trespass, and to arrest for trespass those who fail to leave or affirmatively establish
their right to be in a NYCHA residence.5
4

See In re Initial Pub. Offerings Sec. Litig. (“IPO”), 471 F.3d 24, 41
(2d Cir. 2006).
5

See Davis II, 2013 WL 1288176, at *7, *20 (discussing Memorandum
of Understanding). For the purposes of class certification, the City “proceeds on
3

The procedures for conducting trespass enforcement in and around
NYCHA buildings are chosen and implemented through the NYPD’s centralized
and hierarchical institutional structure, which regulates officer activity through
the assumption (except where otherwise stated) that the Court’s two most-recent
summary judgment decisions sufficiently and accurately state and summarize the
evidence and law relating to this case.” 6/7/13 Defendant City of New York’s
Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification
(“Def. Mem.”) at 2. The primary factual issue that the City contests in its
submission is plaintiffs’ characterization of certain anecdotal evidence. See id.
Because the City for the most part does not contest plaintiffs’ characterization of
the evidence for the purposes of class certification, this Opinion’s summary of the
evidence is brief.
I note that New York’s Appellate Division, First Department recently
clarified the standard under De Bour for approaching and questioning an individual
in a NYCHA building regarding trespass. See State v. Johnson, 2013 NY Slip Op.
05723 (1st Dep’t Aug. 27, 2013) (holding that “an individual’s desire to avoid
contact with police” — as expressed by stopping on the stairs at the sight of
officers — does not constitute an objective credible reason to approach and
question under De Bour Level 1, even in a high-crime or drug-prone location such
as the NYCHA building where defendant was stopped). When the officer was
asked why he had engaged Johnson in conversation, the officer began to testify:
“It is a NYCHA building and we’re allowed to ask anybody inside the building—”
As the court sustained an objection, the officer interjected, “It is a prone drug [sic]
location.” Id.
In another case whose dismissal was recently reversed by the Second
Circuit on procedural grounds, the plaintiff alleged that he entered a NYCHA
building to visit a friend, eased himself out of his wheelchair, and began to pull his
way up a small flight of stairs. Two officers stopped him on suspicion of trespass,
allegedly without reasonable suspicion, and then searched his wheelchair, also
allegedly without legal basis. He was then arrested in part for trespass, although all
charges were later dismissed. See Askins v. City of New York, No. 10 Civ. 2230,
Slip Op. at 1–4, 8 (S.D.N.Y. Feb. 14, 2012), rev’d sub nom. Askins v. Doe No. 1,
No. 12 Civ. 0877, 2013 WL 4488698 (2d Cir. Aug. 23, 2013).

4

training, supervision, monitoring, and discipline.6 The record evidence at this stage
shows that the NYPD’s trespass enforcement policies and practices have resulted
in thousands of trespass stops that apparently lacked reasonable suspicion,7 as well
as large numbers of apparently unjustified trespass arrests.8 Anecdotal evidence
suggests that the apparently unlawful stops and arrests display factual similarities
resulting from common features of officers’ training and supervision.9
In addition, individual testimony and the testimony of community
leaders confirm that the NYPD’s trespass enforcement activities in NYCHA
buildings have resulted in a large number of NYCHA residents being impeded in
coming and going freely from their homes and having guests.10 Finally, plaintiffs’

6

See Pl. Mem. at 4–5 (collecting sources); Floyd Liability Opin., 2013
WL 4046209, at *24–47 (describing institutional evidence of deliberate
indifference regarding unconstitutional stops in general); Floyd v. City of New York
(“Floyd Class Cert.”), 283 F.R.D. 153, 162–66 (S.D.N.Y. 2012) (describing
centralized and hierarchical structure of NYPD in general).
7

See Pl. Mem. at 6–7 (collecting statistical evidence).

8

See id. at 7–8 (collecting evidence from prosecution declinations).

9

See, e.g., Davis v. City of New York, No. 10 Civ. 0699, 2013 WL
2298165, at *2–3 (S.D.N.Y. May 24, 2013) (quoting decline-to-prosecute forms
that appear to describe trespass stops based merely on entering and/or exiting
NYCHA buildings); Davis I, 902 F. Supp. 2d at 412–13 (description of Raymond
Osorio’s trespass stop, which appears to have been based merely on his exiting a
NYCHA building).
10

See Pl. Mem. at 8–11 (collecting sources).
5

statistical and anecdotal evidence of racial disparities in enforcement is sufficient
for the purposes of class certification.11
III.

LEGAL STANDARDS
A.

Federal Rule of Civil Procedure 23(a)
Rule 23(a) permits individuals to sue as representatives of an

aggrieved class. To be certified, a putative class must first meet all four
prerequisites set forth in Rule 23(a), generally referred to as numerosity,
commonality, typicality, and adequacy.12 District courts have broad discretion in
deciding whether to certify a proposed class under Rule 23.13

11

See id. at 9–10 (collecting statistical evidence); Davis II, 2013 WL
1288176, at *16–20 (discussing evidence of racial disparities in NYCHA trespass
enforcement); Davis I, 902 F. Supp. 2d at 435 (anecdotal evidence); Floyd Liability
Opin., 2013 WL 4046209, at *72–75 (concluding that the NYPD’s policy of
targeting “the right people” for stops in general constitutes a form of indirect racial
profiling in violation of the Fourteenth Amendment).
12

See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier
Inc., 546 F.3d 196, 201–02 (2d Cir. 2008). In full, Rule 23(a) reads:
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.
13

See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.

2003).
6

“Rule 23 does not set forth a mere pleading standard. A party seeking
class certification must affirmatively demonstrate [its] compliance with the Rule —
that is, [it] must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.”14 Plaintiffs seeking class
certification bear the burden of demonstrating by a preponderance of the evidence
that the proposed class meets each of the requirements set forth in Rule 23(a).15
When assessing whether plaintiffs have met this burden, courts must take into
account “all of the relevant evidence admitted at the class certification stage.”16 A
court may certify a class only after determining that “whatever underlying facts are
relevant to a particular Rule 23 requirement have been established.”17 This
rigorous analysis requires examining the facts of the dispute, not merely the
pleadings, and it will frequently “entail some overlap with the merits of the
plaintiff’s underlying claim.”18
14

Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(emphasis in original).
15

See Teamsters, 546 F.3d at 202.

16

IPO, 471 F.3d at 42.

17

Id. at 41.

18

Wal-Mart, 131 S. Ct. at 2551. “Nor is there anything unusual about
that consequence: The necessity of touching aspects of the merits in order to
resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of
litigation.” Id. at 2552.
7

At the class certification stage, “a district judge should not assess any
aspect of the merits unrelated to a Rule 23 requirement.”19 The court’s
“determination as to a Rule 23 requirement is made only for purposes of class
certification and is not binding on the trier of facts, even if that trier is the class
certification judge.”20
1.

Numerosity

Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” In the Second Circuit, sufficient numerosity can be
presumed at a level of forty members or more.21 “The numerosity requirement in
Rule 23(a)(1) does not mandate that joinder of all parties be impossible — only
that the difficulty or inconvenience of joining all members of the class make use of
the class action appropriate.”22 Courts do not require “evidence of exact class size

19

Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d
Cir. 2011) (quotation marks and citation omitted). Courts must ensure “that a class
certification motion does not become a pretext for a partial trial of the merits.”
IPO, 471 F.3d at 41.
20

IPO, 471 F.3d at 41.

21

See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483
(2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”).
22

Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007).
8

or identity of class members to satisfy the numerosity requirement.”23
2.

Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” Commonality thus requires plaintiffs “to demonstrate that the class
members ‘have suffered the same injury.’”24 Commonality further requires that the
claims asserted “must depend upon a common contention . . . of such a nature that
it is capable of classwide resolution — which means that determination of its truth
or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.”25
3.

Typicality

“Typicality ‘requires that the claims of the class representatives be
typical of those of the class, and is satisfied when each class member’s claim arises
from the same course of events[] and each class member makes similar legal
arguments to prove the defendant’s liability.’”26 The typicality requirement may be

23

Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).

24

Wal-Mart, 131 S. Ct. at 2551 (quoting General Tel. Co. of Sw. v.
Falcon, 457 U.S. 147, 157 (1982)).
25

Id.

26

Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N.
Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
9

satisfied where “injuries derive from a unitary course of conduct by a single
system.”27
The purpose of typicality is to ensure that class representatives “have
the incentive to prove all the elements of the cause of action which would be
presented by the individual members of the class were they initiating
individualized actions.”28 A lack of typicality may be found in cases where the
named plaintiff “was not harmed by the [conduct] he alleges to have injured the
class”29 or the named plaintiff’s claim is subject to “specific factual defenses”
atypical of the class.30
4.

Adequacy

“Adequacy is twofold: the proposed class representative must have an
interest in vigorously pursuing the claims of the class, and must have no interests
antagonistic to the interests of other class members.”31 Thus, the question of
adequacy “entails inquiry as to whether: 1) plaintiffs’ interests are antagonistic to
27

Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).

28

In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510
(S.D.N.Y. 1996).
29

Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y.

2006).
30

Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006).

31

Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006).
10

the interest of other members of the class and 2) plaintiffs’ attorneys are qualified,
experienced and able to conduct the litigation.”32 In order to defeat a motion for
certification, any conflicts between the class representative and members of the
putative class must be “fundamental.”33
5.

Implied Requirement of Ascertainability

Some courts have added an “implied requirement of ascertainability”34
to the express requirements of Rule 23(a). These courts have refused to certify a
class “unless the class description is sufficiently definite so that it is
administratively feasible for the court to determine whether a particular individual
is a member.”35 However, where the primary relief sought is injunctive rather than
compensatory, as here, “it is not clear that the implied requirement of definiteness
should apply to Rule 23(b)(2) class actions at all.”36
B.

Federal Rule of Civil Procedure 23(b)(2)

32

Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 60 (2d

Cir. 2000).
33

In re Flag Telecom Holdings, Ltd. Sec. Litig., 574 F.3d 29, 35 (2d Cir.

2009).
34

IPO, 471 F.3d at 30.

35

Casale v. Kelly, 257 F.R.D. 396, 406 (S.D.N.Y. 2009).

36

W ILLIAM B. R UBENSTEIN ET AL., N EWBERG ON C LASS A CTIONS § 3:7
at 1-172 (2011).
11

If the requirements of Rule 23(a) are met, the court “must next
determine whether the class can be maintained under any one of the three
subdivisions of Rule 23(b).”37 Plaintiffs seek certification under Federal Rule of
Civil Procedure 23(b)(2) (“Rule 23(b)(2)”). To certify a class under Rule 23(b)(2),
plaintiffs must show that defendants “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.” As the Supreme Court
explained in Wal-Mart, Rule 23(b)(2) is intended to cover cases such as this one:
When a class seeks an indivisible injunction benefitting all its
members at once, there is no reason to undertake a case-specific
inquiry into whether class issues predominate or whether class
action is a superior method of adjudicating the dispute.
Predominance and superiority are self-evident.38
“[C]laims for individualized monetary damages preclude class certification under
Rule 23(b)(2)” unless the claims are “merely ‘incidental’ to the requested
declaratory or injunctive relief.”39

37

McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.

2008).
38

131 S. Ct. at 2558. Accord Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 614 (1997) (“Civil rights cases against parties charged with unlawful,
class-based discrimination are prime examples” of Rule 23(b)(2) class actions).
39

Nationwide Life Ins. Co. v. Haddock, 460 Fed. App’x 26, 29 (2d Cir.
2012) (quoting Wal-Mart, 131 S. Ct. at 2557–60).
12

C.

The Galvan Doctrine
Under the doctrine established by the Second Circuit’s decision in

Galvan v. Levine, certification of a Rule 23(b)(2) class is unnecessary when
“prospective relief will benefit all members of a proposed class to such an extent
that the certification of a class would not further the implementation of the
judgment.”40
IV.

DISCUSSION
A.

Claims Against the City
1.

Plaintiffs Satisfy the Four Prerequisites of Rule 23(a)

The City’s argument against class certification focuses almost entirely
on the issue of commonality.41 I address that issue first, then turn to the remaining
three prerequisites for class certification under Rule 23(a).
a.

Commonality

Rule 23(a)(2) requires that there be “questions of law or fact common
to the class.” This requires plaintiffs “to demonstrate that the class members ‘have

40

Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985) (citing Galvan
v. Levine, 490 F.2d 1255, 1261 (2d Cir. 1973) (Friendly, J.) (affirming denial of
certification of a 23(b)(2) class after the government “withdrew the challenged
policy” and “stated it did not intend to reinstate the policy”)).
41

See Pl. Mem. at 8–19.
13

suffered the same injury.’”42 In Wal-Mart, plaintiffs sought to certify a class of
approximately 1.5 million female employees of the retail giant, alleging that “the
discretion exercised by their local supervisors over pay and promotion violates
Title VII by discriminating against women.”43 The Supreme Court found that the
plaintiffs had failed to satisfy commonality because the putative class members
were subjected to an enormous array of different employment practices: “Other
than the bare existence of delegated discretion, respondents have identified no
‘specific employment practice’ — much less one that ties all their 1.5 million
claims together.”44
In granting certification to the putative class in Floyd, I emphasized
the contrasts between the legal issues and evidence in that case and in Wal-Mart.
Plaintiffs in Floyd were stopped and frisked pursuant to policies and practices that
were generated from a centralized source and implemented through a hierarchical
supervisory structure:
Precinct commanders are not given leeway to conduct stops and
frisks if, when, and how they choose; instead, they are required to
use the tactic as a central part of the Department’s pro-active
policing strategy. They are required to monitor, document, and

42

Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157).

43

Id. at 2547.

44

Id. at 2555.
14

report their stop and frisk activity to headquarters using a uniform
system; all officers are subject to centralized stop and frisk
training; performance standards are obligatory and a recognized
part of productivity evaluations in all precincts.45
In addition, I noted that plaintiffs’ documentary and testimonial evidence of
unconstitutional stops and frisks was far more extensive than the proof of
discrimination rejected in Wal-Mart.46
The analysis that led to class certification in Floyd applies even more
strongly here. Because Floyd dealt with stops, frisks, and searches of pedestrians
in general, it involved a broader range of factual scenarios, policies, and customs
than are at issue in this case, which is solely concerned with the NYPD’s trespass
enforcement activities in and around NYCHA buildings. While the City in Floyd
resisted the notion that stop and frisk could be described as a “program,”47 the City
does not and could not dispute that the NYPD has a specific, uniform program of
trespass enforcement in and around NYCHA buildings. The NYPD has a written
policy, IO 23 of 2010, that specifies how officers are to conduct patrols in NYCHA

45

Floyd Class Cert., 283 F.R.D. at 173–74.

46

See id. at 174 n.137.

47

See, e.g., 12/20/11 Defendant City of New York’s Memorandum of
Law in Opposition to Plaintiffs’ Motion for Class Certification, Floyd v. City of
New York, No. 08 Civ. 1034, at 24 (stating that the NYPD’s use of stop and frisk is
not “a specific police interdiction program with rules and procedures”).
15

buildings, with particular emphasis on the procedures for stopping and arresting
trespassers.48 This policy is embedded in a web of other policies and practices for
training, supervising, monitoring, and disciplining officers who conduct trespass
enforcement in and around NYCHA buildings.49 Unlike the delegation of
discretion in Wal-Mart, these policies and practices are promulgated by senior
officials and determine the specific ways in which officers perform NYCHA
trespass enforcement.
Moreover, because plaintiffs’ putative class is limited to residents or
authorized visitors who have been unlawfully subject to enforcement activities for
trespassing in or around NYCHA residences, the class is not overly broad. If
plaintiffs succeed in establishing they suffered unlawful enforcement for
trespassing, their legal injuries will have resulted from the NYPD’s centralized,
hierarchical program of trespass enforcement in and around NYCHA buildings.

48

See IO 23 of 2010, Ex. O to 12/4/12 Declaration of Brenda E. Cooke,
Attorney for the City, in Support of the City’s Motion for Summary Judgment on
Plaintiffs’ Claims Against the City.
49

These policies and practices provide more than enough “glue” to hold
together the individual decisions by officers and supervisors that led directly to
plaintiffs’ alleged legal injuries. See Wal-Mart, 131 S. Ct. at 2552 (requiring that
there be “some glue” holding together the millions of employment decisions, so
that it will be possible “to say that examination of all the class members’ claims for
relief will produce a common answer to the crucial question why was I
disfavored”).
16

As plaintiffs note, the claims of the putative Class and Resident Subclass are united
by several common questions of law and fact that are susceptible to common
proof.50 In the terminology of Wal-Mart, a class-wide proceeding here will
“generate common answers” to these questions that are “apt to drive the resolution
of the litigation.” 51
b.

Numerosity, Typicality, Adequacy

Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” Plaintiffs have presented statistical evidence of
thousands of apparently unjustified trespass stops in and around NYCHA buildings
between 2009 and 2011, which is only a portion of the class period.52 Plaintiffs
have also presented sufficient testimonial and anecdotal evidence to support the
inference that far more than forty of NYCHA’s over 360,000 African-American or
Latino residents have been impeded in coming and going freely from their homes

50

These questions include, for example: “Do NYPD officers stop . . .
individuals for criminal trespass in and around NYCHA residences in the absence
of reasonable, articulable suspicion . . . ?” “Do NYPD officers stop . . . individuals
for criminal trespass in and around NYCHA residences at least in part because of
race and/or ethnicity?” “Has the City failed to adequately train, supervise, and/or
discipline officers in connection with trespass enforcement in and around NYCHA
residences, and have such acts and omissions caused . . . the constitutional
violations against Class members?” Pl. Mem. at 17.
51

131 S. Ct. at 2551.

52

See Pl. Mem. at 6, 15.
17

and having guests.53
The City offers no arguments specifically directed at typicality or
adequacy.54 In practice, the “‘commonality and typicality requirements of Rule
23(a) tend to merge,’” and “‘[t]hose requirements . . . also tend to merge with the
adequacy-of-representation requirement, although the latter requirement also raises
concerns about the competency of class counsel and conflicts of interest.’”55 The
City does not dispute the competence of plaintiffs’ attorneys to represent the
interests of the class.56
2.

Class Certification Is Proper Under Rule 23(b)(2)

Like the plaintiffs in Floyd, plaintiffs in this case have established that
they are entitled to class certification under Rule 23(b)(2).57 The City’s trespass
53

See id. at 16; 6/21/13 Plaintiffs’ Reply Memorandum of Law in
Further Support of Plaintiffs’ Motion for Class Certification (“Pl. Reply”) at 6.
54

See Def. Mem. at 19, 21. See also Pl. Mem. at 21–23 (addressing
typicality); id. at 23–24 (addressing adequacy).
55

Wal-Mart, 131 S. Ct. at 2551 n.5 (quoting Falcon, 457 U.S. at 157–58
& n.13). Accord Marisol A., 126 F.3d at 376 (stating that commonality and
typicality “tend to merge into one another, so that similar considerations animate
analysis of Rules 23(a)(2) and (3)”).
56

See Def. Mem. at 21. I also note that the class definition, as amended
below, is clear enough to make proposed class members sufficiently ascertainable
for the purposes of Rule 23(b)(2).
57

See Floyd Class Cert., 283 F.R.D. at 177–78. Indeed, the City’s
opposition to plaintiffs’ motion does not explicitly challenge the appropriateness of
18

enforcement activities in and around NYCHA buildings have affected the class
generally, “so that final injunctive relief or corresponding declaratory relief is
appropriate respecting the class as a whole.”58 If plaintiffs establish that the City’s
NYCHA trespass enforcement policies and practices caused their injuries, a
uniform injunctive remedy involving reforms to the City’s policies and practices
will provide appropriate relief.
3.

Class and Subclass Definitions

Finally, the City is correct that plaintiffs’ proposed Class and Resident
Subclass differ from the class structure proposed in the Amended Complaint.59 In
particular, the class in the Amended Complaint included not only residents and
visitors who have been or will be subject to unlawful trespass enforcement, but
also residents “whose family members, guests, and/or authorized visitors have been
or will be unlawfully stopped, seized, questioned, searched and/or arrested for
trespass by NYPD officers when visiting NYCHA residents.”60 The class that
plaintiffs now move to certify omits the latter category. As the City observes, this

class certification under Rule 23(b)(2). See Def. Mem. at i, 8–9, 11, 13–14 & n.19.
58

Rule 23(b)(2).

59

See Def. Mem. at 20–21. Compare Pl. Mem. at 2, with Davis II, 2013
WL 1288176, at *3 (citing Amended Complaint (“Am. Compl.”) ¶¶ 21–23).
60

Am. Compl. ¶ 21.
19

omission is problematic, because plaintiffs include in the Resident Subclass
residents of NYCHA buildings who have never been stopped or arrested, such as
Eleanor Britt — with the result that the Resident Subclass contains individuals who
are not members of the Class.61
There are a number of ways to resolve the confusion in plaintiffs’
proposed class structure, which is ultimately more a problem of phrasing than of
substance. Rather than certifying plaintiffs’ proposed Class and Resident Subclass,
I am amending the proposed class definition into two overlapping classes, as
follows:
Stopped Class: All African-American and Latino NYCHA
residents and/or family members, authorized guests or visitors of
NYCHA residents, who, since January 28, 2007, have been or will
be unlawfully stopped, seized, questioned, frisked, searched,
and/or arrested for trespass by New York City Police Department
(“NYPD”) officers in or around NYCHA residences, including on
the basis of race and/or ethnicity.
Resident Class: All authorized NYCHA residents who belong to
the Stopped Class or whose family members, authorized guests or
visitors, since January 28, 2007, have been or will be unlawfully
stopped, seized, questioned, frisked, searched, and/or arrested for
trespass by NYPD officers in or around NYCHA residences,
including on the basis of race and/or ethnicity.
B.

Claim Against NYCHA
NYCHA does not dispute that for the purposes of plaintiffs’ USHA

61

See Def. Mem. at 21 n.29.
20

claims against NYCHA, resident plaintiffs satisfy the requirements for a class
under Rule 23(a) and Rule 23(b)(2).62 Instead, NYCHA argues that class
certification is unnecessary under the Galvan doctrine, which permits courts to
decline class certification when “prospective relief will benefit all members of a
proposed class to such an extent that the certification of a class would not further
the implementation of the judgment.”63 As plaintiffs note, however, NYCHA’s
refusal to withdraw, amend, or clarify the challenged House Rules argues against
the application of Galvan.64 This is not a case where “‘withdrawal of the
challenged action or non-enforcement of the challenged statute’” renders class
certification unnecessary.65
V.

CONCLUSION

62

See 6/7/13 Memorandum of Law of Defendant New York City
[Housing] Authority in Opposition to Plaintiffs’ Motion for Class Certification at
2–5. For plaintiffs’ USHA claims against NYCHA, see generally Davis II, 2013
WL 1288176, at *24–26. Of course, NYCHA directs its arguments against
plaintiffs’ proposed Resident Subclass rather than the Court’s amended Resident
Class as defined in the previous section. But for the purposes of plaintiffs’ USHA
claims, the difference between the two classes is immaterial.
63

Berger, 771 F.2d at 1566 (citing Galvan, 490 F.2d at 1261).

64

See Pl. Reply at 8.

65

Casale, 257 F.R.D. at 406 (quoting Blecher v. Department of Hous.
Pres. & Dev., No. 92 Civ. 8760, 1994 WL 144376, at *4–5 (S.D.N.Y. Apr. 19,
1994)).
21

F or the foregoing reasons, the Stopped Class and Resident Class are
certified under Rule 23(b )(2).

Dated:

New York, New York
August 29,2013

22

Appearances
For Plaintiffs:
Matthew Moses, Esq.
Daniel J. Leffell, Esq.
Katharine E. Brooker, Esq.
Jason L. Meizlish, Esq.
James E. Stanley, Esq.
Paul, Weiss, Rifkind, Wharton &
Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
[phone]

Steven Banks, Esq.
William Gibney, Esq.
Steven Wasserman, Esq.
Nancy Rosenbloom, Esq.
Marlen S. Bodden, Esq.
The Legal Aid Society
199 Water Street, 6th Floor
New York, New York 10038
[phone]

Christina Swarns, Esq.
Johanna B. Steinberg, Esq.
Jin Hee Lee, Esq.
Johnathan J. Smith, Esq.
Ria Tabacco Mar, Esq.
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street, 1600
New York, New York 10013
[phone]
For Defendant City of New York:

For Defendant NYCHA:

Brenda E. Cooke
Judson Vickers
Wesley Bauman
Lisa Richardson
Pernell Telfort
Assistant Corporation Counsel
New York City Law Department
100 Church Street, 3-174
New York, New York 10007
[phone]

Steven J. Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, New York 10007
[phone]

23