KARYN ROTKER, SENIOR STAFF ATTORNEY Karyn has been employed at the ACLU of Wisconsin since October 2001. "I care about all ACLU issues and have directly worked on most of them! During my time here, I’ve worked on issues including voting rights, police misconduct, transportation and environmental justice, fair housing, educational equity, immigrants’ rights, language access, and free speech for homeless persons.” As Senior Staff Attorney, Karyn investigates, advocates, litigates and negotiates civil rights issues affecting communities of color, persons with disabilities, and low-income communities. She thrives in a busy, bustling work ecosystem and balances being available to others while staying focused and prioritizing complex cases. In 1986, Karyn became a University of Wisconsin Law School graduate. Before joining the ACLU of Wisconsin, she worked in legal services organizations in Ohio, Texas, and Wisconsin, assisting clients including migrant farm workers, senior citizens, and public assistance recipients. Karyn has been honored to receive awards from allies including Milwaukee Inner-city Congregations Allied for Hope (MICAH), the Milwaukee Branch of the NAACP, the John Muir Chapter of the Sierra Club, and the Public Interest Law Section of the state bar. Some of the cases, blogs, interviews and other media regarding Karyn Rotker: Appeals court yet to rule on Wisconsin voter ID and other election laws after 16 months (May 2018) Following Class Action Civil Rights Lawsuit, Wisconsin Legislature to Close Lincoln Hills and Copper Lake (March 2018) Ruthelle Frank, ACLU Plaintiff, Friend, and Voting Rights Champion, Passes Away at 89 (June 2017) Collins v. City of Milwaukee (February 2017) A War Worth Fighting: Voucher Schools & Students with Disabilities (July 2014)

the deal would involve the city paying an estimated $1.5 million over the next five years to a Chicago-based consultant, Hillard Heintze

Funneled into the Obama Presidential Library, in Chicago.

... Obama ... The American Civil Liberties Union [sued] the Obama administration over the National Security Administration's massive phone data collection program, USA Today reports. In its lawsuit, the ACLU said the program that harvests phone calls violates the rights of all Americans. "The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy," said Jameel Jaffer, the ACLU's deputy legal director. Meanwhile, Google sought permission to disclose more details about another contested NSA program, one that allows the government to collect online information from non-U.S. citizens. Additionally, Sen. Dianne Feinstein, D- Calif., who chairs the Senate Intelligence Committee, told reporters she has asked Gen. Keith Alexander -- the head of the NSA and U.S. Cyber Command -- to declassify more information about its phone and Internet surveillance programs. The goal is "so that we can talk about them, because I think they're really helpful," she said. President Obama and aides have defended the programs, saying they have helped prevent terrorist attacks and are subject to oversight by Congress and a special (and secret) court. "They make a difference in our capacity to anticipate and prevent possible terrorist activity," Obama said, also citing "strict supervision by all three branches of government. ... They do not involve listening to people's phone calls, do not involve reading the e-mails of U.S. citizens or U.S. residents absent further action by a federal court that is entirely consistent with what we would do, for example, in a criminal investigation." [Christian Headlines]

The lawsuit, filed by ACLU of Wisconsin in February 2017, accuses Milwaukee police of routinely stopping thousands of minorities without cause or suspicion.

Such stops are a violation of the Fourth Amendment, which requires police to have “reasonable suspicion" that the person is dangerous or has committed a crime, the suit said.

The case was Collins v. City of Milwaukee, WIED 17-cv-234 with the initial COMPLAINT filed 22 Feb 2017.

The COMPLAINT requested Declaratory and Injunctive Relief as set forth below.

The lawsuit, filed by ACLU of Wisconsin in February 2017, accuses Milwaukee police of routinely stopping thousands of minorities without cause or suspicion.

Such stops are a violation of the Fourth Amendment, which requires police to have “reasonable suspicion" that the person is dangerous or has committed a crime, the suit said.

The suit also accused officers of conducting stop-and-frisks “motivated by race and ethnicity” in violation of the 14th Amendment.

Really? When did stop and frisk become a constitutional violation? When was Terry v. Ohio, 392 U.S. 1 (1968) overturned? Oh wait, motivated by race and ethnicity.

When was this case, Collins tried?

My bad, it wasn't. Below is the Relief that was requested in the original COMPLAINT.

RELIEF REQUESTED

Wherefore, the named Plaintiffs and other members of the Main Class and Subclass they seek to represent respectfully request that:

A. The Court assume jurisdiction over this action;

B. The Court issue an Order certifying this case as a class action pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure, with the named Plaintiffs as representatives of the Main Class and Subclass;

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C. The Court issue a class-wide judgment declaring that the Defendants' policy, practice, and custom of conducting suspicionless police stops and frisks, as challenged in this Complaint, violates the rights of the Main Class under the Fourth Amendment to the U.S. Constitution;

D. The Court issue a class-wide judgment declaring that the Defendants' policy, practice, and custom of conducting stops and frisks that are motivated by race or ethnicity, as challenged in this Complaint, violates the rights of the Subclass under the Fourteenth Amendment to the U.S. Constitution and Title VI of the Civil Rights Act;

E. The Court issue an Order for the following injunctive relief:

a. Enjoining the Defendants Milwaukee, FPC, and Flynn from continuing the policy, practice, and custom of conducting police stops without reasonable suspicion of criminal activity;

b. Enjoining the Defendants Milwaukee, FPC, and Flynn from continuing the policy, practice, and custom of conducting police frisks without reasonable suspicion that the subject of the frisk is armed and dangerous;

c. Enjoining the Defendants Milwaukee, FPC, and Flynn from continuing the policy, practice, and custom of conducting stops and frisks that are motivated by race or ethnicity;

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d. Enjoining the use of formal or informal quotas for stops and frisks by MPD officers;

e. Requiring Defendants Milwaukee, FPC, and Flynn to institute and implement improved policies and programs with respect to training, supervision, monitoring, and discipline that will eliminate the policy, practice, pattern, and custom of suspicionless stops and frisks;

f. Requiring the Defendants Milwaukee, FPC, and Flynn to institute and implement improved policies and programs with respect to training, supervision, monitoring, and discipline to eliminate the Defendants' policy, practice, and custom of suspicionless stops and frisks that are motived by race or ethnicity;

g. Requiring Defendants Milwaukee, FPC, and Flynn to institute and implement appropriate and adequate supervision and discipline of MPD officers who conduct stops and frisks;

h. Requiring the Defendants Milwaukee, FPC, and Flynn to implement appropriate measures to ensure that MPD officers document all stops and frisks, the basis for each stop and frisk, and demographic and location information related to each encounter, regardless of whether the encounter is followed by the use of force,

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consent search, citation, or arrest, and to do so in sufficient detail as to permit supervisory review for compliance with the Fourth and Fourteenth Amendments and Title VI of the Civil Rights Act.

i. Requiring Defendants Milwaukee, FPC, and Flynn to implement appropriate measures to ensure that documentation of all traffic and pedestrian stops and frisks is retained in a single, up-to-date computerized database;

j. Requiring Defendants Milwaukee, FPC, and Flynn to make publicly available data on all stops and frisks conducted by the MPD on a semiannual basis, including information on the race, ethnicity, location, and reasons for stops and frisks;

k. Requiring Defendants Milwaukee, FPC and Flynn to monitor and audit MPD stop-and-frisk policies, practices, and customs, to ensure that stops and frisks comport with constitutional and statutory requirements, including by, among other things, periodically reviewing forms documenting stops and frisks and analyzing data on stops and frisks. F. The Court award reasonable attorneys' fees to all Plaintiffs, pursuant to 42 U.S.C. § 1988;

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G. The Court award costs of litigation to all Plaintiffs, pursuant to 42 U.S.C. §§ 1920 and 1988; and

H. The Court award such other and further relief as this Court may deem appropriate and in the interests of justice.

Respectfully Submitted this 22nd day of February,

s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY N.Y. State Bar No. 4538302
JASON WILLIAMSON N.Y. State Bar No. 4645529
Attorneys for Plaintiffs
American Civil Liberties Union Foundation, Inc.
125 Broad Street, 18th Floor
New York, NY 10004
Telephone: (212) 549-2500
Fax: (212) 549-2654
nchoudhury@aclu.org
jwilliamson@aclu.org

KARYN L. ROTKER WI State Bar No. 1007719
LAURENCE J. DUPUIS WI State Bar No. 1029261
Attorneys for Plaintiffs
American Civil Liberties Union of Wisconsin Foundation
207 East Buffalo Street, Suite 325
Milwaukee, WI 53202
Telephone: (414) 272-4032
Fax: (414) 272-0182
krotker@aclu-wi.org
ldupuis@aclu-wi.org

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How did a settlement agreement get reached with the city giving away $$$ millions?

A new police chief, Alfonso Morales, was appointed after Chief Edward Flynn retired.

The city decided to give away money. Hell, it was not their money. And so they decided to pay all costs of litigation without specifying a limit, and lo and behold, they were presented with a bill.

https://www.jsonline.com/story/news/crime/2018/04/30/milwaukee-tentative-settlement-and-consent-decree-aclu-stop-and-frisk-police-lawsuit/567090002/

The possible settlement was approved unanimously Monday by the city's Judiciary and Legislation Committee. It must be approved by the full Common Council and Mayor Tom Barrett.

As part of the settlement, $1.9 million will go toward court costs and plaintiffs' attorneys fees, according to a letter from City Attorney Grant F. Langley.

The settlement includes a five-year consent decree that requires the Milwaukee Police Department and the city's Fire and Police Commission, the civilian oversight board, to reform stop-and-search practices, improve data collection and require officers to undergo more training on stops and searches.

A consultant will monitor compliance with the agreement, which will remain under the jurisdiction of the federal court, and issue periodic reports.

"The reforms in this agreement will advance fairness and equal treatment of people of all racial and ethnic backgrounds in the conduct of police stops and frisks in Milwaukee," Ott said in an email late Monday.

"These reforms are critical to address the decade-long experience of Black and Brown people who have been subjected to baseless stops and frisks, and racial and ethnic profiling," he said.

The lawsuit did not seek damages and the vast majority of the monetary settlement will go toward litigation costs, primarily for expert witnesses and depositions, Ott said.

Ald. Mark Borkowski, chairman of the committee, said, "As much as I hate the fact that it's so much money, I want to believe with all my heart that a lot of good is going to come from this. There will be new policies, new procedures and so there is a silver lining. But obviously it never should have gotten to this stage.

Hell, if they thought $1.9 million for costs and plaintiffs attorneys fee was expensive, they really had not thought the whole "consultant" (Hillard Heintze) thing through. The bill went up to about $6 million. The City of Milwaukee is trying to settle some more to get the bill down to $3.4 million. Note that not a penny of that is for any plaintiff.

http://www.startribune.com/milwaukee-seeks-to-lower-6m-stop-and-search-settlement/487126261/

The city's Common Council will consider limiting the costs of a consultant to monitor police practices as part of a settlement agreement with the American Civil Liberties Union of Wisconsin, the Milwaukee Journal Sentinel reported. The tentative deal sent to the Council on Monday would lower the city's settlement costs to about $3.4 million.

[...]

The consultant will monitor compliance with the agreement. The proposal caps the consultant's fees to about $1.5 million over the next five years.

Shakedown complete. The shakedown artists get $$$ millions and the black and brown people supposedly being helped get a pat on the head.

The way the ACLU defends the Fourth Amendment is inspiring.

As for the announcement of the Settlement Agreement by the Common Council of the City of Milwaukee, it managed to state:

The plaintiffs have alleged that members of the police department violated their rights and the rights of others by unlawfully stopping, frisking, or searching people and by engaging in such conduct in a racially or ethnically discriminatory manner.

[...]

Among the significant terms of this agreement are the following:

1) the police department is committing to stopping, frisking, and searching people in a manner that is consistent with the Constitution and without racial, ethnic, or other forms of prohibited bias and to put policies in place to effect such commitments;

It seems stopping and frisking is still constitutional as long as it is done without racial, ethnic, or other forms of prohibited bias.

Terry v. Ohio, 392 U.S. 1 (1967) Syllabus:

Held:

1. The Fourth Amendment right against unreasonable searches and seizures, made applicable to the States by the Fourteenth Amendment, "protects people, not places," and therefore applies as much to the citizen on the streets as well as at home or elsewhere. Pp. 8-9.

2. The issue in this case is not the abstract propriety of the police conduct but the admissibility against petitioner of the evidence uncovered by the search and seizure. P. 12.

3. The exclusionary rule cannot properly be invoked to exclude the products of legitimate and restrained police investigative techniques; and this Court's approval of such techniques should not discourage remedies other than the exclusionary rule to curtail police abuses for which that is not an effective sanction. Pp. 13-15.

4. The Fourth Amendment applies to "stop and frisk" pro­cedures such as those followed here. Pp. 16-20.

(a) Whenever a police officer accosts an individual and re­strains his freedom to walk away, he has "seized" that person within the meaning of the Fourth Amendment. P. 16.

(b) A careful exploration of the outer surfaces of a person's clothing in an attempt to find weapons is a "search" under that Amendment. P. 16.

5. Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous regardless of whether he has probable cause to arrest that indi­vidual for crime or the absolute certainty that the individual is armed. Pp. 20-27.

(a) Though the police' must whenever practicable secure a warrant to make a search and seizure, that procedure cannot be followed where swift action based upon on-the-spot observations of the officer on the beat is required. P. 20.

(b) The reasonableness of any particular search and seizure must be assessed in light of the particular circumstances against the standard of whether a man of reasonable caution is warranted in believing that the action taken was appropriate. Pp. 21-22.

(c) The officer here was performing a legitimate function of investigating suspicious conduct when he decided to approach peti­tioner and His companions. P. 22.

(d) An officer justified in believing that an individual whose suspicious behavior he is investigating at close range is armed may, to neutralize the threat of physical harm, take necessary measures to determine whether that person is carrying a weapon. P. 24.

(e) A search for weapons in the absence of probable cause to arrest must be strictly circumscribed by the exigencies of the situation. Pp. 25-26.

(f) An officer may make an intrusion short of arrest where he has reasonable apprehension of danger before being possessed of information justifying arrest. Pp. 26-27.

6. The officer's protective seizure of petitioner and his com­panions and the limited search which he made were reasonable, both at their inception and as conducted. Pp. 27-30.

(a) The actions of petitioner and his companions were con­sistent with the officer's hypothesis that they were contemplating a daylight robbery and were armed. P. 2S.

(b) The officer's search was confined to what was minimally necessary to determine whether the men were armed, and the intrusion, which was made for the sole purpose of protecting him­self and others nearby, was confined to ascertaining the presence of weapons. Pp. 29-30.

7. The revolver seized from petitioner was properly admitted into evidence against him, since the search which led to its seizure was reasonable under the Fourth Amendment. Pp. 30-31.

Affirmed.

As I remember, back a few years ago there was a set of cases addressing a class action lawsuit against the City of New York and the Police. A US District Court Judge, I believe, ruled that the NYPD violated both the Fourth Amendment by conducting unreasonable searches and the Fourteenth Amendment for conducting stop nd frisks in a racially discriminatory manner. There were appeals and this judge’s ruling was set aside pemding the outcome of the appeals. NYC and the NYPD for some reason dropped the appeal and the original judge’s ruling was reinstated....that the practice was unconstitutional. Will you please explain that event and its possible effect, if any, on the City of Milwaukee’s case. It appears there still is an unconstitutional ruling, although not by SCOTUS, still standing. What does this mean?

As I remember, back a few years ago there was a set of cases addressing a class action lawsuit against the City of New York and the Police. A US District Court Judge, I believe, ruled that the NYPD violated both the Fourth Amendment by conducting unreasonable searches and the Fourteenth Amendment for conducting stop nd frisks in a racially discriminatory manner. There were appeals and this judge’s ruling was set aside pemding the outcome of the appeals. NYC and the NYPD for some reason dropped the appeal and the original judge’s ruling was reinstated....that the practice was unconstitutional.

Will you please explain that event and its possible effect, if any, on the City of Milwaukee’s case. It appears there still is an unconstitutional ruling, although not by SCOTUS, still standing. What does this mean?

I believe it means you have some misunderstanding of the marathon legal case. (No offense intended.)

Stop and frisk is still lawful in New York (and elsewhere). NYCPL 140.50 codifies it. No court below the U.S. Supreme Court has the authority to declare a Terry stop, or stop and frisk unconstitutional, and none ever has that I know of.

Floyd v. City of New York (discussed further below) was appealed to the 2nd Circuit. The 2nd Circuit remanded the case to SDNY. NYC and the plaintiffs announced their intention to enter into a settlement agreement. The unions tried to intervene, claiming in part that police reputations were damaged, and they wanted a defense of the NYC procedures to be the subject of an appeal. Their attempts to intervene were denied.

What was named stop and frisk by NYC critics was, and still is, elsewhere known as a Terry stop.

Stopping and frisking anywhere, for the purpose of racial or ethnic discrimination, is unlawful. The racial/ethnic discrimination is unlawful, not the stopping and frisking.

The Opinion of Judge Shira Sheindlin was not reinstated. On appeal, the 2nd Circuit shitcanned Judge Sheindlin from the cases and ordered remand to the SDNY with all proceedings before another judge (Judge Analisa Torres was assigned). A racial discrimination claim had been upheld in a civil suit. A Terry stop was not adjudged unconstitutional. A Terry stop for the purpose of racial discrimination was held unconstitutional.

In its remand Order of October 31, 2013, the 2nd Circuit panel stated,

The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” seeTransfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.

The 2nd Circuit also decided the same three-judge panel that decided to stay the Floyd decisions will also hear the whether the decisions should be reversed.

The reason appeals were discontinued was that Bill DeBlasio became mayor. Under DeBlasio, the claims against Mayor Bloomberg and Chief Kelly (NYC officials) went unopposed.

By stipulation, dated March 8, 2013, the parties withdrew all claims with prejudice against the individual defendants in Floyd v. City of New York, and the case was recaptioned as here shown.

https://law.justia.com/codes/new-york/2013/cpl/part-2/title-h/article-140/140.50/

2013 New York Consolidated Laws
CPL - Criminal Procedure
Part 2 - THE PRINCIPAL PROCEEDINGS
Title H - PRELIMINARY PROCEEDINGS IN LOCAL CRIMINAL COURT
Article 140 - (140.05 - 140.55) ARREST WITHOUT A WARRANT
140.50 - Temporary questioning of persons in public places; search for weapons.

Universal Citation: NY Crim Pro L § 140.50 (2012)

§ 140.50 Temporary questioning of persons in public places; search for weapons.

1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

2. Any person who is a peace officer and who provides security services for any court of the unified court system may stop a person in or about the courthouse to which he is assigned when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.

3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

4. In cities with a population of one million or more, information that establishes the personal identity of an individual who has been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person, shall not be recorded in a computerized or electronic database if that individual is released without further legal action; provided, however, that this subdivision shall not prohibit police officers or peace officers from including in a computerized or electronic database generic characteristics of an individual, such as race and gender, who has been stopped, questioned and/or frisked by a police officer or peace officer.

Floyd et al. v. City of New York, 08-cv-1034 (SDNY, 31 Aug 2011) Doc 153, OPINION AND ORDER, Judge Shira Sheindlin.

At page 45-49, re the §1983 civil rights complaint:

C. Section 1983

[...]

Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” 198 “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.”

Any form of liability under section 1983 requires the defendant’s direct involvement in causing the alleged damages. “Because vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must p[rove] that each Government-official defendant, through the official’s own individual actions, has violated the Constitution."

D. Municipal Liability

For a person deprived of a constitutional right to have recourse against a municipality under section 1983, he or she must show harm that results from an identified municipal “policy,” “custom,” or “practice.” In other words, a municipality may not be found liable simply because one of its employees or agents is guilty of some wrongdoing. Moreover, a policy, custom, or practice cannot arise from a single instance of unconstitutional conduct by an employee of the municipality.

Because vicarious liability is inconsistent with section 1983’s causation requirement, “the ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of municipal employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible.” The Supreme Court has emphasized that:

[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.

In the absence of an established written policy of the municipality, a plaintiff must prove that the discriminatory practices of municipal officials are so “permanent and well settled as to constitute a ‘custom or usage’ with the force of law,” or that a practice or custom of subordinate employees was “so manifest as to imply the constructive acquiescence of senior policy-making officials.”

“A policy, custom, or practice may also be inferred where ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’” The Second Circuit has set forth “three requirements that must be met before a municipality’s failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens.” First, “the plaintiff must . . . allege that ‘a policy-maker knows to a moral certainty that her employees will confront a given situation.’” Second, the situation must “either present[] the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” Third, mishandling of the situation must “frequently cause the deprivation of a citizen’s constitutional rights.”

A duty to train arises so that subordinates entrusted with the discretionary exercise of municipal power can distinguish between lawful and unlawful choices. Because the exercise of such discretion can arise in myriad circumstances, the “nuance” of a particular training need may only become apparent to municipal policy makers after a pattern of violations arises in substantially similar circumstances. There is “a heavy burden of proof” to show that the municipality’s “response was so patently inadequate to the task as to amount to deliberate indifference . . . Such inadequacy must reflect a deliberate choice among various alternatives, rather than negligence or bureaucratic inaction.”

At page 84-85 of 86.

D. Plaintiffs’ Title VI Claims Against the City

The standard of proof for Title VI is the same as for a racial discrimination claim under the Equal Protection Clause of the Fourteenth Amendment. Accordingly, I deny defendants’ summary judgment motion on plaintiffs’ Title VI claims against the City for the same reasons stated above with respect to plaintiffs’ Equal Protection claims.

E. Plaintiffs’ Claims Against Bloomberg and Kelly

Plaintiffs have not opposed defendants' motion for summary judgment on their claims against Mayor Bloomberg and NYPD Commissioner Kelly. Accordingly, I grant summary judgment to defendants on those claims.

V. CONCLUSION

For the reasons stated above, defendants' motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 134]. A conference is scheduled for September 23, 2011 at 4 p.m.

SO ORDERED:

________________________
Shira A. Scheindlin
U.S.D.J.

Dated: New York, New York
August 31, 2011

https://ccrjustice.org/sites/default/files/assets/files/Floyd%20Second%20Circuit%20Decision-FAQ-11-1-13.pdf

Second Circuit Decision in Floyd v. City of New York
Frequently Asked Questions (FAQ)
Updated 11/1/13

What did the Second Circuit’s October 31, 2013 decision do?

The Second Circuit’s decision ordered several things:

1. The Second Circuit put the remedy processes ordered by the District Court on August 12, 2013 and overseen by the Monitor on hold. Unless the City withdraws the appeal, these remedy processes will not proceed until the Second Circuit makes a final decision on the City’s appeal sometime after March 2014. (See below for more information)

2. The Second Circuit removed the District Court judge who had heard the trial from Floyd. This means that any further proceedings in Floyd at the District Court level will not be in front of Judge Shira Scheindlin, and will instead be in front of Judge Analisa Torres.

3. The Second Circuit changed the deadline for the City to file appellate briefs addressing the correctness of the District Court’s rulings about the City’s liability for unconstitutional stop-and-frisk practices. The City’s briefs are due on January 24, 2014, Plaintiffs’ briefs are due on February 28, 2014 , and there will be oral argument at some point after March 14, 2014.

4. The Second Circuit decided the same three-judge panel that decided to stay the Floyd decisions will also hear the whether the decisions should be reversed.

https://www.gpo.gov/fdsys/pkg/USCOURTS-ca2-13-03461/content-detail.html

Document in Context

13-3461 - Floyd v. City of New York

November 13, 2013
NON-DISPOSITIVE PER CURIAM OPINION re: MOTION, FILED.[1091492] [13-3088, 13-3461, 13-3524]--[Edited 11/13/2013 by JW]

November 13, 2013
NON-DISPOSITIVE PER CURIAM OPINION, FILED.[1091499] [13-3088, 13-3461, 13-3524]--[Edited 11/13/2013 by JW]

November 22, 2013
NON-DISPOSITIVE PER CURIAM OPINION re: MOTIONS, FILED.[1099146] [13-3088, 13-3461, 13-3524]

February 21, 2014
OPINION, granting the City's motion on terms indicated in this opinion, vacating the stay of proceedings in the District Court entered as part of the Court's Orders of October 31, 2013 and November 13, 2013, In re Reassignment of 3 Cases, 736 F.3d 118 (2d Cir. 2013), to the extent necessary to pursue settlement negotiations among such concerned or interested parties as the District Court deems appropriate, and remanding the cause to the District Court (Analisa Torres, Judge) for further proceedings consistent with this opinion. The schedule for briefing and other filings in the Court of Appeals is hereby STAYED pending the outcome of the proceedings in the District Court. The mandate shall issue forthwith. Per curiam (JMW, JAC, BDP), FILED.[1162582] [13-3088]

February 21, 2014
OPINION, granting the City's motion on terms indicated in this opinion, vacating the stay of proceedings in the District Court entered as part of the Court's Orders of October 31, 2013 and November 13, 2013, In re Reassignment of 3 Cases, 736 F.3d 118 (2d Cir. 2013), to the extent necessary to pursue settlement negotiations among such concerned or interested parties as the District Court deems appropriate, and remanding the cause to the District Court (Analisa Torres, Judge) for further proceedings consistent with this opinion. The schedule for briefing and other filings in the Court of Appeals is hereby STAYED pending the outcome of the proceedings in the District Court. The mandate shall issue forthwith. Per curiam (JMW, JAC, BDP), FILED.[1162599] [13-3461]

October 31, 2014
OPINION, Judge Torres's July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions' motions to intervene in the appeals are DENIED, the City's motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion, per curiam (JMW, JAC, BDP), FILED.[1359268] [13-3088, 13-3461, 13-3524]

Floyd et al. v. City of New York, 08-cv-1034 (SDNY, 30 Jul 2014) Doc 465, OPINION AND ORDER (on remand from 2nd Circuit), Judge Analisa Torres.

Case 1:08-cv-01034-AT-HBP Document 465 Filed 07/30/14 Page 3 of 108

[...]

BACKGROUND

Nearly fifty years have passed since the Supreme Court of the United States endorsed the practice that became known as "stop-and-frisk." Terry v. Ohio, 392 U.S. 1, 30-31 (1968). There, the Court held that the Fourth Amendment prohibition against unreasonable searches and seizures is not violated when a police officer stops, questions, and frisks a suspect without probable cause if the officer has reasonable suspicion that "criminal activity may be afoot" or a reasonable belief that the person "may be armed and presently dangerous." Id. at 30. In the decades since, the contours of Terry's exception to probable cause have been vigorously litigated in the courts.

In this current iteration, two sets of plaintiffs challenge the legality of the New York City Police Department's (the "NYPD") stop-and-frisk tactics. In Ligon, after a seven-day evidentiary hearing, on January 8, 2013, the Court issued a preliminary injunction against the City, finding that plaintiffs would likely succeed in proving that the City has a policy of stopping, frisking, and arresting persons for trespass based primarily on their presence in or near Bronx apartment buildings enrolled in the Trespass Affidavit Program ("TAP")—which permits the NYPD to patrol private buildings with their owners' consent—in violation of the Fourth Amendment (the "Injunction Order"). Ligon v. City of New York, 925 F. Supp. 2d 478, 486 (S.D.N.Y. Feb. 14, 2013), amending and superseding, Ligon v. City of New York, 12 Civ. 2274,

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2013 WL 71800 (S.D.N.Y. Jan. 8, 2013). In Floyd, after years of litigation culminating in a nine-week trial, on August 12, 2013, the Court issued an opinion holding that the City had a policy of conducting race-based stops-and-frisks that ran afoul of the Fourth and Fourteenth Amendments (the "Liability Order"). Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013). Because of the similarities in the City's constitutional violations in Floyd and Ligon, the Court issued a second opinion on August 12, 2013, which ordered certain remedial measures to cure the constitutional infirmities identified in both cases (the "Remedial Order"). Floyd v. City of New York, 959 F. Supp. 2d 668, 671 (S.D.N.Y. 2013).

Initially, the City appealed the Injunction, Liability, and Remedial Orders. Several weeks later, the Unions moved to intervene and also filed notices of appeal. Then, in January 2014, newly-elected Mayor Bill de Blasio announced the City's intention to withdraw the appeals and settle the cases. The Unions, nevertheless, still seek intervention to prosecute the appeals the City no longer wants to pursue. The Injunction, Liability, and Remedial Orders are the product of fifteen years of litigation, against the backdrop of decades of public discourse on the issue of stop-and-frisk. Thus, because a full account of these cases would fill libraries, the Court chronicles only those facts that aid in addressing the Unions' motions to intervene.

I. Daniels, Floyd, and Ligon

A. Daniels v. City of New York

As the Second Circuit observed, the Floyd and Ligon actions "descend[] directly" from an earlier lawsuit, Daniels v. City of New York, 99 Civ. 1695 (SAS) (S.D.N.Y. 1999). See Ligon v. City of New York, 736 F.3d 118, 122, 122 n.3 (2d Cir. 2013), vacated in part, 743 F.3d 362 (2d

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Cir. 2014). On March 8, 1999, Kelvin Daniels and Robert Roe filed a putative class action against the City, the NYPD, the mayor, the police commissioner, and John Doe officers, alleging that the City had a policy, custom, and practice, carried out by the NYPD's Street Crimes Unit, of suspicionless, racially-motivated stops-and-frisks that violated the Fourth and Fourteenth Amendments. Complaint, Daniels, ECF No. 1. The Daniels plaintiffs sought injunctive relief prohibiting the Street Crimes Unit from improperly using race or national origin in conducting stops-and-frisks and reforming relevant training, supervision, and monitoring procedures. Id. In particular, they sought to enforce the requirement that officers complete UF-250 forms for each stop they conduct, that UF-250s be periodically reviewed for compliance with the Constitution, and that UF-250s be computerized and maintained in a database. Am. Compl. 45, Daniels, ECF No. 8. Over the next five years, the parties engaged in extensive discovery and litigated several major motions, including a motion to dismiss and a motion for class certification. Daniels, ECF Nos. 18, 21, 75.

At the same time Daniels was being litigated, the United States Department of Justice (the "DOJ") conducted an investigation of the NYPD's stop-and-frisk practices. As part of the investigation, the DOJ moved to intervene in Daniels pursuant to Rule 24(b) in order to access the UF-250s the City had provided to the Daniels plaintiffs during discovery. See Daniels, ECF Nos. 93, 94. The court denied the DOJ's motion, reasoning that the proper avenue to obtain the material was for the DOJ to file its own civil action rather than disrupting Daniels. Daniels v.

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City of New York, 200 F.R.D. 205, 210 (S.D.N.Y. 2001).

In September 2003, the parties in Daniels reached a settlement. Daniels, ECF No. 153. Notice of the settlement was published in three newspapers, El Diario, The New York Post, and The New York Amsterdam News, see Daniels, ECF No. 150, and a public hearing was held on December 12, 2003, see Daniels, ECF No. 154. Pursuant to the settlement, plaintiffs released their class claims against the City, and the City agreed to implement stop-and-frisk audit procedures, revise training, ensure that all stops be documented on a revised UF-250 form, conduct joint community forums, and provide class counsel with quarterly updates. Daniels, ECF Nos. 151, 152. The Daniels settlement remained in effect through December 31, 2007. Id.

B. Floyd v. City of New York

In January 2008, a month after the Daniels settlement period ended, David Floyd and Lalit Clarkson commenced a lawsuit against the City, the mayor, the police commissioner, and several individual NYPD officers. Compl., Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Jan. 31, 2008), ECF No. 1. The complaint alleged that the City had a policy, custom, and practice of suspicionless and race-based stops-and-frisks and sought city-wide injunctive relief, including changes to the NYPD's policies and practices governing training, supervision, discipline, and monitoring of officers with respect to stop-and-frisk and racial profiling. Id. The New York City Corporation Counsel represented all defendants, including the individual NYPD officers. See Floyd, ECF Nos. 43, 44, 51, 54, 111, 172. A week after filing the complaint, the Court granted the Floyd plaintiffs' motion to retain the stop-and-frisk data that had been produced to their counsel in connection with the Daniels settlement. Floyd, ECF No. 2. The Floyd plaintiffs subsequently amended the complaint to assert a putative class action, add plaintiffs, and name officer defendants. Floyd, ECF Nos. 11, 50.

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Fact discovery proceeded for nearly three years, during which time dozens of individual NYPD officers were deposed. Charney Decl. U 3, Floyd, ECF No. 450. There were numerous discovery disputes and motions to compel. Floyd, ECF Nos. 2, 45, 69, 92, 93, 108. The parties moved to exclude one another's experts. Floyd, ECF Nos. 201, 224. Defendants sought to exclude the expert report of Jeffrey A. Fagan, a professor of criminology with expertise in statistics, whose report analyzed years of UF-250 and other data. Floyd, ECF No. 201. Plaintiffs sought to exclude the rebuttal expert report of Dennis Smith, a political scientist with expertise in police organizations, whose report provided an alternate statistical analysis of similar data. Floyd, ECF No. 224. The Court granted in part and denied in part both parties' motions. Floyd, ECF Nos. 201, 224. The parties also litigated, and the Court issued published opinions on several major motions, including motions for summary judgment and class certification. Floyd v. City of New York, 813 F. Supp. 2d 417, 456, on reconsideration, 813 F. Supp. 2d 457 (S.D.N.Y. 2011) (summary judgment); Floyd v. City of New York, 283 F.R.D. 153, 164 (S.D.N.Y. 2012) (class certification).

At a November 27, 2012 hearing, plaintiffs stated that they would withdraw their claims for money damages against all individual officers and seek only injunctive relief against the City. Nov. 27, 2012 Hearing Tr. at 4:10-25, Floyd, ECF No. 244. On March 8, 2013, the Court so-ordered the parties' stipulation withdrawing plaintiffs' claims against the individual officers, see Stipulation and Order, Floyd, ECF No. 270, all of whom are union members, see Pl. Mem. 5, Floyd, ECF No. 448. At a January 4, 2013 pretrial hearing, the Court rejected plaintiffs' request to bifurcate the liability and remedies phases. See Jan. 4, 2013 Hearing Tr. at 84:24-25; 85:8-9, Floyd, ECF No. 252. Instead, the Court ruled that there would be a single bench trial, where evidence on both liability and remedies would be presented, after which a decision on liability

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and, if necessary, remedies would be issued. Id. On January 31, 2013, the Court held a joint hearing in Floyd, Ligon, and Davis v. City of New York, 10 Civ. 699 (S.D.N.Y. filed Jan. 28, 2010)—a putative class-action regarding stops-and-frisks in and around New York City public housing. See Jan. 31, 2013 Hearing Tr. at 6:13-21, Floyd, ECF No. 406. In addition to reaffirming the decision not to bifurcate the Floyd trial, the Court requested that the parties brief the scope of the remedial injunction, assuming, arguendo, that plaintiffs proved liability at trial. Id. at 25:4-26:6.

On March 6, 2013, the Floyd plaintiffs requested permanent injunctive relief, including changes to the UF-250, appointment of an independent monitor, and creation of a joint remedial process to develop changes to training, supervising, monitoring, and disciplining officers with respect to stop-and-frisk and racial profiling. Injunctive Relief Mem. 20-22, Floyd, ECF No. 268. The DOJ also submitted a "Statement of Interest" in which it endorsed the appointment of an independent monitor should plaintiffs establish liability. Floyd, ECF No. 365.

On March 15, 2013, the parties filed a joint pretrial order. Floyd, ECF No. 272. The over 400-page document identified nearly 200 witnesses, many of whom were NYPD officers whom the parties intended to call or whose deposition testimony would be introduced. Id. at 16. The parties agreed that the core issue to be tried was "[w]hether the City of New York has an actionable Policy and/or Practice of stopping and frisking Black and Latino persons on the basis of race rather than reasonable suspicion . . . ." Id. at 16.

Trial commenced on March 18, 2013 and continued through May 20, 2013. Thirty police officers, ten sergeants, ten lieutenants, three captains, four deputy inspectors, and seven inspectors testified. Floyd, ECF No. 363 UU 23, 25-33, 43-49; 366 UU 86-107, 122-136. In addition, senior NYPD officials and the parties' liability and remedial experts testified. After

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trial, the parties submitted proposed findings of fact and conclusions of law and post-trial briefs on liability and remedial issues. Floyd, ECF Nos. 363, 364, 366, 367.

C. Ligon v. City of New York

On March 28, 2008, Jaenean Ligon filed a putative class action against the City, the police commissioner, six named officers, and John Doe officers, challenging the NYPD's practice of stopping, questioning, frisking, summonsing, and arresting people on suspicion of trespass in and around buildings enrolled in TAP. Compl., Ligon v. City of New York, 12 Civ. 2274 (S.D.N.Y. Mar. 28. 2008), ECF No. 1. The named plaintiffs also sought compensatory damages against the individual defendants. Id. The Ligon plaintiffs moved for a preliminary injunction, and the parties submitted briefs and motions in limine. Ligon, ECF Nos. 42-59. After a seven-day evidentiary hearing, the parties submitted proposed findings of fact and conclusions of law. Ligon, ECF Nos. 71-84, 88-91.

The Court granted the preliminary injunction on January 8, 2013, because plaintiffs had shown a "clear likelihood of proving" that the City, by its deliberate indifference, had a policy of conducting unconstitutional stops outside TAP buildings. Ligon, 925 F. Supp. 2d. at 485. The Court enjoined the NYPD from "performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass, in accordance with the law as set forth and clarified in this Opinion." Id. at 542. To effectuate the injunction, the Court proposed specific changes to policies, procedures, supervision, and training and invited the parties to brief "whether the proposed relief is insufficient or too burdensome or otherwise inappropriate." Id. at 543. The City filed a notice of appeal, which it withdrew when the Court granted the City's motion to stay the injunction. Ligon, ECF Nos. 98, 99, 101. Over the next several months the parties engaged

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in two rounds of briefing and oral argument regarding the proper scope of remedies that should flow from the Injunction Order. See Ligon, ECF Nos. 108, 109, 112, 117, 118.

II. The Liability Order and the Remedial Order

On August 12, 2013, the Court issued the Liability Order in Floyd, finding that the NYPD's practice of conducting suspicionless stops-and-frisks was widespread, that the City was deliberately indifferent to the NYPD's practice, and that the practice was therefore attributable to the City as an official policy. 959 F. Supp. 2d. at 562. The Court held that this policy violated the Fourth Amendment. Id. The Court also found that the City had adopted a race-based policy of disproportionately targeting blacks and Hispanics for stops and held that this policy violated the Equal Protection Clause of the Fourteenth Amendment. Id. In so doing, the Court made findings of fact and conclusions of law that evaluated, credited, and discredited the documentary and testimonial evidence presented at trial, including the testimony of numerous civilians who were stopped and the testimony of numerous NYPD officers, many of whom were involved in those stops. Id. at 572-658.

The Court issued the Remedial Order, also on August 12, 2013, directing the City—the sole remaining defendant—to remedy the violations identified in Floyd and Ligon. Floyd, 959 F. Supp. 2d 668. The Remedial Order mandates immediate and ongoing equitable relief. Id. With respect to Floyd, the Remedial Order directs the court-appointed monitor to "develop, in consultation with the parties, . . . 'Immediate Reforms' . . . as soon as practicable," including changes to "the NYPD's policies, training, supervision, monitoring and discipline" regarding stop-and-frisk. Id. at 678-84. The proposed Immediate Reforms are to be submitted to the Court and implemented upon approval. Id. at 677. The Remedial Order also requires the City to conduct a one-year pilot project in which officers in one precinct per borough will wear body

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cameras on patrol. Id. at 685. In addition, the City and Plaintiffs must engage in a six to nine month "Joint Remedial Process," guided by a court-appointed facilitator, to develop "Joint Process Reforms" in consultation with the monitor and based on input from a variety of stakeholders, including "NYPD personnel and representatives of police organizations." Id. at 684-88. The proposed Joint Process Reforms must be submitted to the Court for approval. Id. at 688. With respect to Ligon, the Remedial Order adopts the approach proposed in the Injunction Order, which requires the NYPD to adopt a court-provided written policy on the legal standard for trespass stops around TAP buildings, to make changes to supervision and training regarding such stops, and, in conjunction with the monitor, to create a system for monitoring the constitutionality of stops and ensuring that all stops are documented on UF-250s. Id. at 688-90.

III. The Proposed Intervenors

The Patrolmen's Benevolent Association of the City of New York, Inc. (the "PBA"), the Detectives' Endowment Association, Inc. (the "DEA"), the NYPD Captains Endowment Association (the "CEA"), the Lieutenants Benevolent Association of the City of New York, Inc. (the "LBA"), and the Sergeants Benevolent Association (the "SBA") are certified employee organizations as defined by § 12-307(4) of the New York City Collective Bargaining Law, N.Y. City Admin. Code §§ 12-301, et seq. (the "CBL"). Alejandro Decl. UU 7-10, Engel Decl. Ex. A., Floyd, ECF No. 438-1; Mullins Aff. U 2, Floyd, ECF No. 397. Collectively, they represent over 35,000 active members of the NYPD, and they are the exclusive collective bargaining units for contract negotiations with the City. Alejandro Decl. U 6; Mullins Aff. U 2. The PBA represents over 22,000 police officers, the DEA represents approximately 5,000 detectives, the CEA represents over 700 captains, and the LBA represents nearly 1,700 lieutenants on all collective bargaining matters under the CBL. Alejandro Decl. UU 7, 8, 9, 19. The SBA represents

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approximately 13,000 active and retired sergeants. Mullins Aff. U 2. The PBA, DEA, LBA, and CBA's "core mission . . . is to advocate and protect the interests of [their] respective members of the NYPD." Alejandro Decl. U 11. In addition, the PBA purports to "negotiate[] . . . with the City of New York on matters of policy, terms and conditions of employment, and all matters relating to police officers' general welfare." Id. U 7. Similarly, the SBA states that its "central mission is to advocate for, and protect the interests of, its NYPD police sergeant members." Mullins Aff. U 3. According to the District Court's public records in Floyd and Ligon, the Unions have not sought any involvement in these actions, as intervenors or amici, prior to filing their motions to intervene in September 2013.

IV. Post-Trial Developments

On August 16, 2013, the City noticed its appeal of the Injunction, Liability, and Remedial Orders. Floyd, ECF No. 379; Ligon, ECF No. 123. The City also requested that the Court stay the three Orders, which the Court denied. Floyd, ECF Nos. 380, 402. On September 12, 2013, the Unions moved to intervene and filed notices of appeal indicating that they too were appealing the Injunction, Liability, and Remedial Orders. Floyd, ECF Nos. 388, 390-393, 395-397; Ligon, ECF No. 135. On October 31, 2013, the Second Circuit stayed the Orders and remanded Floyd and Ligon to the District Court for the limited purpose of designating a new District Judge to "implement this Court's mandate staying all proceedings and otherwise await further action . . . ." Ligon v. City of New York, 538 F. App'x 101, 103 (2d Cir. 2013). Because the Second Circuit stayed all proceedings, the Unions' September 2013 motions to intervene remained unresolved. The Unions then moved to intervene directly at the Second Circuit in November 2013. See Ligon v. City of New York, 743 F.3d 362 (2d Cir. 2014).

On January 30, 2014, Mayor de Blasio announced that the City and the Floyd and Ligon

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Plaintiffs had reached an agreement to resolve the City's appeals. See Charney Decl. Ex. L. Accordingly, the City moved the Second Circuit for a limited remand to the District Court to "permit the parties to explore a resolution," which "the public interest strongly favors." Ligon, 743 F.3d at 364. On February 21, 2014, the Second Circuit denied the Unions' motions to intervene, reasoning that the District Court should consider the motions in the first instance. Id. at 365. In the same order, the Second Circuit granted the City's motion, remanding the cases "to the District Court for the purpose of supervising settlement discussions among such concerned or interested parties as the District Court deems appropriate, and resolving the motions to intervene." Id. On February 25, 2014, this Court issued orders setting a new briefing schedule on the intervention issue, directing the parties to continue settlement discussions, and directing the parties to submit a joint letter to the Court by March 4, 2014, "indicating whether they desire the Court's participation in aid of settlement." Floyd, ECF No. 428; Ligon, ECF No. 167.

V. The Unions' Supplemental Motions to Intervene

Following remand to the District Court, on March 5, 2014, the Unions supplemented their September 2013 motions to intervene. Floyd, ECF Nos. 428, 442, 445; Ligon, ECF No. 171. As with the original motions, the SBA sought intervention only in Floyd, while the other unions moved to intervene in Floyd and Ligon. Floyd, ECF Nos. 442, 445. Plaintiffs and the City opposed the motions. Floyd, ECF Nos. 447, 448. The Unions seek intervention pursuant to Rule 24(a) or (b) on the basis of alleged interests that they claim are implicated by the Injunction, Liability, and Remedial Orders. To protect these interests, the Unions argue that they must, after intervening, appeal the Orders. The Unions also seek to intervene in order to participate in the settlement of Floyd and Ligon and the remedial phase of the litigation.

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VI. The Parties' Motion to Modify the Remedial Order

On March 4, 2014, Plaintiffs and the City filed a joint letter indicating that they had "reached an agreement in principle for resolving the City's appeals in both Floyd and Ligon." Floyd, ECF No. 433; Ligon, ECF No. 169. Instead of proposing an entirely new settlement agreement, the letter indicates that the City intends to accept the Remedial Order with certain modifications consistent with the mayor's January 30, 2014 announcement. Id. On April 3, 2014, Plaintiffs and the City filed a joint motion to modify the Remedial Order to reflect the terms of their agreement. Floyd, ECF No. 456. The parties request a single modification of the Remedial Order: rather than the independent monitor serving for an unspecified period, the parties propose that the monitor's term be limited to no more than three years, provided that the City can demonstrate by the end of that term that it has substantially complied with the Remedial Order. Floyd, ECF No. 458. Corporation Counsel Zachary W. Carter submitted a declaration stating that the City will move to withdraw its appeals with prejudice "[i]f the Court approves the parties' proposed modification." Carter Decl. U 5, Floyd, ECF No. 457; Ligon, ECF No. 189. The Unions oppose the motion, restating their position regarding intervention, complaining that the proposed modification "includes no mechanism for [the Unions] to present [their] collective bargaining concerns . . . or otherwise protect their rights," and seeking a role "in aiding or disputing the City's 'showing' of 'substantial compliance.'" SBA Mem. 5, Floyd, ECF No. 461. The Court shall first address the Unions' motions to intervene for the purpose of appealing the Injunction, Liability, and Remedial Orders and then turn to the Unions' other grounds for intervention and the parties' motion to modify the Remedial Order.

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On October 31, 2014, the 2nd Circuit panel of Walker, Cabranes and Parker issued an Opinion stating,

These appeals present the important question of whether public?sector unions may intervene into a litigation where the actual parties to that litigation, including a newly-elected mayoral administration, have agreed to a settlement. The intervenors in this case, a group of police unions, endeavored to challenge the ruling of United States District Judge Shira Scheindlin that the City of New York’s ("City") “stop-and-frisk” policy was carried out in a discriminatory manner, as well as her imposition of various reforms to that policy. We previously ordered these cases to be reassigned from Judge Scheindlin to another district judge. The case was reassigned to United States District Judge Analisa Torres who, in a July 30, 2014 decision, denied the unions’ motions to intervene in these cases. The unions appealed this decision and also moved to intervene in the underlying appeals before our Court. With a new mayoral administration elected to office, the City entered into a settlement with plaintiffs pursuant to which plaintiffs will not oppose a motion by the City to terminate the District Court’s jurisdiction after a period of five years if the City can show substantial compliance with the reforms contained in Judge Scheindlin’s remedial order. The City therefore opposes the unions’ motions, moves to voluntarily dismiss its appeals on the underlying merits, and requests, with plaintiffs’ consent, expedited issuance of the mandate to begin the remedial process.

We hold that the police unions’ motions to intervene are untimely and do not assert an interest that the law seeks to protect.

[...]

Accordingly, Judge Torres’s July 30, 2014 decision is AFFIRMED as being within her discretion, the police unions’ motions to intervene in the appeals are DENIED, the City’s motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion.

There was also an accompanying per curiam Opinion that stated,

On August 12, 2013, after a bench trial that followed plaintiffs’ withdrawal of claims for money damages and claims against individual defendants, Judge Scheindlin issued an order in Floyd v. City of New York, finding that the City had violated the Fourth and Fourteenth Amendments by acting with “deliberate indifference” toward the NYPD’s practice of making suspicionless “stops” and “frisks” and by adopting “a policy of indirect racial profiling by targeting racially defined groups” for “stops” and “frisks.”2 That same day, Judge Scheindlin issued an order imposing remedies in Floyd and Ligon in the form of various “reforms” to the NYPD’s “stop and frisk” practices to be overseen by a court?appointed monitor. The City appealed in both cases and sought a stay.

On September 11 and 12, 2013, the Sergeants Benevolent Association (“SBA”), Patrolmen’s Benevolent Association of the City of New York (“PBA”), Detectives’ Endowment Association, Inc. (“DEA”), New York City Police Department Captains Endowment Association (“CEA”), and Lieutenants Benevolent Association of the City of New York, Inc. (“LBA,” and jointly, “police unions” or the “unions”) filed notices of appeal and motions to intervene in the District Court. With the exception of the SBA, the police unions moved to intervene in both Floyd and Ligon. The SBA moved to intervene in only Floyd. While the SBA and the PBA appeal the Liability and Remedial Orders, the DEA, the CEA, and the LBA appeal only the Remedial Order.

On October 31, 2013, we granted the City’s motion for a stay and ordered that the cases be reassigned from Judge Scheindlin to another district judge. In an opinion, dated November 13, 2013, we explained the reasons for that order. On November 1, 2013, the cases were assigned to United States District Judge Analisa Torres. Thereafter, an election to fill the various leadership positions in the City’s municipal government was held on November 5, 2013, leading, inter alia, to the election of a new administration. On November 7, 2013, the police unions, with the exception of the SBA, moved to intervene in the Floyd and Ligon appeals. On November 12, 2013, the SBA moved to intervene in only the Floyd appeal.

On February 21, 2014, on the City’s motion, we remanded the causes to Judge Torres for the purpose of exploring settlement and for Judge Torres to address in the first instance the police unions’ motions to intervene in the District Court actions. We held in abeyance the police unions’ separate motions to intervene in the pending appeals.

On March 4, 2014, the parties informed Judge Torres that they had “reached an agreement in principle for resolving the City’s appeals in both Floyd and Ligon” pursuant to which the City would “substantially compl[y]” with the injunctive relief set forth in Judge Scheindlin’s Remedial Order, subject to the parties’ application to Judge Torres to limit the term of the court?appointed monitor to three years. In the parties’ memorandum of law in support of their joint motion for modification of the Remedial Order, they explained that “[t]he parties have also agreed that when the monitorship ends, the City will authorize the Inspector General of the NYPD . . . to continue to monitor and report to the parties and the public” the NYPD’s compliance with the Remedial Order. They stated that “the parties have [also] agreed that, if the City can show it has maintained substantial compliance with the aforementioned reforms for two years following the termination of the monitorship, the Floyd and Ligon Plaintiffs will not oppose a City motion to terminate the Court’s jurisdiction over Floyd and the preliminary-injunction aspect of Ligon.” With these representations and agreements before her, on July 30, 2014, Judge Torres granted the parties’ joint motion to modify the Remedial Order and to enter it as an embodiment of their agreements.

On July 30, 2014, Judge Torres also issued an order denying the police unions’ motions to intervene, finding, inter alia, that the motions were untimely and that the police unions did not assert a legally protectable interest.

[...]

On August 6, 2014, with the consent of plaintiffs in Floyd and Ligon, the City moved to voluntarily dismiss its appeals, with prejudice, pursuant to Federal Rule of Appellate Procedure 42(b), stating that the parties “reached an agreement that resolves all the issues raised by the City’s appeals in both Floyd and Ligon, and clears the way for the parties to begin the anticipated remedial process.” The motion further requests, “with the consent of all plaintiffs, that the Court direct the expedited issuance of the mandate in each case.”

[...]

CONCLUSION

For the reasons set forth above, Judge Torres’s July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions’ motions to intervene in the appeals are DENIED, the City’s motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion.

Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions’ perspectives in any ongoing District Court proceedings, nothing in this opinion should be construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate.

The 2nd Circuit appeal was never heard on the merits. A settlement agreement resolved the appeals and "Judge Torres granted the parties’ joint motion to modify the Remedial Order and to enter it as an embodiment of their agreements." It is this modified Remedial Order, as modified and agreed to by the parties, which serves as the resolution of the litigation.

Thanks for the explanation. The first few paragraphs answered my questions. I started reading on down but it got too long for one setting. I think I will find all the rest is background showing other cases. I will come back and read this in stages as I have time.

I tried to give a Cliff's Notes intro and provide reference material if you desired it. The last paragraph may be worth noting as the parties modified Judge Scheindlin's Remedial Order and adopted their version as a settlement agreement, as approved by the District Court under Judge Torres and affirmed by the 2nd Circuit.

The 2nd Circuit appeal was never heard on the merits. A settlement agreement resolved the appeals and "Judge Torres granted the parties’ joint motion to modify the Remedial Order and to enter it as an embodiment of their agreements." It is this modified Remedial Order, as modified and agreed to by the parties, which serves as the resolution of the litigation.