August 1, 2014

Stop and Frisk: Nearing The End

Slowly but surely the Stop and Frisk litigation that dominated legal and civil rights headlines for the past year appears to be nearly done. District Judge Analisa Torres flatly rejected the police unions' attempts to inject themselves into the litigation. All that remains is for the unions to appeal, as they have promised to do. There is no doubt that they will follow through, but the far wiser course would be one of reconciliation.

It is an ending foretold by Bill de Blasio's election last November. The unions ought to acknowledge the loss and concentrate on their role in negotiating the settlement to which the parties have committed. I get that the threat of the appeal may seem to give the union some leverage at the bargaining table. Except that it doesn't. The Court of Appeals has made clear that they want this case done and done now. Moreover, Judge Torres's ruling is sound on the law. The appeal will do nothing more than publicly confirm the unions' hostility towards the current administration and that part of the public (read: black and latino) that already expects the worst from much of the rank and file.

The history of the litigation is lengthy and complicated. To sum up recent developments (culled from my posts here, here, and here, as well as Judge Torres's ruling), the City under Mayor Bloomberg, Police Commissioner Kelly, and Corporation Counsel Michael Cardozo bitterly contested the challenge to the Stop and Frisk policy. When District Judge Shira Scheindlin struck down the policy in 2013, finding that it was grounded on racial profiling, the City continued its scorched earth approach, vowing to appeal and keep battling until all efforts were exhausted.

The City sought and received a stay from the Second Circuit Court of Appeals, along with the unexpected bonus of Scheindlin's unexpected (and unwarranted) removal from the case, which was then reassigned to Judge Torres. 

But Mayor de Blasio's election ruined much of the City's plans. De Blasio had promised that he would withdraw any appeal, and would work with the plaintiffs to implement Judge Scheindlin's order, which had delineated various remedial steps to be taken. Recognizing the obvious, Bloomberg's people worked furiously to expedite the appeal, hoping that it might be decided before the end of the year. No such luck, as the Court of Appeals made clear that it greatly preferred a settlement to an appeal. 

Out went Bloomberg, and with him, Kelly and Cardozo, so too went the City's opposition. It was then that the police unions finally sprang into action. They moved for two avenues of relief. The first was to intervene as defendants in the case, and the second to intervene in the settlement process. They were seeking, in effect, to assume the role that the City had chosen to abandon. 

Given that the litigation challenged a City policy, put in place and administered by the City's own police department, it would seem obvious that it was up to the City to decide how it wanted to respond to the district court's ruling. Just as Bloomberg had the legal authority to expend money and resources defending a policy that was loathed in many parts of the City, so too did de Blasio have the authority to change course.

Judge Torres essentially agreed. She issued a 108 page Opinion and Order, which follows in its entirety at the end of this post. The Court summed up its ruling thusly,
The motions to intervene are DENIED for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal. 
The parties’ motion for an order modifying the remedies order is GRANTED. The modifications shall be set forth in a separate order to be issued forthwith. The Unions’ request to  participate in the settlement of Floyd and Ligon is, therefore, DENIED as moot. 
The Unions’ request to participate in the remedial phase of Floyd is also DENIED as moot because the remedies order already offers “police organizations” the opportunity to  participate in the development of reforms to NYPD stop-and-frisk policies and procedures through the “Joint Remedial Process.” The Unions’ request to participate in the remedial phase of Ligon is DENIED for the same reasons the Court denies their motion to intervene for the  purpose of appealing the remedies order.
The Court lays out the basis for the ruling in detail, explaining the history of the Stop and Frisk cases, the rulings in each case, the claims now being advanced, and the basis for the Court's ultimate rejection of these arguments. It is lengthy and substantive, and is necessary reading for those with a real interest in the litigation of these claims and cases, and how we have arrived at this juncture.

We are almost at the end of the litigation. One can hope, but surely not expect, that the unions will see this as an opportunity for remediation and healing. To say it is unlikely is perhaps too optimistic. But with or without them, this chapter is coming to a close.

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