In re Cincinnati Policing

209 F.R.D. 395, 2002 U.S. Dist. LEXIS 15928, 2002 WL 1917638
CourtDistrict Court, S.D. Ohio
DecidedAugust 5, 2002
DocketNo. C-1-99-3170
StatusPublished
Cited by12 cases

This text of 209 F.R.D. 395 (In re Cincinnati Policing) is published on Counsel Stack Legal Research, covering District Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cincinnati Policing, 209 F.R.D. 395, 2002 U.S. Dist. LEXIS 15928, 2002 WL 1917638 (S.D. Ohio 2002).

Opinion

ORDER

DLOTT, District Judge.

This matter comes before the Court on the joint motion of all parties for class certification and approval of the Collaborative Agreement as settlement of the class claims asserted in this lawsuit. The Court GRANTS the motion.

[397]*397I. PROCEDURAL BACKGROUND

Plaintiff Bomani Tyehimba filed suit in this Court on April 30, 1999 against the City of Cincinnati and two police officers, in both their individual and official capacities. On December 13, 2000, he moved the Court for leave to file an amended complaint. The Court granted him leave, but instead of filing an amended complaint, on March 14, 2001, the Plaintiff again moved to file an amended complaint. The amended complaint attached to that motion alleged racially discriminatory police practices by the Cincinnati Police Department in violation of the federal and state constitutions and other federal law. Also on March 14, 2001, the Plaintiff moved to certify a plaintiff class and for a preliminary injunction. The motion for class certification sought the appointment as class representatives of the Cincinnati Black United Front (“CBUF”) and the American Civil Liberties Union of Ohio Foundation, Inc. (“ACLU”); the motion also sought the appointment as class counsel of Kenneth L. Lawson, Scott T. Greenwood, and Alphonse A. Gerhardstein.

Three parties expressed interest in a collaborative procedure to address the issues raised by the proposed amended complaint: the City of Cincinnati, proposed counsel for the putative plaintiff class, and the Fraternal Order of Police (“FOP”), whose counsel was representing the two police officers sued in their individual capacity. The City of Cincinnati agreed to the participation of the CBUF and the ACLU for purposes of such a collaborative procedure, and these three parties also agreed to the participation of the FOP. By order of May 3, 2001, the Court established the collaborative procedure contemplated by these parties. The Court also retained the services of Dr. Jay Rothman to manage the collaborative procedure as a special master. On March 25, 2002, the Court referred this action to Magistrate Judge Michael Merz, as special master to complete the negotiations referenced in the Order Establishing Collaborative Procedure and a scheduling order of February 8, 2002.

On April 3, 2002, counsel for the putative plaintiff class, the City of Cincinnati, and the Fraternal Order of Police reached an agreement to resolve the issues raised by the proposed amended complaint (the “Collaborative Agreement”). This Collaborative Agreement calls for certification of a plaintiff class and would settle the class claims for injunctive and declaratory relief in the amended complaint attached to the March 14, 2001 motion for leave. Subsequently, the CBUF, the City of Cincinnati, the FOP, and the ACLU ratified the Collaborative Agreement.

Pursuant to the Sixth Circuit’s instructions in Tennessee Association of Health Maintenance Organizations, Inc. v. Grier, 262 F.3d 559, 565 (6th Cir.2001), on April 19, 2002, the Court provisionally certified the proposed class and preliminarily approved the reasonableness of the Collaborative Agreement. In so doing, the Court found that the Collaborative Agreement was not illegal or tainted with collusion and that the negotiations preceding it had been conducted at arms length. The Court also ordered the City to give notice of the proposed settlement to the class. The Court granted for settlement purposes only the motion for leave to amend complaint filed on March 14, 2001.

The Court advised the parties on May 28, 2002 that it was concerned about the absence of any provision in the Collaborative Agreement for an award of attorney fees to counsel for the putative plaintiff class. It conducted a hearing on the fairness of the agreement on June 6, 2002. The Court concluded proceedings on that day by continuing the hearing in order to receive additional evidence that might prove necessary for the determination of the joint motion. The parties filed a joint status report on July 16, 2002. The Court terminated the fairness hearing by order on July 18, 2002.

II. CLASS CERTIFICATION

A. Class Definition

The parties seek certification of the following settlement class:

All African-American or Black persons and people perceived as such who reside, work in and/or travel on public thoroughfares in the City of Cincinnati, Ohio either now or in the future and who are stopped, detained, or arrested by Cincinnati Police [398]*398Officers or then- agents, and citizens of any race who have been or will be subjected to a use of force by Cincinnati police officers and their agents.

They also ask the Court to appoint the CBUF and the ACLU as class representatives and Scott T. Greenwood, Kenneth L. Lawson, and Aphonse A. Gerhardstein as class counsel.

B. Federal Rule of Civil Procedure 23

Federal Rule of Civil Procedure 23 governs class actions. Rule 23(a) specifies the prerequisites to certification of any class: numerosity, commonality, typicality, and adequacy. In addition, a class action is maintainable only if one of the provisions of Rule 23(b) is satisfied. Certification of a class for settlement purposes only is permissible, but the existence of a proposed agreement obviates none of the requirements of Rule 23. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).

C. Organization Standing

One issue anterior to consideration of these requirements is whether the Court properly may consider the CBUF and the ACLU to be members of the class they seek to represent, since Rule 23 provides that “[o]ne or more members of a class may sue or be sued as representative parties.” It is settled that “an organization whose members are injured may represent those members in a proceeding for judicial review.” Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). More specifically,

An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit.

Friends of the Earth, Inc. v. Laidlaw Envtl. Sens., 528 U.S. 167, 179, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); see also Citizens Against Tax Waste v. Westerville City Sch., 985 F.2d 255, 257 (6th Cir.1993).

The evidence before the Court indicates that both the CBUF and the ACLU satisfy this test.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ball v. Kasich
S.D. Ohio, 2020
Doe v. State of Ohio
S.D. Ohio, 2020
Floyd v. City of New York
959 F. Supp. 2d 540 (S.D. New York, 2013)
Leonhardt v. ArvinMeritor, Inc.
581 F. Supp. 2d 818 (E.D. Michigan, 2008)
IUE-CWA v. General Motors Corp.
238 F.R.D. 583 (E.D. Michigan, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
209 F.R.D. 395, 2002 U.S. Dist. LEXIS 15928, 2002 WL 1917638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cincinnati-policing-ohsd-2002.