Stop-and-Frisk Plaintiffs Ask Circuit to Remand Cases

, New York Law Journal

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Mayor Bill de Blasio, Corporation Counsel Zachary Carter, and Police Commissioner William Bratton
Mayor Bill de Blasio, left, announces agreement in landmark stop-and-frisk case on Jan. 30. Next to de Blasio are Corporation Counsel Zachary Carter, center, and Police Commissioner William Bratton.

Plaintiffs in the New York City's stop-and-frisk cases have urged the U.S. Court of Appeals for the Second Circuit to remand the cases so settlement terms on reforming the police department can be reached.

In papers filed Friday, attorneys in Floyd v. City of New York, 13-3088 and Ligon v. City of New York, 13-3123, dispute the claims of five police unions that want the cases to stay in the Second Circuit. The unions claim Judge Shira Scheindlin's liability and remedial findings were wrong and damaged the department's ability to police the city.

The unions are trying to win a reversal of Scheindlin's rulings, but the plaintiffs assert that the new administration at City Hall should have the right to pursue a limited remand with an eye on settling the cases.

"[T]he merits of the appeal are irrelevant to the city's right to cease prosecuting this appeal if it wishes," said the plaintiffs' attorneys, who include Darius Charney of the Center for Constitutional Rights, Jonathan Moore of Beldock Levine & Hoffman, and Christopher Dunn of the New York Civil Liberties Union.

Corporation Counsel Zachary Carter also filed papers opposing the police unions Friday. He said allowing the unions to intervene would "hinder" any settlement. Carter argues the unions "have not shown they have a legally protectable interest in this action to establish their entitlement to intervention as of right," and he insisted that the unions would have a say if the case was remanded to district court.

On Oct. 31, a three-judge panel at the Second Circuit stayed Scheindlin's rulings in Floyd and Ligon and removed Scheindlin from the cases for creating the appearance of impropriety. The controversial decision came just as stop-and frisk critic Bill de Blasio, was about to be elected mayor and follow through on his vow to drop the appeal of Scheindlin's rulings that were being aggressively challenged by Mayor Michael Bloomberg and Corporation Counsel Michael Cardozo. They particularly fought Scheindlin's appointment of a police department monitor.

The police unions had sought to intervene in the cases in September. Following the Oct. 31 ruling by the motions panel, Scheindlin fought back, with lawyers arguing to intervene on her behalf and claiming the panel's sua sponte removal was in error.

Burt Neuborne led a group of distinguished lawyers advocating for Scheindlin, calling Judges Jose Cabranes, Barrington Parker and John Walker to task for removing the judge. After being told Scheindlin had no standing to intervene, the team later applied as amici and sought en banc review of the panel's rulings.

On Nov. 25, the full circuit ordered that the intervention motions of the police unions would be held in abeyance, and it invited the parties to seek a limited remand for the purposes of reaching a settlement.

On Jan. 30, Mayor de Blasio, Carter and new Police Commissioner William Bratton announced a "voluntary agreement in principle" with plaintiffs' lawyers to reform police stop-and-frisk practices that Scheindlin had found violated the Fourth Amendment's requirement of reasonable suspicion and disproportionately targeted blacks and Hispanics in violation of the Fourteenth Amendment.

The new administration's Law Department, they said, would move for a limited remand to pursue settlement that would include acceptance of a monitor, and would then drop the appeal.

Later that same day, the motions panel gave the proposed intervening police unions a chance to comment on the remand, and the plaintiffs a chance to respond, which they did Friday.

Also on Friday, Neuborne and his fellow amici wrote the court asking for clarification on a number of points, including the authority of the motions panel.

Scheindlin had come under fire by Cabranes, Parker and Walker for suggesting in a prior stop-and-frisk case that any new action would come to her under the related case rule. That new case turned out to be Floyd. The alleged steering of Floyd to her docket, and comments she made in three interviews with the media during the Floyd trial, gave the appearance of partiality, the panel said.

On Friday, Neuborne and the amici reiterated the need for en banc review in a letter to the court that criticized the motions panel. They asked if the panel's "failure to afford proposed amici any opportunity to explain the context of the District Judge's actions and/or inform the Motion Panel concerning the application of the related case rule in the Southern District of New York deprived the panel of crucial information needed to assess whether an objective observer in possession of all the facts might reasonably question the impartiality of the District Judge?"

In their own papers, the plaintiffs' lawyers say, "Despite the Unions' speculation and mischaracterizations … the parties have not reached a 'settlement agreement.' Instead, the parties have agreed to proceed towards resolving the litigation by negotiating the terms of the independent monitor."

They also argued that the police unions have the option to pursue intervention in the district court.

Former Mayor Rudoplh Giuliani and former U.S. District Judge and U.S. Attorney General Michael Mukasey also filed papers seeking leave to file as amici in support of the police unions' position opposing remand. The circuit granted their motion late Friday.

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