New York police conduct a stop and frisk in 2009.
New York police conduct a stop and frisk in 2009. (John M. Mantel/ZUMA Press/Newscom)

A federal judge has refused to allow New York City police unions to intervene in a settlement they oppose between plaintiffs and New York City in stop-and-frisk litigation.

Southern District Judge Analisa Torres denied the unions’ motion in a 108-page decision released Wednesday, saying the intervenor bids were untimely and the unions had “no significant protectable interests relating to the subject of the litigation that would warrant intervention.”

Even if the unions did have recognizable interests, they lacked standing “to vindicate those interests on appeal,” Torres wrote in Floyd v. City of New York, 08-cv-1034, and Ligon v. City of New York, 12-cv-2274, adding that police unions will have an opportunity to participate in the “joint remedial process” with other stakeholders.

Patrolmen’s Benevolent Association President Patrick Lynch said his union will appeal, claiming it was “unfair and inconceivable that employees would not be allowed in this process.”

Torres also granted a second motion by the city and its adversaries to modify a remedial order by limiting the term of a court-appointed monitor to three years, “provided the city has shown substantial compliance with its obligations by the end of its term.”

New York City Mayor Bill de Blasio said Torres’ decision “to formally approve the settlement to resolve the stop-and-frisk litigation is a major step in our efforts to repair police-community relations.”

City officials declined to elaborate on the mayor’s statement.

In August 2013, Southern District Judge Shira Scheindlin found that police engaged in widespread unconstitutional practices wherein young men, mostly black and Hispanic, were stopped without reasonable suspicion. She also issued a remedial order in the Floyd and Ligon cases that tapped Peter Zimroth, senior counsel at Arnold & Porter as the monitor.

Zimroth was just beginning his duties as monitor when then-Mayor Michael Bloomberg and the Law Department appealed Scheindlin’s rulings. The unions also moved to intervene and filed notices of appeal in September.

They contend Scheindlin’s liability order finding widespread constitutional violations harmed officers’ reputations and her remedial order threatened unions’ right to collectively bargain about employment terms and conditions.

A motions panel in the U.S. Court of Appeals for the Second Circuit stayed Scheindlin’s rulings and paused Zimroth’s work in October as it entertained the unions’ intervenor bid. The panel also ordered that a different judge be assigned to the case, which ended up before Torres.

After de Blasio’s inauguration, he and Corporation Counsel Zachary Carter said they planned to settle the stop and frisk litigation.

In February, the circuit remanded Floyd and Ligon to Torres for the purposes of overseeing settlement negotiations and resolving the intervention motions.

In June, Darius Charney, senior staff attorney with the Center for Constitutional Rights, an attorney for the plaintiffs, urged Torres to rule so that the parties could move forward with the case (NYLJ, June 16).

The Federal Rule of Civil Procedure 24 allows non-parties to intervene in ongoing litigation after showing they made a timely request and have a “significant protectable interest” relating to the subject at hand. Applicants also have to show the outcome “may practically impair their ability to protect their interests and that existing parties may not sufficiently represent their interests.”

Here, the unions claimed they acted quickly by seeking intervention within 30 days of Scheindlin’s orders. They said it was reasonable to wait because there could have been a finding of no liability. Likewise, they said they could not have known the remedial order would have impinged their collective bargaining interests until it was released.

Torres called the 30-day rule “fictional.” She said that in essence, the unions did not intervene earlier because the city could have prevailed—and the “unforeseeable” event prompting intervention was a city loss.

“It was entirely foreseeable that the winner might not be the party the unions preferred,” she said.

The unions argued that de Blasio’s refusal to appeal Scheindlin’s ruling was also unforeseeable and “crystallized” the need to step in.

But Torres said the unions should not have been surprised that an inherent risk in democratic elections was “the candidate who supports one’s policing policies might not win” —a risk heightened by the fact that Bloomberg was term-limited.

Though the unions said the plaintiffs and the city would suffer no prejudice if they were let into the case, Torres disagreed.

After lengthy pretrial litigation and a two month trial, the city “has agreed to implement, in large part, the very reforms plaintiffs have been fighting for. Having prevailed to this extent, plaintiffs face significant prejudice if previously uninterested late-comers are permitted to prolong the legal wrangling and further delay plaintiffs’ hard-won relief,” she said.

Torres rejected the unions’ claims that their members sustained reputational harm. “In truth, the court found that the city violated the law by turning a blind eye to police officers’ use of unconstitutional stop-and-frisk tactics. Moreover, the court-imposed injunctions runs against the city, which must change its policy; it does not run against the unions or their members apart from their employment with the city,” she said.

Torres also rejected the unions’ assertion that the remedial order adversely affected their collective bargaining abilities, finding those claims “so conclusory as to evade any meaningful court analysis.” Moreover, the unions “overstate[d]” their rights and misinterpreted the New York City Collective Bargaining Law.

The unions argued that when the city acknowledged liability and said it would drop the appeal, it ran afoul of a portion of the Collective Bargaining Law that barred the city from unilaterally making “any change as to any mandatory subject of collective bargaining or as to any term and condition of employment established in a prior contract.”

The remedial order did not affect any interest subject to collective bargaining, said Torres. Furthermore, the unions’ rights were only triggered if the city attempted unilateral changes, she said.

Remedial Order

Torres approved the city and plaintiffs’ motion to modify the remedial order, calling it “sensible and fair.”

In pressing for a three-year cap on the monitor’s term if there was substantial compliance, the parties said it would enable the remedial order to be implemented sooner and was consistent with the order’s purpose.

The unions opposed, arguing, among other things, that because the city and plaintiffs were no longer adversarial, the court could benefit from unions’ perspective as a counterweight on the question of substantial compliance.

Though “not without merit,” the unions’ arguments were premature said Torres, noting they could address the compliance issue with the monitor.

In his statement, Lynch said “The unions participation has become even more important given that the settlement of the case was reached by parties that appeared to have interests that became allied after the recent election with no party representing the interests of the employees who will be most impacted.”

Baher Azmy, legal director of the Center for Constitutional Rights, which had argued on behalf of those challenging the stop-and-frisk tactics, said Torres’s ruling removed a major obstacle in the way of reforms. “We still have a lot of work to do to make this a police department genuinely responsive to the needs of the community,” he said.

Charney said he anticipated the city would now go to the Second Circuit, move to withdraw its appeal and ask for the stay imposed in October to be lifted. But Charney said he did not know how a possible union appeal would affect the rest of the case, calling that a “wild card.”

Zimroth declined to comment.

Steven A. Engel, Edward A. McDonald and James M. McGuire, partners at Dechert, and Elisa T. Wiygul, an associate, represented four of the five police unions seeking to intervene.

Anthony Coles,a partner at DLA Piper, represented the remaining union, the Sergeants Benevolent Association.

Corporation Counsel Carter and Assistant Corporation Counsels Heidi Grossman, Linda Donahue and Brenda Cooke appeared in the city and plaintiffs’ joint request for modification of the remedial order.