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Bame v. Dillard

May 22, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


The five named Plaintiffs*fn2 in this case were arrested on September 27, 2002, in Washington, D.C., and then allegedly "subjected to unlawful strip searches by deputy U.S. Marshals acting under the supervision of Todd Dillard, then the U.S. Marshal for the District of Columbia Superior Court." See Second Am. Compl. ¶ 1. The strip searches, Plaintiffs allege, "were conducted without reasonable, particularized, individualized suspicion in violation of their Fourth Amendment right to be free of unreasonable searches and seizures." Id. They seek to certify a class action, which the Defendant, Marshal Dillard, opposes. For the reasons that follow, Plaintiffs' Motion for Class Certification [Dkt. # 18] will be conditionally granted without prejudice to the renewal of Defendant's objections after the close of discovery.


Plaintiffs were "arrested by members of the D.C. Metropolitan Police Department (MPD), and cooperating police officers at a large scale, widespread, political protest held in Washington, D.C. on September 27, 2002 near the headquarters for the International Monetary Fund." Pls.' Mot. for Class Certification ("Pls.' Mem.") at 4. Plaintiffs were arrested for failing to obey police orders while protesting near the intersection of Connecticut Avenue and K Street, N.W., and nearby areas, other than Pershing Park. Following their arrest, the men were held with arrestees from other protests for several hours in the custody of the MPD before being turned over to the custody of the United States Marshals Service ("USMS").

Plaintiffs seek to certify a class consisting of the following persons: All men who were: (1) arrested on September 27, 2002 by the D.C. Police officials during a series of mass protests in downtown Washington, D.C.; (2) remanded by D.C. Police, following their arrests, into the custody of the U.S. Marshal[] for the District of Columbia prior to being released; and (3) subjected by deputy U.S. Marshals to a strip, visual, body cavity search without any particularized or individualized reasonable suspicion that he was concealing drugs, weapons or other contraband; (4) excluding, however, all men arrested within the confines of Pershing Park on September 27, 2002.

Pls.' Mem. at 1. Plaintiffs assert that the class may number upwards of one hundred men, that there are common issues that predominate over any individual issues, that the claims of the named Plaintiffs are typical of the claims of the class, and that Plaintiffs and their counsel will adequately represent the class.


The "party requesting class certification under Rule 23 bears the burden of showing the existence of a class, that all prerequisites of Rule 23(a) are satisfied and the class falls within one of the categories of Rule 23(b)." Bynum v. District of Columbia, 214 F.R.D. 27, 30-31 (D.D.C. 2003) (citations omitted).

Under Rule 23(a) of the Federal Rules of Civil Procedure, there are four requirements for certification of a class:

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 claims or defenses of the class ("typicality"); and

4. the representative parties will fairly and adequately protect the interests of the class ("adequacy").

Fed. R. Civ. P. 23(a). Plaintiffs must also satisfy at least one of the subdivisions of Rule 23(b). A plaintiff satisfies Rule 23(b)(2) by showing: the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

Fed. R. Civ. P. 23(b)(2). A plaintiff satisfies Rule 23(b)(3) by showing:

(1) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

Fed. R. Civ. P. 23(b)(3).

In deciding a motion for class certification, the "inquiry does not extend to an examination of the merits of the case. Instead the legal standard is whether the evidence presented by plaintiffs establishes a 'reasonable basis for crediting [plaintiffs'] assertions.'" Bynum, 214 F.R.D. at 31 (citing cases); Chang v. United States, 717 F.R.D. 262, 269 (D.D.C. 2003) ("Once the existence of a class has been established, the Court does not consider the merits of the plaintiffs' claims prior to proceeding to a determination of whether the requirements for class certification set forth in Fed. R. Civ P. 23(a) and (b) have been met.").


Plaintiffs assert that the proposed class satisfies the requirements of Rule 23 and seek class certification. Defendant Dillard challenges Plaintiffs' contentions on each of the Rule 23 requirements but focuses primarily on whether Plaintiffs have shown that the class ...

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