Civil Rights, New York

Manhattan appeals court chastises police unions over stop-and-frisk

A federal appeals court in Manhattan grilled lawyers representing police unions attempting to disrupt settlement negotiations following a landmark ruling that held New York City liable for constitutional violations against blacks and Latinos.

Three judges from the U.S. Court of Appeals for the Second Circuit questioned the unions’ motives in seeking intervention so late in the litigation — a move that, in practice, has delayed implementation of reforms to the NYPD’s criticized stop-and-frisk policies.

“Now, who controls the police department?” asked U.S. Circuit Judge Barrington Parker, Jr. at one point during the nearly two-hour-long hearing. “Is it the PBA—your clients—or the commissioner?”

U.S. Circuit Judge John M. Walker, Jr. was more pointed.

“What do you hope to gain in the appeal?” he asked. “The city has changed its position. The police force has changed its position. The status quo . . . is simply gone.”

That status quo was the city’s use of stop-and-frisk, which the U.S. Supreme Court has said is legal if conducted with reasonable suspicion. But for almost a decade, former Mayor Michael Bloomberg and Commissioner Raymond Kelly endorsed the practice and defended it in court, denying that the city applied it in a racially discriminatory manner.

But in August 2013, after a lengthy trial, U.S. District Judge Shira Scheindlin ruled the NYPD’s stop-and-frisk policy unconstitutional. The Bloomberg administration appealed the ruling, but Mayor Bill de Blasio — who won the election due in large part to his opposition to stop-and-frisk — dropped the appeal shortly after he took office. His administration quickly entered into settlement negotiations with the plaintiffs in the case.

Unhappy with the city’s change in position, the police unions got involved, claiming in legal filings that stop-and-frisk reform “burdened and besmirched” the force and its reputation.

In July, U.S. District Judge Analisa Torres, in a 108-page decision, roundly denied the unions’ claims. She ruled that the police unions’ request was untimely, that the unions had no legal “standing” to join the lawsuit, and that they had “no significant protectable interest relating to the subject of the litigation.”

The judges at Wednesday’s hearing echoed many of Torres’ criticisms, and forcefully brought the unions to task for using the legal process to get a leg up in contract negotiations with the city.

“You’re using this motion to intervene to try and accumulate chips,” Parker told Joseph A. DiRuzzo, an attorney representing the Detectives’ Endowment Association, the Captains Endowment Association, and the Lieutenants Benevolent Association. “You want to use this proceeding as leverage in your collective bargaining, and I don’t think that’s permissible.”

Parker said that, as a result of last year’s election, the city was now under a newly appointed police chief and a newly elected City Council, and that both wanted the NYPD to operate differently.

“That’s the democratic process,” Parker said. “That’s something you have to live with.”

Despite the appellate court’s skepticism to the unions’ arguments, this same three-judge panel — which also includes U.S. Circuit Judge José Cabranes — sent shockwaves through the legal community last year when it removed Judge Scheindlin from the stop-and-frisk proceedings, stating she had “ran afoul” of judicial code-of-ethics provisions by virtue of some interviews she gave in the media and other procedural considerations.

That order, which halted implementation of Scheindlin’s order pending appeal, was roundly criticized by legal experts and court observers, some of whom accused the court of inserting itself in New York City’s mayoral election. The court, apparently in response to the outcry, later back-tracked and issued a new opinion clarifying that Scheindlin had not engaged in misconduct, but stood by its decision to keep her off the case. The bizarre turn of events inspired an article in the Georgetown Journal of Legal Ethics.

A ruling on the police unions’ motion to intervene is expected later this year.


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