NYC's Stop and Frisk Litigation Continues

It may seem like yesterday's news to some, but the Stop and Frisk litigation that dominated the City's news and political landscape last year is still going on. The parties have asked United States District Judge Analisa Torres to rule on pending motions by various police unions to enter the fray. Given the importance of the litigation and the length of time the motions have already been pending, a decision is likely to be rendered soon. The outcome will help determine whether Peter Zimroth, the monitor previously appointed by Judge Shira Scheindlin can begin his work while the underlying case begins the process of fading away, or if the litigation will ramp up once again.

It is difficult to sum up the history of this litigation, but, in relevant part, in August 2013 Judge Scheindlin issued a monumental ruling, holding that the NYPD's Stop and Frisk policy involved racial profiling and was being employed in an unconstitutional manner. Her order established an outside monitor for the NYPD, and she appointed Peter Zimroth to the post. There was a slew of motions and rulings and then an appeal for a stay to the Second Circuit Court of Appeals, which granted the stay and removed Judge Scheindlin from the case. That action triggered further filings.

Meanwhile, recognizing that then-incoming Mayor Bill de Blasio was committed to withdrawing the appeal and adhering to Scheindlin's order, the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association and the Captains' Endowment Association, filed motion papers in which they sought, essentially, to take over the defense of the NYPD, notwithstanding the fact that the NYPD is merely a city department and that the Law Department (under the mayor's direction) represented the NYPD. 

In their papers, the unions argued that the "court entered findings that unfairly besmirch the reputations of the men and women of the NYPD, imposed facially overbroad remedies, and exposed the NYPD to an unwarranted and indefinite period of federal supervision." They further claim that "[t]he contemplated injunction would directly burden the officers' daily work and would impair the police unions' collective bargaining and other rights."  The Sergeants' Benevolent Association filed its own papers, claiming that allowing the City to dismiss its appeal "would leave in force the two grossly flawed opinions," and that its members were "among the most harshly criticized individual NYPD officers mentioned in the opinions" who "deserve the opportunity to defend and vindicate themselves through this appeal." A lengthy discussion of the motion can be found here.

Judge Torres has yet to decide those motions. According to the New York Law Journal, Darius Charney of the Center for Constitutional Rights, counsel for the plaintiffs, wrote to the Court on behalf of both plaintiffs and the City, and asked for a ruling, noting that the parties cannot proceed without a decision.

The unions' motions are easily understandable as political gambits. However, the way the litigation is framed, it is the City that is the true defendant, since the suit focuses on NYPD policies rather than individual actions. Put differently, the fundamental question in this litigation is whether the City of New York undertook a policing policy founded on unconstitutional racial profiling. How or whether to defend this policy is a call reserved for the City, and its new executive officer has decided to accept Judge Scheindlin's prior decision and move forward. Disagree if you wish, but it is his call to make and I anticipate that the unions will be denied the right to enter the litigation. More news undoubtedly will be forthcoming.