concurring in part and dissenting in part.
I dissent from Part V of the court’s opinion in two respects: (1) I dissent as to that part of Part V reversing the portion of the injunction prohibiting INS agents from approaching plaintiffs’ homes during the nighttime hours to question, search or arrest them absent exigent circumstances and probable cause or a valid arrest warrant, and (2) I dissent from the proposition that the injunction is too broad because its benefits are not limited to the individual plaintiffs. Otherwise, I concur in the court’s opinion and in the judgment.
I.
I agree with the majority that the test in determining whether a seizure has occurred is whether the conduct of the police “constitutes a show of authority that would lead a reasonable person to conclude that he is not free to go.” Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982). Given that standard, I can neither agree with nor understand the majority’s sweeping conclusion that “[t]he time of day ... is not relevant to the threshold determination whether there was a search or seizure.” Supra, 753 F.2d at 731.
The time of day can have a great deal to do with whether there has been a show of authority sufficient to lead someone to reasonably believe he cannot leave. A nighttime confrontation is likely to be far more threatening than one made during the day. This is particularly true when such a confrontation occurs after a history of intimidating and violent behavior by the authorities toward the persons being questioned. There is considerable evidence of such a history in this case. There was deposition testimony that Mr. and Mrs. Zepeda were rousted from their bed at night and their home entered and searched without consent; that the Botellas observed windows being broken and officers rushing into apartments; that Mr. Gutierrez’ door was burst open, his apartment searched, and the validity of his marriage challenged; that Mrs. Vargas’ home was entered without her consent while she was alone with her four children; that when she tried to telephone her husband her phone was disconnected by an INS agent; and that Mr. Flores was asleep at 4:00 a.m. when six local police and INS agents demanded he open his door. His home was searched without his consent and he was put in fear of harm to his family.
*733This pattern of planned intimidation and abuse of power is to my mind more than sufficient to cause the plaintiffs to reasonably believe the next time agents of the INS and local police come knocking on their door at night that they are “not free to go.” Id. I thus do not believe it error to hold on these particular facts that nighttime contact by the INS with the plaintiffs would inherently constitute a seizure for which exigent circumstances and probable cause or a valid arrest warrant is required. I would therefore uphold paragraph two of the injunction.
II.
I also disagree with the majority that the preliminary injunction is overly broad because it is not limited to benefit only the individual plaintiffs. Rule 65(d) provides that an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attor-neys____” Fed.R.Civ.P. 65(d) (emphasis added). The injunction at issue clearly complies with Rule 65(d) in that it is “binding” only upon the INS, a party to the action, and its agents. The majority turns Rule 65(d) on its head when it reasons that because an injunction “is binding only upon the parties to the action,” it must be narrowly tailored so that it does not incidentally benefit any person not a party to the action. Rule 65(d) simply does not address the question whether an injunction may benefit non-parties; it only provides that an injunction may not bind non-parties. Contrary to the result reached by the majority in making a quantum leap from Rule 65(d), it is well settled that injunctions are not overly broad simply because they may benefit similarly situated persons who are not parties to the action. Injunctive relief typically benefits “not only the claimant but all other persons subject to the practice or the rule under attack.” 7 C. Wright & A. Miller, Federal Practice and Procedure § 1771, at 663-64 (1972).
The majority’s reliance on Rule 65(d) is not only misplaced, but has the effect of obfuscating the issue. The question before us for decision is not whether the injunction is overly broad because it may benefit persons other than the plaintiffs; the question is whether the injunction is broader in scope than reasonably necessary to protect the rights of the individual plaintiffs. Common sense should tell us that the district court was correct in concluding that the only way to protect the individual plaintiffs from violations of their constitutional rights was to enjoin the INS from stopping and questioning any person concerning his or her immigration status solely because he or she is of Hispanic appearance, speaks Spanish, or is in an area predominantly populated by Hispanic persons. Preliminary Injunction, 115. An injunction restraining the INS from so stopping and questioning only these individual plaintiffs would be meaningless because prior to approaching and questioning persons of Hispanic appearance, INS agents would have no way of knowing whether the persons are these plaintiffs or others of Hispanic appearance. Thus, the only effective way to protect the constitutional rights of the individual plaintiffs as they try to live their lives free of unlawful government intrusion is to enjoin the INS from interfering with any and all persons solely because of their Hispanic appearance, speech, or neighborhood.
Not only common sense, but the case law offers overwhelming support for the injunction as issued by the district court. Bailey v. Patterson, 323 F.2d 201 (5th Cir.1963), cert. denied, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609 (1964), a leading case in this area, is instructive. In Bailey, black plaintiffs sought desegregation of transportation facilities. The Fifth Circuit declined to certify a class because the relief necessary to remedy the segregated transportation for individual plaintiffs would be identical to that necessary for a class. The plaintiffs did not merely seek access to the portions of transportation facilities set aside for whites, they sought the right to use desegregated facilities. As the court stated, “[t]he very nature of the rights [plaintiffs] seek to vindicate requires that the decree run to the benefit not only of *734[plaintiffs] but also for all persons similarly situated.” Id. at 206. See also James v. Ball, 613 F.2d 180, 186 (9th Cir.1979), rev’d on other grounds, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir.1978); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 812 (5th Cir.1974); see generally 7 C. Wright & A. Miller, Federal Practice and Procedure, § 1771, at 663-64 (1972).
In reaching its conclusion that the district court’s injunction is overly broad, today's majority relies upon the fact that the injunction was issued before a class was certified.1 The majority thereby introduces a red herring into the analysis. Whether or not a class was certified is irrelevant to the question whether the scope of the injunction as issued by the district court was necessary to protect the constitutional rights of these individual plaintiffs. It is well established under Bailey and its progeny that where injunctive relief that is effectively class-wide is necessary to protect the individual plaintiffs, class certification is not required. United Farmworkers, 493 F.2d at 812 (“We find it unnecessary to determine the answer to this question [whether the district court abused its discretion in denying class action treatment], however, for whether or not appellants are entitled to class action treatment, the decree to which they are entitled is the same____ [T]he very nature of the rights appellants seek to vindicate requires that the decree run to the benefit not only of the named plaintiffs but also for all persons similarly situated.”) (citing Bailey, 323 F.2d at 206); see also James, 613 F.2d at 186 (denial of class certification not an abuse of discretion because the relief sought by individual plaintiffs “will, as a practical matter, produce the same result as formal class-wide relief.”); Sandford, 573 F.2d at 178 (reversing district court’s failure to grant injunctive relief against defendant’s practice of discriminating against blacks, but affirming district court’s denial of class certification “because the settled rule is that ‘[w]hether plaintiff proceeds as an individual or on a class suit basis, the requested [injunctive] relief generally will benefit not only the claimant but all other persons subject to the practice or the rule under attack.’ ” (citations omitted)).2
. The cases cited by the majority, like Rule 65(d), provide absolutely no support for the majority’s conclusion. They simply do not address the question presented here, namely, is the scope of the injunction necessary to protect the rights of the individual plaintiffs.
. Similarly, in Gregory v. Litton Systems, Inc., 472 F.2d 631, 633-34 (9th Cir.1972), we recognized that injunctive relief in a Title VII action “may incidentally benefit many persons not before the court.” See also Professional Association of College Educators, TSTA/NEA v. El Paso County Community College District, 730 F.2d 258, 273-74 (5th Cir.), cert. denied, —U.S.—, 105 S.Ct. 248, 83 L.Ed.2d 186 (1984) ("An injunction [in a Title VII action], however, is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit — even if it is not a class action — if such breadth is necessary to give prevailing parties the relief to which they are entitled.” (citations omitted)).