By Andrew Keshner, From New York Law Journal

NYPD officers participate in a stop and frisk training exercise.

New York City police unions protesting the city’s agreement to settle lawsuits on stop-and-frisk practices waited too long before trying to insert themselves into the high-profile litigation, the U.S. Court of Appeals for the Second Circuit said Friday.

In a ruling denying the unions’ intervention bid, the circuit also granted the city’s motion for voluntary dismissal of its appeal of liability and remedial orders with prejudice.

Long before the five unions filed their intervention motions in what the circuit referred to as “controversial and public cases,” they knew, or should have known, of their alleged interests at stake, the court said.

In August 2013, Southern District Judge Shira Scheindlin (See Profile) found the New York Police Department liable for widespread constitutional violations. She appointed Peter Zimroth, senior counsel at Arnold & Porter, as a monitor to oversee reforms.

Though the unions moved to intervene in September 2013, Bill de Blasio, a vocal critic of excessive stop-and-frisk practices, was elected mayor, and his administration moved to drop an appeal of the decisions on liability and remediation.

The Second Circuit’s per curiam decision Friday in Floyd v. City of New York, 13-3088-cv, upheld a lower court’s denial of intervention, saying that regardless of the merits behind union claims faulting Scheindlin’s reasoning, allowing the unions to “revive a now-settled dispute by intervening at this late juncture would substantially prejudice the existing parties and unduly encroach upon the city’s inherent discretion to settle a dispute against it.”

The panel, consisting of Judges Barrington Parker (See Profile), John Walker Jr. (See Profile), and Jose Cabranes (See Profile), said, “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.”

Nevertheless, the circuit emphasized that its decision was narrowly confined to the “particular and highly unusual circumstances presented here and should in no way be construed to encourage premature intervention in cases of public concern where government defendants have discretion to settle.”

The circuit acted quickly after grilling the unions’ attorneys with skeptical question during two hours of oral arguments on Oct. 15 (NYLJ, Oct. 16).

In a statement, Corporation Counsel Zachary Carter said “Today’s Second Circuit decision clears the way for implementation of the remedial measures to which the city agreed as part of the stop and frisk litigation.”

Patrick Lynch, head 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.”

No Evidence of Harm

The panel that ruled on the intervention motions Friday previously stayed Scheindlin’s decisions and stayed Zimroth’s work overseeing reforms while it entertained the unions’ intervenor bid. It also ordered that a different judge be assigned to the case, and the matter ended up before Southern District Judge Analisa Torres (See Profile).

The unions insisted that the liability order harmed officers’ reputations and the remedial order threatened unions’ right to collectively bargain about employment terms and conditions.

In July, Torres said the union attempts to intervene were untimely, and the unions had “no significant protectable interests relating to the subject of the litigation that would warrant intervention” (NYLJ, July 31).

In its affirmance, the panel said it had “serious reservations about the prospect of allowing a public-sector union to encroach upon a duly-elected government’s discretion to settle a dispute against it.”

Those reservations “deepen[ed] when we note the relatively modest interests the unions seek to advance,” the panel added.

Torres was correct in holding that police reputations were “too indirect and insubstantial to be ‘legally protectable.'”

Apart from the unions’ own claims, the panel said there was “no evidence in the record showing that the union members’ careers had been tarnished, that their safety was in jeopardy, or that they had been adversely affected in any tangible way.”

Likewise, the panel said the unions failed to show “in any meaningful way” how the remedial order’s reforms would have impacted matters within the unions’ collective bargaining rights.

Though the panel acknowledged it was affirming Torres, it noted that the merits of the underlying liability and remedial orders were “complex and controversial, and they indisputably implicate serious questions of broad constitutional importance, as well as difficult evidentiary questions concerning the use of statistical evidence.”

Because the city opted to settle and abide by the remedial order, the panel said it did not have occasion to review the rulings’ merits. “Nothing in this opinion should be construed as accepting or rejecting any part of the Liability and Remedial Orders issued by Judge Scheindlin.”

The matter is remanded to Torres for further proceedings.

Steven Engel, a partner at Dechert, appeared for the Patrolmen’s Benevolent Association of the City of New York during oral arguments.

DLA Piper partner Anthony Coles appeared for the Sergeants Benevolent Association.

Joseph Di Ruzzo, a senior attorney at Fuerst Ittleman David & Joseph in Miami, represented the other unions.

Assistant Corporation Counsel Richard Dearing appeared for the city at oral arguments and Baher Azmy of the Center for Constitutional Rights appeared for the plaintiffs.

Alexis Karteron of the New York Civil Liberties Union argued for the plaintiffs in a related case, Ligon v. City of New York, 14-2848.

IMAGE: Stop-and-frisk training at the New York City Police Department’s training complex at Rodman’s Neck in the Bronx. ABC News

For more on this story go to: http://www.newyorklawjournal.com/id=1202675279628/Circuit-Rejects-Police-Union-Role-in-Stop-and-Frisk#ixzz3I1QJa1qO