Clark v. City of New York
- Analisa Torres
- 1:18-cv-02334
- U.S. District Court · Southern District of New York
- 9
In Clark v. City of New York, Judge Parker allowed the City to depose 50 absent class members, with limits, about religious head coverings and resulting burdens.
The City of New York and the approximately 5,000 class members affected by the former policy, including the 50 absent class members selected for depositions.
What happened
Clark v. City of New York concerns two Muslim women who were required to remove their hijabs for official police photographs under a former New York Police Department policy. They brought claims concerning religious freedom and represented a class of about 5,000 people who had been required to remove religious head coverings for similar photographs.
The City asked to question a sample of 50 people who were not named plaintiffs. It sought information about their religions, whether their head coverings could be removed, whether the coverings were worn for religious reasons, and how removal affected them. The plaintiffs argued that this discovery was unnecessary and imposed too much burden on class members.
The court granted the discovery request subject to limits. Judge Parker permitted up to 50 depositions, expected to last about 1.5 hours each, and required them to be completed by February 28, 2023. The court found the information relevant to possible differences among class members and to whether subclasses might be needed.
The detailed version
- Clark v. City of New York · No. 1:18-cv-02334
- Analisa Torres
- Dec. 8, 2022
Background
The case concerns a former New York Police Department policy requiring people arrested by the department to remove head coverings for official police photographs. Religious head coverings were returned after the photograph, unless there was an articulable safety reason to keep them off. Plaintiffs Jamilla Clark and another Muslim woman alleged that they were required to remove their hijabs under this policy, although each was allowed to be photographed privately with only female personnel present.
The plaintiffs challenged the policy under the state and federal Constitutions and the Religious Land Use and Institutionalized Persons Act. They represented a class of approximately 5,000 people who had been required to remove religious head coverings for post-arrest photographs while in New York Police Department custody. The class included people wearing hijabs, niqabs, turbans, yarmulkes, and other head coverings.
Discovery Request
The City asked for permission to depose a statistically relevant sample of 50 absent class members—class members who were not named as plaintiffs. The proposed questioning concerned why each person wore a head covering, whether the person’s religion permitted removal and under what circumstances, whether the covering was worn for religious rather than cultural reasons, and what burden or effect resulted from its removal.
The City said the information could reveal differences among religions, genders, and types of head coverings; support defenses; and show whether liability or damages subclasses were appropriate. The named plaintiffs had testified that they did not know the relevant practices of other religions or the specific harm experienced by other class members.
The plaintiffs opposed discovery beyond the depositions of the two lead plaintiffs. They argued that their expert’s opinion established that removing any religious head covering was unlawful and substantially burdened religious practice. They also argued that depositions of absent class members were unnecessary and disproportionate.
Legal Standard
The court applied the federal discovery rule allowing discovery of nonprivileged information relevant to a claim or defense and proportional to the needs of the case. In a class action, discovery from absent class members must be carefully limited because those members generally may remain passive. The court considered whether the discovery was needed for trial or class-wide issues, narrowly tailored, unduly burdensome, and unavailable from the representative plaintiffs.
Court’s Analysis
The court found the requested information relevant to class-wide issues. It could show whether religious rules differed concerning removal of head coverings and whether removal caused a substantial burden for all class members. It could also help determine whether subclasses based on religion or the specific head covering were needed.
The court found the request narrowly tailored but reduced the expected length of each deposition. Although the City proposed depositions of up to two hours, the court concluded that the questions could likely be completed in about 1.5 hours. The court also found that questioning 50 people out of a class of approximately 5,000 did not impose a significant burden, particularly if the depositions were conducted remotely by video. The court stated that the questions would not require class members to hire personal counsel or consult an expert.
The court further determined that the discovery was not aimed at testing the sincerity of class members’ religious beliefs. Instead, it was intended to identify differences among religious groups that could affect the degree of burden caused by the policy and the need for subclasses. The court also noted that the parties’ experts disagreed about whether religious head-covering requirements and the burdens of removal were the same across religions.
Disposition
The court granted the discovery request subject to the stated limitations. The depositions were required to be completed by February 28, 2023. The order terminated the motions at ECF Nos. 214 and 255.
Read the full 9-page opinion on CourtListener, the free public archive maintained by the Free Law Project.