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Ahmad v. City of St. Louis

United States District Court, E.D. Missouri, Eastern Division

May 7, 2019

MALEEHA AHMAD, et al., Plaintiffs,
v.
CITY OF ST. LOUIS, MISSOURI, Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.

         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, 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. 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 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. 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 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 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 ...


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