283 F.R.D. 153 | S.D.N.Y. | 2012
OPINION AND ORDER
1. INTRODUCTION
Police officers are permitted to briefly stop any individual, but only upon reasonable suspicion that he is committing a crime.
The right to physical liberty has long been at the core of our nation’s commit
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.”
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.
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 ease 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
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
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.
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.12
Because plaintiffs satisfy the legal standard for class certification, their motion is granted.
II. LEGAL STANDARD A. Rule 23(a)
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.
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
“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.”
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 class-wide 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.”
In this context, “the commonality and typicality requirements of Rule 23(a) tend to merge.”
The question of adequacy “entails inquiry as to whether: 1) plaintiffs interests are antagonistic to the interest of other members of the class and 2) plaintiffs attorneys are qualified, experienced and able to conduct the litigation.”
Some courts have added an “implied requirement of ascertainability”
B. Rule 23(b)(2)
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).”
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.”
III. FACTS
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.
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,
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
According to defendants, the NYPD “provides multiple levels of training for officers,”
“The NYPD functions through a chain of command.”
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 source and NYPD employs a hierarchical supervisory structure to effect and reinforce its department-wide policies.”
B. The Centralized Use of Performance Standards and Quotas
Hotly contested, however, is whether the NYPD has set quotas governing the number of stops and summonses that NYPD officers must make on a monthly basis. New York’s Labor Law makes it unlawful for the NYPD to penalize a police officer, expressly or impliedly, for the officer’s failure to meet a summons, arrest, or stop quota.
[wjhile the NYPD requires performance goals, they are specifically expected to be set by a command’s managers and to be met within appropriate legal standards, including stop activity. These performance goals are not necessarily numerical in character and are instead goals to be set and achieved in relation to current crime conditions in an officer’s command. Plaintiffs have made no showing that numerical
Whether the “performance goals” are accurately characterized as “quotas” under the New York Labor Law is surely important to the NYPD and to police officers and their union. But at the class certification stage of this lawsuit, the applicability of that legal definition is much less important than the substantive question of whether or not the unlawful stops of putative class members result from a common source: the department’s policy of establishing performance standards and demanding increased levels of stops and frisks. The preponderance of the evidence shows that the answer to that question is yes.
To begin with, the scope of the NYPD’s stop and frisk program is a result of institutional decisions and directives. Over the fourteen months beginning in January 1998, “NYPD officers documented 174,919 street ‘stops’ on UF-250 forms.”
• In response to questions about the major increase in stops in recent years, Deputy Commissioner Paul Browne has made clear that the Department continues to embrace stops as a central part of its crime-fighting strategy: “stops save lives,” and “[tjhat is a remarkable achievement—5,628 lives saved— attributable to proactive policing strategies that included stops.”
• At a CompStat meeting on July 17, 2008, NYPD Chief of Department Joseph Esposito (who is the highest ranking uniformed member of the force) told the executive officer of the 28th Precinct: ‘Your enf[orcement] numbers are way down ... As an [executive officer] you have to look at that ... If you look at raw number of 250s you are down 50 percent.”
• From 2006 until 2009, Adhyl Polanco worked as a patrol officer in the 41st Precinct. At his deposition, he testified that his commanding officers announced specific quotas for arrests and summons (quotas that rose dramatically between early 2008 and 2009) and for UF-250s, assigned supervisors to patrol with under-performing officers so as to ensure that quotas were met, threatened to reduce overtime for officers who failed to perform well, and reassigned to less desirable posts officers who failed to meet quotas.
• In September and October of 2009, Polanco made audio recordings of the roll calls in the 41st Precinct, which he provided to the Internal Affairs Bureau and plaintiffs provided to the Court. In those roll call meetings, supervisors established specific quotas for summonses and arrests; a union delegate told officers that the union and the NYPD management agreed on a quota of one arrest and twenty summons per month; and a supervisor told officers that the Bronx Borough Commander was yelled at by the Chief of Patrol and others at NYPD headquarters for low summons activity and that officers in the 41st Precinct were expected to increase their summons numbers.
In response to this evidence, defendants point to the testimony of numerous police officers who say that they have not been subject to or aware of quotas to make “a certain number” of stops or arrests or issue “a certain number” of summonses. Other officers say that they were not even aware of productivity standards or asked to increase their number of stops, arrests, and summonses. And many were never subject to or aware of discipline or rewards relating to quotas or productivity standards.
C. Statistical Evidence of Unlawful Stops
NYPD officers are required to fill out a detailed worksheet, called a UF-250, describing the events before and during every stop that they perform. 2.8 million of these forms were filled out between 2004 and 2009 and all of them were compiled in a database—a database that now contains a wealth of information about millions of interactions between police officers and civilians.
Both parties have retained experts to perform extensive statistical analysis of this data. Plaintiffs rely heavily on their expert—Jeffrey Fagan, a Columbia University professor—in order to show that the NYPD has stopped many civilians without reasonable suspicion and unlawfully targets Blacks and Latinos for stops, summonses, arrests, and excessive force.
1. Fourth Amendment Class
• In at least six percent of all documented stops, police officers’ stated reasons for conducting the stop were facially insufficient to establish reasonable suspicion. That is to say, according to their own explanations for their actions, NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009.
• In over 62,000 of those eases, police officers gave no reason other than “furtive movement” to justify the stop. These facially unlawful stops occurred in every precinct in the City—from a low of fourteen such stops in Central Park’s 22nd Precinct and forty-one such stops in Staten Island’s 123rd Precinct to a high of over 3,500 in the western Bronx’s 46th Precinct and East New York’s 73rd and 75th Precincts.
• In over four thousand stops, police officers gave no reason other than “high crime area” to justify the stop. These facially unlawful stops also occurred in every precinct in the City.
• In the 81st Precinct, where Adrian Schoolcraft’s recordings document supervisors repeatedly telling officers to conduct unlawful stops, the percentage of stops that were facially unlawful was below the Citywide average.
• The percentage of documented stops for which police officers failed to list an interpretable “suspected crime” has grown dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009.
• “High crime area” is listed as a justification for a stop in approximately fifty-five percent of all recorded stops, regardless of whether the stop takes place in a precinct or census tract with average, high, or low crime.
• 5.37 percent of all stops result in an arrest; 6.26 percent of stops result in a summons.
• Guns were seized in 0.15 percent of all stops. This is despite the fact that “suspicious bulge” was cited as a reason for 10.4 percent of all stops.
2. Fourteenth Amendment Subclass
• “The racial composition of a precinct, neighborhood, and census tract is a statistically significant, strong and robust predictor of NYPD stop-and-frisk patterns even after controlling for the simultaneous influences of crime, social conditions, and allocation of police resources.”
• Based on Fagan’s analysis of the UF-250s, “the search for weapons is (a) unrelated to crime, (b) takes place primarily where weapons offenses are less frequent than other crimes, and (c) is targeted at places where the Black and Hispanic populations are highest____[T]he search for drug offenders is (a) negatively related to rates of crime or drug offenses specifically, and is (b) concentrated in neighborhoods with high proportions of Black and Hispanic residents.”
• “NYPD stops-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.”
• “Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.”
• Police officers are more likely to list no suspected crime category (or an incoherent
• Police officers are more likely to list the stop justification “furtive movement,” which is a highly nebulous and not particularly probative of crime, when stopping Blacks and Latinos than when stopping Whites.
IV. DISCUSSION
A. Plaintiffs Have Standing to Seek Injunctive Relief
Article III of the Constitution requires that a federal court entertain a lawsuit only if the plaintiff has standing to pursue the relief that she seeks. Concrete injury is a prerequisite to standing and a “plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.”
The Supreme Court emphasized this requirement in City of Los Angeles v. Lyons, when it held that Lyons, who had been subjected to a dangerous chokehold by a Los Angeles police officer, did not have standing to pursue an injunction against the police department’s practice of using chokeholds because his past injury “does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”
Defendants argue that plaintiffs Clarkson, Dennis, and Floyd lack standing to seek injunctive relief.
The simplest way to address defendants’ concern is by noting that David Ourlicht, the fourth plaintiff, indisputably does have standing and that “the presence of one party with standing is sufficient to satisfy Article Ill’s case-or-controversy requirement.”
Finally, as I explained in the Daniels litigation, the frequency of alleged injuries inflicted by the practices at issue here creates a likelihood of future injury sufficient to address any standing concerns.
B. Plaintiffs Satisfy the Four Prerequisites of Rule 23(a)
1. Ascertainability
Defendants argue that the “description of the class must be ‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’ ”
The NYPD repeats this argument despite its unsurprising lack of success for over three decades. In 1979, Judge Charles Haight of this Court was presented with a motion for class certification in the landmark Handschu litigation that sought to curtail unconstitutional behavior by the NYPD, including the surveillance of left wing political groups. Plaintiffs sought to certify a class of “[a]ll
Rule 23 does not demand ascertainability. The requirement is a judicial creation meant to ensure that class definitions are workable when members of the class will be entitled to damages or require notice for another reason.
Defendants repeated their ascertainability argument twenty years after Handschu, in the Daniels case, which sought certification of a nearly identical class to the one sought here. As I explained then, “[bjecause ‘general class descriptions based on the harm allegedly suffered by plaintiffs are acceptable in class actions seeking only declaratory and injunctive relief under Rule 23(b)(2),’ plaintiffs’ proposed class is sufficiently definite to warrant certification.”
Both the Second Circuit and numerous district courts in the circuit have approved of class definitions without precise ascertainability under Rule 23(b)(2).
It would be illogical to require precise ascertainability in a suit that seeks no class damages. The general demarcations of the proposed class are clear—those people unlawfully stopped or who may be stopped by the NYPD—and that definition makes the class sufficiently ascertainable for the purpose of Rule 23(b)(2).
2. Numerosity
Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, “numerosity is presumed at a level of 40 members.”
3. 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 suffered the same injury.’ ”
[P]ay and promotion decisions at WalMart are generally committed to the local managers’ broad discretion ... [who may make employment decisions] with only limited corporate oversight124 ____Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard125 .... 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.126
Judge Richard Posner recently applied the Wal-Mart decision to the claims of Black Merrill Lynch brokers alleging racial discrimination. This was his summary of the Wal-Mart holding:
Wal-Mart holds that if employment discrimination is practiced by the employing company’s local managers, exercising dis*173 cretion granted them by top management ... rather than implementing a uniform policy established by top management to govern the local managers, a class action by more than a million current and former employees is unmanageable.127
Merrill Lynch had a policy of permitting brokers in the same office to form work teams of their choosing and a policy of giving the accounts of departed brokers to existing brokers on the basis of various performance formula. Plaintiffs alleged that the “fraternity” nature of the teaming policy and the rich-get-richer nature of the accounts policy had a disparate impact on Black brokers. Reversing the lower court and granting certification, Judge Posner explained that the two policies
are practices of Merrill Lynch, rather than practices that local managers can choose or not at their whim. Therefore challenging those policies in a class action is not forbidden by the Wal-Mart decision; rather that decision helps (as the district judge sensed) to show on which side of the line that separates a company-wide practice from an exercise of discretion by local managers this case falls.128
The court determined that “the plaintiffs’ claim of disparate impact is most efficiently determined on a class-wide basis rather than in 700 individual lawsuits”
This has long been the Second Circuit’s standard.
As documented above, there can be no dispute that the NYPD has a single stop and frisk program. Defendants concede that the “NYPD’s department-wide policies generate from a centralized source and NYPD employs a hierarchical supervisory structure to effect and reinforce its department-wide policies.”
Plaintiffs allege that their Fourth and Fourteenth Amendment rights are violated as a result of the NYPD’s policies and practices. As they argue, these claims raise “central and core questions of fact and law that, when answered, will resolve all class members’ Monell claims against the City.”
4. Typicality and Adequacy
Defendants make overlapping objections on the basis of typicality and adequacy, and so I address these two Rule 23(a) prerequisites in tandem.
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.”
Here, the four named plaintiffs’ stops arise from the same course of conduct—i.e., the NYPD’s centralized program of stops and frisks—and their legal arguments are precisely the typical ones that are made by others who bring or could bring claims for Fourth and Fourteenth Amendment violations by defendants. The named plaintiffs are vigorously pursuing their claims
Defendants’ argument is twofold: First, “the Court would be required to assess any unique defenses of the defendants before determining liability, which could include a fact-intensive qualified immunity defense” and “the claims of putative class members who cannot identify an NYPD officer involved in the stop will be subject to unique defenses” that threaten to engulf the litigation.
First, courts and juries must always consider defendants’ individual defens
It is true that the parties have not been able to identify the police officers involved in five of the plaintiffs’ eight alleged stops.
This issue does not create a “fundamental” conflict between named plaintiffs and unnamed class members: Indeed, it may be that officers often fail to complete the required UF-250 when they conduct a quick stop and frisk.
The doctrine of unique defenses is intended to protect absent members of the plaintiff class by ensuring the presence of a typical plaintiff. The doctrine is not meant to protect defendants by permitting them to defeat certification because the facts raised by the claims of the representative plaintiffs are not identical to the facts raised by the claims of all putative class members. Because the named plaintiffs’ claims arise from the same policy or practice and the same general set of facts as do the claims of the putative class members, the typicality prong is satisfied.
Defendants’ contention regarding qualified immunity is similarly unavailing:
Second, defendants’ claim that the named plaintiffs cannot represent Latinos is likewise unconvincing. The cases that defendants cite denied certification because the named plaintiffs fell outside the subclass that they sought to represent.
Plaintiffs’ complaints are typical of those of the class and they will fairly and adequately protect the interests of the class. All four prerequisites of Rule 23(a) are met.
C. Class Certification Is Proper Under 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 eases 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.
Defendants close their argument regarding the applicability of Rule 23 with this disturbing statement:
*178 [E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and Monell causation, it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounters____Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect.... An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored ...
Three points must be made in response. First, suspicionless stops should never occur. Defendants’ cavalier attitude towards the prospect of a “widespread practice of suspicionless stops” displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.
Second, it is not readily apparent that if an injunction preventing such widespread practices could be fashioned, it would already have been passed by lawmakers. The twenty-seven members of the Black, Latino and Asian Caucus of the Council of the City of New York who submitted an amicus brief in support of plaintiffs “disagree[ ] strongly with this assertion.”
Third, if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a “judicial intrusion into a social institution” but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.
V. CONCLUSION
Because plaintiffs have satisfied the requirements of Rule 23, their motion for class certification is granted. The clerk is directed to close this motion [Docket No. 165]. A status conference is scheduled for May 29, 2012 at 4:30 p.m.
SO ORDERED:
. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Id. at 9, 88 S.Ct. 1868.
. Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891).
. Yick Wo v. Hopkins, 118 U.S. 356, 367, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (citation and quotation omitted). "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Id. at 373-74, 6 S.Ct. 1064.
. As the Supreme Court has explained, being stopped and frisked "must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 25, 88 S.Ct. 1868.
. The parties use the terms Hispanic/Latino interchangeably.
. "The fact that being stopped is simply a part of life for a young person of color in New York City can only have profound psychological and economic impacts on already disadvantaged communities.” Amicus curiae Brief of the Bronx Defenders, Brotherhood/Sister Sol, the Justice Committee, Picture the Homeless, and Streetwise and Safe in Support of Plaintiffs’ Motion for Class Certification at 8-9.
. Brief of Amicus Curiae the Black, Latino, and Asian Caucus of the Council of the City of New York in Further Support of Plaintiffs' Motion for Class Certification at 3.
. 99 Civ. 1695(SAS).
. See Floyd v. City of New York (“Floyd I"), 813 F.Supp.2d 417 (S.D.N.Y.2011), partial reconsideration granted, 813 F.Supp.2d 457 (S.D.N.Y.2011).
. See Floyd v. City of New York, No. 08 Civ. 1034, 861 F.Supp.2d 274, 2012 WL 1344514 (S.D.N.Y. Apr. 14, 2012) (“Floyd II").
. See Memorandum of Law in Support of Plaintiffs' Motion for Class Certification ("Pl. Mem.”) at 1.
. See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir.2008) ("Teamsters "). 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.”
. Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart"), — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quotation omitted).
. Id. "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.
. Teamsters, 546 F.3d at 202 (quoting Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Sec. Litig.) (“IPO"), 471 F.3d 24, 42 (2d Cir. 2006)).
. Shahriar v. Smith & Wollensky Restaurant Group, Inc., 659 F.3d 234, 251 (2d Cir.2011) (quotation omitted).
. IPO, 471 F.3d at 41.
. Central States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir.2007).
. See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995).
. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993).
. Wal-Mart, 131 S.Ct. at 2551 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)).
. Id.
. Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001)).
. Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir.1997).
. Newman v. RCN Telecom Servs., Inc., 238 F.R.D. 57, 64 (S.D.N.Y.2006).
. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir.2006).
. Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir.2000).
. IPO, 471 F.3d at 30.
. Casale v. Kelly, 257 F.R.D. 396, 406 (S.D.N.Y. 2009).
. William B. Rubenstein et at, Newberg on Class Actions § 3:7 at 1-172 (2011).
. Fed.R.Civ.P. 23 1966 Advisory Committee Note (emphasis added).
. McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.2008).
. 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”)).
. See IPO, 471 F.3d at 41.
. See Defendants' Statement of Undisputed Facts Pursuant to Local Rule 56.1 ("Def. 56.1”) ¶¶ 191-246; Plaintiffs' Reply Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶¶ 191-246; Plaintiffs' 56.1 Additional Facts ("PAF”) ¶¶ 166-198.
. See Def. 56.1 ¶¶2-59; Pl. 56.1 ¶¶2-59; PAF ¶¶ 1-54.
. See Def. 56.1 ¶¶ 247-301; Pl. 56.1 ¶¶ 247-301; PAF ¶¶ 159-165. Cf. PAF ¶¶ 55-100 (presenting facts to support plaintiffs' allegations that top-down pressure to increase enforcement activity and stop/summons/arrest quotas lead to widespread unconstitutional stops).
. See Floyd. I, 813 F.Supp.2d at 429. The debate at the summary judgment stage centered on whether the NYPD’s official policies aimed at ensuring the constitutionality of stops were properly implemented in practice.
. See 4/29/09 Letter from Police Commissioner Raymond W. Kelly to Christine C. Quinn, Speaker, New York City Council, App’x G to Report of Jeffrey Fagan ("Fagan Report”) [Docket No. 132]; 11/23/09 Deposition of Joseph Esposito (“Esposito Dep."), Ex. 11 to Declaration of Darius Charney (“Charney Decl.”), plaintiffs' counsel, at 364:10-365:6 (explaining that Commissioner Kelly "has the last word” on the stop and frisk policy).
Plaintiffs have submitted a sworn affidavit from New York State Senator Eric Adams, who retired as a police captain after more than twenty years of service in the NYPD. Senator Adams says that in July 2010 he met with Commissioner Kelly to discuss proposed legislation regarding stop and frisk practices and that during the meeting "Commissioner Kelly stated that the NYPD targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less likely to carry weapons.” Affidavit of Eric Adams, Ex. 10 to Charney Decl., ¶ 5. Commissioner Kelly denies Senator Adams’ claim: "At that meeting I did not, nor would I ever, state or suggest that the New York City Police Department targets young black and Latino men for stop and frisk activity. That has not been nor is it now the policy or practice of the NYPD. Furthermore, I said nothing at the meeting to indicate or imply that such activity is based on anything but reasonable suspicion. At the meeting, I did discuss my view that stops serve as a deterrent to criminal activity, which includes the criminal possession of a weapon.” Declaration of Raymond W. Kelly, Ex. A to Declaration of Heidi Grossman ("Gross-man Decl.”), Assistant Corporation Counsel, in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification, ¶¶ 3-4.
. “One of the key features of NYPD oversight is the CompStat process.... COMPSTAT, which is short for COMPuter STATistics or COMParative STATistics, is the name given to the NYPD’s accountability process and has since been replicated in many other departments. CompStat is a multilayered dynamic approach to crime reduction, quality of life improvement, department oversight and personnel and resource management and employs Geographic Information Systems, which map crime and identify high-crime and problematic areas.” Def. 56.1 ¶¶ 92-93.
. Id. ¶ 143.
. Id. ¶ 114.
. See id. ¶ 135. See generally id. ¶¶ 92-152.
. See id. ¶ 134.
. Id. ¶ 72.
. Id. ¶ 271.
. Id. ¶ 191.
. See id. ¶ 195.
. See id. ¶ 203.
. See id. ¶¶ 207-222.
. Id. ¶ 247.
. See id. ¶¶ 281-292, 307-308. "Search and seizure allegations relating to stop and frisk fall under the abuse of authority jurisdiction.” Id. ¶ 317.
. Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification ("Def. Mem.”) at 8.
. See N.Y. Lab. L. § 215-a. A “quota” is defined as "a- specific number of” tickets, summons, or stops. Id.
. Def. Mem. at 14-15.
. The New York 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, Ex. 117 to Declaration of Darius Charney in Support of Plaintiffs' Opposition to Defendants' Motion for Summary Judgment ("Charney SJ Decl.”) at 91.
. See Fagan Report at 19; Sean Gardiner, Stop-and-Frisks Hit Record in 2011, Wall St. J., Feb. 14, 2012, at A21. In the first three months of 2012, the NYPD stopped eleven percent more people than it did in the first three months of 2011. See Al Baker, New York Police Release Data Showing Rise in Number of Stops on Streets, N.Y. Times, May 13, 2012 at A19.
. 10/17/11 Police Officer Performance Objectives Operations Order, Ex. 12 to Charney Decl., at 1.
. Id. at 3.
. Id. at 5.
. Gardiner, Stop-and-Frislcs Hit Record in 2011.
. NYC_2_7010-7017, Ex. 47 to Charney SJ Decl. Plaintiff Deon Dennis was stopped by officers from the 28th Precinct.
. See NYC_2_00007026, Ex. 48 to Charney SJ Decl.; PAF ¶ 56.
. 10/14/09 Deposition of Dwayne Montgomery ("Montgomery Dep.”), Ex. 6 to Charney SJ Decl., at 202:4, 14-15; 209:4-9.
. See Deposition of Adhyl Polanco ("Polanco Dep.”), Ex. 76 to Charney SJ Decl., at 22-36.
. See PAF ¶¶ 64-69 and the evidence cited therein. At his deposition, Polanco testified that he believed the NYPD "absolutely” has a problem with racial profiling: "I work in a minority community and what we do to people in the South Bronx you would never do to people in midtown Manhattan.... Illegally searching, ille
. See CD Bates-numbered PL000093, Ex. 1 to Affirmation of NYPD Officer Adrian Schoolcraft ("Schoolcraft Aff."), Ex. B to Declaration of Taylor Hoffman, plaintiffs’ counsel, in Support of Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment. The following is a small sampling of the statements made by supervisors that can be heard on the tapes. Lieutenant Delafuente, July 15, 2008: "I want a couple of 250s out of there please, alright?” Deputy Inspector Mauriello, October 31, 2008 (Halloween night): "And they got any bandanas around their necks, Freddy Krueger masks, I want them stopped, cuffed, alright, brought in here, run for warrants. They're juveniles, we’re gonna leave 'em in here 'till their parents come and pick 'em up.” Sergeant Stakes, November 23, 2008: "If they're on a corner, make ’em move. They don't wanna move, lock 'em up. You can always articulate [a charge] later.” Sergeant Stakes, December 8, 2008: "You're gonna be 120 Chauncey [St.]. You’re gonna be [in a?], uh, vehicle out there. Shake everybody up. Anybody moving, anybody coming out of that building—[UF] 250”; “You're gonna be Howard and Chauncey 1900, post one. Same thing. Two, three [inaudible]. Everybody walking around. Stop em. 250-em”; "Anybody walking around, shake ’em up, stop ’em, 250-em, doesn’t matter what it takes.” Lieutenant Delafuente, January 13, 2009: "Chief [of Transportation Michael] Scagnelli, three star chief, at traffic stat today ... he says to two commanders 'How many ... superstars and how many losers? ... Then he goes down and asks how many summonses per squad?' ”
. See Reply Declaration of Heidi Grossman in Support of Defendants' Motion for Summary Judgment ¶ 21 [Docket No. 142].
. See 10/17/11 Police Officer Performance Objectives Operations Order, Ex. 12 to Charney Decl.
. See Fagan Report and Supplemental Report of Jeffrey Fagan ("Supp. Rep.”) [Docket No. 132],
. See Wal-Mart, 131 S.Ct. at 2541 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).
. See Floyd II, 861 F.Supp.2d 274, 2012 WL 1344514.
. See id. at 293-300, 2012 WL 1344514, at *14-*19
. I say "at least” because a significant number of the 400,000 stops that include only an "Other” indicator of suspicion on Side 1 of their UF-250 are also facially insufficient; these do not include any of the 170,000. See Floyd II, 861 F.Supp.2d at 293-96, 2012 WL 1344514, at *14-*16. However, neither party has yet convincingly explained to the Court how to properly estimate how many of those 400,000 are facially insufficient.
As I discussed at length in my Daubert evaluation of Fagan's report, I recognize that the legality of an individual stop cannot be determined on the basis of the corresponding UF-250 alone: a lawful stop is not made unlawful simply because the police officer fails to fill out the paperwork properly and an unlawful stop is not made lawful because the police officer fills out the paperwork dishonestly or inaccurately. See Floyd II, 861 F.Supp.2d at 290-92, 2012 WL 1344514, at *11-*12. Nevertheless, it is powerful and probative evidence that police officers themselves have justified 170,000 stops on the basis of legally insufficient criteria.
. See Table 2 to Declaration of Jeffrey Fagan in Support of Plaintiffs' Motion for Class Certification ("Fagan Decl.”); Floyd II, 861 F.Supp.2d at 297, 2012 WL 1344514, at *17.
. See Table 2 to Fagan Decl.; Floyd II, 861 F.Supp.2d at 298 n. 130, 2012 WL 1344514, at *18 n. 130.
. See Table 1 to Fagan Decl.
. See Floyd II, 861 F.Supp.2d at 285 n. 41, 2012 WL 1344514, at *7 n. 41.
. See Fagan Report at 23.
. See id. at 52-55.
. See id. at 63.
. In addition, approximately seventeen percent of summonses from 2004 and 2009 were thrown out by the New York courts as being facially (i.e., legally) insufficient and more than fifty percent of all summons were dismissed before trial. See Stinson v. City of New York, 282 F.R.D. 360 (S.D.N.Y.2012).
. See Fagan Report at 51, 63.
. I recognize that officers may occasionally have some other reason to cite "suspicious bulge,” but guns are surely the most obvious. In addition, I presume that guns are sometimes recovered in instances when "suspicious bulge" is not checked on the UF-250 form.
. Declaration of Jeffrey Fagan in Support of Plaintiffs' Opposition to Defendants' Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan ("Fagan Daubert Decl.”) ¶ 4(a).
. Fagan Report at 34.
. Fagan Daubert Decl. ¶ 4(b). This particular aspect of Fagan’s report has been criticized vehemently by defendants, who argue that it fails to account for who is engaging in crime and, relatedly, who is engaging in suspicious behavior that justifies a stop. See Floyd II, 861 F.Supp.2d at 281-82, 288-91, 2012 WL 1344514, at *4, *10-*11. There are good arguments on both sides of this debate. I do not know if this evidence, standing alone, would be sufficient to certify a Fourteenth Amendment subclass. However, in combination with Fagan’s other findings and plaintiffs' qualitative proof, the preponderance of the evidence clearly supports certification.
. Fagan Daubert Decl. 14(d).
. This occurred in 19.68 percent of stops of Blacks, 18.27 percent of stops of Latinos, and 16.66 percent of stops of Whites. See Report at 23.
. Officers list "furtive movement" in 45.5 percent of stops of Blacks, 42.2 percent of stops of Latinos, and 37.4 percent of stops of Whites. See Fagan Report App’x Table D1. See also Floyd II, 861 F.Supp.2d at 297-98, 2012 WL 1344514, at *17.
. Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
. Lyons, 461 U.S. at 105, 103 S.Ct. 1660.
. See Def. Mem. at 20-21.
. See Declarations of Lalit Clarkson, Deon Dennis, David Floyd, and David Ourlicht ("Plaintiffs’ Declarations"), Exs. 2-5 to Charaey Decl.
. Def. Mem. at 20-21.
. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 53 n. 2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006).
. See Affidavit of David Ourlicht, Ex. 5 to Charney Decl., ¶¶ 6-18.
. Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985). Accord Aguilar v. Immigration & Customs Enforcement Div. of the United States Dep't of Homeland Sec., 811 F.Supp.2d 803, 828 (S.D.N.Y.2011) (finding standing in a case where one set of plaintiffs had allegedly been subject to two unlawful searches and other plaintiffs feared repeat injury because the searches were part of defendants’ "condoned, widespread, and ongoing” practice).
. 356 F.3d 211 (2d Cir.2004).
. See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041-42 (9th Cir.1999) (en banc) (stating that the Supreme Court in Spencer v. Kemna, 523 U.S. 1, 15, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) "characterized the denial of Article III standing in Lyons as having been based on the plaintiff's ability to avoid engaging in illegal conduct”).
. See National Congress for Puerto Rican Rights, by Perez v. City of New York, 75 F.Supp.2d 154, 161 (S.D.N.Y.1999) (later renamed Daniels ).
. United States v. Broomfield, 417 F.3d 654, 655 (7th Cir.2005) (Posner, /.) (criticizing the use of the vague term "furtive” and opining that “[w]hether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.").
. Lyons, 461 U.S. at 102, 103 S.Ct. 1660.
. See Forum for Academic and Institutional Rights, Inc., 547 U.S. at 53 n. 2, 126 S.Ct. 1297.
. "[T]here is no per se rule requiring more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury.” Roe v. City of New York, 151 F.Supp.2d 495, 503 (S.D.N.Y.2001).
. Def. Mem. at 16 (quoting 7A Wright, Miller & Kane, Federal Practice and Procedure § 1760).
. Id.
. Handschu v. Special Sens. Div., No. 71 Civ. 2203, 1979 U.S. Dist. Lexis 12148, at *3 (S.D.N.Y. May 25, 1979).
. Id. at *10.
. See IPO, 471 F.3d at 30. Defendants cite to Forman v. Data Transfer, 164 F.R.D. 400, 403 (E.D.Pa.1995) for support, but that decision concerned a proposed (b)(3) class that sought individual damages. The need for ascertainability in (b)(1) or (b)(3) cases—or in (b)(2) cases that, preWal-Mart, sought individual damages—has no bearing on the need for such ascertainability in (b)(2) cases seeking only injunctive relief for the class.
. Fed.R.Civ.P. 23 1966 Advisory Committee Note (emphasis added).
. William B. Rubenstein et al., Newberg on Class Actions § 3:7 at 1-172 (2011).
. Daniels v. City of New York, 198 F.R.D. 409, 415 (S.D.N.Y.2001) (quoting Wanstrath v. Time Warner Entm't Co., No. 93 Civ. 8538, 1997 WL 122815 (S.D.N.Y. Mar. 17, 1997)). Defendants argue that Daniels was more narrow in scope because it addressed only the stop and frisk practices of one unit of the NYPD. See Def. Mem. at 17-18. But the smaller number of people stopped by the Street Crimes Unit (18,000 in 1997) has no impact on the ascertainability question. The court cannot (and need not) determine which of the class members’ stops were lawful, whether the number in question is 18,000 or 2.8 million.
. See Marisol v. Giuliani, 126 F.3d 372 (2d Cir.1997) (certifying a class of children who "are or will be at risk of neglect or abuse and whose status is or should be known to” a City agency). See also, e.g., Biediger v. Quinnipiac Univ., No. 09 Civ. 621, 2010 WL 2017773, at *7 (D.Conn. May 20, 2010) (certifying a class of all present and future female students who "want to end Quinnipiac University’s sex discrimination” even though ascertaining who will be a future student and what these students will want is of course impossible); Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL 4104460, at *18 (E.D.N.Y. Aug. 26, 2008) (certifying a class of "all individuals who (1) suffer from mental illness ...” and explaining that "because only declaratory and injunctive relief is sought, individual assessments of disability need not be made"); Finch v. New York State Office of Children & Family Servs., 252 F.R.D. 192, 203 (S.D.N.Y. 2008) ("Rule 23(b)(2) classes need not be precisely defined”).
. Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir.2004).
. Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir.1972) ("notice to the members of a (b)(2) class is not required and the actual membership of the class need not therefore be precisely delimited"). Accord Baby Neal v. Casey, 43 F.3d 48, 54 (3d Cir.1994) (certifying tire entirely unascertainable class of “all children in Philadelphia who have been abused or neglected and are known or should be known to the Philadelphia Department of Human Services”).
. Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995).
. Def. Mem. at 18.
. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir.1993) ("Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement.”).
. Fed.R.Civ.P. 23 1966 Advisory Committee Note.
. Wal-Mart, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 157, 102 S.Ct. 2364).
. Id. at 2547.
. Id.
. Id. at 2553.
. Id. at 2555.
. McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488 (7th Cir.2012).
. Id. at 490.
. Id.
. See Pl. Mem. at 12.
. Marisol A., 126 F.3d at 377.
. Brown v. Kelly, 609 F.3d 467, 468 (2d Cir. 2010) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 146 (2d Cir.2001)). Accord Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y.2008) (“Commonality does not mean that all issues must be identical as to each member, but it does require that plaintiffs identify some unifying thread among the members' claims that warrant[s] class treatment.”) (quotation omitted); Daniels, 198 F.R.D. at 417; D.S. v. New York City Dep't of Educ., 255 F.R.D. 59, 71 (E.D.N.Y.2008).
. Def. Mem. at 8.
. Three weeks ago Judge Robert Sweet of this court certified a class of 620,000 people who were issued summonses by the NYPD between 2004 and 2009 and who had those summonses dismissed for being facially insufficient. See Stinson, 282 F.R.D. 360, 2012 WL 1450553. In Stinson, like in this case and unlike in Wal-Mart, plaintiffs allege "a specific policy promulgated by defendants” (namely that NYPD officers issue summonses without probable cause in order to meet their quotas). See also Morrow v. City of Tenaha, 277 F.R.D. 172, 192-94 (E.D.Tex.2011) (certifying class of Latinos who were stopped for alleged traffic violations and finding commonality in light of statistical evidence showing significant increases in the number of minorities stopped after the adoption of a new police policy); Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 989-90 (D.Ariz.2011) (certifying class of Latino motorists alleging racial profiling and finding that differences in subjective motivations of officers do not defeat commonality or typicality when there is evidence of a departmental policy of violating constitutional rights). Four weeks ago, Judge Katherine Forrest denied plaintiffs’ motion to certify a class of all Latinos in the New York area who have been or will be subject to a home raid operation by Immigration and Customs Enforcement. See Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., No. 07 Civ. 8224, 2012 WL 1344417 (S.D.N.Y. Apr. 16, 2012). Judge Forrest placed significant emphasis on the fact that defendants’ raids on the named plaintiffs' homes took place in 2007 and that there was "no evidence in the record” to suggest that defendants’ practices in 2012 shared commonality with the practices in 2007. Id. at *9. She therefore deemed injunctive relief inappropriate. Here, in contrast, there is ample evidence to show that stop and frisk practices have not changed since the 2004 to 2009 period, except that the numbers of stops have continued to rise. It is also worth noting that Judge Forrest did not emphasize that the lack of commonality in Wal-Mart was based on the company's de-centralized approach to employment decisions. As the courts in Stinson, Morrow, and Ortega-Melendres explained, WalMart’s structure is worlds away from centralized and hierarchical policing practices.
. Def. Mem. at 8 n. 9.
. Some of this material was submitted in order to show that the NYPD was not liable for failure to train, supervise, monitor, and discipline because it in fact has a robust system of training, supervision, monitoring and discipline. I denied summary judgment on this claim because there exist material disputes of fact about the "constitutional sufficiency” of this system, not about its existence. Floyd I, 813 F.Supp.2d at 429.
. I also note that plaintiffs' level of proof here is particularly strong: if plaintiffs in Wal-Mart had produced sixty thousand human resource forms, including forms from every Wal-Mart store in the country, in which supervisors gave facially unlawful reasons for denying women employees raises or promotions, the Supreme Court’s commonality determination may well have been different. As the Wal-Mart Court explained, plaintiffs could establish commonality even in the absence of a centralized employment system by showing " 'significant proof’ that WalMart 'operated under a general policy of discrimination.’ ” Wal-Mart, 131 S.Ct. at 2553 (quoting Falcon, 457 U.S. at 159, 102 S.Ct. 2364).
. Pl.. Mem. at 12. Plaintiffs list four such questions: (1) Whether New York City has a Policy and/or Practice of conducting stops and frisks without reasonable suspicion? (2) Whether the City has a Policy and/or Practice of stopping and frisking Black and Latino persons on the basis of race rather than reasonable suspicion? (3) Whether the NYPD’s department-wide auditing and command self-inspection protocols and procedures demonstrate a deliberate indif
. Adequacy requires both that the plaintiffs themselves be adequate representatives of the class and that the plaintiffs’ counsel be qualified, experienced, and able to conduct the litigation. Defendants do not challenge the second prong and there is no doubt that plaintiffs are in excellent hands. See Charney Decl. ¶¶ 3-12. Defendants' challenge to plaintiffs’ Article III standing, discussed above, was also framed as a problem of adequacy.
. Central States, 504 F.3d at 245 (quoting Robinson, 267 F.3d at 155).
. Marisol A., 126 F.3d at 377.
. In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y.1996).
. Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006).
. In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29, 35 (2d Cir.2009).
. See Plaintiffs’ Declarations.
. "An order requiring defendants to comply with federal and state law in order to remedy the systemic failures that are the source of plaintiffs' claims constitutes relief that would serve the entire putative class.” Marisol A. v. Giuliani, 929 F.Supp. 662, 692 (S.D.N.Y.1996).
. Def. Mem. at 14; see id. at 21-23.
. Id. at 19.
. The court "should not assess any aspect of the merits unrelated to a Rule 23 requirement” and 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. "'The unique defense rule, however, is not rigidly applied in this Circuit, and is intended to protect plaintiff class—not to shield defendants from a potentially meritorious suit.’" Duling v. Gristede's Operating Corp., 267 F.R.D. 86, 97 (S.D.N.Y.2010) (quoting In re NYSE Specialists Sec. Litig., 260 F.R.D. 55, 71 (S.D.N.Y.2009)). Accord Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir.1982) ("If [] defendants were arguing that a district court must determine whether the named plaintiffs have a meritorious claim before they can be certified as class representatives, they would plainly be wrong.”).
. In re Omnicom Group, Inc. Sec. Litig., No. 02 Civ. 4483, 2007 WL 1280640, at *4 (S.D.N.Y. Apr. 30, 2007) (explaining that the court "need not deny certification merely because of the presence of a colorable unique defense”).
. See Plaintiffs’ Declarations.
. See Floyd I, 813 F.Supp.2d 417.
. At a recent conference regarding a related action, one Assistant Corporation Counsel informed me that "the UF-250s, they're not always, you know, made or written.... I suspect for many of the incidents in the complaint, there would not be UF-250s,” although a second Assistant Corporation Counsel said that "that's not the case. When there’s a stop based on a penal law violation or misdemeanor, there will be a UF-250.” 4/17/12 Transcript at 10:7-25 [Docket No. 15], Ligon v. City of New York, No. 12 Civ. 2274.
. Defendant Officer Luis Pichardo, who stopped plaintiff Deon Dennis in the 28th Precinct in January 2008, testified that his supervisors imposed a five summons-per-tour quota on the officers working his tour when he stopped Dennis. Dwayne Montgomery, who was commander of the 28th Precinct at the time, testified that he imposed monthly stop and frisk and summons requirements on all officers and disciplined officers who failed to meet those quotas. See Pichardo Dep., Ex. 68 to Charney SJ Decl., at 218-219 and PAF V 58. Plaintiff David Floyd was stopped by officers from the 43rd precinct. Chief Esposito told the commander of the 43rd, Charles Ortiz, that his officers did not have enough stops and summonses and Ortiz frequently conveyed that message to his subordinates. See PAF ¶¶ 80-82.
. See Central States, 504 F.3d at 245; Daniels, 198 F.R.D. at 419.
. See Norman v. Connecticut State Bd. of Parole, 458 F.2d 497, 499 (2d Cir.1972); Kenavan v. Empire Blue Cross & Blue Shield, No. 91 Civ. 2393, 1996 WL 14446 (S.D.N.Y. Jan. 16, 1996).
. See, e.g., Leonard v. Southtec, LLC, No. 04 Civ. 72, 2005 WL 2177013 (M.D.Tenn. Sept. 8, 2005) (certifying Black named plaintiffs to represent Blacks and Latinos).
. 131 S.Ct. at 2558. See also Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) ("Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) class actions).
. Def. Mem. at 23-24.
. See James Forman, Jr. Criminal Law: Community Policing and Youth 4s Assets, 95 J.Crim. L. & Criminology 1, at n. 47 (2004) (citing the scholarship of Professors Charles Ogletree, Angela Davis, Pamela Karlan and others who document that the vast majority of people who are unconstitutionally stopped and not charged with any crime will never bring civil actions in court).
. Under the doctrine established in Galvan, 490 F.2d 1255, district courts may decline to certify a class if doing so would not further the implementation of the judgment. See Davis v. Smith, 607 F.2d 535 (2d Cir.1978). As plaintiffs note, the doctrine is only applicable when a defendant affirmatively states that it will apply any remedy across the board. Here, defendants have offered to apply any remedy to “all persons similarly situated to the named plaintiffs” but simultaneously argue that the alleged class members are not similarly situated to the named plaintiffs. "It is plainly inconsistent for Defendants to argue that any relief granted in connection with this action will be applied to benefit every member of the class, while at the same time they contest the existence of commonality and typicality.” Bishop v. New York City Dep't of Hous. Pres, and Dev., 141 F.R.D. 229, 241 (S.D.N.Y. 1992). In addition, because potentially complex City-wide injunctive relief would be more appropriate as a remedy in the context of a class action, there are collateral consequences to denying certification and the Galvan doctrine is inapplicable.
. Brief of Amicus Curiae The Black, Latino and Asian Caucus of the Council of the City of New York in Further Support of Plaintiffs’ Motion for Class Certification at 8.
. United States v. Carolene Prods. Co., 304 U.S. 144, 153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). “If we were to accept the State's argument, we would be enshrining the rather perverse notion that traditional rights are not to be protected in precisely those instances when protection is essential, i.e., when a dominant group has succeeded in temporarily frustrating exercise of those rights. We prefer a view more compatible with the theory of this nation’s founding: rights do not cease to exist because a government fails to secure them. See The Declaration of Independence (1776).” Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 730 (10th Cir. 1980), vacated, 450 U.S. 1036, 101 S.Ct. 1752, 68 L.Ed.2d 234 (1981), aff'd, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 (1983).