City&State January 30, 2014

De Blasio Unveils Stop-and-Frisk Deal, Moves To Drop Appeal

Law360, New York (January 30, 2014, 5:24 PM ET) -- New York City Mayor Bill de Blasio on Thursday announced a settlement of the stop-and-frisk class actions that calls for a watchdog to oversee police department reforms, but officers’ unions are not backing down from their bid to overturn a ruling that declared the anti-street crime tactic unconstitutional.

Making good on a campaign promise from the newly minted mayor, the city asked the Second Circuit to remand the case, which has been on hold since November, to federal district court and promised to withdraw its appeal altogether as soon as the settlement is approved.

The deal empowers an independent monitor who would report to the federal court to supervise the NYPD’s progress in “meeting its obligation to abide by the U.S. Constitution” for a term of three years.

The case was appealed by the administration of de Blasio's predecessor Michael Bloomberg after U.S. District Judge Shira Scheindlin in August found that the department’s use of stop-and-frisk violated the constitutional rights of minorities, demanding a comprehensive reworking of departmental protocols.

In October, the Second Circuit booted Scheindlin from the case in a bombshell ruling amid concerns over her neutrality and halted her orders, but de Blasio has vowed to let the rulings stand by abandoning the appeal.

“This administration will be a dogged defender of our peoples’ rights. That’s not an imperative at odds with keeping our people safe, and this agreement is a powerful first step toward achieving both of those goals,” Zach Carter, the city’s incoming top lawyer, said in a statement. “This will be real reform that focuses police attention on those individuals actually engaged in criminal activity and limits the intrusion of police activity on the lives of millions of law-abiding New Yorkers.”

Several police unions, though, still have a request pending before the Second Circuit for intervenor status that, if granted, would allow them to dispute findings by Judge Scheindlin that they claim have “besmirched” their reputations and put officers at risk.

After the city asked for remand on Thursday, Circuit Judge Jose A. Cabranes set a Feb. 7 deadline for the unions to respond.

“We continue to have serious concerns about how these remedies will impact our members and the ability to do their jobs,” said Patrick J. Lynch, president of the Patrolmen’s Benevolent Association of The City of New York Inc. — one of the proposed intervenors. “Our goal is to continue to be involved in the process in order to give voice to our members and to make every effort to ensure that their rights are protected.”

The unions had previously urged the Second Circuit to rule on their intervention bids before the city could withdraw its appeal, leaving the case without any appellant. They have asserted a protectable interest in both the judge's liability findings, which they said chilled lawful and proactive police conduct, and in her remedies decision, which purportedly re-wrote official codes of officer conduct.

Judge Scheindlin ordered the police force to revamp stop-and-frisk after determining that the protocols violate the constitutional rights of minorities by disproportionately targeting young black and Hispanic men on the street.

That decision came seven months after she issued injunctive relief for a companion class brought by first named plaintiff Jaenean Ligon on behalf of her minor son.

The Second Circuit, though, found that her conduct in the cases had breached the judicial code of conduct, saying that the judge had improperly taken up a case led by plaintiff David Floyd as related to the Ligon suit that was already before her. The panel also took issue with her public response to criticism over the subsequent rulings via public statements and news media interviews.

Judge Scheindlin asked the Second Circuit to allow her to argue on her own behalf that she should remain on the cases, but the court rejected her “unprecedented” request in November after finding there is no procedural basis for such an effort.

A week later, the panel turned down the city's bid to vacate the judge's rulings on the sole grounds that she was impartial, setting up a full briefing on the merits.

The police unions are represented by Steven A. Engel of Dechet LLP and Anthony P. Coles of DLA Piper LLP (US).

The Ligon plaintiffs are represented by the New York Civil Liberties Union, The Bronx Defenders, Latino Justice and Shearman & Sterling LLP. The Floyd plaintiffs are represented by the Center for Constitutional Rights, Covington & Burling LLP and Beldock Levine & Hoffman LLP.

The cases are Ligon et al. v. City of New York, case number 13-3123, and Floyd et al. v. City of New York, case number 13-3088, both in the U.S. Court of Appeals for the Second Circuit.

--Editing by Philip Shea.