Law 360: 2nd Circ. Denies Union Intervention In Stop-And-Frisk Suits

Law360, New York (November 03, 2014, 2:56 PM ET) — The Second Circuit on Friday affirmed a district court decision denying a bid by New York City police unions to intervene in two class actions challenging the city’s stop-and-frisk policy, saying the motions were untimely and that the unions’ interests were too remote to warrant intervention as a party.
In a per curiam decision, the three-judge panel said that the unions should have known of their alleged interest in the cases before they filed their motions in September 2013 and that allowing them to revive the dispute, which has since been settled, would encroach upon the city’s inherent discretion to resolve the case.

“In other words, granting the unions’ motions in the wake of the November 2013 mayoral election would essentially condone a collateral attack on the democratic process and could erode the legitimacy of decisions made by the democratically elected representatives of the people,” the opinion states.

During a two-hour hearing in Manhattan court last month, the three-judge panel grilled attorneys for the unions, which sought to overturn a district court ruling that they filed the intervention request too late and lacked a significant protectable interest in the litigation.

At the center of the dispute are a pair of August 2013 rulings by U.S. District Judge Shira Scheindlin deeming the street stops unconstitutional and ordering broad reforms. The Second Circuit later booted Judge Scheindlin from the case over concerns about her impartiality, but New York City Mayor Bill de Blasio vowed to let the rulings stand by abandoning an appeal and striking a settlement.

The unions claimed the litigation has tarnished the reputations of police officers citywide, but the appeals court said that U.S. District Judge Analisa Torres properly held that the unions’ interest in their members’ reputations is too indirect and insubstantial to be legally protectable and also said the judge did not err in finding the unions had failed to submit evidence to substantiate their claims of reputational harm.

“On this record, we find that Judge Torres acted well within her discretion in concluding that the unions do not assert an interest that the law seeks to protect,” the opinion states.

The three-judge panel noted, however, that nothing in the opinion should bar any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and local and state law. It also said that the opinion should not be construed to inhibit the district court from considering the unions’ interests, such as amici curiae, in light of the possible relevance of the unions’ perspectives in any district court proceedings.

“The court made clear that the PBA’s collective bargaining and state law rights do not take a back seat to what is clearly a voluntary agreement between plaintiffs and the city, a point the PBA has made repeatedly since the agreement was struck by the new administration,” Patrick J. Lynch, president of the Patrolmen’s Benevolent Association, said in a statement. “The PBA will continue to monitor actions taken in this process moving forward to ensure that they do not violate the rights of NYC police officers.”

Anthony Coles of DLA Piper, attorney for the unions, expressed his disappointment in the ruling.

“It’s a shame that the sergeants and other police unions were precluded from challenging a decision that undoubtedly would have been thrown out on appeal, and one where the trial judge was replaced by the circuit for an appearance of partiality,” Coles said.

Corporation Counsel Zachary W. Carter said that the decision clears the way for implementation of the remedial measures to which the city agreed.

Phil Irwin of Covington & Burling LLP, attorney for plaintiffs, told Law360 that the rulings reject the efforts by the unions to stand in the way of genuine reform.

“We look forward to beginning a remedial process, as contemplated in last year’s remedies order, that will safeguard the constitutional rights of black and Hispanic New Yorkers,” Irwin said.

Molly Kovel, attorney with The Bronx Defenders, also praised the ruling, saying they welcome the opportunity to finally begin the practical business of addressing the major problems within the NYPD.

“The Bronx Defenders will continue to seek justice for our clients and the communities we serve by coordinating with the federal monitor to implement these vitally necessary reforms in the NYPD,” Kovel said. “Moreover, given Ligon challenged the summons and arrest practices of the NYPD, we hope that the city will also agree that the NYPD’s problematic over-reliance on low-level arrests and prosecutions of misdemeanors — commonly referred to as “Broken Windows” policing — also need to be rigorously addressed to ensure fairness and compliance with the United States and New York State Constitutions.”

Judges Barrington Parker, John Walker and Jose Cabranes sat on the panel for the Second Circuit.

The police unions are represented by Steven Engel of Dechert LLP, Anthony Coles of DLA Piper LLP and Joseph A. DiRuzzo III of Fuerst Ittleman David & Joseph PL.

The plaintiffs are represented by the Center for Constitutional Rights, Covington & Burling LLP, Beldock Levine & Hoffman LLP, the New York Civil Liberties Union, The Bronx Defenders, Latino Justice, New York Lawyers for the Public Interest andShearman & Sterling LLP.

The cases are Floyd et al. v. City of New York, case number 13-3088, and Ligon et al. v. City of New York, case number 13-3123, both in the U.S. Court of Appeals for the Second Circuit.

By Kelly Knaub

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