OPINION AND ORDER
I. INTRODUCTION
In this civil rights action, the named plaintiffs, on behalf of themselves and a class of similarly situated individuals, seek relief for alleged constitutional violations by a unit of the New York City Police Department known as the Street Crime Unit (the “SCU”).
The named individual plaintiffs are ten Black and Latino men between the ages of 23 and 37 years old who reside in the Bronx, Brooklyn, Manhattan, and the City of Rochester. Id. til 12-21. Each plaintiff alleges that he has been stopped and frisked by police officers believed to be members of the SCU without reasonable suspicion and on the basis of his race and national origin. Id. 111168-97. Each claims to have sustained injuries as a result of these encounters including, but not limited to, fear of the possibility of future stops and frisks. Id. If 98.
All persons who have been or will be subjected by officers of the Street Crimes [sic] Unit (“SCU”) of the New York City Police Department (“NYPD”) to defendants’ policy, practice and/or custom of illegally stopping and/or frisking persons within the City of New York:
(a) in the absence of the reasonable articulable suspicion of criminal activity that is required by the Fourth Amendment to the United States Constitution and Article 1, Section 12, of the New York State Constitution, including, but not limited to, persons who have been stopped, or stopped and frisked,
(b) in a manner that discriminates on the basis of race and/or national origin in violation of the Equal Protection Clause "of the Fourteenth Amendment to the United States Constitution and Article 1, Section 11, of the New York State Constitution, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000(d) et seq.
See Affirmation of Adam D. Gale, plaintiffs’ attorney, sworn to November 27, 2000, If 2. For the following reasons, the proposed class is certified, subject to reconsideration at a later date. See Fed.R.Civ.P. 23(c)(1).
II. CLASS ALLEGATIONS
Plaintiffs allege that the SCU reported over 18,000 stops and frisks in 1997 with a 50% increase in 1998. Cmplt II47. Plaintiffs cite The New York City Police Department’s “Stop and Frisk” Practices: A Report to the People of the State of New York From the Office of the Attorney General (December 1, 1999) (“Attorney General’s Report”) for their analysis of over 19,000 stops made by the SCU between January 1998 and March 1999.
Plaintiffs further argue that joinder is impracticable not only because of the number of
III. DISCUSSION
A. Rule 23: Requirements and Objectives
Class actions are a procedural mechanism that conserve “ ‘the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.’ ” General Telephone Co. of Southwest v. Falcon,
On review of a motion for class certification under Rule 23, F.R. Civ. P., the court assumes that the allegations raised in the plaintiffs complaint are true, and plaintiff bears the burden of establishing that the class meets the Rule 23 requirements. In specific, plaintiff must establish that the class meets all of the requirements of Rule 23(a), F.R. Civ. P., and show that the class meets the requirements of one of the subsections of Rule 23(b), F.R. Civ. P. A court may certify a class only if it is satisfied after a “rigorous analysis” that the Rule 23 requisites have been satisfied; however, it will not consider the merits of the plaintiffs claims in its analysis.5 Moreover, the law in the Second Circuit favors the liberal construction of Rule 23, and therefore courts may exercise broad discretion when they determine whether to certify a class.
Selby v. Principal Mut. Life Ins. Co.,
The following four prerequisites are common to any class action: “(1) the class is so numerous that joinder of all members is impracticable [numerosity]; (2) there are questions of law or fact common to the class [commonality]; (3) the claims or defenses of the representative parties are typical of the
The Third Circuit has described the objectives underlying Rule 23(a) as follows:
The requirements of Rule 23(a) are meant to assure both that class action treatment is necessary and efficient and that it is fair to the absentees under the particular circumstances. While numerosity addresses the first of these concerns, i.e., necessity, the last three requirements help determine whether the class action can be maintained in a fair and efficient manner. Class treatment makes no sense if there are no common issues; the trial court would gain nothing but logistical headaches from the combination of the cases for trial. Typicality asks whether the named plaintiffs’ claims are typical, in common-sense terms, of the class, thus suggesting that the incentives of the plaintiffs are aligned with those of the class. Adequacy of representation assures that the named plaintiffs’ claims are not antagonistic to the class and that the attorneys for the class representatives are experienced and qualified to prosecute the claims on behalf of the entire class.
Baby Neal for and by Kanter v. Casey,
With regard to Rule 23(b)(2), it has been said that “[w]hen a suit seeks to define the relationship between the defendant(s) and the world at large, ... [Rule 23](b)(2) certification is appropriate” and is especially appropriate where a plaintiff seeks injunctive relief against discriminatory practices by a defendant. Weiss v. York Hosp.,
In addition to the requirements of Rule 23(a) and (b)(2), the proposed class must also meet a requirement not contained within the express provisions of Rule 23 — the class must be sufficiently definite. See Simter v. Rios,
B. Specificity
Defendants claim that because class members are defined as those who have been subjected to suspicionless stops and frisks, determination of class membership will inevitably require individualized assessments of the merits of each putative class member’s claim. This is allegedly so because the “reasonableness of an officer’s suspicion must be tested against the backdrop of the totality of circumstances surrounding a challenged stop.” United States v. Stone,
Defendants cite a number of cases in support of their argument. For example, in Universal Calvary Church v. City of New York,
Each plaintiffs claim turns largely on its individual facts. For example, whether a particular police officer employed excessive force against a particular plaintiff requires a determination of exactly how much force was used in dealing with that plaintiff. The amount of force utilized undoubtedly varied from plaintiff to plaintiff and what might be excessive in one case might be justified in another.
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Moreover, the damages suffered by the plaintiffs will vary depending on such factors as the level of force used in each instance,____
Id. at 183-84. Defendants cite several other Rule 23(b)(3) cases. See, e.g., Luedke v. Delta Airlines,
Defendants also cite several cases where a class was not certified because plaintiffs primarily sought monetary damages. See, e.g., Paciello v. Unum Life Ins. Co. of Am., 188 F.R.D. 201, 205 (S.D.N.Y.1999) (“the real relief sought by the putative members of the class — money—can only be obtained in individual actions following inquiries into the individual situations of the allegedly disabled insureds.”), aff'd,
Defendants fail to fully appreciate the distinction between an injunctive class under Rule 23(b)(2) and a damages class under Rule 23(b)(3).
There is a significant distinction between certification of an injunctive class pursuant to Rule 23(b)(2), and certification of a damage class pursuant to Rule 23(b)(3). When an action is certified under Rule 23(b)(3), class members are entitled to notice of the pendency of the action and may elect to “opt out” of the class and thereby not be bound by the judgment rendered in the class action. When a class action is certified under Rule 23(b)(2), however, all persons comprising the class become mandatory members. In other words, all those who come within the description in the certification become, and must remain, members of the class because no opt-out provision exists.
Wilson v. Tinicum Township, No. 92 Civ. 6617,
The absence of a claim for money damages eliminates the need for individualized assessments of liability and harm. For example, in Forbush v. J.C. Penney Co., Inc.,
[Plaintiff] defines the class as including all current and former Penney employees “whose pension benefits have been, or will be, reduced or eliminated as a result of the overestimation of their Social Security ben*416 efíts.” Penney asserts that this definition is hopelessly “circular,” as the court must first determine whether an employee’s pension benefits were improperly reduced before that person may be said to be a member of the class. This argument is meritless and, if accepted, would preclude certification of just about any class of persons alleging injury from a particular action. These persons are linked by this common complaint, and the possibility that some may fail to prevail on their individual claims [if brought as individual claims] will not defeat class membership.
Id. at 1105.
Similarly, the Third Circuit certified a class of children in the legal care and custody of Philadelphia’s Department of Human Services (“DHS”) who alleged that “systemic deficiencies prevented] DHS from providing a variety of child welfare services legally mandated by the United States Constitution and by federal and state law.” Baby Neal,
Here, the named plaintiffs are seeking money damages for themselves but are only seeking declaratory and equitable relief for the class they wish to represent. “The fact that the named plaintiffs are seeking damages on their own behalf does not make them inappropriate as class representatives.” German v. Federal Home Loan Mortgage Corp.,
C. Numerosity
Rule 23(a) requires a finding that the number of plaintiffs makes joinder of all class members “impracticable.” Impracticable, however, does not mean impossible. See Robidoux v. Celani,
In their Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (“Def. Mem.”), defendants argue that the total number of stops made by the SCU is not a useful number as plaintiffs have offered no statistics of the percentage of total stops made pursuant to defendants’ allegedly unlawful policies. See Def. Mem. at 10. However, in their Reply, plaintiffs state that the Attorney General’s Report found reasonable suspicion to be lacking in 23.2% of the stops documented by the SCU. See Reply Mem. at 5. Even in the absence of this
D. Commonality
“The commonality and typicality requirements tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3).” Marisol A.,
While it is true that the individual circumstances of class members may differ, the claim is “that their injuries derive from a unitary course of conduct by a single system.” Marisol A.,
In Allman v. Coughlin,
In sum, because the injuries complained of by the named plaintiffs allegedly resulted from the same unconstitutional practice or policy that allegedly injured or will injure the proposed class members — namely suspicion-less stops — the commonality requirement is satisfied.
E. 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.” In re Drexel Burnham Lambert Group, Inc.,
Here, the claims of the named plaintiffs and the proposed class members arise from the same allegedly unlawful activity on the part of the SCU — namely suspicionless stops and frisks. Both the named plaintiffs and the class members will allege that these stops were made in violation of the Fourth Amendment because the officers lacked reasonable suspicion to make a stop. Accordingly, the claims of the named plaintiffs are typical of those of the class.
F. Adequacy of Representation
The requirement that the named plaintiffs adequately represent the class involves a two-pronged inquiry. First, plaintiffs must demonstrate that “class counsel is qualified, experienced, and generally able to conduct the litigation.” In re Drexel Bum-ham,
Here, defendants have attacked both the adequacy of the class counsel and the class representatives, As to the former, defendants provide a litany of purported transgressions in an attempt to prove that class counsel is both incompetent and unethical.
As to the adequacy of the class representatives, defendants point out several character flaws including Daniels’ lack of mental competence, Baskin’s outstanding warrant for public consumption of alcohol, Bonner’s false arrest and malicious prosecution claims, and the fact that the interest of the named plaintiffs in pursuing their equal protection claims
As to the named plaintiffs’ character flaws, Judge Peter K. Leisure of this Court aptly addressed this argument in a civil rights action brought by juveniles challenging the conditions at two centers for adolescent girls with emotional problems.
If the courts prevent persons with questionable moral characters from acting as class representatives, [classes of] prisoners, mental patients, juvenile offenders or others capable of socially deviant behavior could never be certified. This is an unacceptable result. The fact that the named plaintiffs may be juvenile delinquents does not prevent this Court from certifying the class.
Jane B. by Martin v. New York City Dep’t of Soc. Servs.,
As to Bonner, it is well settled that the mere existence of individualized fact questions with respect to a named plaintiffs claims will not bar class certification. See Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp.,
Finally, there is no conflict between those class members who would assert only a suspicionless stop and the named plaintiffs who are asserting a suspicionless stop based on racial profiling. Those members asserting that they were the victims of racial profiling may be seen as subclass of those who would assert only a suspicionless stop, regardless of the motive for that stop. See infra Part III.B. As the court in Wilson v. Tinicum Township explained:
The classes of persons which plaintiffs here propose are challenging the same alleged illegal conduct of the defendants, namely, the unconstitutional policy of stopping, detaining, and searching cars and their occupants without cause or proper consent. In addition, the minority classes which plaintiffs propose allege that they have been targeted for special attention in implementing the alleged unconstitutional policy. The claims plaintiffs assert, therefore, involve a common central issue: whether the defendants engaged in violations of the proposed class members rights under the Fourth and Fourteenth Amend-*420 merits of the United States Constitution and the laws of the Commonwealth of Pennsylvania.
In short, both the class counsel and the putative class representatives are adequate to represent the proposed class.
G. The Galvan Doctrine
In the seminal case of Galvan v. Levine,
insofar as the relief sought is prohibitory, an action seeking declaratory or injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative practice is the archetype of one where class action designation is largely a formality, at least for the plaintiffs. As we have recently noted in Vulcan Society v. Civil Service Comm’n, [490] F.2d 387, 399 (1973), what is important in such a case for the plaintiffs or, more accurately, for their counsel, is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated, ..., as the judgment did here. The State has made clear that it understands the judgment to bind it with respect to all claimants; indeed even before entry of the judgment, it withdrew the challenged policy even more fully than the court ultimately directed and stated it did not intend to reinstate the policy.
Id. at 1261 (citations omitted). The Second Circuit has subsequently re-affirmed the Gal-van doctrine on a number of occasions. See, e.g., Davis v. Smith,
A number of lower courts have also applied Galvan in denying certification. In Feld v. Berger,
The defendants are public officials charged with compliance with and enforcement of federal as well as state laws. The Court assumes these public officials, mindful of their responsibilities, will apply the determination here made equally to all persons similarly situated. [I]t would be unthinkable that the ... defendants would insist on other actions being brought to vindicate the same rights at issue here.
Id. at 1363 (internal quotation marks and citations omitted, alteration in original). See also Kow v. New York City Hous. Auth.,
On the other hand, a number of lower courts have distinguished Galvan and granted class certification. In Blecher v. Department of Hous. Pres. and Dev. of the City of New York, No. 92 Civ. 8760,
The Second Circuit has held that one seeking class action status under Rule 23(b)(2) not only must meet the minimum prerequisites for a class action under Rule 23(a), but also must present additional reasons for obtaining certification of the class under 23(b) and 23(c).
s¡: * *
Courts have focused on four factors in determining whether class certification is necessary under Galvan. First, notwithstanding the presumption that government officials will abide by a court’s decision as to similarly situated individuals, an affirmative statement from the government defendant that it will apply any relief across the board militates against the need for class certification.
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Second, withdrawal of the challenged action or non-enforcement of the challenged statute militates against the need for class certification.
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Third, the type of relief sought can affect whether class certification is necessary. Courts have found that where the relief sought is merely a declaration that a statute or policy is unconstitutional, denial of class certification is more appropriate than where plaintiffs seek complex, affirmative relief.
Fourth, courts also consider whether the claims raised by plaintiffs are likely to become moot, making class certification necessary to prevent the action from becoming moot.
Many cases distinguish Galvan on the basis of the type of relief sought — namely prohibitory or affirmative. See, e.g., Folsom v. Blum,
The distinction between prohibitory and affirmative relief is somewhat illusory. If the relief sought automatically benefits the putative class members, there is no reason why Galvan should not apply. What matters is whether class members will automatically benefit without any additional action on their part. Thus, the more important inquiry is the level of commitment expressed by the defendants.
In Cutler v. Perales,
defendants have made no representation of willingness to change internal procedures to ensure compliance with a ruling for plaintiff. Because this litigation challenges a wide range of practices divided between two government agencies, enforcement might be difficult. In addition, most putative class members are either old or infirm and could not as effectively bring separate enforcement actions. Therefore, a class action is preferable____
Id. at 47. See also Brown v. Giuliani,
Here, defendants have not expressed a willingness to apply a ruling by this Court to all those similarly situated to the named plaintiffs. While defendants have denied commonality at the class certification stage, this does not prohibit them from subsequently agreeing to give any judgment class-wide effect. But see Bishop v. New York City Dep’t of Hous. Pres. and Dev.,
IV. CONCLUSION
For the foregoing reasons, the class proposed by the plaintiffs is hereby certified under Rules 23(a) and 23(b)(2). A conference is scheduled for February 2, 2001 at 3:00 p.m.
SO ORDERED:
Notes
. The SCU is an elite squad of police officers whose mission is to interdict violent crime in New York City and, in particular, remove illegal firearms from the streets. See Third Amended Class Action Complaint for Declaratory and Injunctive Relief and Individual Damages (“Cmplt") 1143.
. In addition to a class-wide judgment declaring the SCU’s policy, practice and/or custom of suspicionless stops and frisks to be unconstitutional, plaintiffs seek an Order:
(i) enjoining the SCU from continuing its policy, practice and/or custom of suspicionless stops and frisks;
(ii) enjoining the SCU from continuing its policy, practice and/or custom of conducting stops and frisks based on racial and/or national origin profiling;
(iii) enjoining the use of formal or informal productivity standards or other de facto quotas for arrests and/or stops and frisks by SCU officers;
(iv) requiring the City, Safir and Giuliani to institute and implement improved policies and programs with respect to training, discipline, and promotion designed to eliminate the SCU’s policy, practice and/or custom of suspicionless stops and frisks;
(v) requiring the City, Safir and Giuliani to institute and implement more effective methods to screen applicants to the SCU, including the use of psychological testing and evaluations;
(vi) requiring the City, Safir and Giuliani to deploy SCU teams with appropriate and adequate supervision;
(vii) requiring the City, Safir and Giuliani to institute and implement appropriate measures to ensure compliance with departmental directives that SCU officers complete UF-250’s on each and every stop and frisk they conduct....
Cmplt WHEREFORE Clause, H b.
. Unless otherwise indicated, the class allegations are taken from plaintiffs’ Third Amended Complaint and are assumed true for purposes of this motion. See Eisen v. Carlisle & Jacquelin,
. Surprisingly, plaintiffs did not include the Attorney General’s report as one of their numerous exhibits to the affidavits submitted in support of class certification. Accordingly, plaintiffs are directed to submit this Report to the Court forthwith so that the figures cited by plaintiffs can be independently verified.
. While Rule 23 does not authorize a court to inquire into the merits of a suit, the court may go beyond the pleadings and consider the range of proof necessary to support class certification. See Falcon,
. Nor is plaintiffs’ proposed class overbroad because it may include persons other than black and Latino males. The class sought to be certified includes all persons subjected to suspicion-less stops by the SCU. The fact that minorities who have been subjected to suspicionless stops based on their race and/or national origin can be seen as a subset of this wider class does not mean that the proposed class is overbroad. What it does mean is that this Court should consider whether to certify subclasses pursuant to Rule 23(c)(4).
. In this regard, defendants cite, inter alia, the following transgressions: counsel’s simultaneous representation of a putative class of clients with claims potentially adverse to those of the named plaintiffs here in Latino Officers Ass'n v. City of New York, 99 Civ. 9568(LAK); improprieties regarding the use of the photo array; plaintiffs' inadequate responses to certain discovery requests; failure to guard against a possible breach of confidentiality; counsel’s communications with their present clients; improper coaching; and failure to pay the pro hac vice fee. See Def. Mem. at 18-20.
. Defendants’ other challenges to the adequacy of the class representatives are lacking in merit and not worthy of further discussion.
. Nor do Daniels’ alleged mental incompetence or Baskin's outstanding warrant disqualify them from serving as class representatives. Mental retardation is not an automatic disqualifier, even where the class does not consist of mentally retarded persons. See Turner v. Diversified Adjustment Serv., Inc. No. 00 Civ. 463,