By: Derek Hawkins//May 31, 2016//
By: Derek Hawkins//May 31, 2016//
7th Circuit Court of Appeals
Case Name: Darnell Fonder et al v. Sheriff of Kankakee County, Illinois et al
Case No.: 15-2905
Officials: EASTERBROOK and SYKES, Circuit Judges, and ADELMAN, District Judge.
District court determination that police policy allowing individuals held in custody following a warrantless arrest to be strip searched in advance of a judicial determination of probable cause held as valid, is vacated.
“Kankakee County does not contend that it would be reasonable to inspect a subset of all newly arriving inmates. Instead it denies that any guards deviate from the written policy. But we have read the guards’ declarations, and several of them say that they are implementing their personal ideas about how much visual inspection is needed. If these statements reflect ongoing behavior, then it is hard to see how Florence can supply the support that the Sheriff’s policy needs. The record as it stands presents a disputed question of material fact that may require a trial to resolve, unless the parties can work out their differences by stipulation. The district judge implied that the class had waived or forfeited its opportunity to contest how the policy works in practice by proposing a definition that includes all newly arrested persons. Yet when this suit began, and the definition was proposed, class counsel had no reason to think that the jail’s staff was doing something other than what the written policy requires. Classes are certified early in a suit. Fed. R. Civ. P. 23(c)(1)(A). All certifications are tentative. Fed. R. Civ. P. 23(c)(1)(C). If the evidence calls into question the propriety of defining a class in a particular way, then the definition must be modified or subclasses certified. A class defined early in a suit cannot justify adjudicating hypothetical issues rather than determining the legality of what actually happens. The class definition must yield to the facts, rather than the other way ’round”
Vacated and remanded