                               In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 16-4239

MICHAEL DRIVER, individually and as
representative of a class of similarly
situated individuals, et al.,
                                              Plaintiffs-Appellants,

                                 v.


MARION COUNTY SHERIFF, et al.,
                                             Defendants-Appellees.


        Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
       No. 1:14-cv-02076-RLY-MJD — Richard L. Young, Judge.



    ARGUED FEBRUARY 21, 2017 — DECIDED JUNE 15, 2017


   Before WOOD, Chief Judge, and FLAUM and ROVNER, Circuit
Judges.
    ROVNER, Circuit Judge. The plaintiffs in this case brought a
class action pursuant to 42 U.S.C. § 1983 alleging that the
policies and practices of the Marion County Sheriff’s Depart-
2                                                     No. 16-4239

ment and the Consolidated City of Indianapolis and Marion
County (collectively referred to as the “Sheriff”) caused them
to be detained in the Marion County Jail awaiting release for
an unreasonably long period of time, in violation of the Fourth
Amendment. The plaintiffs sought to certify five subclasses in
that action, and the district court granted certification as to two
of those subclasses, but denied it as to the remaining three. The
plaintiffs then filed a petition in this court seeking permission
to appeal the denial of two of those class certifications pursu-
ant to Federal Rule of Civil Procedure 23(f). Specifically, the
plaintiffs contested the court’s denial of two classes, consisting
of all individuals who, from December 19, 2012 to the present,
were held in confinement by the Sheriff after legal authority for
those detentions ceased, due to: (1) the Sheriff’s practice of
operating under a standard of allowing up to 72 hours to
release prisoners who are ordered released; and (2) the Sher-
iff’s practice of employing a computer system inadequate for
the purposes intended with respect to the timely release of
prisoners.
   We granted permission for the interlocutory appeal
pursuant to Rule 23(f), and now proceed to the appeal on the
merits. We hold that the district court erred in its decision
denying class certification and remand the case to the district
court for further proceedings.
    In order to certify a class, “‘a district court must find that
each requirement of Rule 23(a) (numerosity, commonality,
typicality, and adequacy of representation) is satisfied as well
as one subsection of Rule 23(b).’” Harper v. Sheriff of Cook
County, 581 F.3d 511, 513 (7th Cir. 2009). The plaintiffs sought
to certify a subclass based on the Sheriff’s policy, practice or
No. 16-4239                                                      3

custom of allowing the jail staff to hold inmates for up to 72
hours before releasing them. The district court held that the
subclass as so defined would presuppose that some members
were detained for less than 48 hours and others for greater
than 48 hours. The district court believed that such a range of
detention periods was problematic, because the court—relying
on County of Riverside v. McLaughlin, 500 U.S. 44
(1991)—believed that the 48-hour line was a critical defining
period in establishing the reasonableness of the detention.
According to the district court, detentions of less than 48 hours
would be presumptively reasonable, and those that extended
beyond 48 hours would be presumptively unreasonable, thus
subjecting those members within the class to two different
burdens of proof.
    The district court erred in applying the 48-hour presump-
tion to this context and in relying on it as a basis to deny class
certification. The court relied for that denial on the Supreme
Court’s holding in McLaughlin, which addressed the detention
resulting from a warrantless arrest and held that the amount of
time between the warrantless arrest and a judicial determina-
tion of probable cause was presumptively reasonable if it was
48 hours or less, and presumptively unreasonable if longer. See
McLaughlin, 500 U.S. at 56–57; Portis v. City of Chicago, Illinois,
613 F.3d 702, 703–04 (7th Cir. 2010). That time period necessar-
ily would include the time involved in processing and booking
the defendant, determining the appropriate charge and
preparing charging documents, assigning and transporting to
court, and ultimately obtaining a judicial determination of
probable cause. See McLaughlin, 500 U.S. at 55.
4                                                     No. 16-4239

    The class proposed by the plaintiffs involved a markedly
different situation. It is composed of persons for whom legal
authority for detention has ceased, whether by acquittal after
trial, release on recognizance bond, completion of jail time in
the sentence, or otherwise. For those persons, all that is left is
for the officials to merely process the release. None of the
myriad steps required in McLaughlin, between an arrest and a
judicial determination of probable cause, are required here; the
class members already qualify for release, and all that is left are
the ministerial actions to accomplish that release which are
within the control of the jail officials. Evidence in the record
indicates that the average time period to effect such a release
is 2–4 hours in counties in general, and up to 6 hours if
problems are encountered, but even if we doubled those times,
release still would be accomplished within 12 hours. Because
the tasks involved in the situation presented here are signifi-
cantly less onerous and less time-consuming than the ones
involved in McLaughlin, the 48-hour rule makes no sense in this
context.
    Accordingly, the district court erred in denying the subclass
based on its perception that the 48-hour rule in McLaughlin
would create different burdens and challenges among the
potential subclass members. The only other reason given by
the court for denying the subclass was that individual variables
could complicate the timing of the release, but those variables
were present in McLaughlin as well and they did not preclude
class status. The Court in McLaughlin recognized that at some
point the State has no legitimate interest in detaining persons
for an extended period of time, and if the regular practice
exceeds that time period deemed constitutionally-permissible,
No. 16-4239                                                       5

the State is not immune from systemic challenges such as a
class action. 500 U.S. at 55, 58–59. At some point well short of
the 24-plus hours alleged here, there is no reason to believe
that individual issues would account for that delay.
    The defendants nevertheless claim that cases from our
circuit, Portis and Harper, foreclose class certification here. They
assert that those cases and McLaughlin provide that common
questions do not predominate where the core complaint
challenges the length of detention rather than the conditions of
confinement, and that any extended detention must be
evaluated on a case-by-case basis. Those cases do not support
that conclusion. In Harper, 581 F.3d at 512, the plaintiff sought
to bring a class action alleging that new detainees remanded to
the sheriff’s custody were unconstitutionally required to
undergo certain intake procedures. We held that the claims
were not appropriate for class disposition because Harper was
not challenging specific intake procedures, but instead was
asserting that the Sheriff was unconstitutionally holding
detainees after bond was posted. Id. at 514–15. The unconstitu-
tionality depended on the length of the delay, which was an
individualized determination because Harper did not allege
any overriding policy or practice causing the delay. Id. at
514–15. The only common issue alleged by Harper was
whether it was reasonable to assign a jail identification number
before releasing a detainee on bond—with the concomitant
delay that process entailed—but we held that the issue was not
central to his claim because it could not cause the type of
injuries asserted, and because it could not be unconstitutional
unless it took an unreasonable amount of time in an individual
case, thus again not supporting class disposition. Id. at 515–16.
6                                                     No. 16-4239

Similarly, in Portis, 613 F.3d at 703, we addressed a class
challenge by persons subjected to custodial arrests for fine-only
offenses, alleging that the failure to release them within two
hours from generation of the central booking number was
unreasonable in violation of the Fourth Amendment. We held
that the Constitution forbids detentions that are unreasonable
in length, but that an arbitrary inflexible time period such as
two hours for release was not justified. Id. at 704. Accordingly,
the claims required an individualized determination as to
whether the delay in release was unreasonable, and class
certification was improper. We noted, however, that “[t]he
Supreme Court suggested in McLaughlin that class treatment
might be appropriate if the class sought to establish that a
jurisdiction had adopted a policy of deliberate delay.” Id. at
705. The Portis court explicitly stated that it did not foreclose
the possibility of class-wide relief if the record established such
deliberate delay. Id. at 705–06. Neither Portis nor Harper
preclude class certification in a case such as this one, in which
the plaintiffs assert that the defendants’ policy or practice
caused them to be detained for an unconstitutionally-unrea-
sonable length of time. See also Phillips v. Sheriff of Cook County,
828 F.3d 541, 550 (7th Cir. 2016) (the proper focus in determin-
ing commonality is whether the prospective class can “articu-
late at least one common question that will actually advance all
of the class members’ claims”).
    On appeal, the defendants assert that the plaintiffs’ case
nevertheless cannot be certified because the alleged 72-hour
policy and practice upon which they rely does not exist or, if it
exists, it is constitutional. The district court refused to address
the merits of the allegation that the Sheriff operated under such
No. 16-4239                                                      7

a 72-hour rule, stating that it was not appropriate to adjudicate
the case on its merits at the stage of class certification. As the
Supreme Court has noted, “Rule 23 does not set forth a mere
pleading standard,” and a party seeking class certification
“must be prepared to prove that there are in fact sufficiently
numerous parties, common questions of law or fact, etc.” Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). To certify a
class, the trial court must satisfy itself “after a rigorous analy-
sis” that the Rule 23(a) prerequisites are established, and
“[f]requently that ‘rigorous analysis’ will entail some overlap
with the merits of the plaintiff’s underlying claim.” Id. at
350–51. That does not mean that the Rule 23 analysis is
transformed into a summary judgment motion. The defendants
argue the merits of the claim, challenging the existence and
constitutionality of the policies, without referencing the Rule
23 factors or establishing how those factors are impacted. The
district court properly recognized that its role in assessing class
certification did not include a determination of the case on the
merits. On remand, the court should, of course, consider
factual and legal issues comprising plaintiffs’ cause of action
insofar as those issues are necessary to a determination of the
Rule 23 factors. Id.; Parko v. Shell Oil Co., 739 F.3d 1083, 1085
(7th Cir. 2014); Szabo v. Bridgeport Machines, Inc., 249 F.3d 672,
675–76 (7th Cir. 2001).
    The plaintiffs also challenge the denial of certification for a
class consisting of all individuals who, from December 12, 2012
to the present, were held in confinement by the Marion County
Sheriff after legal authority for those detentions ceased, due to
the Sheriff’s practice of employing a computer system inade-
quate for the purposes intended that dramatically delayed the
8                                                  No. 16-4239

release of prisoners. The plaintiffs presented evidence that the
Sheriff acquired a computer system, OMS, from Global Tel
Link which offered the system to the Sheriff free of charge in
return for the Sheriff’s extension of GTL’s contract for inmate
collect call services. GTL provided the hardware, software,
installation and maintenance of the phones and lines, and
profited from the high rate charged to inmates for such collect
calls. Evidence indicated that the Sheriff profited from the
arrangement as well, receiving commissions totaling approxi-
mately $800,000 per year.
    In addition, the plaintiffs produced some evidence that the
Sheriff bypassed the standard review process in choosing and
retaining the computer system, disregarding the impact on the
release times. At the time that it acquired OMS, the Sheriff
knew that the Marion County Courts were using software
called Odyssey. The Sheriff was also aware that, prior to
acquiring any jail information management software, it was
imperative to know whether the software would be compatible
with the court’s Odyssey software. Evidence nevertheless
indicated that the Sheriff acquired OMS outside the standard
channels bypassing the Information Services Agency which
was the Marion County agency formed to coordinate informa-
tion technologies among the City and County agencies and
through which such acquisitions are supposed to occur in
order to assure that the systems integrate with those of other
agencies. There is a dispute as to whether the Sheriff vetted
OMS; the Sheriff’s chief administrative officer testified that
prior to acquiring OMS the Sheriff’s department received
assurances from three IT people that OMS would work with
Odyssey, but the plaintiffs introduced evidence from those
No. 16-4239                                                   9

three persons that they never vetted the system and were never
asked to do so.
    As the district court noted, OMS was beset with technical
issues from the start; it could not interface with DEXTER, the
computerized transfer system that allowed agencies such as
the Sheriff, the Public Defender, the Prosecutor’s Office,
Community Corrections, and the Indianapolis Police Depart-
ment to exchange information with each other on Odyssey.
And with OMS the Sheriff could not receive electronic court
information, which required the Sheriff’s office staff to manu-
ally update and process the codes received from the court and
to rely on emails, paper records, faxes, and telephone calls to
gather information to make release decisions.
    Finally, the record contains evidence that the Sheriff chose
to remain with OMS even in the face of the significant delays
in release times, and did not take efforts to measure the
magnitude of the problem. That delay in release often totaling
72 hours was significant both in the pure sense and in propor-
tion to the time that the prisoners could be properly detained.
For instance, the plaintiffs produced evidence of individuals
who served short sentences for DUI convictions of 5–9 days,
but for whom the 2–4 day delay in release increased their
incarceration time by 40–50%. Another person was arrested
and released by the court on bond two days later, but detained
3 more days awaiting release by the Sheriff, thus more than
doubling the period of detention. An expert produced by the
plaintiff found that from June to December 2014, 38,000 extra
days were spent in jail by inmates pending release compared
to the practice before OMS. The delays resulted in complaints
to the Sheriff’s department by judges, defense counsel and
10                                                    No. 16-4239

family members, but in the face of those widespread excessive
delays the Sheriff chose to continue with OMS rather than
implement the compatible system recommended by its IT
people.
    The class sought by the plaintiffs consisted of all individu-
als who, from December 19, 2012 to the present, were victims
of the computer issues spawned by OMS. The district court
denied certification of the subclass because it held that the class
was not “identifiable.” The court noted that the class descrip-
tion must be sufficiently definite to allow ascertainment of the
class members. Dist. Ct. Op. at 12 citing Alliance to End Repres-
sion v. Rockford, 565 F.2d 975, 977 (7th Cir. 1977). It held that
“[t]he definition of the subclass that Plaintiffs advance is
problematic because the technical issues plaguing OMS is one
of the overriding reasons for the over-detention of the entire
class. As such, the court is not convinced it is a policy or
practice from which this subclass can be anchored.” [emphasis
in original] Dist. Ct. Op. at 12. The court appears to deny
certification of the subclass because the policy or practice
caused the over-detention of the entire class. That, however,
would be a basis to grant certification of the class as a whole
rather than as a subclass, not to deny certification because it is
not limited to a portion of the class. We have recognized that
a class may lack the definitiveness required for class certifica-
tion if there is no way to know or readily ascertain who is a
member of the class, but that issue is not apparent here.
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 495 (7th Cir. 2012).
The class is defined by all persons whose excessive detention
resulted from the inadequate computer system. Given the
evidence of a dramatic increase in detention times in correla-
No. 16-4239                                                       11

tion with the implementation of the computer system, the
evidence that release information could not be properly
transmitted electronically in that system and the court having
to resort to alternative channels of communication, and the
absence of any evidence that delays of that length could be
attributable to individual factors, the class is capable of
definition both by the timing and the length of the delay in
release. Compare Oshana v. Coca-Cola Co., 472 F.3d 506, 513–14
(7th Cir. 2006) (in consumer fraud action alleging that Coca-
Cola was deceptive in failing to inform consumers that its
fountain Diet Coke contained saccharine, proposed class was
not sufficiently definite because it required only the purchase
of fountain Diet Coke and could include millions who were not
deceived). But we need not further define the class in this
appeal to conclude that the district court’s reasoning, in
denying class status because the alleged violation applied to
the class as a whole rather than a subclass, was an improper
basis to deny certification.
    With respect to the denial of certification as to this class, the
defendants argue that the denial should be upheld because the
plaintiffs failed to present evidence sufficient to establish the
existence of an unconstitutional policy or practice and also
failed to present sufficient evidence of intent. We do not
understand the district court’s decision to hold that the
plaintiffs have not established that their injury resulted from a
policy or practice, as the defendants suggest; such an argument
would be difficult to make, as the determination to process
releases through the OMS system certainly appears to fall
within our understanding of what constitutes a policy or
practice. See generally Glisson v. Indiana Dept of Corrections, 849
12                                                  No. 16-4239

F.3d 372, 378–80 (7th Cir. 2017)(en banc). And as to establishing
deliberate indifference, we have recognized in another context
that deliberate indifference can be shown by systemic and
gross deficiencies in equipment or procedures that result in a
deprivation of a constitutional right. See Phillips, 828 F.3d at
554. But as we discussed earlier, the district court did not
consider whether the policies or practices existed, nor did it
consider whether the evidence indicated deliberate indiffer-
ence, because the court determined that it was not allowed to
engage in an analysis of the merits, and therefore we are
presented only with the evidence recited above without any
factual findings by the court on those matters. The court on
remand should consider all issues related to the Rule 23 factors
even if they overlap with the merits, and can make the appro-
priate fact findings at that time. The issues have never been
decided by the district court and are not properly before us at
this time.
   The decision of the district court is VACATED and the case
REMANDED for further proceedings consistent with this
opinion.
