February 25, 2014

Stop-and-Frisk Appeal Returns to Trial Court

Unions Hoping to Intervene

A Federal appeals court last week acceded to the de Blasio administration’s request to send the stop-and-frisk appeal back to the trial court for settlement, and said that court will have to decide whether the five police unions can intervene in the case.

The unions had sought standing in the case in hope of keeping it alive if Mayor de Blasio kept his campaign promise to drop the appeal of the ruling last August that the department was using stop-and-frisk in an unconstitutional manner. The settlement with civil-rights attorneys that he announced Jan. 30 would essentially keep the decision in place.

PBA: Want Seat At Table

“Our mission has always been to gain a seat at the table in order to protect our members’ rights and reputations,” Patrolmen’s Benevolent Association President Patrick J. Lynch said in a statement. “We look forward to representing those interests and our hope is that the court will recognize the importance of having the police officer’s voices heard in the process of addressing the issues raised in this litigation.”

In its Feb. 21 order returning the case to U.S. District Court, the panel of judges from the Second Circuit Court of Appeals said it was not deciding whether to allow the unions to intervene, “because the appropriateness of intervention and the form it takes could well bear on settlement  negotiations.”

The appeals judges held open the possibility that the unions could appeal if the District Court did not allow them to intervene.

The order came a week after the de Blasio administration filed papers reversing the city’s approval of the efforts of police unions to become party to the appeal. The administration of former Mayor Michael Bloomberg, which stridently supported the department’s use of stop-and-frisk, had encouraged the move.

The unions argued that the ruling affected police officers’ working conditions. Aspects of the ruling “unfairly besmirch the reputations of the men and women of the NYPD,” according to a brief filed collectively by the Patrolmen’s Benevolent Association, the Detectives’ Endowment Association, the Lieutenants’ Benevolent Association and the Captains’ Endowment Association.

SBA: City At Odds

Edward D. Mullins, president of the Sergeants’ Benevolent Association, said in a letter to Mr. de Blasio written after the settlement was announced that city attorneys cannot adequately represent his union’s interests.

The city disagreed with the unions’ contention that issues involved in the case are subject to collective bargaining. They are “managerial prerogatives under the New York City Collective Bargaining Law,” it said in a memorandum of law signed by Mr. Carter. “...The establishment and revision of policing policy are generally not mandatory subjects of collective bargaining.”

It continued, “The unions have not cited any specific provisions of the collective-bargaining agreement that would be altered...nor have they alleged any specific rule or regulation regarding collective bargaining that will not be honored.”

Wary of Further Delays

“The police unions’ involvement as an intervenor at this juncture, and the delay caused by further litigation, may hinder that settlement,” according to the city’s brief. “...The public interest favors the expeditious resolution of these cases and implementation of the reform process. Allowing police unions to intervene at this stage would frustrate this interest.”

The case is back in District Court, but it will be heard by U.S. District Judge Annalisa Torres. The appeals judges removed the original judge, Shira A. Scheindlin, saying she “ran afoul of the Code of Conduct for United States Judges” and that that “the appearance of impartiality surrounding this litigation was compromised.”

After a storm of criticism and an unprecedented attempt by Judge Scheindlin to argue in her own defense, the judges dialed back slightly, saying, “We have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned.” But they did not restore her to the case.

Judge Scheindlin found that officers were stopping people of the same ethnic or racial group as the majority of suspects in violent crimes. The 1968 U.S. Supreme Court decision underpinning stop-and-frisk, Terry v. Ohio, says officers can stop someone only if they believe he or she is, just was or is about to be involved in criminal activity.