govinfo:USCOURTS-txed-2_08-cv-00288-6

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 IN THE UNITED STATES DISTRICT COURT 
 FOR THE EASTERN DI STRICT OF TEXAS 
 MARSHALL DIVISION 
 
JAMES MORROW, and a Proposed Class of 
Other Similarly Situated Persons 
Plaintiffs, 
 
v. 
 
CITY OF TENAHA DEPUTY CITY 
MARSHAL BARRY WASHINGTON, et al 
Defendants. 
 
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CIVIL ACTION NO. 2-08-cv-288-TJW 
 
 
MEMORANDUM OPINION AND ORDER
 
 Pending before the Court is Plaintiffs’ Mo tion for Class Certifi cation (Dkt. No. 179), 
Plaintiffs’ Supplemental Motion for Class Certif ication (Dkt. No. 194), and Plaintiffs Second 
Supplemental Motion for Class Certification (Dkt. No. 213). In the motions, the named plaintiffs 
(“Plaintiffs”) seek certification of a class of mo torists and passengers who are subject to the City 
of Tenaha’s allegedly discriminatory interdiction program under Federal Rule of Civil Procedure 
23(b)(2) for declaratory, injunctive, and moneta ry relief. The Court held a hearing on the 
motions on November 9, 2010, but, at the parties’ request, stayed its ruling on the motions for 
class certification to give the pa rties an opportunity to mediate th is case (Dkt. No. 212). Then, 
on December 6, 2010, the Supreme Court accepted certiorari in Wal-Mart Stores, Inc. v. Dukes , 
to determine, in part, “[w]hether claims for mo netary relief can be ce rtified under Federal Rule 
of Civil Procedure 23(b)(2) – which by its te rms is limited to injunctive or corresponding 
declaratory relief – and, if so, under what ci rcumstances.” 131 S.Ct. 795 (2010). Because the 
Supreme Court’s ruling wei ghed so heavily on the i ssue of class certifica tion in this case, the 
court stayed its ruling on the motion for class certification pending the Supreme Court’s ruling in 
Wal-Mart. The Supreme Court i ssued its ruling in Wal-Mart on June 20, 2011. See Wal-Mart PageID #: 
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Stores, Inc. v. Dukes , 131 S.Ct. 2541 (2011). After consid ering the parties’ filings, evidence, 
oral arguments, and the applicable law, the Court ORDERS that the motion for class certification 
should be GRANTED-IN-PART and a Rule 23( b)(2) class certified for injunctive and 
declaratory relief as discusse d below. However, the Court does not certify any claims for 
monetary relief as part of the Rule 23(b)(2) class. 
I. Background 
 Plaintiffs bring this action against various city officials in Tenaha, located in Shelby 
County, Texas, including Deputy City Marsha l Barry Washington (“Washington”), Mayor 
George Bowers (“Bowers”), Shel by County District Attorney Linda K. Russell (“Russell”), 
Shelby County District Attorney Investigat or Danny Green (“Green”), and Shelby County 
Precinct 4 Constable Randy Whatley (“Whatley”). Plaintiffs allege that the Defendants 
developed an illegal “stop and seize” practice of targeting, stopping, detaining, searching, and 
often seizing property from individuals who are, or appear to be, members of a racial or ethnic 
minority and their passengers. Plai ntiffs refer to this allegedl y discriminatory stop and seize 
practice as Tenaha’s “interdi ction program” and allege that it began when Tenaha hired 
Washington as a Deputy City Marshal on Novemb er 1, 2006, and is still ongoing. According to 
Plaintiffs, defendants Washington and Whatley targeted members of the proposed class for 
traffic stops because of their race or ethnicity an d then, with the approval and complicity of the 
other defendants, subjected them to detention, arrest, or search a nd seizure without legal 
justification and in violation of their constituti onal rights. Plaintiffs further allege that the 
Defendants instituted the interdic tion program in order to enrich their offices and themselves by 
seizing and converting cash and other valuable personal property they could find during the 
course of the illegal stop and seize practice. Plaintiffs cl aim that the Defendants’ conduct 
violates their Fourth Amendment right to be free from unreasonable searches and seizures and PageID #: 
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their Fourteenth Amendment rights to equal protect ion and due process. Plaintiffs seek class-
wide declaratory, injunctive, and equitable monetary relief, as well as compensatory and punitive 
damages. 
A. Tenaha’s “Interdiction Program” 
 The City of Tenaha hired Washington in th e fall of 2006 to be a Deputy City Marshal. 
Deposition of Barry Washington (“Washington Depo”) at 56:11-14, Exhi bit 1 to Plaintiffs’ 
Motion for Class Certification (“ Opening Brief”) (Dkt. No. 179). The evidence demonstrates 
that shortly after Washington started on November 1, 2006, the City of Tenaha began its 
“interdiction program.” See Washington Depo at 51:15-16, 64:16-17, 68:12-69:4, 70:8:19, 
97:23-99:18; Deposition of George Bowers (“Bowe rs’ Depo”) at 41:3-7, Exhibit 5 to Opening 
Brief; First Deposition of Randy Whatley on April 12, 2010 (“Wh atley Depo I”) at 89:17-90:21, 
Exhibit 2 to Opening Brief. 
 Defendant Whatley, the Shelby County Precinct 4 Constable, testified that he understood 
that the goal of the interdiction program was to stop as many people as possible for traffic 
violations to look for other crim inal activity, primarily narcotics trafficking. Whatley Depo I at 
124:23-125:13. Whatley testified that over the cour se of the interdiction program that as many 
as 500 or even 1,000 people were stopped as part of the interdiction program. Whatley Depo I at 
158:1-8. Both Washington and Whatley testified that the interdiction program evolved, but was 
never written down and that there was never any one in charge of it. Washington Depo at 68:12-
69:4; Whatley Depo I at 126:16-127:8. However, Cons table Whatley also testified that all of the 
citizens caught up in the interdiction program we re subject to the same rules and treated the 
same. Whatley Depo I at 85:8-21. In addition, Te naha City Marshal Fred Walker (“Walker”), 
who was designated by the City of Tenaha to testify about the interdiction program on its behalf, PageID #: 
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testified that all citizen s are treated according to the same rules under the interdiction program 
and that there have been no changes made to the interdiction program. Walker Depo at 5:23-6:8, 
45:20-24, 85:8-12. Walker also testified that ther e are no limits to the searches that can be 
performed under the inte rdiction program, that whether to arrest someone under the interdiction 
program is up to the discretion of the officer who made the stop, and that there are no limits on 
what the officer can seize under the interdiction program. Deposit ion of Fred Walker (“Walker 
Depo”) at 30:4-33:20, Exhibit 4 to Opening Brief. 
 Deputy Marshal Washington testified that G od “ordained” him to patrol Highway 59, and 
that God gave him the gift of being able to put crooks in jail. Washington Depo at 55:18-19 and 
65:2-5. Washington described the “interdiction traffic stop philosophy” in his deposition, saying 
that “when we’re making traffi c stops, you have to look beyond th e initial traffi c stop and the 
traffic violation if somebody is giving you indicators that there’s criminal activity taking place.” 
Washington Depo at 73:13-17. When asked what t hose indicators of criminal activity might be, 
Washington responded: 
Well, there could be several things. There could even be indicators on the 
vehicle. The number one thing is you have two guys stopped, and these two guys 
are from New York. 
 They’re two Puerto Ricans. They’re driving a car that has a Baptist 
Church symbol on the back, says First Baptist Church of New York. 
 They’re traveling during the week, when most people are working and 
children are in school. They’ve borrowed th is car from their aunt, and their aunt 
is back in New York. 
 You interview the two men, and th ey don’t have a job, and they’re on 
vacation. They don’t have any substantia l amount of luggage for the two people 
to travel from New York to Houston. 
 They’re nervous. They have conflicting stories. Sometimes they don’t 
even know each other. They may have emblems on the car that have Gregg 
County Sheriff’s Office on it. Just indicators. 
 
Washington Depo at 73:19-74:18. PageID #: 
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 During interdiction stops, once Washington or Whatley made the decision to seize money 
or property and/or arrest an in dividual, they would call the Sh elby County District Attorney’s 
Office or Defendant Russell, the Shelby County Dist rict Attorney, to reach a consensus as to 
how to proceed—i.e., whether to release the individuals , arrest them, seiz e their property, or 
return property that had already been sei zed. Whatley Depo I at 163:21-168:19. District 
Attorney Russell had an agreemen t with the Tenaha Marshal’s office and the Constable’s office 
on what percentage of the seizures the District Attorney would get. Whatley Depo I at 148:3-21. 
 Plaintiffs allege that the interdiction progr am targets drivers or passengers who are or 
appear to be members of a racial or ethnic mino rity. To support this a ssertion, Plaintiffs offer 
statistical evidence that the pr oportion of racial and ethnic minorities stopped in Tenaha 
increased dramatically in 2007, shortly after th e interdiction program began in November 2006. 
Plaintiffs allege that the only disclosed racial profiling information in this case—the “Tier 1 
data”—reflects a dramatic increase in the propor tion of Tenaha’s traffic stops of non-Caucasians 
in 2007. See Tiered 1 profiling data for Tenaha from 2003 through 2009 (“Tier 1 Data”), Exhibit 
17 to Opening Brief. Based on Plaintiffs’ calculations, from 2003 th rough 2006, before the 
interdiction program was put into effect, an average of about 32% of Tenaha’s traffic stops were 
of non-Caucasians. In 2007, the first full year of the interdiction program, the proportion of non-
Caucasians increased dramatically to between 46.8% and 51.9%, depending on the records used.
1 
Plaintiffs argue that when this difference is sta tistically analyzed, the probability of the increase 
occurring as a matter of random chance approachs ze ro. Plaintiffs also ar gue that the increase 
                                                            
1 In 2007 Tenaha changed the format of the report for the Tier 1 data on stops, and appears to have shifted the 12 
months covered in each year. Accordin gly, Plaintiff calculated the percenta ge of non-Caucasians stopped in 2007 
using 2007 data reported in the original and revised format. Exhibit 17 to the Opening Brief lists the 2007 
information in the original format as 2007a and the 2007 in formation in the revised format as 2007b. 2007a reflects 
that 51.9% of the stops were of non-Caucasians while 2007b reports that 46.8% of the stops were of non-
Caucasians. See Tier 1 Data. PageID #: 
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remains similarly significant for 2008, where the number of non-Caucasians stopped was 45.7%. 
Plaintiffs further argue that in 2009, after this lawsuit was filed, the proportion shifted 
dramatically, decreasing to only about 23% of Tenaha’s st ops involving non-Caucasians. 
Plaintiffs contend that this drop occurred after the lawsuit. Plaintiffs, therefore, argue that the 
high proportion of minoriti es subject to traffic stops under th e interdiction progr am supports an 
inference that non-Caucasians were selectively targeted for stop s as part of the interdiction 
program. 
 Plaintiffs also suggest that the real motivation behind Tena ha’s interdiction program was 
to confiscate money and property from those stoppe d in order to enrich the city of Tenaha and 
the Defendants personally. In other words, Plaintiffs allege that the Defendants had no 
legitimate reason to suspect that those stopped by the interdiction program were engaged in 
criminal activity, but, nevertheless, detained them, arrested them, a nd often searched their 
vehicles without justification in the hopes that they would find valuables or money that could be 
confiscated and used to enrich the City of Tenaha and themselves. Additionally, Plaintiffs allege 
that Defendants had no reason to suspect that the money and property often confiscated under the 
interdiction program was related to suspected crim inal activity. In support of this allegation, 
Plaintiffs provided eviden ce that the City of Tenaha could not articulate any reason to suspect 
that Plaintiffs Morrow, Flores, or Parsons, the proposed class representatives, or named Plaintiffs 
Watson, Busby, Dismukes, Dorman, or Pearson were engaged in criminal activity. Walker Depo 
at 8:1-11:2 and 94:1-96:4. As discussed in more detail below, the evid ence shows that each of 
the proposed class representatives and named plaintiffs were arrest ed and/or deta ined, had their 
vehicles searched, and had their property confiscated. PageID #: 
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 The offense report for Boatright and Henderson indicates that they were initially stopped 
for “driving in the left lane for over a half m ile without passing and cr ossing over white line.” 
Offense/Incident Report for Ronald Henderson and Jennifer Lynn Boatwright 
(“Boatright/Henderson Offense Report”) at MOR00121, Exhibit F to Defendants’ Response to 
Motion for Class Certification (“Response”) (Dkt . No. 201). Boatright is white, but Henderson 
is African-American. Third Amended Complaint at ¶ 83. Walker stated that when he stopped 
named Plaintiffs Boatright and Henderson, they had been smoking marijuana and that there was 
drug paraphernalia in the car, incl uding a glass marijuana pipe in the center console. Walker 
Depo at 96:15-97:7, 99:25-100:19. Walker also cl aimed that Boatright and Henderson admitted 
to buying illegal narcotics in Houston. Id. However, Walker coul d not explain how the $6,000 
seized from Plaintiffs Boatri ght and Henderson was re lated to any criminal activity. Walker 
Depo at 99:25-100:19. The Boatright/Henderson Of fense Report indicates that Washington and 
Whatley believed the cash to be the proceeds from narcotics trafficking because Boatright and 
Henderson: (1) were traveling from Houston, Texas to Linden, Texas; (2) were in a rental car; 
(3) had been smoking marijuana; (4) watched tra ffic passing while they were stopped; (5) and 
admitted to buying marijuana at a bar. Bo atright/Henderson Offe nse Report at MOR00123-
MRO00124. According to the Offense Report, thes e were “common factors” of illegal narcotics 
trafficking. Id. at MOR00124. 
 Similarly, the offense report for named plainti ffs Busby and Watson states that they were 
passengers in a car driven by Dale Christ opher Agostini, who is African-American. 
Offense/Incident Report for Da le Christopher Agostini, Amanee Yasameen Busby, and Stephen 
Stuart Watson (“Busby/Watson Offense Report”) at MOR00300-302, Exhibit G to Response. 
Busby and Watson are also African -American. Third Amended Comp laint at ¶ 39. They were PageID #: 
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stopped for “traveling in left lane marked for pa ssing only and would not move to right lane to 
let vehicle move from middle medium.” Id. at MOR00300. The report indicates that the vehicle 
was searched after Constable Wha tley’s drug dog, K-9 Bo, “gave a positive alert on the rear left 
door area of the vehicle.” Id. However, there is no evidence in the record to indicate that the 
roughly $50,000 in cash seized from the car was related in any way to criminal activity. Id. 
During his deposition as the representative of the City of Tenaha, Walker could not articulate any 
reason to suspect that Watson or Busby were enga ged in criminal activity. Walker Depo at 8:1-
11:2 and 94:1-96:4 
 The offense report for named plaintiff Yuse lff L. Dsimukes (“Dismukes”) indicates that 
he was one of two cars traveli ng together that were pulled over by Defendant Washington for 
speeding violations. Offense Report of Eric Johnson, Dareyl Danield, Yuselff L. Dismukes 
(“Dismukes Offense Report”) at MOR00001-MOR00004, Exhibit H to Response. However, the 
report is somewhat unclear as to the specific speedi ng violation prompting the stop. The report 
states: “the vehicle was stoppe d for speeding over 35 mph, cloc ked on radar at 41 mph and 49 
mph in a 45 mph speed zone and at 60 mph in a 55 mph posted zone.” Id. at MOR00003. 
Dismukes is African-American. Third Amended Co mplaint at ¶ 57. The report indicates that 
Defendant Washington “smelled the odor of burned marijuana” in both cars and that the K-9 Bo 
alerted to the vehicle in which Mr. Dismukes was a passenger. Id. After speaking with 
Defendant Russell, all three men, including named plaintiff Dismukes, were arrested based on 
the fact that there were “large sums of US currency; odor of burned marijuana, [and] marijuana 
residue” in one of the cars. Id. at MOR00004. 
 According to the police report, named plain tiffs Dorman and Pearson were pulled over 
for “no LP light and FTC.” Offence/Incident Report of Linda M. Do rman and Marvin C. PageID #: 
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Pearson (“Dorman/Pearson Offense Report”) at MOR00108, Exhibit B to Response. Dorman 
and Pearson are African-American. Third Amended Complaint at ¶ 72. The offense report also 
indicates that Washington “could smell a faint odor of what [he] believed to be marijuana” in the 
car and that K-9 Bo alerted on the car. Dorman/Pearson Offense Report at MOR00108 . The 
report indicates that Washington searched th e car and found roughly $4,000 in cash as well as 
“green leafy substance and seeds” in the van. Id. at MOR 00109. Washi ngton also found 
“alterations in the van that appeared to used [s ic] in the past to haul illegal contraband.” Id. 
Dorman and Pearson both signed an “Agreed Fina l Judgment of Forfeiture” in which they 
forfeited the money found in the vehicle. Agre ed Final Judgment of Forfeiture dated April 20, 
2007, at MOR00119-MOR00120, Exhibit A to Response. 
 Plaintiffs point out that none of the named Plaintiffs had criminal cases filed against them 
in the Shelby County District Clerk’s office. Deposition of Lori Oliver (“Oliver Depo”) at 36:8-
12 (in summary), 10:21-34:23 (each named Plaintiff di scussed), Exhibit 7 to Opening Brief. In 
fact, all of the named Plaintiffs who hired counsel had their civil forfeitu re cases dismissed and 
the money and property confiscated as part of the interdiction program returned to them. Oliver 
Depo at 10:21-34:23 (each named Plaintiff disc ussed individually). On ly named Plaintiffs 
Dorman and Pearson, from whom $4,000 was seize d, did not hire counsel and did recover the 
money Defendants seized from them. Id. However, the Shelby County District Clerk testified 
that Defendants obtained undated waivers of serv ice and agreed judgments from several of the 
named Plaintiffs, apparently at the time of the seizures, including Dorman, Pearson (Oliver Depo 
at 21:24-27:12), Boatright, and Henderson (Oliver Depo at 28:23-29:22). 
 The Plaintiffs allege that the interdiction program is ongoing in Tenaha. As support, they 
point to the fact that as of Ap ril 21, 2010, the date of Walker’s de position as the city’s designee, PageID #: 
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there had been no changes made to the interd iction program. Walk er Depo at 45:17-24. 
Defendants, however, argue that Defendant Washington is no longer the Constable of Precinct 4, 
Deposition of Rich Campbell dated May 19, 2010 (“ Campbell Depo I”) at 22:14-17, Exhibit I to 
Response, and that Shelby County does not curren tly operate an interdic tion program other than 
those maintained by municipalities and the DPS. Deposition of Rick Campbell dated August 11, 
2010 (“Campbell Depo II”) at 23:2-17, Exhibit J to Response. 
B. The Morrow Stop 
 Named Plaintiff James Morrow (“Morrow”) is African American and a proposed class 
representative. He was stopped, detained, questi oned, and his person and ca r were searched by 
Defendant Washington on August 31, 2007. In a ddition, Washington seized $3,969 and two cell 
phones from Morrow and arrested him. Washington Depo at 169:13-21; see also 
Offense/Incident Report for James Morrow (“ Morrow Offense Report”) at MOR00212, Exhibit 
12 to Opening Brief. Although the traffic su mmons indicates that Morrow was stopped for 
failing to drive in a single marked lane, it does not appear that Washington charged Morrow with 
this traffic offence. See Traffic Summons/Notes 29535 (“Mo rrow Traffic Summons”) at MOR 
00263, Exhibit 10 to Opening Brief. Instea d, Washington charged Morrow with money 
laundering. Id. The Offense Report i ndicates that Washington smelled “the odor of burned 
marijuana” in the car and “noticed several burns in seat upholstery and signs of marijuana use.” 
Morrow Offense Report at MOR00211. Washingt on contacted Constable Whatley and asked 
him to bring the K-9 Bo. Id. A camera in Constable Whatle y’s vehicle recorded the Morrow 
stop from the time that Constable Whatley a rrived on the scene. Video of Morrow Stop 
(“Morrow Video”), Exhibit 1 at class certification hearing on November 9, 2011 (“Class Cert. PageID #: 
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Hearing”), Disc 1 of 2. Wh en Constable Whatley arrived on the scene, the following dialogue 
took place between Washington and Whatley: 
Washington: Would you take your K-9. If he alerts on the vehicle, I’m gonna 
take his momma’s vehicle away from him, and I’m gonna take his 
money. 
Whatley: Oh, yeah. OK. 
Washington: I’m gonna take his stuff from him. 
Whatley: [Chuckles] OK. 
Morrow Video at 00:00:48-00:01:08. 
 According to the Morrow Offense Repor t, K-9 Bo alerted on the vehicle. Id. 
Washington then searched the vehicle and seized roughly $4,000. Id. at MOR00211-213. 
During the initial search of the vehicle Whatle y appears to discover th e cash near the glove 
compartment and chuckles. Morrow Video at 00:04:20. A few moments later, Whatley takes 
the dog to the back of the vehicle and states that the dog alerted “right in there.” Id. at 00:05:40. 
“That may be some sort of a hauling spot. Bu t you definitely got reas onable suspicion anyway 
on the funds.” Id. However, neither Washington nor Whatle y appear to search that area of the 
car in any meaningful way to determine if there are, in fact, drugs in the car. Id. The visibility 
of the video is somewhat obs cured by the placement of Wash ington’s car between the camera 
and Morrow’s car. Additionally, much of the dial ogue is difficult to understand because of the 
traffic noise on the video. However, based on th e Court’s careful review of the video, Whatley 
and Washington appear to do only a cursory search of the car, find the money, and confirm with 
each other that they have reasonable suspicion to keep the funds. Morrow Video. During the 
search, the following conversation transpires between Whatley and Washington: 
Whatley: How much funds he have? PageID #: 
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Washington: He’s gonna have about $4,000 with what he got in his pocket. You 
know, just nickel and dime stiff. 
Whatley: Yeah. 
Id. at 00:07:50. Whatley then leav es the scene, and the video ends without either Washington or 
Whatley arresting Morrow. 
 In his deposition, Washington stated th at he confiscated Mo rrow’s money and cell 
phones because he believed that they were connected to crimin al activity. Washington claims 
that he based this belief on the fact that Morro w had conflicting stories and that there were signs 
of marijuana use in the car. Washington Depo at 169:22-193:19; see also Morrow Offense 
Report at MOR00211-212. However, Washington did not charge Morrow with a drug offense, 
and could not explain why signs of marijuana use in the car w ould link the seiz ed property to 
illegal activity. Id. 
 Ultimately, Washington’s reason for seizin g the property and arresting Morrow appears 
to be the fact that Morrow allegedly told Washi ngton that he was traveli ng from Little Rock to 
the Galleria Mall in Houston. Id. Washington’s belief that the Galleria Mall in Houston is a 
hotspot for narcotics trafficking and that “[n]ine out of ten arre sts in seized currency reveals 
traffickers pick up narcotics and sell narcotics at the Galleria Mall.” Id.; Morrow Offense Report 
at MOR00210-213. Washington also testified that one of reasons he was suspicious of Morrow 
was because Morrow could not identify the name of the cousin he said he was visiting in 
Houston. However, the police reports, Washi ngton’s own notes, and the video of the stop 
suggest that Morrow did provide the name of the cousin he was visiting. Compare Washington 
Depo at 171:7-8, 174:24-25, 178:16-20, and 182:7-8 with 190:11-192:9; see also Morrow Video 
at 00:00:01. After his arrest, Morrow hired a lawyer. The mone y laundering charges were then 
dropped and the money was returned to Morrow. Letter from Russell to Tim James, Exhibit. 13 PageID #: 
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to Opening Brief. District Attorney Russell stat ed in a letter to Morrow’s attorney that she 
believed, after reviewing the offense report, that there was “no probable cause to pursue this 
matter further” and that she would “not feel comfortable . . . presenting this case to the Grand 
Jury.” Id. 
C. The Flores and Parsons Stop 
 Named Plaintiffs Javier Flores (“Flores”) and William Parsons (“Parsons”) are proposed 
class representatives. Flores is Hispanic, but Pl aintiffs claim that he appears to some to be 
African American. Parsons is of Macedonian descent, but Plainti ffs claim that he appears to 
some to be Hispanic. Flores and Parsons we re traveling through Tenaha on July 22, 2008 when 
they were stopped by Defendant Whatley. The vi deo of the stop indicates that Whatley stopped 
them for speeding. Video of Flores/Parsons Stop (“Flores/Parsons Video”) at 00:00:55, Exhibit 
1 at Class Cert. Hearing, Disc 2 of 2, Video 10. After asking Flores to exit the car, Whatley 
stated: “While I’m waiting on your driver’s licen se, I’m going to just walk my dog around.” 
Flores/Parsons Video at 00:01:57. Defendant Whatley detained Fl ores and Parsons, questioned 
them, searched their car, seized $8,400, arrest ed them, and threatened them with money 
laundering charges before releasing th em. Whately Depo at 204-16-205:4; see also Third 
Amended Complaint at ¶¶ 97-100 (Dkt. No. 111); Whately’s Offense/Incident Report of 7.23/08, 
Exhibit 15 to Opening Brief. Whatley did not char ge Flores or Parsons with a traffic offense. 
Whatley Depo I at 205:5-207:3. Whatley testified that he searched Flores’ and Parsons’ car 
because his narcotics dog alerted to drugs. However, no drugs were found in the car. Id. at 
81:12-82:19 and 208:15-209:9. Whatle y did find and seize $8,400 in their luggage in the trunk 
of the car and charged them with money laundering. Id. at 200:17-201:21. Whatley testified that 
he seized the money because he believed it wa s contraband based on his training and experience PageID #: 
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and the fact that (1) his drug dog alerted to the car, (2) Flores and Parsons seemed uneasey, (3) 
there were bandanas on the luggage, (4) the clothi ng in the luggage looked too large for Flores 
and Parsons, (5) the money was bound by a rubber band and (5) a DEA officer in Pennsylvania 
identified Flores and Parsons as a “meth and ice dealer.” Id. at 207:4-208:9, 209:16-211:4, 
207:4-214:14, 214:7-217:5, and 202:1-15. At the scene of the tra ffic stop, Washington told both 
Flores and Parsons that they were being detained for “po ssession of money laundering.” 
Flores/Parsons Video at 00:33:35. After Flores and Parsons were taken back to the police 
station, Washington told them that they were being detained but that he could not tell them what 
the charges were unless they were arrested. Flores/Parsons Video at 00:42:50. Washington 
indicated that the reason they were being detained was because of “discrepancies on - - about - - 
about the amount of money and placement of th e money and different things like that.” 
Flores/Parsons Video at 00:42:17. Whatley concl uded that the money seized was connected to 
unspecified narcotics activity in Pennsylvania , based on his experience and training. However, 
Whatley never identified what kind of narcotic s activity, what kind of drugs were involved, and 
never asked the authorities in Pennsylvania if they had any reason to think there was a 
connection. Id. The Court’s review of the video record of Flores and Parson’s stop and arrest 
also indicates that Whatley was not aware of the rumors of Flores’ or Parsons’ alleged 
connection to drug activity at the time Whatley s earched the car, seized the money, and detained 
the men. Flores/Parson Video at 00:00:01 to 01: 32:50. The video of the stop also shows that 
Defendant Washington arrived at the scene wh ile Whatley was searching the car; however, 
Washington did not actively participate in the search. See Flores/Parsons Video at 00:20:30. 
Flores and Parsons were no-billed by a grand ju ry and District Attorney Russell returned the 
seized money. Letter from Russell to John Smith, Exhibit 16 to Opening Brief. PageID #: 
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II. Discussion 
 The class certification determination rests wi thin the sound discretion of the trial court, 
exercised within the constraints of Federal Rule of Civil Procedure 23. Oscar Private Equity 
Invs. v. Allegiance Telecom, Inc ., 487 F.3d 261, 264 (5th Cir. 2007). The party seeking 
certification bears the burden of establishing th at all requirements of Rule 23 have been 
satisfied.” Unger v. Amedisys Inc. , 401 F.3d 316, 320 (5th Cir. 2005 ). “Rule 23 does not set 
forth a mere pleading standard. A party s eeking class certification must affirmatively 
demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in 
fact sufficiently numerous parties, common questions of law or fact, etc.” Wal-Mart, 131 S.Ct. 
at 2551 (original emphasis). Before granting certification, a court must conduct a rigorous 
analysis to determine whether the plain tiffs have met the Rule 23 requirements . Castano v. Am. 
Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996). “[S]ometimes it may be necessary for the court 
to probe behind the pleadings before coming to rest on the certifica tion question,” and the 
“rigorous analysis” required of the court may “entail some overlap with the merits of the 
plaintiff’s underlying claim.” Wal-Mart, 131 S.Ct. at 2551 (quotation and citations omitted). 
However, a district court cannot deny certification based on its be lief that the plaintiff could not 
prevail on the merits. Castano, 84 F.3d at 744 (citing Miller v. Mackey Int’l, 452 F.2d 424, 427 
(5th Cir. 1971)). The Court has an independent duty to determine the propriety of the class 
certification and is not limited to th e arguments made by the parties. See Daniels v. City of New 
York, 196 F.R.D. 409, 413 n.5 (S.D.N.Y. 2001); Anderson v. Cornejo , 2000 WL 286902, at *3 
(N.D. Ill. 2000). Because a district court main tains great discretion in certifying and managing a 
class action, a district court’s decision to certify a class will be reversed only upon a showing that 
the court abused its discretion, or that it applied incorrect legal standards in reaching its decision. 
James v. City of Dallas, Texas, 254 F.3d 551, 562 (5th Cir. 2001). PageID #: 
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A. Adverse Inferences 
 Before analyzing the requirements of Rule 23, the Court will address two issues that were 
raised in the class ce rtification briefing regarding whet her the Court should draw adverse 
inferences from (1) the failure of Tenaha and th e Constable’s Office to collect and report racial 
profiling information as required by Texas law and (2) Defendant Russell’s and Defendant 
Green’s refusal to answer questions during their depositions on Fifth Amendment grounds. 
1. Adverse Inference based on Failure to Maintain Racial Profiling 
Information 
 First, the Court will consider whether to dr aw an adverse inference from the failure of 
Tenaha’s law enforcement agencies to collect and report racial profiling evidence, as required by 
Texas Law. Plaintiffs argue th at this failure supports an infe rence that the Defendants were 
actively attempting to conceal ev idence regarding the discriminato ry aspects of the interdiction 
program. At the very least, however, Plainti ffs argue that this failure should excuse any 
perceived deficiencies in the statistical analysis. The Court agrees. 
 Texas Law requires that all law enforcement agencies adopt a “detailed written policy on 
racial profiling” that requires the agency to collect racial profiling information for all traffic 
stops, arrests, and searches and seizures, as we ll as report racial profiling information to the 
governing bodies served by the agency. T EX. CODE CRIM. PRO. § 2.132(b)(6) and (7) (2001). 2 
The evidence clearly demonstrates that Tenaha’s law enforcement agencies did not comply with 
these statutory requirements. Defendant Whatle y testified, and Defendants do not dispute, that 
the Precinct 4 Constable’s office of Shelby County is a law enforcement agency, but that he did 
not have a racial profiling policy or report th e racial profiling information to the County. 
Whatley Depo I at 133:1-136:13. Whatley also te stified that he was aware of no way to 
                                                            
2 This section of the Texas Code of Criminal Procedure was amended in 2009, but the relevant provisions are the 
same. See TEX. CODE CRIM. PRO. § 2.132(b)(6) and (7) (2009). PageID #: 
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determine if he was disproportionately stopping members of ethnic groups. Id. The statistical 
evidence that has been produced in this case, the Tier 1 data provided by the Tenaha police 
department, appears to be the onl y racial profiling information kept by any of Tenaha’s law 
enforcement agencies. This Tier 1 data includes information about the racial make-up of stops 
made in Tenaha, but not the required information on detentions, searches, or seizures. See Tier 1 
Data. Accordingly, it is undisputed that both the Tenaha police department and constable’s 
office failed to collect racial profiling information that they were required by law to collect and 
report and that would have clearly shown the impact of the interd iction program on racial and 
ethnic minorities. Under these circumstances, th e Court is persuaded that the failure of the 
Tenaha police department and th e constable’s office to collect, report, and maintain racial 
profiling information gives rise to an inference that this failure was the result of an attempt to 
conceal the illegal targeting of racial and ethnic minorities for stops, detentions, arrests, searches, 
and seizures as part of th e interdiction program. To hold otherwise would allow law 
enforcement agencies, counties, and municipalities to avoid liability for discriminatory practices 
by choosing not to maintain records related to those practices. 
2. Adverse Inference based on Defendant s Russell’s and Defendant Green’s 
Assertion of the Fifth Amendment 
 Next, the Court will address the issue of whether to draw an adverse inference for 
purposes of class certif ication based on Defendant Russell’s a nd Defendant Green’s assertion of 
the Fifth Amendment and refusal to answer questions during their depositions on class 
certification issues. On April 15, 2010, the Court stayed di scovery as to defendants Russell and 
Green for 90 days due to indications that both were subject to pending criminal investigations 
related to the same facts and ci rcumstances giving rise to this lawsuit (Dkt. No. 149). Upon the 
expiration of the 90 day stay, both Defendants Ru ssell and Green requested a further stay of PageID #: 
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discovery directed towards them until the conclusion of the criminal investigations into their 
activity (Dkt. Nos. 167 and 169). On July 10, 2010, the C ourt issued an order denying both 
motions for protection. (Dkt. No. 177). The C ourt reasoned that (1) neither Russell nor Green 
provided any evidence that they were currently under indictment or that indictments against them 
were imminent or even certain; (2) staying discove ry toward them would result in an indefinite 
delay in the proceedings and prejudice the Plain tiffs; and (3) the public interest would best be 
served by the prompt resolution of the case. In it s order denying the stay, the Court ruled that it 
would “limit any adverse inference arising from e ither defendant’s decision to invoke his or her 
Fifth Amendment right to class certification is sues.” At their depo sitions, both Russell and 
Green refused to answer any questions whatsoever, other than identifying themselves by name, 
based on their Fifth Amendment right against self incrimination. See Deposition of Lynda K. 
Russell (“Russell Depo”), Exhibit 1 to Plaintiffs ’ Supplemental Motion fo r Class Certification 
(“First Supp. Motion”) (Dkt. No. 194); Deposition of Danny Green (“Green Depo”), Exhibit 2 to 
First Supp. Motion. 
 “[W]hile a person may refuse to testify during civil proceedings on the ground that his 
testimony might incriminate him ... his refusal to testify may be used against him in a civil 
proceeding.” Hinojosa v. Butler , 547 F.3d 285, 292 (5th Cir. 2008) (quoting Farace v. Indep. 
Fire Ins. Co. , 699 F.2d 204, 210 (5th Cir.1983)). It is we ll settled that “the Fifth Amendment 
does not forbid adverse inferences against parties to civil actions when they refuse to testify in 
response to probative evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 
96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). However, whet her or not to permit such an adverse 
inference in a civil case is left to th e discretion of the district court. Hinojosa, 547 F.3d at 291-
92 (quoting FDIC v. Fid. & Deposit Co., 45 F.3d 969, 977 (5th Cir. 1995)). PageID #: 
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 Plaintiffs argue that Russell’s and Green’s assertion of their Fifth Amendment right 
against self incrimination to every substantive question asked at their depositions justifies the 
Court drawing an adverse inference on the is sues of numerosity, co mmonality, typicality, 
adequacy, and whether Defendants acted on grounds that apply generally to the members of the 
proposed class. Defendants, however, argue that it would be prejudicial for the Court to draw an 
adverse inference against all of the Defendants because only Russell and Green invoked their 
Fifth Amendment right against se lf incrimination. Additionall y, Defendants argue that, as a 
practical matter, there is no way for the Court to draw an adverse inference against Russell and 
Green without that adverse inference likewise bei ng drawn against all of the Defendants. There 
is ample evidence, however, that the Defendants act ed in concert with respect to the interdiction 
program. For example, Whatley testified that he and Washington called the District Attorney’s 
office during interdiction stops to determine whether to release the individuals, arrest them, seize 
their property, or return property that had al ready been seized. Whatley Depo I at 163:21-
168:19. Whatley also testified th at Russell had an agreement with the Tenaha Marshal’s office 
and the Constable’s office on what percentage of th e seizures the District Attorney would get. 
Whatley Depo I at 148:3-21. Becaus e the evidence suggests that al l of the Defendants acted in 
concert with respect to the interdiction program, the Court finds that th ere is no prejudice in 
applying any adverse inference drawn from Russell’s and Gr een’s refusal to answer questions to 
all of the Defendants. 
 Defendants further argue that because the merits of Plain tiffs’ case do not turn on class 
certification, the questions related to class certification are not the type of probative evidence that 
can be the basis for an adverse inference. The Court is not persuaded by Defendants’ argument. 
 Russell and Green refused to answer questions regarding: PageID #: 
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• the interdiction progra m and what role the District Attorney’s office played in the 
interdiction program, see Russell Depo at 39-43; Green Depo at 32-35; 
• the number of citizens who were a ffected by the inte rdiction program, see Russell Depo 
at 82-84; Green Depo at 52-53; 
• whether the treatment of Morrow, Flores, and Parsons was typical of others subject to the 
interdiction program, see Russell Depo at 80-82; Green Depo at 49-50; 
• what type of records are kept by the district attorney’s office regarding cases that are 
presented for the filing of criminal charges; see Russell Depo at 9-10; 
• racial profiling, see Russell Depo at 50-52 and 80; Green Depo at 39; 
• traffic stops, see Russell Depo at14, 41, 48-49, 60, 111-12, and 118; Green Depo at 38-
39; 
• detentions, see Russell Depo at 52 and 119; Green Depo at 40 and 72-73; 
• searches, see Russell Depo at 54-55, 61, and 119; Green Depo at 40 and 73; 
• seizures, see Russell Depo at 57-59, 110, and 120; Green Depo at 41-43; 
• arrests, see Russell Depo at56-58, 67, and 120; and 
• expenditure of forfeiture funds, see Russell Depo at 96-117; Green Depo at 33 and 64-72. 
Russell also cited her right against self incrimin ation and refused to answ er the question: “You 
discussed with Barry Washington and Randy Whatle y how to make racially-motivated stops and 
make those stops appear legal, didn’t you?” See Russell Depo at 118:18-20. These topics, and 
the questions asked by Plaintiffs with respect to these topics, are highly pr obative of the issue of 
class certification. Defendants attempt to downplay the signifi cance of Russell’s and Green’s 
refusal to answer these questions by pointing ou t that Russell and Green participated in other 
forms of discovery—i.e. they provided documentary evidence. However, as discussed earlier, 
Tenaha and Shelby County failed to collect the required racial profiling data, and, thus, this 
highly probative information could not be obtaine d through documentary evidence. In addition, 
Whatley testified that he was aware of no way to determine if he was disproportionately stopping PageID #: 
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members of ethnic groups. Whatley Depo I at 133:1-136:13. Accordingly, much of the highly 
relevant information sought from Russell and Green during their depositions—i.e. whether those 
stopped, detained, arrested, search ed, or whose property was seized pursuant to th e interdiction 
program were disproportionately minorities—was not available through alternative forms of 
discovery. 
 Finally, Defendants argue that because the actions of Whatley a nd Washington directly 
relate to class certification issues, Russell’s and Green’s testimony is irrelevant to class 
certification. Russell and Green did not main tain, however, that they had no relevant 
information in response to Plaintiffs questions. To the contrary, they re sponded that they were 
refusing to answer Plaintiffs’ questions—which related to class certif ication—because their 
answers might incriminate them. The implica tion is that Russell and Green had information 
relevant to the issues of class certification but that they withheld the information because they 
feared it would be incriminating. 
 Accordingly, the Court concludes that it is appropriate to draw an adverse inference on 
the issues of numerosity, commonality, typicalit y, adequacy, and whether Defendants acted on 
grounds that apply generally to the members of the proposed class from Russell’s and Green’s 
refusal to answer questions on Fifth Amendment grounds. 
B. Adequacy of Class Definition 
The Fifth Circuit has held that the existence of an ascertainable cl ass of persons to be 
represented by the proposed class representative is an implied prerequisite of Federal Rule of 
Civil Procedure 23. See John v. National Sec. Fire & Cas. Co. , 501 F.3d 443, 445, n.3 (5th Cir. 
2007) (“It is elementary that in order to maintain a class action, the class sought to be represented 
must be adequately defined and clearly ascertainable”) (quoting DeBremaecker v. Short , 433 PageID #: 
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F.2d 733, 734 (5th Cir. 1970)). The proposed cla ss must be clearly defined so that it is 
administratively feasible for the Court to determine whether a particular individual is a member. 
Daniels, 198 F.R.D. at 414 (citing Rios v. Marshall , 100 F.R.D. 395, 403 (S.D.N.Y. 1983) 
(quoting 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1760 at 
581 (1972)). The Court must be able to make this determination with out having to answer 
numerous fact-intensive questions. Id. (quoting Williams v. Glickman , 1997 U.S. Dist. LEXIS 
1683, at *13 (D.D.C. 1997)); see also Crosby v. Social Sec. Admin. , 796 F.2d 576, 580 (1st Cir. 
1986) (explaining that a class definition should be based on objective criteria so that class 
members may be identified without individualiz ed fact finding). “A class definition is 
inadequate if a court must make a determinati on of the merits of th e individual claims to 
determine whether a particular person is a memb er of the class.” Ja mes Wm. Moore et al., 
Moore’s Federal Practice ¶ 23.21[3][c] (3
rd ed. 2007). 
1. Plaintiffs’ Proposed Class Definition 
 Plaintiff’s proposed class consists of people who: 
1. Are, or appear(ed) to be, members of racial or ethnic minority groups and those in their 
company, and 
2. Were, or will be, traveling in, through, or n ear Tenaha at any time after October 2006, 
and subject to the Defendants’ interdiction program, 
3. Were or are subject to being stopped, detained and/ or arrested by one or more of the 
Defendants without articulable suspicion of criminal activity, and/or 
4. Were or are questioned and/or their vehi cle was or is searched by one or more 
Defendant, without an articul able suspicion of criminal activity, to find valuable 
property or money. 
 Defendants contend that Plai ntiffs’ proposed class definiti on is too vague and does not 
adequately define the boundaries of those included in the propos ed class. Although the Court 
does not agree with all of the Defendants’ argumen ts, the Court does agree that Plaintiffs’ class PageID #: 
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definition is imperfect. For example, Plaintiff’ s proposed definition would require the Court to 
clearly define the interdiction program to iden tify class members. Defendants also object to 
defining the class based on whether “an articulable suspicion of criminal activity” exists. The 
Court proposed this language in an earlier order based, in part, on the Southern District of New 
York’s certification of a similar class with a de finition based on “the abse nce of the reasonable 
articulable suspicion of criminal activity.” See Daniels v. City of New York, 198 F.R.D. 409, 412 
(S.D.N.Y. 2001); see also Order dated August 20, 2009, Dkt. No. 86. However, the factual 
record developed as part of the briefing a nd argument on the motion for class certification 
establishes that proposed class representatives Morrow, Parsons, and Flores are not members of 
such a class. For example, the evidence indica tes that Defendants had “an articulable suspicion 
of criminal activity” with re spect to the detention, arrest, and search of proposed class 
representative Morrow as well as the subsequent seizure of hi s property. The Morrow Offense 
Report indicates that Defendant Washington smelled “the odor of burned marijuana” in the car, 
“noticed several burns in seat upholstery and signs of mariju ana use,” and that Defendant 
Whatley’s drug dog alerted on Morrow’s car. Morrow Offense Report at MOR00211. 
Defendant Washington also testified that he confiscated Morrow’ s money and cell phones 
because Washington believed that Morrow’s conflic ting stories and the signs of drug use in the 
car suggested that the property was related to criminal activity. Washington Depo at 169:22-
193:19; Morrow Offense Report at MOR00211-212l. Although the Court believes that these 
alleged explanations likely do not rise to the level of reasonable articulable suspicion justifying 
the actions of Whatley and Washington given the surrounding circumstances, they do meet the 
requirements of “articulable suspicion” in the proposed class definition. Accordingly, Morrow is 
not a member of the proposed class as currently defined. PageID #: 
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 Likewise, the Defendants have provided “an articulable suspicion of criminal activity” 
with respect to the detentions and searches of proposed class re presentatives Parsons and Flores 
as well as the seizure of their property. Defendant Whatley testified that he searched Flores and 
Parsons’ car because his narcotics dog alerted on the car. Whatley Depo I at 209:1-7. Whatley 
also testified that he seized the money because he believed it was contraband based on this 
training and experience and the fact that (1) his drug dog alerted to the car, (2) Flores and 
Parsons seemed uneasey, (3) there were bandanas on the luggage, (4) the clothing in the luggage 
looked too large for Flores and Parsons, (5) the money was bound by a rubber band and (5) a 
DEA officer in Pennsylvania identified Flores and Parsons as a “meth and ice dealer.” Id. at 
207:4-208:9, 209:16-211:4, 207:4-214:14, 214:7-217:5, and 202:1-15. As with the Morrow stop, 
the Court’s review of the entire record reve als numerous inconsistencies and suggests that 
Defendant Whatley’s actions with respect to Fl ores and Parsons may not have been legally 
justified. However, the “articulable suspicion” standard in the proposed class definition was 
designed to avoid the need for individualized de terminations as to th e reasonableness of each 
detention, arrest, search, and seizure. See Order dated August 20, 2009, Dkt. No. 86. Because 
Defendants have demonstrated “an articulable suspicion of criminal activity” with respect to the 
treatment of Flores and Parsons, they are not members of Plainti ffs’ proposed class as currently 
defined. 
 To certify a class under Rule 23, plaintiffs must show they are members of the class. See 
Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105 (5th Cir.1993). Accordingly, certifying a class 
of which the proposed class representatives are not members, such as Plaintiffs’ proposed class, 
is inappropriate. PageID #: 
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2. The Court’s Modified Class Definition 
 However, the flaws in Plaintiffs’ proposed class definition are not fatal to class 
certification of any class based on Defendants’ alleged misconduct, only to the specific class 
definition proposed by Plaintiffs. “District courts are permitted to limit or modify class 
definitions to provide the necessary precision.” In re Monumental Life Ins. Co. , 365 F.3d 408, 
414 (5th Cir. 2004) (citing Robidoux v. Celani , 987 F.2d 931, 937 (2nd Cir .1993) (“A court is 
not bound by the class definition proposed in the complaint and should not dismiss the action 
simply because the complaint seeks to define the class too broadly”); Harris v. Gen. Dev. Corp., 
127 F.R.D. 655, 659 (N.D. Ill. 1989) (“[I]t is certai nly within this court's discretion to limit or 
redefine the scope of the class”); Meyer v. Citizens & S. Nat’l Bank , 106 F.R.D. 356, 360 (M.D. 
Ga. 1985) (“The Court has discretion in ruling on a motion to certify a class. This discretion 
extends to defining the scope of the class.”)). Th e Court, therefore, modifies the class definition 
as follows: 
(1) People who are, or appear to be, memb ers of racial or ethnic minority groups and 
those in their company, and 
(2) Were, or will be, traveling in, through, or near Tenaha at any time after November 1, 
2006, and 
(3) Were, or are, subject to being stopped by one or more Defendant for an alleged traffic 
violation. 
 Defendants have argued that the inclusion of thos e who were merely stopped as part of 
the interdiction program is overbroad because the stops themselves are not actionable. 
Defendants rely heavily on the Supreme Court’s decision in Whren v. United States to support 
their assertion that the traffic stops at the hear t of Plaintiffs’ case cannot be discriminatory so 
long as the stops were the result of actual traffic violations. See 517 U.S. 806 (1996). In Whren, 
the Supreme Court held that the constitutional reasonableness of traffic stops under the Fourth PageID #: 
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Amendment does not depend on the actual motivations of the individual officers involved. Id. at 
812-13. Based on this principle, the court rejected a claim that a traffic st op violated the Fourth 
Amendment’s prohibition against unreasonable sear ches and seizures unless a reasonable officer 
would have been motivated to stop the car by a desire to enforce the traffic laws. Id. at 813-18. 
While the Supreme Court made it clear that the subjective motivations of an officer have no 
bearing on the reasonableness of a search under the Fourth Amendment—the only constitutional 
claim at issue in Whren—it also clarified that racially motiv ated traffic stops would run afoul of 
the Equal Protection Clause of the Fourteenth Amendment. Id. “The Constitution prohibits 
selective enforcement of the law based on considerations such as race.” Id. at 813. Thus, under 
Whren, targeting racial minorities for enforcement of traffic laws is a violation of the Equal 
Protection clause of the Fourteenth Amendment. In other words, the fact that class members 
may have committed traffic violations will not absolve the Defendants under the Equal 
Protection Clause of the Fourteenth Amendment if the Defendants targeted racial minorities in 
enforcing the traffic laws. Accordingly, Whren supports the inclusion of those members of racial 
and ethnic minorities stopped as part of the interdiction program because Plaintiffs allege that the 
Defendants targeted racial and ethnic minorities for selective enforcement of traffic laws in 
violation of the Equal Protection Clause of the Fourteenth Amendment. 
 Defendants also oppose the inclusion in the class of those who may in the future be 
subject to the interdiction program. Although those who may be stopped while traveling through 
Tenaha at some point in the future are not capab le of being specifically identified, this is not a 
bar to certification of a Rule 23(b)(2) class. The Advisory Committee Notes for Rule 23(b)(2) 
make it clear that specific enumeration of ev ery member of a (b)(2) injunctive class is not 
necessary because the illustrative cas es for this subdivision “are va rious action in the civil-rights PageID #: 
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field where a party is charged with discrimi nating unlawfully against a class, usually one whose 
members are incapable of specific enumeration .” F ED. R. CIV. P. 23(b)(2) 1966 Advisory 
Committee’s Note (emphasis added). Ba sed on this, the district court in In re Cincinnati 
Policing certified an injunctive settlement class of “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 Officers . . .” in a suit agains t the city of Cincinnati and two of its police 
officers alleging racially discrimi natory enforcement practices by the city police department. 
209 F.R.D. 395, 397-400 (S.D. Oh. 2002). 
 Accordingly, the Court finds that the proposed Rule 23(b)(2) class, as described in the 
Court’s modified class definition, is adequately defined and clearly ascertainable. 
C. Rule 23 Requirements 
Once the class is adequately defined, plaintiffs must show that the proposed class meets 
all of the requirements of Rule 23. Under Rule 23(a), the party seeking certification must 
demonstrate that 
(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 representa tive 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]. 
F
ED. R. CIV. P. 23(a); Wal-Mart, 131 S.Ct. at 2548. 
 Second, the proposed class must satisfy at le ast one of the three requirements listed in 
Rule 23(b). Plaintiffs rely on Rule 23(b)(2), which applies wh en “the party opposing the class PageID #: 
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has acted or refused to act on grou nds that apply generally to the cl ass, so that final injunctive 
relief or corresponding declaratory relief is appropriate respecting the class as a whole.” F ED. R. 
CIV. P. 23(b)(2). 
1. Rule 23(a) Requirements 
a) Numerosity 
 To satisfy the numerosity requirement, the court must inquire whether the class is so 
numerous that joinder of all members is impracticable. See Watson v. Shell Oil Co ., 979 F.2d 
1014, 1022 (5th Cir. 1992). The plaintiff need not establish the exact number of potential class 
members to meet the numerosity requirement. Smith v. Texaco, Inc ., 88 F.Supp.2d 663, 674 
(E.D. Tex. 2000), vacated on other grounds 281 F .3d 477 (5th Cir. 2002); Newberg on Class 
Actions, § 3.5 (4th ed.); Barragan v. Evanger’s Dog and Cat Food Co., Inc ., 259 F.R.D. 330, 
333 (N.D. Ill. 2009) (“a plaintiff does not need to demonstrate the exact number of class 
members as long as a conclusion is apparent from good-faith estimates”). To determine whether 
the numerosity requirement has been met, the c ourt “must not focus on sheer numbers alone but 
must instead focus on whether joinder of all members is practicable in view of the numerosity of 
the class and all other relevant factors.” Pederson, 213 F.3d at 868 (internal citations omitted). 
Other relevant factors include the geographical dispersion of th e class, the ease with which class 
members may be identified, the nature of the action, and the size of each plaintiff’s claim. 
Zeidman v. J. Ray McDermott & Co., Inc. , 651 F.2d 1030, 1038 (5th Cir. 1981); Smith, 88 F. 
Supp. 2d at 674. No definite standard exists as to the size of class that satisfies the numerosity 
requirement. Garcia v. Gloor, 609 F.2d 156, 160 (5th Cir. 1980). However, the Fifth Circuit has 
held that a class consisting of 100 to 150 members is “within the range that generally satisfies the 
numerosity requirement.” Mullen v. Treasuer Chest Casino, LLC , 186 F.3d 620, 624 (5th Cir. PageID #: 
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1999) (citing 1 Newberg on Class Actions § 3.05, at 3-25 (3d ed.1992) (suggesting that any class 
consisting of more than forty members “s hould raise a presumption that joinder is 
impracticable”)). In the absenc e of any definitive pa ttern for numerosity in terms of the number 
of purported class members, the Fifth Circuit has left the numerosity determination to the sound 
discretion of the district court in controlling its litigation. Zeidman, 651 F.2d at 1038-39. 
 Tenaha’s Tier 1 racial profiling data indicates that between 2007 and 2009, 829 non-
Caucasians were stopped under the interdiction program. Tier 1 Da ta, Ex. 17 to Opening Brief. 
This number is significantly high er than the 100 to 150 range th at the Fifth Circuit holds is 
within the range that generally satis fies the numerosity requirement. Mullen, 186 F.3d at 624. 
Even taking the lower end of the estimated nu mber of class members, numerosity exists. 
Defendant Whatley estimated th at he stopped upwards of 500 or possibly 1,000 people, and 
Washington estimated that he stopped at l east 100 people during th e relevant time period. 3 The 
Tier 1 racial profiling data indicates that from 2007 to 2009, anywhere from 22.8 % to 51.9% of 
the interdiction stops we re of non-Caucasians. 4 Applying the lowest possible number of stops 
based on Whatley’s and Washington’s testimon y—600—and applying the lowest percentage of 
minority stops for the time period—22.8%5—there would still be roughly 136 class members. In 
                                                            
3 Defendants Whatley and Washington were responsible for most of the traffic stops in the interdiction program. 
Whatley I Depo at 159:14-21.Whatley testified that the interdiction program involved upwards of 500 or possibly 
1,000 people, and Washington testified that he stopped more than 100 people during the interdiction program but 
could not say if that number was more or less than 500. See Whatley Depo I at 158:1-8 and 160:3-7; Washington 
Depo at 124:21-126:11. However, neither Whately nor Washington could estimate the proportion of non-
Caucasians included in these stops. Washington Depo at 126:12-17; Whatley Depo I at 160:8-17. Additionally, the 
City of Tenaha’s 30(b)(6) designee on the interdiction program and the number of apparent minorities stopped, City 
Marshal Fred Walker, did not know how many people have been stopped as a result of the interdiction program 
since July 2006, the ethnicity of the people who were stopped, or the proportion of those stopped who were ethnic 
minorities. Walker Depo at 81:20-82:11. Accordingly, th e only reliable information regarding the number of racial 
and ethnic minorities stopped under the interdiction program is the Tier 1 racial profiling data. 
4 The Tier 1 data indicates that 51.9% of those stopped in 2007 were racial and ethnic minorities and 45.7% of those 
stopped in 2008 were racial and ethnic minorities. In 2009, after the lawsuit was filed, the percentage of racial and 
ethnic minorities stopped dropped to 22.8% of the total stops. Id. 
5 This number represents the percentage of racial and ethnic minorities stopped under the interdiction program in 
2009, after this lawsuit was filed. PageID #: 
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Mullen, the Fifth Circuit upheld a district court’ s finding of numerosity of a class with 
approximately 100-150 members where the district court reasonably inferred that some of the 
class members would be geographically disperse d and, thus, that joinder of them would be 
impractical. 186 F.3d 620, 624 (5th Cir. 1999). B ecause the class members are travelers on an 
interstate highway, U.S. 59, the cl ass members are likely to be geographically dispersed, further 
indicating that joinder is impracticable. For ex ample, six of the ten named plaintiffs—Morrow, 
Watson, Busby, Dismukes, Dorman, and Pearson—are from out-of-state. See Third Amended 
Complaint, ¶¶ 5-10 (Dkt. No. 111). Therefore, it is abundantly clear that the numerosity 
requirement has been met with respect to the class. 
b) Commonality 
The Supreme Court recently clarified the stan dard for determining whether commonality 
exists under Rule 23(a)(2). See Wal-Mart, 131 S.Ct. at 2551-2557. 
Commonality requires the plaintiff to dem onstrate that the class members have 
suffered the same injury. This does not mean that they have all suffered a 
violation of the same provision of law. . . . Their claims must depend upon a 
common contention—for example, the assertion of discriminatory bias on the part 
of the same supervisor. That common c ontention, moreover, must be of such a 
nature that it is capable of classwide resolution—which means that determination 
of its truth or falsity will resolve an issue that is central to the validity of each one 
of the claims in one stroke. 
Id. at 1551 (internal citations and quotations om itted). Accordingly, the commonality analysis 
“requires the court to determine (1) whether the class members’ claims ‘will in fact depend on 
the answers to common questions,’ and (2) whethe r classwide proceedings have the capacity to 
‘generate common answers apt to drive the resolution of the litigation,’” United States v. City of 
New York, 2011 WL 2680474, at * 3 (S .D.N.Y. 2011) (quoting Wal-Mart, 131 S.Ct. at 2554 and 
2551, respectively) (additional citations and quotat ions omitted)). Answering these questions 
will necessarily overlap somewhat with Plaintiffs’ merits contention that Tenaha’s interdiction PageID #: 
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program constitutes a pattern and practice of di scrimination against members, or those who 
appear to be members, of a racial or ethnic minority, and their passeng ers, by targeting these 
individuals for illegal stops, detentions, arrests, and/or searches and seizures. See Wal-Mart, 131 
S.Ct. at 2552 (“In this case, pr oof of commonality necessarily overl aps with respondents’ merits 
contention that Wal-Mart engages in a pattern or practice of discrimination”) (original 
emphasis). To demonstrate common ality, Plaintiffs must have “sig nificant proof” that Tenaha’s 
interdiction program operates as a “general policy of discrimination.” Id. at 2553. 
 In Wal-Mart, the Supreme Court reversed certificati on of a class of former and current 
female employees of Wal-Mart who brought a T itle VII class action against Wal-Mart alleging 
sex discrimination in Wal-Mart’s pay and prom otion practices. The Supreme Court’s decision 
rested, in part, on the plaintiffs’ failure to satisf y the commonality requirement of Rule 23(a). 
The plaintiffs in Wal-Mart did not allege that Wal-Mart had an express corporate policy against 
the advancement of women. Instead, the allegation was that the lack of a uniform hiring policy 
led to broad discretions on the part of local mana gers in pay and promotion decisions. Because 
the local managers were susceptible to systemic gender biases in the Wal-Mart culture, the local 
managers’ discretion over pay and promotions was, according to the plaintiffs, exercised 
disproportionately in favor of men, leading to an unlawful disparate impact on female 
employees. Wal-Mart, 131 S.Ct. at 2548. The Supreme Court rejected the argument that a lack 
of a company-wide policy regarding hiring could be considered to be a pattern or practice of 
discrimination, at least where pl aintiffs provided no substantiation of systematic discrimination 
beyond anecdotal evidence and flawed statistical analysis. “In a company of Wal-Mart’s size 
and geographical scope, it is quite unbelievable that all managers would exercise their discretion 
in a common way without some common direction.” Id. at 2555. The evidence provided by PageID #: 
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Wal-Mart consisted of: (1) the testimony of a so ciological expert that Wal-Mart’s corporate 
culture made it vulnerable to ge nder bias—although that expert co uld not say with any certainty 
what percentage of Wal-Mart’s employment deci sions were based on ster eotypical thinking; (2) 
testimony from another expert that Wal-Mart pr omotes a lower percentage of women than its 
competitors; and (3) anecdotal evidence of allegedly discriminatory employment decisions by 
certain individuals at a proportionately small number of Wal-Mart stores. Id. at 2554-56. The 
Supreme Court held that this evidence did not rise to the level of significant proof that Wal-Mart 
operated under a general policy or practice of discrimination, as required to satisfy the 
commonality requirement of Rule 23(a), esp ecially given Wal-Mart’s announced policy 
forbidding sex discrimination in hiring, pay, and promotion decisions, and that Wal-Mart 
imposed penalties for denial of equal employment opportunities. Id. at 2553. “Because 
respondents provide no convincin g proof of a companywide disc riminatory pay and promotion 
policy, we have concluded that they have not established the existence of any common 
question.” Id. at 2556-57. 
 The facts of this case are quite different from Wal-Mart. Unlike Wal-Mart, this is not a 
case where the Plaintiffs are attempting to use an ecdotal evidence of discriminatory treatment by 
individuals in a few locations as evidence th at a nation-wide policy of discrimination is 
implemented by the discretionary decisions of thous ands of individuals at thousands of locations 
all across the country. Plaintiffs allege that th ere was a specific, city-wide policy in Tenaha of 
targeting racial and ethnic minorities for traffic stops and then illegally detaining and/or arresting 
them or conducting illegal searches and seizures of their property, i.e. th e interdiction program. 
Plaintiffs further allege that the interdiction program was conceived and implemented by a small 
number of Tenaha police officers and city offici als working in concert during a specified time PageID #: 
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period. While the statistic al evidence presented by Plaintiff is not perfect, it cl early shows that 
the proportion of minorities st opped in Tenaha increased dramatically once the interdiction 
program was instituted. The increase in the nu mber of minorities stoppe d under the interdiction 
program was so remarkable that it is statistica lly impossible that it wa s the result of anything 
other than a decision to target racial and ethnic mi norities. A dditionally, as Wal-Mart 
emphasized, “‘[c]ivil rights cases against pa rties charged with unl awful, class-based 
discrimination are prime examples’ of what (b)(2) is meant to capture.” Id. at 2557 (quoting 
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997)). This is just such a case. 
 Applying standard announced in Wal-Mart, the commonality is satisfied. Plaintiffs have 
offered “significant proof” that Tenaha’s interd iction program operates as a “general policy of 
discrimination.” Wal-Mart, 131 S.Ct. at 2553. First, Plaintiffs have offered statistical evidence 
that the number of racial and ethnic minor ities stopped in and around Tenaha increased 
dramatically when the interdiction program was implemented. From 2003 through 2006, an 
average of about 32% of Tenaha’s traffic stops were of non-Caucasians. In 2007, however, the 
first full year of the interdiction program, the proportion of non-Caucasians increased 
dramatically to between 46.8% and 51.9%. The percentage of non-Caucasians stopped in 2008 
was 45.7%. Plaintiffs argue that when this differe nce is statistically analyzed, the probability of 
the increase occurring as a matter of random chan ce approachs zero. Plain tiffs also argue that 
the increase remains similarly significant for 2008, where the number of non-Caucasians stopped 
was 45.7%. The percentage of non-Caucasians dropped precipitously in 2009 after the 
commencement of this lawsuit to 22.8%. Id. The statistical analysis shows the statistical 
significance or number of standa rd deviations, and probability of the increase in proportions of 
non-Caucasians stopped in Tenaha after the Defe ndants began the interdiction program. For PageID #: 
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2007, the standard deviation is 10.92 or 10.85, a nd for 2008, the standard deviation is 6.56. See 
Tier 1 data. Plaintiff argues that these numbers indicate that it is highly unlikely that the increase 
in the proportion of non-Caucasians stopped once the interdiction program began in late 2006 
could occur randomly. See Casteneda v. Partida, 430 U.S. 482, 496 n.17 (1977) (“As a general 
rule for such large samples, if the difference between the expected value and the observed 
number is greater than two or three standard deviations, then the hypothesis that the jury drawing 
was random would be suspect to a social scientist.”). 
 Defendants, however, question the validity of Pl aintiffs’ statistical analysis and argue that 
it is inadequate because it does not compare the general racial and ethinic make-up of all 
motorists traveling in, near, or though Tenaha with the racial a nd ethnic make-up of those who 
were stopped as part of the interdiction program. In support of their argument, Defendants point 
to the Seventh Circuit’s decision in Chaves v. The Illinois State Police , 251 F.3d 612 (7th Cir. 
2001). The plaintiffs in Chaves presented evidence that a disp roportionate number of African-
Americans and Hispanics were stopped as related to the general ethnic proportions of the State of 
Illinois. See id . The Court found that the statistical evidence was la cking because statistics 
showing the general ethnic proportions of the St ate of Illinois did not necessarily reflect the 
racial makeup of motorist s on Illinois highways. Id. at 645. However, this case is readily 
distinguishable from Chaves. Plaintiffs do not argue that the proportion of non-Caucasians 
stopped under the interdiction program is statistic ally significan t because it differs from the 
proportion of non-Caucasians in th e population generally either in the State of Texas or of 
travelers on the highway, as in Chaves. Instead, Plaintiffs argue that the proportion of non-
Caucasians to Caucasians stopp ed under the interdiction program is statistically significant PageID #: 
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because it varies so dramatically from the proportion of non-Caucasians to Caucasians stopped in 
the same area before the implementation of the interdiction program. 
 In addition to the statistical analysis, Plaint iffs have provided anecdotal evidence that the 
stops of class representatives Mo rrow, Flores, and Parsons were discriminatory and were based 
not on a desire to curb illegal activity, but on racial pr ofiling and Defendants’ desire to enrich 
themselves and their offices. 
 Finally, as discussed previously, the Court finds that the failure of Tenaha and the 
constable’s office to collect, report, and mainta in racial profiling information, as required by 
Texas law, gives rise to an inference that this fa ilure was the result of an attempt to conceal the 
illegal targeting of racial and ethnic minorities for enforcement of the interdiction program. 
This, coupled with the adverse inference draw n from the refusal of Defendants Russell and 
Green to answer relevant questions based on the Fifth Amendment suggests that Defendants 
created an illegal practice of targeting racial an d ethnic minorities for pretextual traffic stops as 
part of the interdiction program—i.e. that Tena ha’s interdiction program operates as a general 
policy of discrimination. 
 Based on this evidence, the Cour t is convinced that the claims of members of the class all 
depend on the answer to the common question of whether Defendants’ interdiction program 
targeted members of racial and ethnic minorities for selective enforcement of the traffic laws in 
violation of the Equal Protection Clause of the Fourteenth Amendment. See Wal-Mart, 131 S.Ct. 
at 2554. The Court is also convinced that a clas swide proceeding on this issues will “generate 
common answers apt to drive the re solution of the litigation” because the answer to this question 
will conclusively establish whether Tenaha’s in terdiction program is discriminatory and, thus, 
whether an injunction putting an end to Tenaha’s interdiction program is warranted Id. at 2551. PageID #: 
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Accordingly, the Court finds that the commonality requirement is met. 
c) Typicality 
 Under the typicality requirement, the named plaintiffs must demonstrate that there is 
sufficient “similarity between [their] legal and remedial theories and the legal and remedial 
theories of those whom they purport to represent.” Lightbourn v. County of El Paso , 118 F.3d 
421, 426 (5th Cir. 1997). The threshold fo r demonstrating typicality is low. Id. Typicality does 
not require identity of claims, but only that “the class represen tative’s claims have the same 
essential characteristics of those of the putative class. If the claims arise from a similar course of 
conduct and share the same legal theory, factua l differences will not defeat typicality.” James v. 
City of Dallas, Tex., 254 F.3d 551, 571 (5th Cir. 2001). 
 Plaintiffs argue that there is undisputable evidence that proposed class representatives 
Morrow, Flores, and Parsons were subjected to discriminatory stops under the interdiction in the 
same manner as the members of th e proposed class. As a result, Plaintiffs contend that their 
claims are typical of those of the proposed cl ass. Plaintiffs also argue that Defendant 
Washington’s testimony that “that’s the way we do it” when asked if his treatment of Morrow 
was typical and Walker’s testimony that all citi zens subject to the interdiction were treated 
according to the same rules under the program removes any credible doubt as to typicality. See 
Washington Depo at 193:14-24. The Court agrees. 
 When Defendant Washington was asked if th e treatment of named Plaintiff Morrow was 
typical of the interdiction program, Washingt on responded, “That’s the way we do it” and 
described the incident as a “very good example of pretty good police work.” Washington Depo 
at 193:14-24. Similarly, Tenaha City Marsha l Walker, who was Tenaha’s 30(b)(6) designee 
regarding the interdiction program, testified that there had been no changes to the interdiction PageID #: 
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program and that all citizens were treated according to the same rules under the program. 
Walker Depo at 45:20-24 and 85:8-12. Although each stop under the interdiction program may 
have a slightly different factual situation, the evidence i ndicates that the rules of the interdiction 
program and the general treatment of individuals stopped as a result of the interdiction program 
are the same for each stop, including the stops of the proposed class representatives Morrow, 
Flores, and Parsons. Accordingly, the claims of Morrow, Flores, and Parsons are typical of the 
claims of the class. Additionally, as discusse d above, the Court has draw n an adverse inference 
on the issue of typicality from the refusal of Defendants Russell and Green to answer questions 
at their depositions on the issue of typicality. The Court, therefore, finds that the typicality 
requirement is met. 
d) Adequacy of Representation 
Rule 23(a)(4) requires that th e representative part ies “fairly and adequately protect the 
interests of the class.” F
ED. R. CIV. P. 23(a)(4). To this end, the adequacy of class representation 
required under Rule 23(a)(4) mandates an inquiry not only into (1) the “zeal and competence of 
the representatives’ counsel,” but also into (2) “the w illingness and ability of the 
representative[s] to take an active role in and co ntrol the litigation and to protect the interests of 
absentees.” Berger v. Compaq Computer Corp., 257 F.3d 475, 481 (5th Cir. 2001). 
 Defendants do not challenge the competence of the proposed class counsel—Stephanie 
Stephens, David Guillory, and Timothy Garri gan. However, Defendants do argue that 
appointing three lawyers as co-lead counsel could result in duplica tion of effort and, thus, would 
not be in the best interest of the class. Th e Court is not persuaded by Defendants’ argument. 
The Court has carefully reviewed the evidence of proposed cla ss counsel’s training, skill, and 
experience and finds that each of them is competent to serve as class counsel. PageID #: 
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The Court now turns to the second consider ation regarding adequa cy: the willingness 
and ability of the representatives to take an activ e role in and control the litigation and to protect 
the interests of absentees. Plaintiffs argue that the interests of the proposed class 
representatives—Morrow, Flores, and Parsons—are identical to t hose of the propo sed class and 
that there are no conflicts between the class repr esentatives’ interests and the interests of the 
class members. Plaintiffs point out that differences between the proposed representatives and the 
class do not defeat adequacy unless they rise to the level of conflicts of interest. See Mullen, 186 
F.3d at 625-26 (“Differences between named plai ntiffs and class members render the named 
plaintiffs inadequate representatives only if those differences cr eate conflicts between the named 
plaintiffs’ interests and the class members’ interests”). Additionally, Plaintiffs argue that each of 
the proposed class representatives has presented a declaration reflecting his support of class 
certification, his willingness to serve as class re presentatives, pledging to place the interests of 
the class above his own, and pledging to coope rate in the prosecution of this case. See 
Declarations of Morrow, Flores, and Parsons, Exhibit 19 to Opening Brief. 
Defendants, however, argue that the proposed class representatives will not adequately 
represent the interests of the par ties because they (1) seek to re present a class of persons that 
apparently do not desire to be a part of this litigation, and (2) seek compensatory and punitive 
damages on behalf of the class. Defendants ar gue that seven of the named class members no 
longer appear to be cooperating in the litigation of the suit. According to Defendants, this 
suggests that many of the potential class members will also not wish to pursue any claims against 
Defendants or participate as me mbers of the class. Defendant s contend that this creates a 
conflict of interest with respect to the potential class members because only Morrow, Flores, and 
Parsons wish to pursue a claim against Defendants. The Court disagrees. At best, Defendants PageID #: 
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have provided evidence that some of the original class representa tives no longer wi sh to act as 
class representatives. Defendants have, however , provided no evidence that these individuals no 
longer wish to have their claims against Defendants litigated by the remaining class 
representatives as a class action. Even if Defendants’ allegations that several of the original class 
representatives no longer wish to be class representatives ar e true, the fact that others are 
unwilling or unable to act as class representatives ha s no bearing on the ability or willingness of 
Morrow, Flores, and Parsons to act as class representatives. 
Defendants also argue that the proposed class representatives are inadequate because they 
are walking a fine line by seek ing compensatory and punitive dama ges. Defendants argue that, 
on the one hand, seeking monetary relief jeopardizes class certification as a Rule 23(b)(2) class. 
However, if only injunctive reli ef is sought, the proposed repres entatives may subject the class 
members’ potential claims to res judicata, and thus create a conflict between their interests and 
those of the putative class members. The Court is also unpersuaded by this argument. Plaintiffs’ 
request for compensatory and punitive damages refl ects their desire to obtain as much relief on 
behalf of the class as they are legally entitled to and does not affect their adequacy as class 
representatives or create a conflict of interest. Later in this Order, the Court will more fully 
address the issue of whether cla ss members’ claims for individua l damages would be barred by 
collateral estoppel or res judicata should the Court chose to certi fy only an injunctive class. 
However, this issue is more appropriately handled in determining whether to certify the class as a 
(b)(2) class for injunctive relief or a (b)(3) class for damages and doe s not affect the adequacy of 
the class representatives. 
In conclusion, the differences that Defenda nts focus on are not the kind of differences 
that create a conflict of interests between the proposed class representatives and the members of PageID #: 
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the class because any differences in the specific factual circumstances giving rise to the claims of 
the proposed class representatives and the members of the class do not affect the alignment of the 
class representatives’ interests with the interest of the class. See Mullen , 186 F.3d at 625-26 
(upholding district court’ s finding of adequacy of representa tion when the differences in the 
claims of the class representatives and the poten tial class members did not affect the alignment 
of their interests). Accordi ngly, the Court finds that the pr oposed class representatives will 
adequately represent the interests of the entire class. 
1. Rule 23(b)(2) 
 Because Plaintiffs are moving for class certif ication under Rule 23(b)(2), they must also 
demonstrate “that the party opposing the class ha s acted or refused to act on grounds generally 
applicable to the class, thereby making approp riate final injunctive re lief or corresponding 
declaratory relief with respect to the class as a whole.” F ED. R. CIV. P. 23(b)(2). Rule 23(b)(2) 
permits class certification of claims seeking inju nctive or declaratory reli ef, and these types of 
proposed classes need not withstand the Court’s independent probe into the superiority of a class 
action over other available methods of adjudication—i.e., questions of manageability and judicial 
economy—or the degree to which common issu es predominate over those affecting only 
individual class members. Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 414 (5th Cir. 1998); 
Forbush, 994, F.2d at 1105. The key to the (b)(2) cla ss is “the indivisible nature of the 
injunctive or declaratory remedy warranted—the notion that the c onduct is such that it can be 
enjoined or declared unlawful onl y as to all of the class member s or as to none of them.” Wal-
Mart, 131 S.Ct. at 2557 (quoting Nagareda, 84 N.Y.U.L.Rev., at 132). Accordingly, certification 
of a Rule 23(b)(2) class is appropriate “only when a single injunction or declaratory judgment 
would provide relief as to each member of the class.” Wal-Mart, 131 S.Ct. at 2557. Looking at PageID #: 
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the history of Rule 23(b)(2), the Wal-Mart Court acknowledged that “’[c]ivil rights cases against 
parties charged with unla wful, class-based discrimination are prime examples’ of what (b)(2) is 
meant to capture.” Id. at 2557 (quoting Amchem Products, Inc. v. Windsor , 521 U.S. 815, 614 
(1997)). Such is the case here. 
 Here, Plaintiffs allege that Defendants developed an illegal practice that targeted racial 
minorities for pretextual traffic stops in viol ation of the Equal Protection Clause of the 
Fourteenth Amendment—i.e. the interdiction program. When a plaintiff a lleges that a defendant 
is engaged in a “pattern or pr actice” of behavior, in order to meet the requirements of Rule 
23(b)(2), the pattern or practice must “consist of a uniform policy allegedly applied against the 
plaintiffs, not simply diverse actions in various circumstances.” Bolin, 231 F.3d at 975 (citing 
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1775 
at 448 & n.3 (2 nd ed. 1986)). Certification is improper if the merits of the claim turn on the 
defendant’s individual dealings with each plaintiff. Id. Plaintiffs have alleged and provided 
evidence that the interdiction program was uniformly applied and that all citizens affected by the 
interdiction program were subject to the same rules and procedures. See Washington Depo at 
193:14-24; Walker Depo at 45:20- 24 and 85:8-12. Plaintiffs have also provided evidence that 
the proportion of racial and ethnic minorities stopped increased dramatically when the 
interdiction program began and that this in crease is statistica lly significant. See Tier 1 Data. 
Accordingly, the issue to be litigated is whether the interdiction program illegally targeted racial 
and ethnic minorities for traffic stops, not the individual factual circumstances surrounding each 
stop. Where plaintiffs allege th at the police have engaged in a presumptively invalid procedure, 
class certification “is appropriate since the liability which the plainti ffs seek to establish is based 
on the operation itself rather than on the circ umstances surrounding each individual stop or PageID #: 
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arrest.” Wilson v. Tinicum Township ; 1993 WL 280205, at *8 (E.D. Pa. 1993). In Wilson, the 
court certified an injunctive class seeking to enjo in the township from continuing to practice its 
alleged policy of violating the civil rights of individuals by targeting African Americans travelers 
on I-95 for stops based on pretextual traffic violat ions and with the intent of searching their 
vehicles for drugs without probable cause or reasonable suspicion. Id. at *1-7. 
 Additionally, Rule 23(b)(2) certification is “es pecially appropriate where a plaintiff seeks 
injunctive relief against discrimina tory practices by a defendant.” Daniels, 198 F.R.D. at 414 
(citing Weiss v. York Hosp., 745 F.2d 786, 811 (3rd Cir. 1984)); see also Marisol A. By Forbes v. 
Giuliani, 929 F. Supp. 662, 692 (S.D.N.Y. 1996) (“Rule 23(b)(2) is designed to assist and is 
most commonly relied upon by litigants seeking inst itutional reform in the form of injunctive 
relief.”), aff’d, 126 F.3d 372 (2nd Cir. 1997). In fact, the 1966 Notes to Rule 23(b)(2) lists civil 
rights actions “where a party is charged with di scriminating unlawfully against a class, usually 
one whose members are incapable of specific enumeration” as ex amples of appropriate Rule 
23(b)(2) actions. F ED. R. CIV. P. 23(b)(2) 1966 Advisory Co mmittee’s Note. The Supreme 
Court has also recognized that civil rights cases, like this one, “alleging racial or ethnic 
discrimination are often by thei r nature class suits, involving classwide wrongs” and common 
questions of law or fact are typically present. East Texas Motor Freight Systems, Inc. v. 
Rodriguez, 431 U.S. 395, 405 (1977). Howe ver, careful attention to the requirements of Federal 
Rule of Civil Procedure 23 remain, nonetheless, indispensable. Id. 
 The proposed class, as defined by the C ourt, alleges classwid e racial and ethnic 
discrimination—i.e. that Defendants’ interdiction program unlawfully targeted members of racial 
and ethnic minorities for stops in violation of th e Equal Protection Clause of the Fourteenth 
Amendment—and is, thus, precisely the type of class for which Rule 23(b)(2) was created. PageID #: 
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Accordingly, the Court finds that certification of a (b)(2) class for injunctive and declaratory 
relief is appropriate. 
a) Class Claims for Declaratory and Injunctive Relief 
 Plaintiffs request declarat ory relief recognizing that 
(1) the Defendants’ practice of targeting apparent members of racial or ethnic 
minority groups for traffic stops, detenti ons, arrests, searches, and seizures 
violates the equal protection clause of the Fourteenth Amendment; and 
 
(2) the Defendants’ practice of conducti ng traffic stops, dete ntions, arrests, 
searches, and seizures wit hout legal justifica tion violates the prohibition against 
unreasonable searches and seizures in the Fourth Amendment, and that resulting 
forfeitures violate the due process clause of the Fourteenth Amendment. 
 
 Plaintiffs also request th e following injunctive relief: 
(1) a permanent prohibition against the Defendants’ practices found to be 
unconstitutional; and 
 
(2) a requirement that these Defendants ut ilize best practices in conducting any 
traffic stops, roadside detentions, search es, and seizures that, at a minimum, 
includes use of video equipment with re-e vent recording, or comparable features, 
so that the legal justification for any traffic stop, detentio n, warrantless arrest, 
search and/or seizure is accurately reco rded, by video and audio, and meaningful 
monitoring of all such recordings for constitutional compliance. 
 
The proposed class, as modified by the Court, is only concerned with whether the Defendants 
targeted racial and ethnic minorities for pretex tual traffic stops in violation of the Equal 
Protection Clause of the Fourteenth Amendm ent, and not with whether any subsequent 
detentions, arrests, searches, or seizures violated the Fourth Amen dment as applied to the states 
through the Due Process Clause of the Fourteen th Amendment. Accordingly, the specific 
declaratory and injunctive relief proposed by Plaintiffs is inappropriate to the extent it seeks a 
declaration or injunction concerni ng detentions, arrests, searches , or seizures by Defendants. 
This is not to say that any declaratory or injunctive relief is inappropriate on a classwide basis. 
To the contrary, it only suggests that any decl aratory and/or injuncti ve relief must address PageID #: 
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Defendants’ alleged practice of targeting members of racial and ethnic minorities for selective 
enforcement of traffic laws under the interdiction program. As one example, if Plaintiffs prevail 
on the merits of their case, they would be entitled to a declarat ion that Defendants’ practice of 
targeting apparent members of racial or ethni c minority groups for pret extual traffic stops 
violates the equal protection clause of the Fourteenth Amendment. Similarly, they would also be 
entitled to an injunction putting an end to the interdiction program in Tenaha and prohibiting the 
Defendants from targeting racial and ethnic minor ities for the selective enforcement of traffic 
laws. 
 Defendants, however, argue th at Plaintiffs proposed injunc tive relief is not specific 
enough. Every order granting an injunction must be specific in its terms and must describe in 
reasonable detail the act or acts that are enjoined. F
ED. R. CIV. P. 65(d); see also Alabama 
Nursing Home Assoc. v. Harris , 617 F.2d 385, 387 (5th Cir. 1980). “This requirement of 
specificity and reasonable deta il, based in part on notions of basic fairness, ensures that 
individuals against whom an inj unction is directed r eceive explicit notice of the precise conduct 
that is outlawed.” Alabama Nursing Home Assoc. , 617 F.2d. at 387-88. Citing Alabama 
Nursing Home Assoc. , the Fifth Circuit has stated that the injunctive relief sought under Rule 
23(b)(2) must be specific. Maldanado v. Ochsner Clinic Foundation , 493 F.3d 521, 524 (5th 
Cir. 2007). The real issue, however, is not wh ether Plaintiffs have precisely defined the 
requested injunction at the class certification state, but whether the class is “sufficiently cohesive 
that classwide injunctive relief can satisfy the limitations of Federal Rule of Civil Procedure 
65(d)—namely, the requirement that it ‘state its terms specifically; and de scribe in reasonable 
detail . . . the act or acts restrained or required.’” Shook v. Board of County Commissioners of 
County of El Paso, 543 F.3d 597, 604 (10th Cir. 2008) (quoting FED. R. CIV. P. 65(d)). Plaintiffs PageID #: 
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are not required to set forth the requested injunction in the pleadings with the specificity required 
by Rule 65. Monreal v. Potter , 367 F.3d 1224, 1236 n.11 (10th Cir. 2004) . Plaintiffs have set 
forth facts suggesting that Defendants’ behavior was generally applicable to the class as a whole, 
making injunctive relief appropriate . The precise terms of the injunction need not be decided at 
this stage, only that the allegations are such th at injunctive and declaratory relief are appropriate 
and that the class is sufficiently cohesive that an injunction can be crafted that meets the 
specificity requirements of Rule 65(d). 
 In Maldanado, the Fifth Circuit rejected certifi cation of a Rule 23(b)(2) class for 
injunctive relief because the inabil ity of the plaintiff to specify what injunctive relief was sought 
highlighted the fact that indivi dualize issues overwhelmed class cohesiveness. 493 F.3d at 524. 
The plaintiffs in Maldanado were uninsured patients who received medical care from a non-
profit hospital and where then bille d for their medical services at rates higher than were those 
patients with health insurance. Id. at 523. The plaintiffs sought an injunction requiring, in part, 
that the hospital provide them with “m utually affordable health care.” Id. at 524. In denying 
class certification, the Fifth Circuit pointed out that the pl aintiffs had failed to identify any way 
to determine what a reasonable or “mutually affordable” rate was for the wide variety of medical 
services offered by the health provider. Id. “The amount patients were charged and the amount 
that is ‘reasonable’ for the services they receiv ed is necessarily an individual inquiry that will 
depend on the specific circumstances of each cl ass member, the time fame in which care was 
provided, and both [the defendant’s] and ot her hospitals’ costs at that time.” Id. Unlike the 
proposed injunction rejected by the Fifth Circuit in Maldanado, an injunction in this case would 
not require an individualized asse ssment of the injunctive relief afforded to each class member. 
Instead, the injunction would fo cus on ending Tenaha’s allegedl y discriminatory interdiction PageID #: 
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program and putting safeguards in place to monito r future stops to make racial profiling less 
likely. 
 Additionally, Defendants argue that prospective in junctive relief is not appropriate in this 
case because Tenaha’s interdiction program no longer exists. Defendants point to the deposition 
testimony of Shelby County’s designee, Shelby County Judge Rick Campbell, that Defendant 
Washington is no longer the C onstable of Precinct 4 and that Shelby County no longer operates 
an interdiction program. See Campbell Depo I at 22:14-17; Campbell Depo II at 23:2-17. Mr. 
Campbell testified that the Sh elby County sheriff’s office and Precinct 4 have not had an 
interdiction program since Ja nuary of 2009. Campbell Depo II at 21:12-17. Although his 
testimony is somewhat contradictory, Mr. Cam pbell also indicated that the Shelby County 
Sherriff’s Office does not even do traffic enfor cement and does not issue traffic citations. Id. at 
21:12-23:11. Accordingly, Defendants argue that the members of the class are not subject to any 
future harm that can be remedied by an injunc tion. Plaintiffs, however, cite to the deposition 
testimony of the City of Tenaha ’s designee, Fred Walker, which was adopted by Shelby County, 
that the interdiction program was still in place a nd that no changes had been made to it as of 
April 21, 2010. Walker Depo at 45:17-24. 
 Although not labeled as such, Defendants’ ar gument is a mootness argument. According 
to Defendants, if Tenaha no longer has the alle gedly unconstitutional interdiction program, then 
an action seeking only an injunc tion to stop the program and a declaration that the program is 
unconstitutional is moot. However, the fact that Tenaha voluntarily stopped its allegedly 
unconstitutional interdiction program does not n ecessarily render classwide injunctive relief 
moot. A long line of Supreme Court cases stands for the proposition that the “voluntary 
cessation of allegedly illegal c onduct does not deprive the tri bunal of power to hear and PageID #: 
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determine the case, i.e., does not make the case moot.” United States v. W. T. Grant Co. , 345 
U.S. 629, 632 (1953); United States v. Trans-Missouri Freight Assn. , 166 U.S. 290, 308-310 
(1897); Walling v. Helmerich & Payne, Inc. , 323 U.S. 37, 43 (1944); Gray v. Sanders, 372 U.S. 
368, 376 (1963); United States v. Phosphate Export Assn ., 393 U.S. 199, 202-203 (1968). In 
such circumstances, a dispute over the legality of the practices at issue remains to be settled by 
the court. W.T. Grant Co., 345 U.S. at 632. The fact that “the defendant is free to return to his 
old ways” taken together w ith the “public interest in having th e legality of the practices settled, 
militates against a mootness conclusion.” Id. “It is the duty of the courts to beware of efforts to 
defeat injunctive relief by protestations of re pentance and reform, especially when abandonment 
seems timed to anticipate suit, and th ere is probability of resumption.” United States v. Oregon 
State Medical Society , 343 U.S. 326, 333 (1952). The case ma y, in fact, be found moot if the 
defendant can demonstrate that “there is no reasonable expectation that the wrong will be 
repeated.” T. W. Grant Co ., 345 U.S. at 633 (quotation and cita tion omitted). The burden is a 
“heavy one,” and is not satisfied where, as here , the defendants simply claim that the challenged 
policy no longer exists and they have no intention of reviving it. Id.; see also Hall v. Bd. of Sch. 
Comm'rs of Conecuh County , 656 F.2d 999, 1001 (5th Cir. 1981) (“ To defeat jurisdiction . . ., 
defendants must offer more than their mere pr ofession that the conduct has ceased and will not 
be revived.”). 6 Similarly, Defendants’ claim that Defendants Washington and Green are no 
longer employed by the City of Tenaha or Shel by County is not enough to satisfy Defendants’ 
                                                            
6 The Eleventh Circuit has held that “[w]hen the defendant is not a private citizen but a government actor, there is a 
rebuttable presumption that the objectionable behavior will not recur.” Troiana v. Supervisor of Elections in Palm 
Beach County, Fla. , 382 F.3d 1276, 1283 (11th Cir. 2004). However, the Fifth Circuit has not adopted this 
position. In fact, in Hall v. Board of School Commissioners of Conecuh County , the Fifth Circuit applied the 
standard articulated in W.T. Grant Co . to determine whether the voluntary cessation of a school policy allowing 
students to conduct morning devotionals over the school’s public address system mooted a constitutional challenge 
to the policy. 656 F.2d 999, 1000-01 (5th Cir. 1981). In reaching its decision, the Fifth Circuit never indicated that 
the school board, as a governmental body made up of publ ic officials, was entitled to a rebuttable presumption that 
the objectionable policy would not recur based on the superintendent’s statement that the challenged policy had been 
terminated. Id. PageID #: 
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heavy burden of proving that there is no reasonable expectation that the City of Tenaha or Shelby 
County will reinstat e the allegedly discriminatory interdiction program. In Hall v. Board of 
School Commissioners of Conecuh County , the Fifth Circuit found that a suit challenging the 
constitutionality of a high school’s policy of al lowing students to give morning devotionals over 
the school’s public address system was not mooted by the school’s voluntary decision to 
discontinue the morning devotionals. 656 F.2d 999, 1000-01 (5th Cir. 1981) . In reaching this 
decision, the court considered the fact that th e school board abandoned the policy only after the 
filing of the lawsuit, and found that “the plaintiffs were entitled to injunctive relief that would be 
binding upon the [school system], regardless of changes in personnel .” Id. at 1001 (emphasis 
added). 
 Overruling Defendants’ mootness argument, however, does not answer the question of 
whether classwide injunctive relief is appropriate. See W.T. Grant Co. , 345 U.S. at 633; United 
States v. Concentrated Phosphate Export Ass’n , 393 U.S. 199, 203-04 (1968) (concluding that 
the case was not moot but noting that the district court was not obligated to grant equitable relief 
on remand: “Of course it is still open to appe llees to show, on remand, that the likelihood of 
further violations is sufficiently remote to make injunctive relief unnecessary. This is a matter for 
the trial judge.”) (citation omitted); Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1182 
n.10 (11th Cir. 2007) (holding th at the case was not moot unde r the doctrine of voluntary 
cessation, but remanding for trial court to determine whether injunctive relief was appropriate). 
The analysis of whether a case is moot overlaps with the an alysis of whether a permanent 
injunction is appropriate on the me rits because both are concerned with the likelihood of future 
unlawful conduct. Sheely, 505 F.3d at 1182 n. 10. However, the two inquiries are not the same. 
Whether a permanent injunction is appropriate tu rns on whether the plaintiff can establish by a PageID #: 
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preponderance of the evidence that injunctive relief is necessary. Id. (citing W.T. Grant Co., 345 
U.S. at 633). 
Along with its power to hear the case, the court’s power to grant injunctive relief 
survives discontinuance of the illegal conduc t. The purpose of an injunction is to 
prevent future violations . . . The necessary determination is that there exists 
some cognizable danger of recurrent viol ation, something more than the mere 
possibility which serves to keep the case alive. . . . To be considered are the bona 
fides of the expressed intent to compl y, the effectiveness of the discontinuance 
and, in some cases, the character of the past violations. 
Id. 
 The evidence is contradictory as to whether the City of Tenaha has, in fact, terminated 
the interdiction program. Walker, th e City of Tenaha’s designee, tes tified that as of the date of 
his deposition, April 21, 2010, there had been no changes made to the interdiction program and it 
was still ongoing. Walker Depo at 45:17-24. However, Shelby County offered testimony from 
its designee, County Judge Rick Campbell, that the sheriff’s office ha s not done interdiction 
since January 2009. Campbell Depo II at 21:12-20. Additionally, the parties have not pointed 
to, and the Court has not found, any evidence in the record that the City of Tenaha, Shelby 
County, or any of the Defendants, have stated that they have no plans to reinstate the interdiction 
program at some point in the future. All of th is, coupled with the egregious allegations that 
public officials conspired to violate routinely the civil rights of the traveling public, demonstrates 
to the Court that there exists some cognizable da nger of recurrent violati on such that injunctive 
relief is appropriate. 
 Defendants also argue that even if the interd iction program is still in place, Plaintiffs are 
not entitled to an injunction be cause there is no evidence that most of the class members will 
ever travel through Tenaha in the future and, thus , be subject to the interdiction program. “Rule 
23(b)(2) certification is . . . inappropriate when the majority of the class does not face future 
harm.” Maldonado, 493 F.3d at 525 (citing Bolin v. Sears, Roebuck & Co ., 231 F.3d 970, 978 PageID #: 
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(5th Cir. 2000)); see also In re Monumental Life , 365 F.3d 408, 416 (5th Ci r. 2004) (“Of course, 
certification under rule 23(b)(2) is appropriate only if member s of the proposed class would 
benefit from the injunctive re lief they request.”). In Wal-Mart, the Supreme Court noted that 
“the validity of a (b)(2) class depends on wh ether ‘final injunctive relief or corresponding 
declaratory relief is appropriate respecting the class as a whole .’” Wal-Mart, 131 S.Ct. at 2560 
(quoting FED. R. CIV. P. 23(b)(2))) (emphasis original to Wal-Mart). Additionally, declaratory 
relief is improper if it only serves to “facilitate the award of damages.” Id. In Bolin, the Fifth 
Circuit held that the district court abused its discretion by certifying a Rule 23(b)(2) class 
composed of bankruptcy debtors who alleged that the defendant had empl oyed various unlawful 
practices to coerce payment of otherw ise-discharged pre-bankruptcy debt. Bolin, 231 F.3d at 
978-79. The court held that most of the class members did not face any future harm from the 
store’s collection efforts, so they would have nothing to gain from an injunction. Id. Because 
only a negligible proportion of proposed class me mbers were properly seeking injunctive relief, 
the Fifth Circuit held that rule 23( b)(2) certification was inappropriate. Id. at 978. In addition, 
the court found that the declaratory relief sought only served to “facilita te the damages award,” 
and, thus, that monetary damages predominated over the injunctive and declaratory relief sought. 
Id. 
 In Monumental Life , plaintiffs challenged defendants’ practice of charging higher life 
insurance premiums to African-A mericans. 365 F.3d at 411. Ma ny class members no longer 
had insurance policies with the defendants, and the exact number of class members who would 
benefit from an injunction was unknown. Id. at 416. Defense and plai ntiff experts’ estimates 
ranged from eighteen to eighty perc ent. Given these estimates, th e Fifth Circuit found that “the 
proportion is sufficient, absent contrary evidence from defendants, that the class as a whole is PageID #: 
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deemed properly to be seeking injunctive relief.” Id. In other words, absent additional evidence, 
the plaintiffs had sufficiently demonstrated that “most” of the class would likely benefit from 
injunctive relief. Id. However, in Casa Orlando Apartments, Ltd. v. Federal Nat. Mortg. Ass’n , 
the Fifth Circuit found that Rule 23(b)(2) certification was not a ppropriate when only 40 percent 
of the proposed class members would benefit from the injunction because they were subject to 
ongoing harm. 624 F.3d 185, 200 (5th Cir. 2010). 
 Plaintiffs have provided declarations from class representatives Morrow, Parsons, and 
Flores stating that they curren tly avoid traveling through Tenaha and take longer, alternative 
routes through East Texas. See 10/27/10 Declaration of James Morrow (“Morrow Decl.”), 
Exhibit 2 to Second Supplemental Motion for Class Certification (“Second Supplemental 
Motion”) (Dkt. No. 213); Octobe r 2, 2010 Declaration of William Parsons (“Parsons Decl.”), 
Exhibit 3 to Second Supplemental Motion; October 2, 2010 Declaration of Javier Flores (“Flores 
Decl.”), Exhibit 4 to Second Supplemental Motion. Additionally, each of the class 
representatives stated that they expected to need to travel th rough or near Tenaha in the future. 
See Morrow Dec.; Parsons Dec.; Flores Dec. Plaintiffs argue that this is enough to demonstrate a 
risk of future harm to the class necessitating in junctive relief. Although none of the parties have 
provided evidence to suggest what percentage of class members intend to travel in or around 
Tenaha in the future, the Court is persuaded, given the nature of the allegations, that other class 
members would react to the alleged treatment in a manner similar to the way in which Morrow, 
Parsons, Flores reacted. In other words, the Co urt is convinced that other class members may 
avoid driving through Tenaha because of their fear of being illegally targeted for stops under the 
interdiction program. Should the evidence developed in the case i ndicate that Court is incorrect 
and that certain members of the proposed class ha ve no intention or desire to travel through PageID #: 
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Tenaha in the future, the Court may adjust the class definition to include only those who will be 
subject to being unconstitutionally targeted for tra ffic stops in the future. Additionally, because 
the Court is certifying only a class for injuncti ve and declaratory relie f and not a class for 
damages, the requested declaratory relief—that the interdiction program illegally targets racial 
minorities for pretextual traffic stops—would serve as a basis for the requested injunctive relief, 
not merely as a means to facilitate the award of damages. 
 Accordingly, the Court finds that classwide declaratory and injunctive relief is 
appropriate for the class as defined by the Court. 
1. Class Claims for Monetary Relief 
 Plaintiffs seek monetary relief in additi on to declaratory and in junctive relieve. In Wal-
Mart, the Supreme Court held that claims for monetary relief ma y not be certified under Rule 
23(b)(2), “at least where (as here) the monetary relief is not incidental to the injunctive or 
declaratory relief.” 131 S.Ct. at 2557. The Wal–Mart Court compared Rule 23(b)(2) to (b)(3), 
concluding that the combination of individualized monetary relief and classwide injunctive or 
declaratory relief in a (b)(2) class is “incons istent with the structure of Rule 23(b).” Wal–Mart, 
131 S.Ct. at 2558. The Court reasoned that a class certified under (b)(2) has “the most traditional 
justification[ ] for class treatment” because “the relief sought must perforce affect the entire class 
at once.” Id. In noting the distinctions between a (b)(2) class and a (b)(3) class, the Court 
pointed out that (b)(2) class members are not provided with an opportunity to opt-out of the class 
and may not even be provided notice of the action. Id. A class certified under (b)(3), by 
contrast, “allows class certification in a much wide r set of circumstances [than a (b)(3) class] but 
with greater procedural protecti ons,” including notice and opt-out provisions for those potential 
class members who wish to have their cl aims heard on an i ndividual basis. Id.; see also PageID #: 
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Amchem, 521 U.S. at 615 (“Framed for situations in which class-action treatment is not as clearly 
called for as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where 
class suit may nevertheless be convenient and desirable”) (int ernal quotations and citation 
omitted). Thus, Wal–Mart held “that individuali zed monetary claims belong in Rule 23(b)(3).” 
Wal-Mart. 131 S.Ct. at 2558. 
 In reaching this decision, the Supreme Cour t overruled, at least in part, Fifth Circuit 
precedent that claims for monetary relief are permissible in a (b)(2) class so long as injunctive or 
declaratory relief is the predominant relief sought. In Allison v. Citgo Petroleum Corp., the Fifth 
Circuit reiterated that “[it], like nearly every other circuit, [has] adopted the position taken by the 
advisory committee th at monetary relief may be obtained in a (b)(2) class acti on so long as the 
predominant relief sought is injunctive or declaratory.” 151 F.3d at 411. Allison also held that 
“monetary relief predominates in (b)(2) class actions unless it is inci dental to requested 
injunctive or declar atory relief.” Id. at 415. The Fifth Circuit de fined “incidental” monetary 
damages as those “damages that flow directly from liability to the class as a whole on the claims 
forming the basis of the injunctive or declaratory relief.” Id. Such “incidental” damages should 
at least be capable of computation by means of objective standards and not dependent in any 
significant way on intangible, subj ective differences of each class member’s circumstances. Id. 
Finally, the Fifth Circuit reasone d that liability for incidental damages should not require 
additional hearings to resolve the dispar ate merits of each individual’s case. Id. The Wal-Mart 
Court expressly rejected the general statement that monetary damages are recoverable in a (b)(2) 
class so long as they did not predominate over the injunctive or declaratory relief: 
The mere “predominance” of a proper (b )(2) injunctive claim does nothing to 
justify elimination of Rule 23(b)(3)’s proc edural protections . . . We fail to see 
why the Rule should be read to nullify these protections wh enever a plaintiff PageID #: 
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class, at its option, combines its m onetary claims with a request—even a 
“predominant” request’—for an injunction. 
131 S.Ct. at 2559. However, in reaching this ru ling, the Supreme Court left open the more 
specific question of whether damages that are merely “incidental” to the injunctive or declaratory 
relief can be awarded to a 23(b)(2) class as outlined in the Fifth Circuit’s decision in Allison. Id. 
at 2560 (“we need not decide in this case whether ther e are any forms of ‘i ncidental’ monetary 
relief that are consistent with the interpreta tion of Rule 23(b)(2) we have announced and that 
comply with the Due Process Clause”). 
 The Court need not resolve this open ques tion to reach its decision with respect to 
Plaintiffs’ claims for mon eatary relief because these claims cannot satisfy the Allison standard. 
Thus, even if “incidental” monetary relief, as defined in Allision, is recoverable in a Rule 
23(b)(2) class under Wal-Mart, Plaintiffs’ request for e quitable restitution as well as 
compensatory and punitive damages is not. Pl aintiffs’ claims for compensatory and punitive 
damages would require an individualized, fact ual determination for each claim and would 
predominate over the injunctive relief under Allison. Thus, Plaintiffs claims for compensatory 
and punitive damages are not appropriate for Rule 23(b)(2) certification. Additionally, although 
the Fifth Circuit has held that equitable monetary relief may be compatible with a Rule 23(b)(2) 
class, Plaintiffs’ request for equitable restitution is not tied to the limited (b)(2) class that the 
Court has defined. See Monumental , 365 F.3d at 418 (holding that equitable restitution was 
appropriate for for (b)(2) class under Allison). For example, Plainti ffs request that the Court 
order that Defendants return any and all seized property a nd money and reimburse class 
members for their readily determinable and fore seeable expenses directly flowing from the 
Defendants’ unconstitutional prac tices, including lawyers’ fees , bail expenses, towing and 
storage fees, and appropriate interest. In gene ral, however, these equitable damages relate to PageID #: 
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Plaintiffs’ claims that the de tentions, arrests, s earches, and seizures under the interdiction 
program violated the Fourth Amendment’s prohibi tion of unreasonable sear ches and seizures as 
applied to the states through the due process clau se of the Fourteenth Amendment. Because the 
Court holds that class certification is not a ppropriate on these grounds, the equitable damages 
related to these claims are also inappropriate. 
III. Res Judicata and Claims for Individual Damages 
 The briefing of the parties raised the issue of whether certifying a class for injunctive and 
not monetary relief would effectively destroy any claims for monetary relie f held by individual 
class members. In Zachary v. Texaco Explor ation and Production, Inc , the Western District of 
Texas found that the adequacy requirement had not been met when the class representatives 
dropped their claims for compensatory and punitive damages. 185 F.R.D. 230, 243-44 (W.D. 
Tex. 1999). Because class members in a (b)(2) class do not have the ability to opt out of the 
class, the Court found that dropping the punitive damages claims created the possibility that class 
members would be barred from bringing individual actions for damages based on intentional 
discrimination. Id. Thus, the Court found that the potential class representatives were asking the 
class members to risk waiving their right to monetary damages solely so the action could proceed 
as a class action. Id. at 244. “The Court is unwilling to ri sk this result. The decision by the 
named Plaintiffs to drop the monetary damage s claim cannot be imposed upon the absent class 
members without raising a very se rious conflict of interest.” Id. The concerns of the court in 
Zachary as to the adequacy of the class representatives are not relevant to this case. However, 
Zachary does raise the issue of whether the claims of individual class members for monetary 
damages may be extinguished if the Court certifies only an injunctive class. PageID #: 
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 Because the Court has not certified a class for claims regarding detentions, arrests, 
searches, and seizures under the interdiction program, any individual claims for monetary relief 
on these grounds will not be foreclosed by the certification of the modified class. However, the 
tolling of the statute of limitations on those clai ms will end as of the date of this order. See 
Zachary, 185 F.R.D. at 242 (holding that the peri od of time between commencement of the 
proposed class action and the deni al is tolled for al l putative class members on any subsequent 
individual lawsuits they may wish to bring) (citing American Pipe & Constr. Co. v. Utah , 414 
U.S. 538, 552-53 (1975)).
7 
 The remaining question, then, is whether res judicata would bar any individual claims for 
monetary damages based on the individual circumst ances of a racially motivated stop of a class 
member. The Court is persuaded th at it would not. The issue to be tried in this case is whether 
Defendants are engaged in a pattern or practice of targeting racial and ethnic minorities for 
selective enforcement of traffic laws in violation of the equal protection clause of the Fourteenth 
Amendment. The ruling on this issue should not foreclose an individual lawsuit for damages 
based on the individual circumstances of a particular stop. Where plaintiffs allege that the police 
have engaged in a presumptively invalid procedure, class certific ation “is appropriate since the 
liability which the plaintiffs seek to establish is based on the operation its elf rather than on the 
circumstances surrounding each individual stop or arrest.” Wilson v. Tinicum Township ; 1993 
WL 280205, at *8 (E.D. Pa. 1993). In Wilson, the plaintiffs alleged that minorities were targeted 
for pretextual highway stops so th at searches could be requested. Id. at * 1. The court certified 
an injunctive class seeking to enjoin the township from continuing to practice its alleged policy 
of violating the civil rights of individuals by targeting African Americans travelers on I-95 for 
                                                            
7 The Fifth Circuit has limited this decision with a “no piggyback rule” which restricts the tolling to subsequent 
individual lawsuits and not further class actions. See Salazar-Calderon v. Presidio Valley Farmers Assoc., 765 F.2d 
1334, 1351 (5th Cir. 1985). PageID #: 
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stops based on pretextual traffic violations and with the intent of searching their vehicles for 
drugs without probable cause or reasonable suspicion. Id. at *1-7. Similarly, in an action by 
African-American homeowners who alleged that th e city demolished repairable single-family 
homes in predominately minority neighborhoods wit hout proper notice or judicial warrant, the 
Fifth Circuit held that the monetary costs that ran against the city for removing liens and clearing 
the title from the consequences of the allege dly constitutionally deficient no-notice demolition 
were proper under Rule 23(b)(2) because they flowed directly from the liability to the class as a 
whole on the claims forming the basis of the injunctive relief. James v. City of Dallas, Texas , 
254 F.3d 551, 572 (5th Cir. 2001). The court went on to state that “there is no concern that ‘the 
legitimate interests of potential class member s who might wish to pursue their monetary 
[damages] claims individually’ would be interf ered with by this class certification.” Id. at 572-
73 (quoting Allison, 151 F.3d at 415). 
 Accordingly, the Court is persuaded that a ny putative class members who wish to pursue 
individual claims for monetary damages will not be adversely affected by the fact that the Court 
has chosen to certify a class for injunctive and declaratory relief and not monetary damages. 
IV. Conclusion 
 For the reasons discussed above, the C ourt GRANTS Plaintiffs’ Motion for Class 
Certification and certifies the following class for injunctive and declarat ory relief pursuant to 
Federal Rule of Civil Procedure 23(b)(2): 
(1) People who are, or appear to be, memb ers of racial or ethnic minority groups and 
those in their company, and 
(2) Were, or will be, traveling in, through, or near Tenaha at any time after November 1, 
2006, and 
(3) Were stopped, or will be subject to be ing stopped, by one or more Defendant for an 
alleged traffic violation. PageID #: 
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 IT IS SO ORDERED. PageID #: 
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