« Hey, look . . . there's an administrative state! | Main | Drugs and Prisons: A Recap, and a Complication »

Tuesday, May 28, 2013


Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.

One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.

But  Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies,  standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.

So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?

Posted by Howard Wasserman on May 28, 2013 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Standing?:


Below is the section of the Floyd opinion addressing this question.

"The simplest way to address defendants' concern is by noting that David Ourlicht, the fourth plaintiff, indisputably does have standing and that “the presence of one party with standing is sufficient to satisfy Article Ill's case-or-controversy requirement.” FN97 First, unlike Lyons, who alleged only one past instance of unconstitutional police behavior, Ourlicht was stopped by NYPD officers three times in 2008 and once again in 2010, after this lawsuit was filed.FN98 “The possibility of recurring injury ceases to be speculative when actual repeated incidents are docu-mented.” FN99 Second, unlike the plaintiffs in Lyons and Shaine v. Ellison,FN100 Ourlicht's risk of future injury does not depend on his being arrested for unlawful conduct and so he cannot avoid that injury by following the law. The risk of injury is not based on a string of unlikely contingen-cies: according to his sworn affidavit, Ourlicht was stopped and frisked while going about his daily life—walking down the sidewalk, sitting on a bench, getting into a car. FN101

Finally, as I explained in the Daniels litigation, the frequency of alleged injuries inflicted by the practices at issue here creates a likelihood of future injury sufficient to address any standing concerns.FN102 In Lyons, the police department's challenged policies were responsible for ten deaths; here, the police department has conducted over 2.8 million stops over six years and its paperwork indicates that, at the very least, 60,000 of the stops were unconstitutional (because they were based on nothing more than a person's “furtive movement”). Every day, the NYPD conducted 1200 stops; every day, the NYPD conducted nearly thirty facially unlawful stops based on nothing more than “subjective, promiscuous appeals to an ineffable intuition.” FN103 In the face of these widespread practices, Ourlicht's risk of future injury is ‘ “real and immediate,’ not ‘conjectural’ or ‘hypothetical,’ “ FN104 and he satisfies Article Ill's standing requirements."

Posted by: Alexandra Lahav | May 29, 2013 9:55:06 AM

Here are two thoughts that echo Jennifer's comments. First, in Lyons there was unlikely to be injury in the future because it wasn't the police department's policy to use choke holds without provocation. So the alleged harm was unlikely to occur again in the future, at least according to the Court. In contrast, in both cases here the harmful conduct (racial profiling) is alleged to be departmental policy, so it's likely to lead to future rights violations.

Second, in Clapper the Court didn't think there was an injury at all. In contrast, there was an injury in Lyons, but it was unlikely to be repeated. In these cases, there is an injury, and it is likely to be repeated.

Posted by: Patrick Luff | May 28, 2013 1:24:49 PM

Could be. But: 1) There also were 4th Amendment claims in both cases; maybe 4th Amendment standing can be parasitic on 14th, but the Court has never formally said so. 2) Wouldn't a plaintiff still have to show that *he* is the African-American or Latino the police are going to stop? Isn't it still pure speculation that he will be the one they target? Otherwise, any member of that group could have been lead plaintiff and there need not be allegations of past enforcement.

Posted by: Howard Wasserman | May 28, 2013 1:22:15 PM

I had thought that in both the Maricopa County and the NYPD Stop and Frisk cases, the allegation of a racially discriminatory stop/arrest policy made a significant difference. The reason is that Lyons places significant weight on the fact that the plaintiff couldn't demonstrate, in the Court's view, ANY likelihood that he would encounter the police again (a condition precedent to being subjected to force), because such an occurrence would hinge on his breaking the law (or creating probable cause for a belief that he had). Where a plaintiff alleges that police are stopping on the basis not of criminality but rather race, and where the constitutional harm flows directly from that occurrence, the likelihood of injury is significantly less attenuated. What do you think?

Posted by: Jennifer Laurin | May 28, 2013 10:26:32 AM

The comments to this entry are closed.