Did you know that NYC still enforces an anti-loitering law that was struck down nearly 20 years ago?

In 1993, the Second Circuit ruled in Loper v. City of New York Police Department that New York's anti-loitering law was unconstitutional. This law specifically prohibited loitering for purposes of begging. For reasons that I cannot fathom, to this day, New York City continues to enforce that very law. Police departments around the state are also enforcing this law. This prompted the arrestees to bring a class-action suit.

The case is Brown v. Kelly, decided on June 24. The district court may certify a class action if the proposed class is sufficiently numerous, the plaintiffs' claims share similar questions of law and fact, and the claims of the representative parties are typical of those of the entire class. The class representatives must also be able to adequately represent the class. While trial judge Shira Scheindlin certified a statewide class in connection with the continued enforcement of the unconstitutional anti-loitering law, the Court of Appeals reverses, for the most part.

For anyone who does not litigate class actions, this case may raise dry issues. But a footnote would interest anyone who assumes that municipal officials uniformly comply with court orders. You would think that compliance with binding court decisions would be the priority of any civilized society. They take an oath to follow the law, right? But earlier this year, Judge Scheindlin held New York City in contempt of court "for failing to act with reasonable diligence to eliminate enforcement" of the anti-loitering panhandling law. The district court said the city's actions were "offensive to the rule of law" and that city seemed to only act "responsibly and energetically when threatened with sanctions."

Back to the class action issues raised in this appeal. The Second Circuit (Katzmann and Sack) says the class representatives do not adequately represent the statewide class because the interests of the New York City class representatives may conflict with their state counterparts. The city representatives may have to deal with certain defenses unique to their claims against the city, such as whether the city (but not the state) is subject to Monell liability and whether city officials may assert immunity defenses. These issues may dominate the city representatives' attention during litigation to the detriment of the state representatives.

The certified class also fails to satisfy the "typicality" requirement that class members have claims that are typical of the class as a whole. While New York City persisted in its lawless application of a statute that the Second Circuit declared unconstitutional in 1993, there is no evidence that police departments around the state were enforcing this law in equally substantial numbers.

The good news for the class representatives is that the Second Circuit allows the city-side class action to move forward. The plaintiffs in the city class share common legal and factual issues and their claims arise from the same core allegation: that New York City continues to enforce a law that the Court of Appeals struck down nearly 20 years ago.