Brown v. Police Comm'r Raymond W. Kelly
| Decision Date | 24 June 2010 |
| Docket Number | Docket No. 07-3356-cv. |
| Citation | 609 F.3d 467 |
| Parties | Michael BROWN, on behalf of himself and others similarly situated, Plaintiff-Appellee,v.Police Commissioner Raymond W. KELLY, as commissioner of the New York City Police Department (N.Y.PD), Barry M. Buzzetti, Captain and Commanding Officer of NYPD 48th Precinct, John & Jane Does, police officers, City of New York, Michael Curley, Corey Harris, Miguel Musse, Kevin Lynch, John Brennan, Shawn Ricker, and Robert Johnson Jr., District Attorney of Bronx County, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
COPYRIGHT MATERIAL OMITTED
Fay Ng (Pamela Seider Dolgow, Rachel Seligman, Linda Donahue, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants.
Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, New York, N.Y. (Katherine R. Rosenfeld, Emery Celli Brinckerhoff & Abady LLP, New York NY, J. McGregor Smyth, Jr., The Bronx Defenders, Bronx, NY, on the brief), for Plaintiff-Appellee.
Monica Wagner (Barbara D. Underwood, Benjamin N. Gutman, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, for Amicus Curiae State of New York, in support of Defendants-Appellants.
Anthony J. Servino, Steven A. Bender, for James A. Murphy III, District Attorney of Saratoga County, New York (on submission), for Amicus Curiae New York State District Attorneys Association, in support of Defendants-Appellants.
Dennis J. Saffran, for Lorna B. Goodman, County Attorney of Nassau County, New York (on submission), for Amicus Curiae Nassau County, in support of Defendants-Appellants.
Christopher A. Jeffreys, for Christine Malafi, County Attorney of Suffolk County, New York (on submission), for Amicus Curiae Suffolk County, in support of Defendants-Appellants.
Max Minzer, Benjamin Cardozo School of Law, New York, NY, Kenneth E. Aldous, Proskauer Rose LLP, New York, N.Y. (on submission), for Amici Curiae Law Professors who Study Federal Civil Procedure and Class Actions, in support of Plaintiff-Appellee.
William M. Brooks, Touro College, Central Islip, NY, for Amicus Curiae Mental Disability Law Clinic, in support of Plaintiff-Appellee.
Before SACK and KATZMANN, Circuit Judges.**
Defendants-appellants appeal from a July 24, 2007, order of the United States District Court for the Southern District of New York (Shira A. Scheindlin Judge ) granting plaintiff-appellee Michael Brown's motion (1) to certify a New York City-wide plaintiff class (the “City Plaintiff Class”) for damages pursuant to Federal Rule of Civil Procedure 23(b)(3), consisting of persons who have been or will be arrested, summonsed, or prosecuted under New York Penal Law § 240.35(1), a New York State statute previously declared unconstitutional by this Court; (2) to certify a statewide plaintiff class (the “State Plaintiff Class”) for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2), also consisting of individuals against whom this statute has been or will be enforced; and (3) to certify a statewide defendant class (the “State Defendant Class”) pursuant to Federal Rule of Civil Procedure 23(b)(2), consisting of all New York State political subdivisions and law enforcement and prosecutorial policy-making officials with authority to arrest, charge or prosecute under this statute. The defendants argue both that certification of defendant classes is not ordinarily permitted under Rule 23(b)(2) and, particularly, that none of the certified classes in this action meet the requirements of Rule 23.
We decline to revisit our holding in Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.) vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979), that Rule 23(b)(2) permits certification of a defendant class where a plaintiff seeks “injunctive relief against a class of local public officials,” 595 F.2d at 1238, even though the judgment having been vacated, the decision in Marcera is not binding on us. With respect to whether class certification was appropriate under Rule 23, we conclude that the district court abused its discretion in certifying the State Plaintiff and Defendant Classes under Rule 23(b)(2), but we affirm the district court's certification of the City Plaintiff Class pursuant to Rule 23(b)(3). Accordingly, we vacate the portion of the district court's order certifying the Rule 23(b)(2) State Plaintiff and Defendant Classes and remand to the district court for further proceedings.
Plaintiff Michael Brown brings this putative class action against New York City Police Commissioner Raymond W. Kelly, the City of New York, the Bronx County District Attorney, individual New York City police officers and supervisors, and individual District Attorney's Office personnel in New York City (the “City Defendants”), and a putative defendant class of statewide political subdivisions and law enforcement and prosecutorial personnel-the State Defendant Class-alleging that the defendants have unlawfully continued to arrest, summons, and prosecute individuals such as Brown pursuant to New York Penal Law § 240.35(1), a statute that was declared unconstitutional by this Court in 1993. See Loper v. N.Y. City Police Dep't, 999 F.2d 699, 705-06 (2d Cir.1993).1
New York Penal Law § 240.35(1) addresses loitering for the purpose of begging, and provides that a person is guilty of “loitering when he ... [l]oiters, remains or wanders about in a public place for the purpose of begging.” N.Y. Penal Law § 240.35(1). In Loper, we held that section 240.35(1) violates the First Amendment and therefore affirmed a district court order permanently enjoining the City of New York from enforcing the statute. See 999 F.2d at 706. Brown alleges that he was nonetheless arrested and prosecuted under section 240.35(1) in 2003 and that section 240.35(1) has continued to be enforced both within New York City and elsewhere throughout New York State after, and despite, this Court's decision in Loper. He therefore asserts claims of: (1) false arrest, false imprisonment, and malicious prosecution in violation of the Fourth and Fourteenth Amendments; (2) inhibition of class members' free speech activities in violation of the First and Fourteenth Amendments; (3) violation of class members' due process rights under the Fourteenth Amendment; and (4) violation of the Equal Protection Clause of the Fourteenth Amendment. The Complaint seeks injunctive relief against the State Defendant Class, including an order directing the members of the State Defendant Class to cease enforcement of the statute and an order mandating various remedial measures including training, the establishment of an arrest tracking system, disgorgement of fines, expungement of convictions, vacating of warrants, and the issuance of new policies. It also seeks a declaratory judgment that the State Defendant Class has committed the violations of law alleged in this action. Finally, the Complaint seeks damages against the named City Defendants on behalf of the City Plaintiff Class.
On June 9, 2005, former plaintiff Eddie Wise instituted this action by obtaining an order to show cause and temporary restraining order against the New York City and State defendants for unlawfully enforcing section 240.35(1). On multiple occasions from 2002 through June 2005, uniformed police officers allegedly wrongfully arrested Wise for begging peacefully on the streets of the Bronx. Wise was charged with loitering in violation of section 240.35(1) and prosecuted for this offense by the Bronx County District Attorney's Office.
Soon thereafter, the City Defendants entered into a stipulation in which they agreed to take steps aimed at preventing future enforcement of the statute. The district court “so ordered” that stipulation on June 23, 2005. Pursuant to the order, the City Defendants were to notify various City law-enforcement officials and employees that section 240.35(1) had been declared unconstitutional, which they did. The order further provided that the City and its employees “shall cease enforcement of [section 240.35(1) ].”
In January 2006, Wise settled his claims with the New York State defendants, including the Office of Court Administration (“OCA”).2 The City Defendants were left as the only remaining defendants in that action.
On November 22, 2006, Wise accepted the City Defendants' Offer of Judgment pursuant to Federal Rule of Civil Procedure 68, subsequent to which a judgment was entered dismissing all of his claims. Prior to this dismissal, Wise had requested and received leave to amend his complaint to add Brown as a plaintiff and plaintiff class representative. Accordingly, although Wise was dismissed from the litigation as a plaintiff, the class action was permitted to continue with Brown as the lead plaintiff and class representative.
In March 2007, Brown, now the class representative, moved to hold the City Defendants in contempt for their alleged failure to comply with the district court's June 2005 order to cease enforcement of section 240.35(1). In an order dated May 31, 2007, the district court denied the motion, citing improvements in the City's compliance subsequent to December 2006 and concluding that holding the City in contempt would not “have the desired effect of halting the issuance of further summonses by patrolling officers.” Brown v. Kelly, No. 05 Civ. 5442, 2007 WL 1573957, at *5, 2007 U.S. Dist. LEXIS 39527, at *23 . The district court found, however, that “notwithstanding an Order of this Court dated June 23, 2005, which directed defendants once and for all to cease enforcing the statute, enforcement continues to this day.” Id., 2007 WL 1573957, at *1, 2007 U.S. Dist. LEXIS 39527, at *2.3
Earlier, on February 2, 2007, Brown had moved for class certification and for leave to amend the...
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