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finding necessity for fact intensive inquiry at odds with ascertainability
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03 Civ. 735 (WHP).
March 23, 2005
Jonathan C. Moore, Esq., New York, New York, Attorneys for Plaintiffs.
Christine C. Burgess, Esq., New York, New York, Attorneys for Defendants.
MEMORANDUM AND ORDER
This putative class action concerns the arrest of demonstrators during the 2002 World Economic Forum ("WEF") in New York City. Plaintiffs assert federal civil rights claims for violations of their First, Fourth and Fourteenth Amendment rights. Plaintiffs also assert pendent state law claims pursuant to 28 U.S.C. § 1367. Plaintiffs move to certify two proposed classes pursuant to Rules 23(a) and (b)(3) of the Federal Rules of Civil Procedure. The proposed classes consist of: (1) WEF demonstrators arrested for minor offenses who were eligible for desk appearance tickets ("DATs") but were detained for significant periods of time for arraignment (the "DAT Class"); and (2) demonstrators arrested for petty offenses who were subjected to excessive handcuffing (the "Handcuff Class"). For the following reasons, plaintiffs' motion is granted in part and denied in part.
BACKGROUND
In the wake of the September 11th terrorist attacks, the WEF selected New York City for its 2002 annual gathering of world leaders and corporate executives. (Declaration of Christine C. Burgess, dated Jul. 27, 2004 ("Burgess Decl.") Ex. A: Deposition of New York City Police Inspector Thomas Graham, dated Jan. 30, 2003, art 11-12; Ex D: Barry, Dan, "Forum in New York: Protests; A Little Violence and Lots of Police Equal 150 Arrests," N.Y. Times, Feb. 4, 2004.) In late January 2002, demonstrators from various protest groups converged on Manhattan for the WEF. (Burgess Decl. Ex. D; Ex. E: Police Report Concerning WEF Arrests.)
Plaintiffs were arrested during two different incidents on February 3, 2002: an animal rights march that ended with arrests at Third Avenue and Sixtieth Street and a "snake march" that ended with arrests in the vicinity of Second Avenue and Fourteenth Street. They were charged with disorderly conduct, unlawful assembly and parading without a permit, and transported to the Brooklyn Naval Yard or 120 Schermerhorn Street in Brooklyn for processing. (Affirmation of Jonathan C. Moore, dated June 11, 2004 ("Moore Aff.") Exs. 1-2: arrest records; Burgess Decl. Ex. E; First Amended Complaint ("Complaint" or "Compl.") ¶¶ 97, 99.)
According to the Complaint, plaintiffs were held in custody for over twenty-four hours, and some were detained for as long as sixty hours. (Compl. ¶ 101.) Plaintiffs maintain, however, that they should have been released within a few hours pursuant to the New York City Police Department's DAT policy. (Compl. ¶¶ 81, 85.) Under that policy, persons arrested on minor charges who are carrying proper identification and have no outstanding arrest warrants are eligible to receive a DAT. (Compl. ¶ 81.) People who receive DATs typically spend only a few hours in custody, and are required to appear in court at a later date. (Compl. ¶ 81.) By contrast, arrestees held for arraignment are typically detained for at least twenty-four hours. (Compl. ¶¶ 81, 83.)
Plaintiffs maintain that they were not considered for DATs because a Departmental policy prohibited their issuance "for any offense committed at or in connection with a demonstration or similar event at which more than twenty people are participating. All persons arrested at such events must be processed on line [i.e., detained for arraignment]." (Compl. ¶ 87.) According to the Complaint, the policy was directed at individuals arrested during political demonstrations. (Compl. ¶¶ 81, 83.) Therefore, plaintiffs assert that they were singled out because they participated in a political protest. (Compl. ¶ 100.)
Plaintiffs also allege that they were handcuffed with plastic manacles behind their backs, which "result[s] in tighter cuffing and as a result more physical pain to the person cuffed." (Compl. ¶ 105.) Plaintiffs further allege that they remained handcuffed even after they were confined to cells, with many arrestees handcuffed for ten hours or more. (Compl. ¶ 105.) They assert that the excessive handcuffing was part of a policy or practice that penalized political demonstrators. (Compl. ¶ 72, 76.)
DISCUSSION
I. Class Certification Standard
Rule 23 of the Federal Rules of Civil Procedure governs class actions. Parker v. Time Warner Entm't Co., L.P., 331 F.3d 13, 18 (2d Cir. 2003); accord Benner v. Becton Dickinson Co., 214 F.R.D. 157, 162 (S.D.N.Y. 2003). The Supreme Court has instructed that district courts are to conduct a "rigorous analysis" to ascertain whether the requirements of Rule 23 have been satisfied. See Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161 (1982); accord Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999). Although Rule 23 must be liberally construed, Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997), the party seeking to certify a class bears the burden of establishing the prerequisites of Rule 23. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997); Caridad, 191 F.3d at 291.
There are two prerequisites for a class action. See Fed R. Civ. P. 23. First, the party seeking class certification must demonstrate that the proposed class meets the four requirements of Rule 23(a): (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. Fed.R.Civ.P. 23(a); In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir. 2001); Caridad, 191 F.3d at 291; Benner, 214 F.R.D. at 162. Second, the party seeking class certification must show that the proposed class action falls within one of the types maintainable under Rule 23(b) because: (1) prosecution of separate actions by individual parties would create a risk of either inconsistent adjudications or would be dispositive of the interest of those members not parties to the adjudication; (2) defendants have acted or refused to act on grounds generally applicable to the class; or (3) questions of law or fact common to members of the class predominate, and a class action is superior to other available methods for adjudication. Fed.R.Civ.P. 23(b); Visa, 280 F.3d at 133; Caridad, 191 F.3d at 292; Benner, 214 F.R.D. at 163.
In considering a motion for class certification, courts must accept the allegations in the complaint as true. See Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656, 661 n. 15 (2d Cir. 1978) ("[I]t is proper to accept the complaint allegations as true in a class certification motion."); accord Benner, 214 F.R.D. at 163. A court may not examine the merits of the case in a motion for class certification. Visa, 280 F.3d at 133 (citing Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974)); Caridad, 191 F.3d at 291. However, a court may consider material outside the pleadings in determining whether class certification is appropriate. Fox v. Cheminova, Inc., 213 F.R.D. 113, 121-22 (E.D.N.Y. 2003); Kaczmarek v. Int'l Bus. Mach. Corp., 186 F.R.D. 307, 311 (S.D.N.Y. 1999) (citing Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982)). But, notwithstanding a court's ability to look beyond the pleadings, its resolution of a class certification motion may not become "a preliminary inquiry into the merits of the case." Eisen, 417 U.S. at 177. "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Eisen, 417 U.S. at 178 (internal quotations omitted).
II. The DAT Class: Rule 23(a) Requirements
1. Numerosity
Plaintiffs bear the burden of showing that the proposed class is so numerous that joinder of all members is impracticable.See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993). Impracticable does not mean impossible but, rather, merely inconvenient or difficult. See Robidoux, 987 F.2d at 935;Reynolds v. Giuliani, 118 F. Supp. 2d 352, 388 (S.D.N.Y. 2000). Additionally, plaintiffs do not need to provide a precise number of putative class members. See Robidoux, 987 F.2d at 935;Pecere v. Empire Blue Cross and Blue Shield, 194 F.R.D. 66, 69 (E.D.N.Y. 2000) (noting that plaintiffs need not provide "a precise quantification of their class," and may "make common sense assumptions" to support a finding of numerosity); In re Laser Arms Corp. Sec. Litig., 794 F. Supp. 475, 494 (S.D.N.Y. 1989) ("Since the numerosity requirement speaks in terms of impracticability rather than impossibility, plaintiffs need not enumerate the precise number of potential plaintiffs in the class when reasonable estimates will suffice.").
Here, the DAT Class allegedly consists of more than 200 demonstrators arrested during the WEF and detained for significant periods of time despite being eligible for DATs. On its face, the proposed DAT Class satisfies the numerosity requirement because, in this Circuit, a class of forty or more persons is presumptively sufficient. See Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995); see also Korn v. Franchard Corp., 456 F.2d 1206 (2d Cir. 1972) (70 class members sufficient); Mathis v. Bess, 138 F.R.D. 390, 393 (S.D.N.Y. 1991) ("Plaintiffs' identification of at least 120 putative class members demonstrates that the proposed class is so numerous that joinder of all plaintiffs in a single action would be impractical.").
Relying on University Calvary Church v. City of New York, 177 F.R.D. 181 (S.D.N.Y. 1998), defendants argue that the proposed DAT Class is not so numerous that joinder is impracticable. The court in Calvary Church held that a class of 217 persons was not so numerous as to render joinder impracticable because all members of the proposed class could be readily identified. See Calvary Church, 177 F.R.D. at 183. Here, in contrast, many of the potential class members are not readily identifiable because defendants redacted their names from police records during discovery. (See Burgess Decl. Ex. G.) Thus, Calvary Church is inapposite. Because the proposed DAT Class exceeds the Second Circuit's forty-person threshold and the identities of many potential class members cannot easily be ascertained, this Court finds that the DAT Class satisfies the numerosity requirement.
2. Commonality and Typicality
Although enumerated as separate thresholds, "[t]he 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., 126 F.3d at 376. These requirements ensure that "maintenance of a class action is economical and [that] the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence." Marisol A., 126 F.3d at 376 (quoting Falcon, 457 U.S. at 157 n. 13).
The commonality test is satisfied if the plaintiffs' claims share a common question of law or fact. See Marisol A., 126 F.3d at 376. The "typicality requirement 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 . . . irrespective of minor variations in the fact patterns underlying the individual claims." Robidoux, 987 F.2d at 936-37. Commonality does not require that each class member have identical claims, only that at least one common question of fact or law exists. See In re Currency Conversion Fee Antitrust Litig., 224 F.R.D. 555, 562 (S.D.N.Y. 2004). Minor factual variations in the class claims do not necessarily preclude a finding of commonality. See Robidoux, 987 F.2d at 937; Currency Conversion, 224 F.R.D. at 562.
Here, plaintiffs allege several questions of law and fact common to all members of the putative DAT Class, namely: (1) whether the City had a policy or practice of denying DATs to political protestors; and (2) if defendants had such a policy or practice, whether it violated plaintiffs' First, Fourth and Fourteenth Amendment rights. (Compl. ¶¶ 69, 81, 83, 87.) Additionally, these policy and practice claims arise from a single set of operative facts: the arrests of demonstrators during the WEF in New York City between January 31 and February 4, 2002. (Compl. ¶ 69.) Those allegations weigh in favor of finding commonality and typicality. See Daniels v. City of New York, 198 F.R.D. 409, 418 (S.D.N.Y. 2001) (stating that 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 . . . the commonality requirement is satisfied."); see also Baby Neal for and by Kantor v. Casey, 43 F.3d 48, 58 (3d Cir. 1994) ("[C]ases challenging the same unlawful conduct which affects both the named plaintiffs and the putative class usually satisfy the typicality requirement.").
Citing police intake logs, defendants maintain that plaintiffs and potential class members were considered for DATs and in some cases received them. (Defendants' Memorandum in Opposition to Plaintiffs' Motion for Class Certification ("Defs. Mem.") at 18; Burgess Decl. Ex. G: intake logs.) However, plaintiffs only seek to certify a class of arrestees who were not considered for DATs, not a class of all persons arrested during the WEF. (Hearing Transcript, dated Oct. 1, 2004 ("Tr.) at 6-7.) Moreover, it is well settled that minor factual variations in the claims of individual plaintiffs do not undermine the commonality and typicality requirements. See Robidoux, 987 F.2d at 937;Currency Conversion, 224 F.R.D. at 562.
Defendants also contend that the named plaintiffs' claims are not typical of the potential class members' claims because the arrests took place at different times and arrestees were processed at two different facilities. (Defs. Mem. at 24-25.) That argument is without merit. Plaintiffs claim that "their injuries derive from a unitary course of conduct by a single system," namely, application of the alleged DAT policy to individuals who engaged in political protests during the WEF.See Daniels, 198 F.R.D. at 418 (stating that commonality is met "if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members.") (internal quotations omitted);see Baby Neal, 43 F.3d at 56 (same for typicality).
Finally, defendants maintain that plaintiffs cannot prove that the alleged DAT policy concerning political protestors existed. Whether plaintiffs will be able to carry their burden of demonstrating the existence of an unlawful policy or practice is a merits question that is beyond the scope of plaintiffs' motion for class certification. See Eisen, 417 U.S. at 177; Visa, 280 F.3d at 133.
Because the Complaint alleges questions of law and fact common to all members of the proposed DAT Class, which arise from the same course of events, this Court finds that plaintiffs' allegations satisfy the commonality and typicality requirements.
3. Adequacy of Representation
The adequacy requirement entails a two-part inquiry. Plaintiffs must show that: (1) "class counsel is qualified, experienced, and generally able to conduct the litigation," In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 290 (2d Cir. 1992); and (2) the interests of the named plaintiffs are not antagonistic to those of the class members. See Amchem Prods., 521 U.S. at 625-26; In re Drexel Burnham, 960 F.2d at 290; Hirschfeld v. Stone, 193 F.R.D. 175, 183 (S.D.N.Y. 2000).
The parties do not dispute the competence of plaintiffs' counsel. As to the second element, the named plaintiffs contend they are adequate representatives because they were subjected to the same unconstitutional DAT policy or practice as potential class members. (Plaintiffs' Memorandum of Law in Support of Motion for Class certification ("Pls. Mem.") at 19.) Where the named plaintiffs and class members were allegedly subject to the same unlawful conduct, the named plaintiffs would adequately represent the class. See Hirschfeld, 193 F.R.D. at 183.
Defendants counter that the named plaintiffs' interests are necessarily inimical to the interests of class members who: (1) received DATs; or (2) failed to provide personal identification; or (3) filed separate actions against the City but alleged no DAT policy; or (4) were taken to precincts, rather than the Brooklyn locations, for processing. (Defs. Mem. at 26-27.)
The Second Circuit has held that "not every potential disagreement between a representative and class members will stand in the way of a class suit." Visa, 280 F.3d at 145. Rather, "the conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental." Visa, 280 F.3d at 145 (emphasis added). While defendants state that there are several potential conflicts, they do not articulate why, specifically, the named plaintiffs' interests are at odds with those of the class members mentioned above. The Second Circuit has cautioned that, at the class certification stage, "speculative conflict should be disregarded." Visa, 280 F.3d at 145; accord Cokely v. New York Convention Ctr. Operating Corp., No. 00 4637 (CBM), 2004 WL 1152531, at *7 (S.D.N.Y. May 21, 2004).
Defendants' conclusory assertions raise a hypothetical, rather than an actual, conflict. See Daniels, 198 F.R.D. at 419 ("[I]t is well settled that the mere existence of individualized fact questions with respect to a named plaintiff's claims will not bar class certification."); see also In re Joint Eastern and Southern Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir. 1996) (rejecting inadequacy of representation argument where there was no showing that plaintiffs' claims were antagonistic to those of other class members). Moreover, should a conflict between the named plaintiffs and any class members later become apparent, those class members will have the ability to opt out under Rule 23(c)(2)(B). See County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1304-05 (2d Cir. 1990) (stating that the district court retains discretion to allow class members to opt out "to facilitate the fair and efficient conduct of the action.")
This Court concludes that both class counsel and the named plaintiffs are adequate representatives for the DAT Class.
III. The DAT Class: Rule 23(b)(3) Requirements
Rule 23(b)(3) allows for certification of a class if:
the court finds that the questions of law or fact common to the members of the class pre-dominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.
1. Predominance
"The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem, 521 U.S. 632; Visa, 280 F.3d at 136. "In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, . . . predominate over those issues that are subject only to individualized proof." Visa, 280 F.3d at 136 (internal quotations omitted). "The predominance requirement calls only for predominance, not exclusivity, or common questions." Shelter Realty, 75 F.R.D. at 37. Predominance is generally satisfied along with typicality unless "it is clear that individual issues will overwhelm the common questions." In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 517 (S.D.N.Y. 1996).
There is an issue of fact common to the DAT Class: namely, whether defendants employed a policy or practice of failing to consider political protestors eligible for DATs. See supra Section II. 2. A common question of law also exists: whether such a policy or practice violated plaintiffs' First, Fourth and Fourteenth Amendment rights. See supra Section II. 2. These common questions of law and fact satisfy Rule 23(b)(3)'s predominance requirement. See Hirschfeld, 193 F.R.D. at 184 ("This lawsuit centers around defendants' practice regarding Fitness Reports and the types of information contained therein; the specific facts regarding each plaintiff contained in those reports are secondary."); see also Bynum v. Dist. of Columbia, 214 F.R.D. 27, 39-40 (D.D.C. 2003) (predominance requirement satisfied where plaintiffs raised "one common question of fact (whether defendant has detained the class members later than their scheduled release date) and at least one common question of law (whether these alleged overdetentions violate the Fourth, Fifth, and Eighth Amendments).").
Defendants argue that predominance is lacking because some potential class members were considered for DATs and several others actually received them. (Defs. Mem. at 28-29.) While defendants' contention may undermine the merits of some putative class members' claims, it is not fatal to predominance. The Second Circuit has held that "the fact that a defense `may arise and may affect different class members differently does not compel a finding that individual issues predominate over common ones.'" Visa, 280 F.3d at 138 (quoting Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000)). The core issue is whether the police decided that persons arrested at the WEF protests would be ineligible for DATs. (Tr. at 8.) The pervasiveness of that issue satisfies the predominance requirement. See Maneely v. City of Newburgh, 208 F.R.D. 69, 78 (S.D.N.Y. 2002) ("There is a common issue at the core of this case — whether defendants maintained an unconstitutional . . . search policy. . . . Whether defendants are collaterally estopped from arguing that they maintained a constitutional policy . . . also presents a common legal issue. I find that these common issues represent `a sufficient constellation of common issues bind[ing] the class members together.'") (quoting Visa, 280 F.3d at 138).
2. Superiority
For certification under Rule 23(b)(3), a court must be convinced that maintaining the action as a class action is superior to other methods of adjudication. See Fed.R.Civ.P. 23(b)(3); Hirschfeld, 193 F.R.D. at 184. Courts consider four non-exclusive factors for superiority: (1) the interest of the class members in individually controlling the prosecution or defense of separate actions; (2) the extent of litigation concerning similar issues already commenced by or against members of the class; (3) the desirability of litigating the action in this forum; and (4) difficulties in managing the case as a class action. See Fed.R.Civ.P. 23(b)(3).
Plaintiffs argue that individual class members have little incentive and face considerable hurdles in prosecuting their claims on an individual basis. (Pls. Mem. at 24.) This Court agrees. "[C]lass treatment is appropriate in situations such as the present case, in which the individual claims of many of the putative class members are so small that it would not be economically efficient for them to maintain individual suits."Bynum, 214 F.R.D. at 40; see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) ("[C]lass actions . . . permit the plaintiffs to pool claims which would be uneconomical to litigate individually."); Anderson v. Cornejo, 199 F.R.D. 228, 243 (N.D. Ill. 2000) (finding class action superior in case where, if liability was proven, many of the plaintiffs would not be entitled to large amount of damages).
Defendants contend that a class action would not be a superior means of adjudication, as demonstrated by the fact that a number of potential class members have filed separate actions arising out of the 2002 WEF demonstrations. (Defs. Mem. at 30.) However, those actions do not challenge the existence or unconstitutionality of the DAT policy. (Pls. Mem. at 24; Defs. Mem. at 30-31.) Accordingly, the interest of putative DAT Class members in individually controlling the prosecution of separate actions does not undermine the efficacy of continuing this proceeding as a class action. Therefore, this Court finds that plaintiffs have satisfied the superiority requirement of Rule 23(b)(3).
For the foregoing reasons, plaintiffs' motion to certify the DAT Class pursuant to Rules 23(a) and (b)(3) is granted.
III. The Handcuff Class
In addition to the express requirements for class certification discussed above, Rule 23 contains an implicit requirement that the proposed class be "precise, objective and presently ascertainable." Simer v. Rios, 661 F.2d 655, 669 (7th Cir. 1981) ("It is axiomatic that for a class action to be certified a `class' must exist."); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (holding that it is "elementary that in order to maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable."). "Thus, a proposed class must be clearly defined so that it is `administratively feasible for a court to determine whether a particular individual is a member.'" Daniels, 198 F.R.D. at 414 (quoting Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y. 1983)). This implicit condition is often referred to as the "definiteness requirement." See Neumont v. Monroe County, Fla., 198 F.R.D. 554, 557 (S.D. Fla. 2000). That requirement is critical to the calculus of whether a class should be certified "because it `identifies the persons (1) entitled to relief, (2) bound by the judgment, and (3) entitled to notice in a Rule 23(b)(3) action.'" Anderson v. Capital One Bank, 224 F.R.D. 444, 450 (W.D. Wis. 2004) (quoting Manual for Complex Litigation § 30.14 (3d ed. 1999)).
Defendants contend that plaintiffs have failed to define the putative Handcuff Class with sufficient precision to satisfy the definiteness requirement. (Tr. at 14-15.) This Court agrees. The Complaint defines the Handcuff Class to include arrestees who were subject to excessive handcuffing with "plastic cuffs, not the metal cuffs normally assigned to police officers of the NYPD." (Compl. ¶ 105.) Plaintiffs assert that the handcuffing to which they were subject was unreasonable and excessive because of the "manner in which the handcuffs were applied and the length of time in which [they] and the members of the plaintiff class were handcuffed." (Compl. ¶ 105-06.)
That amorphous description provides no clear definition for what is meant by "unreasonable" or "excessive" handcuffing. Indeed, plaintiffs' counsel was unable to refine the definition in response to the Court's inquiry concerning the contours of "unreasonable" cuffing:
I think it is not really a question of time as much as was there something about the whole way that these arrests were processed that resulted in a longer time than therein otherwise would have been for other arrests.
(Tr. at 22.) Plaintiffs' counsel continued that whether the handcuffing was unreasonable "is a function of time and tightness." (Tr. at 22.) Such an elastic definition requires this Court to delve into the specific conditions under which plaintiffs were handcuffed, as demonstrated by their suggestion that this Court allow expert discovery on the issue. (Tr. at 23-24.) The necessity for such an inquiry is at odds with the definiteness requirement. See Daniels, 198 F.R.D. at 414 ("The court must be able to make [the definiteness] determination without having to answer numerous fact-intensive questions." (internal quotations omitted)).
Plaintiffs' definition for the Handcuff Class is also subjective, as it requires potential class members to assess whether they were cuffed so tightly as to make the police's actions unreasonable. (See Compl. ¶ 105; Tr. at 22.) A class whose definition hinges on subjective determinations is incompatible with Rule 23's definiteness requirement. See Earnest v. Gen. Motors Corp., 923 F.Supp. 1469, 1474 (N.D. Ala. 1996) ("Because the class definition offered by the plaintiffs could potentially mean anything the plaintiffs want it to mean at any particular time, it would be virtually impossible to determine membership in the class."); see also DeBremaecker, 433 F.2d at 734 (holding that class defined as "residents of this State active in the `peace movement' who have been harassed and intimidated as well as those who fear harassment and intimidation in exercising their First Amendment right of free expression in the form of passing out leaflets in furtherance of their cause . . . does not constitute an adequately defined or clearly ascertainable class.").
Accordingly, plaintiffs motion to certify the Handcuff Class is denied because it is too vague to be clearly ascertainable.
CONCLUSION
For the foregoing reasons, plaintiffs' motion to certify the DAT Class is granted. The DAT Class is defined as: "WEF demonstrators arrested for minor offenses who were eligible for Desk Appearance Tickets but were detained for significant periods of time for arraignment." Plaintiffs' motion to certify the Handcuff Class is denied.SO ORDERED.