Seth Lipsky

Seth Lipsky

Opinion

Police union has a chance to protect ‘stop-and-frisk’ cops

It’s too soon to say whether the federal appeals court will let the police unions intervene to defend New York City cops in the stop-question-and-frisk lawsuit. It’s not too soon to speculate that the court will pay some attention to one famous case where a police union won standing. No doubt it’s well-known to one William J. Bratton.

The case involved the Los Angeles Police Department, which was sued (before Bratton took over the LAPD and began bringing down crime in the City of Angels) for having “engaged in a pattern or practice of depriving individuals of constitutional rights through the use of excessive force, false arrests and improper searches and seizures.”

Los Angeles took a different approach than New York did under Mayor Michael Bloomberg. It immediately started negotiations with the party that brought the case, the federal government, and opted to settle. It entered into a consent decree that set up, among other things, a monitor to keep an eye on the Los Angeles cops. The LA City Council approved the agreement.

But the Los Angeles Police Protective League asked the district court to let it intervene to defend the officers. When the court said no, the union appealed to the US Court of Appeals for the 9th Circuit.

The appeals court sketched the standard the union had to meet. It had to show that it has “a significant protectable interest” and that the outcome could “as a practical matter, impair or impede” the union’s “ability to protect its interest.” Its application had to be timely. It had to show that the “existing parties” — the federal government and the city — “may not adequately represent” the union’s interest.

In New York, the Patrolmen’s Benevolent Association and the other police unions are now trying to convince the 2nd Circuit that they’ve met just those hurdles. The other parties are citing all sorts of legal technicalities to oppose the PBA — though the 9th Circuit wrote in the LA case that the courts “are guided primarily by practical and equitable considerations.”

Quoting its own precedents, the 9th Circuit also held that a “liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts.” It had elsewhere ruled that by “allowing parties with a practical interest in the outcome of a particular case to intervene, we often prevent or simplify future litigation involving related issues.”

It also brushed aside warnings that the union’s intervention would slow everything down, ruling that the litigation shouldn’t be “accomplished at the risk of marginalizing” those, such as the police union, “who have some of the strongest interests in the outcome.” So it overruled the district court and let the police union intervene.

That, however, was something of a pyrrhic victory for the union. The court said it wouldn’t “turn back the clock” on the settlement. The deal, after all, had already been approved by the district court.

But neither the district court nor an appeals court had stayed that ruling. Our situation here in New York is different and may not bode well for Mayor de Blasio.

There has been no court-accepted settlement of the New York case; a stay was issued last year. Plus, the higher court cashiered the district judge, Shira Scheindlin, from the case for failing to maintain an appearance of impartiality. The 2nd circuit has stated it is keeping the “mandate” — that is, nothing’s final until it says so.

If it does let the PBA intervene, Mayor de Blasio would be in a much tougher spot than Los Angeles was. He wants the district court to make the decision on whether the union can intervene, and seems to hope that a new district judge will let him implement the ruling against the NYPD that the higher court has stayed.

How much of all this will the 2nd Circuit put up with? Hard to say. It could let the district court decide and then let the PBA appeal.

It certainly isn’t bound by the precedents of the 9th Circuit. But the fact is that the 9th Circuit did illuminate the logic of letting a police union defend the police in a situation where no one else will.