The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:
Police officers are permitted to briefly stop any individual, but only
upon reasonable suspicion that he is committing a crime.*fn1
The source of that limitation is the Fourth Amendment to the
United States Constitution, which guarantees that "the right of the
people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated."
The Supreme Court has explained that this "inestimable right of
personal security belongs as much to the citizen on the streets of our
cities as to the homeowner closeted in his study to dispose of his
The right to physical liberty has long been at the core of our nation's commitment to respecting the autonomy and dignity of each person: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."*fn3 Safeguarding this right is quintessentially the role of the judicial branch.
No less central to the courts' role is ensuring that the administration of law comports with the Fourteenth Amendment, which "undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights."*fn4
On over 2.8 million occasions between 2004 and 2009, New York City police officers stopped residents and visitors, restraining their freedom, even if only briefly.*fn5 Over fifty percent of those stops were of Black people and thirty percent were of Latinos, while only ten percent were of Whites.*fn6 The question presented by this lawsuit is whether the New York City Police Department ("NYPD") has complied with the laws and Constitutions of the United States and the State of New York. Specifically, the four named plaintiffs allege, on behalf of themselves and a putative class, that defendants have engaged in a policy and/or practice of unlawfully stopping and frisking people in violation of their Fourth Amendment right to be free from unlawful searches and seizures and their Fourteenth Amendment right to freedom from discrimination on the basis of race.
Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht are Black men who seek to represent a class of similarly situated people in this lawsuit against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and unnamed police officers. On behalf of the putative class, plaintiffs seek equitable relief in the form of (1) a declaration that defendants' policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction mandating significant changes in those policies, practices, and/or customs.
This case presents an issue of great public concern: the disproportionate number of Blacks and Latinos, as compared to Whites, who become entangled in the criminal justice system. The specific claims raised in this case are narrower but they are raised in the context of the extensively documented racial disparities in the rates of stops, arrests, convictions, and sentences that continue through the present day. Five nonprofit organizations have filed an amicus brief with this Court arguing that the NYPD's stop and frisk practices are harmful, degrading, and demoralizing for too many young people in New York*fn7 and twenty-seven of the fifty-one members of the New York City Council have filed a second amicus brief arguing that the practices are a citywide problem that "reinforce negative racial stereotypes" and have created "a growing distrust of the NYPD on the part of Black and Latino residents."*fn8
The NYPD's stop and frisk program was first presented to this Court over thirteen years ago, in a class action entitled Daniels v. City of New York.*fn9
That case was resolved in 2003 through a settlement that required the City to adopt several remedial measures intended to reduce racial disparities in stops and frisks. Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy; revised the form that police fill out when they conduct a stop so that the encounters would be more accurately documented; and instituted regular audits of the forms, among other measures.
In 2008, after the Daniels settlement expired, plaintiffs brought this action, alleging that defendants had failed to reform their policies and practices. In 2011, after examining the parties' voluminous submissions, I denied defendants' motion for summary judgment.*fn10 In April of this year, upon another voluminous record, I granted in part and denied in part defendants' motion to exclude the testimony of Jeffrey Fagan, plaintiffs' statistics and criminology expert.*fn11
Plaintiffs now move for certification of the following class:
All persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department's policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.*fn12
Because plaintiffs satisfy the legal standard for class certification, their motion is granted.
Rule 23 of the Federal Rules of Civil Procedure 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.*fn13 "[C]ertification is
proper only if the trial court is satisfied, after rigorous analysis,
that the prerequisites of Rule 23(a) have been satisfied."*fn14
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
Even before the Supreme Court clearly articulated this standard in its 2011 Wal-Mart decision, the Second Circuit had "required district courts 'to assess all of the relevant evidence admitted at the class certification stage'" and to apply "the preponderance of the evidence standard" when resolving factual disputes relevant to each of the Rule 23 requirements.*fn16 Wal-Mart has adopted that standard and it remains the case that at the class certification stage, "a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement."*fn17
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."*fn18
"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."*fn19
Sufficient numerosity can be presumed at a level of forty members or more,*fn20 and courts do not require "evidence of exact class size or identity of class members to satisfy the numerosity requirement."*fn21
Commonality requires plaintiffs "to demonstrate that the class members 'have suffered the same injury,'" and the claims "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."*fn22
In this context, "the commonality and typicality requirements of Rule 23(a) tend to merge."*fn23 "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.'"*fn24 Rather than focusing on the precise nature of plaintiffs' injuries, the typicality requirement may be satisfied where "injuries derive from a unitary course of conduct by a single system."*fn25 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"*fn26 or the named plaintiff's claim is subject to "specific factual defenses" atypical of the class.*fn27
The question of adequacy "entails inquiry as to whether: 1) plaintiff's interests are antagonistic to the interest of other members of the class and 2) plaintiff's attorneys are qualified, experienced and able to conduct the litigation."*fn28
Some courts have added an "implied requirement of ascertainability"*fn29 to the express requirements of Rule 23(a) and 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."*fn30
However, because notice is not obligatory and because the relief sought is injunctive rather than compensatory, "it is not clear that the implied requirement of definiteness should apply to Rule 23(b)(2) class actions at all."*fn31 As stated in the Advisory Committee Note to Rule 23(b)(2), it was designed to cover "actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration."*fn32
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)."*fn33 Plaintiffs seek certification under Rule 23(b)(2), which applies where "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."
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."*fn34
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.*fn35
A. The NYPD's Stop and Frisk Program
It is indisputable that the NYPD has an enormous stop and frisk
program. There were 2.8 million documented stops between 2004 and
2009. Those stops were made pursuant to a policy that is designed,
implemented, and monitored by the NYPD's administration. In support of
their motion for summary judgment, defendants cited numerous examples
of NYPD policies and practices
regarding training,*fn36 monitoring,*fn37
supervision,*fn38 and discipline in order to
rebut plaintiffs' allegations of municipal liability for widespread
constitutional violations during stops and frisks.*fn39
That evidence shows that the stop and frisk program is
centralized and hierarchical.
Decisions about the policy are made at the highest levels of the
department.*fn40 At the regular CompStat*fn41
meetings involving the NYPD's top
officials, "[s]top, question and frisk activity is commonly
discussed"*fn42 in detail and "[t]he process allows
top executives to monitor precincts and operational units, evaluate
the skills and effectiveness of managers and properly allocate
resources."*fn43 The Chief of Patrol's office
discusses stop and frisk activity with the individual borough
commanders and precinct commanders.*fn44
The UF-250 form was designed by the NYPD and must be filled out by officers after every stop. The form is sometimes reviewed at CompStat meetings*fn45 and "the Chief of Patrol's office reviews UF-250s [from high crime 'Impact Zones'] in order to determine whether the precinct as a whole is properly deploying its resources."*fn46 The NYPD requires that "[a] supervisor must sign off on every stop, question and frisk UF-250 report."*fn47
According to defendants, the NYPD "provides multiple levels of training for officers,"*fn48 including numerous courses that cover stop and frisk procedure,*fn49 a 4.5-hour role-playing workshop on stop and frisk,*fn50 numerous memos and special videos about the law of reasonable suspicion, and ongoing training after graduating from the police academy.*fn51
"The NYPD functions through a chain of command."*fn52 Officers are monitored by their supervisors; supervisors are monitored through inspection teams, integrity control officers, and precinct commanding officers; and the Internal Affairs Bureau monitors police personnel throughout the department and is notified of all complaints alleging excessive force, abuse of authority, discourtesy, or offensive language.*fn53
In short, the overwhelming and indisputable evidence shows that the NYPD has a department-wide stop and frisk program; the program has been designed and revised at the highest levels of the department; the implementation of the program is conducted according to uniform and centralized rules; and monitoring of compliance with the program is hierarchical. Defendants acknowledge much of this reality: "To be sure, NYPD's department-wide policies generate from a centralized ...