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N.Y. Homeless Class OK'd in Loitering-Law Case Against NYPD

A class action is the best method to vindicate the rights of the poor, a New York federal judge said in certifying a class of homeless people who accuse the city police of enforcing a law against begging previously ruled unconstitutional.

Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York said the city has been unwilling to stop the enforcement of the loitering law, despite earlier court rulings.

The statute says a person is guilty of loitering when he "remains or wanders about in a public place for the purpose of begging."

In 1992 a federal court ruled that the law was unconstitutional and ordered the city to stop enforcing it. The U.S. Court of Appeals for the 2nd Circuit affirmed the decision. Loper v. N.Y City Police Dep't, 999 F.2d 699 (2d Cir. 1993).

The New York City Police Department said it would stop issuing summonses and instruct its officers to disregard the law, but the arrests continued, according to Judge Scheindlin's opinion.

Michael Brown, who was arrested and charged with violating the law in 2003, sued the NYPD and Police Commissioner Raymond Kelly in 2005.

He alleged that the police continued to arrest and prosecute people long after the law was deemed unconstitutional.

Brown sought to represent a class of people who have been or will be arrested for violation of the loitering law since October 1992.

He also requested the addition of six more named plaintiffs, all homeless men arrested for begging in the Bronx or Manhattan, and nine more defendant police officers.

Last December the city took steps to cease enforcement, the opinion said. It vacated outstanding bench warrants, and the number of arrests and prosecutions decreased.

Summonses were still being issued as late as March, however.

In certifying the class, Judge Scheindlin ruled that the prerequisites for certification under Federal Rule of Civil Procedure 23 - numerosity, commonality, typicality and adequacy - had been met.

The number of class members totaled in the thousands, the judge noted.

The defendants had argued that the commonality and typicality requirements had not been met.

They said individual analysis would be necessary to establish liability and that simply being charged with violation of the law should not automatically make someone a class member.

The named plaintiffs' claims arose from the same policy that allegedly caused the class members' claims, Judge Scheindlin said in rejecting the defendants' argument.

While some individual issues may exist, she said, the core issues are common.

The named plaintiffs could adequately protect the interests of the class, the judge said, despite allegations of their drug abuse and questionable character.

The defendants had argued that the plaintiffs were unreliable and incompetent.

But Judge Scheindlin said questionable moral character does not eliminate someone from serving as a class representative since the class-action model is designed to protect the interests of those least capable of bring an individual action.

The judge also dismissed the defendants' contention that the plaintiffs lacked standing to seek injunctive relief.

The defense had argued that the police had already taken steps to stop enforcing the loitering law, so the plaintiffs could hope for no more out of a court injunction.

Judge Scheindlin said the suit seeks more than what the police had so far agreed to do, such as the dismissal of fines and the expunging of wrongful convictions from public records.

Class certification is the only way to ensure equitable relief and to prevent future enforcement of the unconstitutional law, Judge Scheindlin said.

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