Monday, November 11, 2013

What Are the Remaining Stakes in the NYC Stop-and-Frisk Litigation?

By Mike Dorf

In two recent DoL posts (here and here), Anil Kalhan described the extraordinary nature of the recent ruling by a panel of the US Court of Appeals for the 2d Circuit removing SDNY Judge Scheindlin from any further role in the litigation over NYC's stop-and-frisk policy.  I agree with Professor Kalhan's analysis but here I want to ask a basic question that has been puzzling me and presumably puzzling readers as well:  Given that Mayor-elect deBlasio will abandon the Bloomberg/Kelly stop-and-frisk policy regardless of how the litigation turns out, does any of this matter?  The short answer is maybe, but for reasons that readers may find surprising.

Obviously the case matters for the legacy of the Bloomberg Administration.  With their time in office drawing to a close, Mayor Bloomberg and Police Comm'r Kelly no doubt wish to remove what they regard as a major blemish from their record: The legal ruling by Judge Scheindlin that one of their chief crime suppression tactics was a massive violation of the civil rights of thousands upon thousands of New Yorkers.  By characterizing Judge Scheindlin's ruling as the product of bias, they hope to discredit her ruling--and as Professor Kalhan discussed over the weekend, the lame-duck Bloomberg Administration wasted little time in arguing that the appeals court's decision to take the rest of the case from Judge Scheindlin fatally undermines the basis for the merits and remedy rulings she already issued.

But if legacy polishing explains the motives of the Bloomberg Administration, it does not explain the panel's actions.  Let us assume that a majority of the appeals court panel believes that Judge Scheindlin's rulings on the merits and remedy were erroneous.  It has been widely assumed that the panel was trying to rush the appeal through so that it could reverse Judge Scheindlin's ruling before deBlasio does withdraw the appeal.  But why?

There is no precedential significance of losing the opportunity to reverse a district court ruling because federal district court rulings have no binding precedential effect, not even in the same district court and not even for the same district judge in a later case involving different parties.  So the apparent rush to reverse Judge Scheindlin's opinion is a rush to reverse a nullity: If the appeals court reverses before deBlasio takes office, deBlasio ends stop-and-frisk on his own authority and the district court ruling is reversed; if deBlasio withdraws the appeal before the panel has a chance to rule, then deBlasio follows the district court ruling (by ending stop-and-frisk) but the ruling has the same non-precedential effect it always had.  So either way, stop-and-frisk ends and the district court ruling itself does no damage (from the perspective of the appeals court).

Nonetheless, there are three ways in which the circumstances would be somewhat different depending on whether the panel gets a chance to opine on the merits and the remedy:

(1) If the appeals court actually reverses and vacates Judge Scheindlin's ruling then that ruling will have less persuasive value than it otherwise would, simply because an opinion that must be cited as "reversed and vacated on appeal" comes with a red flag.  To be sure, a federal district court or a federal appeals court outside of the 2d Circuit could still cite Judge Scheindlin's opinion.  It's not as though an appeals court that reverses a district court ruling dispatches an army of Winstons Smith to scrub the history books clean of the district court ruling.  But still, as a symbolic matter, a case will seem more persuasive if it hasn't been officially reversed.

(2) The 2d Circuit panel could itself set a precedent on the merits by reversing the district court.  Whereas Judge Scheindlin's opinion wasn't binding as a matter of precedent, an appeals court ruling reversing her opinion would be--at least in the 2d Circuit.

Despite these real considerations, it's still hard to figure out what to make of the appeals court's apparent zeal to undermine Judge Scheindlin because, as Professor Kalhan has noted, by the time the panel issued its disqualification decision, it had already made clear that the merits and remedy appeals would extend well into the deBlasio Administration.  Perhaps the panel will now grant the City's request that the underlying rulings be reversed forthwith, but if it was going to do that, it probably would have done so when it took the case away from her in late October.

(3) Still, there is a remaining practical difference between an appeals court reversal and a de Blasio decision to throw in the towel.  If the appeals court reverses Judge Scheindlin, then Mayor de Blasio can still eliminate stop-and-frisk.  However, if the district court ruling is still in effect (because the appeal has been dropped), then de Blasio can go further.  He can then take actions in compliance with the district court's remedial order even though he would lack the authority to take those actions in the absence of a judicial order.  This issue lurks in the motion last week by the police unions, seeking to intervene on appeal on the City's side.  The unions argue, among other things, that certain of the remedial measures Judge Scheindlin ordered would violate police union contracts.  The Mayor cannot violate such contracts on his own authority but he can do so if necessary to comply with a federal district court ruling vindicating constitutional rights.

Should the police unions be permitted to intervene?  So long as the City itself is a party, the right answer is probably: who cares?  But once the City drops out (due to the change of Mayor), the unions might argue that they are entitled to continue to defend the old stop-and-frisk policy on appeal because they have a continuing stake in avoiding being subject to the remedial order.

At first blush, this argument for continued police union appellate standing even after Mayor deBlasio drops his appeal looks like it runs into trouble with Hollingsworth v. Perry, the Supreme Court's ruling earlier this year in the Prop 8 case.  If the sponsors of a ballot initiative lack standing to defend the initiative once the political authorities have opted not to defend it against constitutional challenge on appeal (as the Court held), then why should police unions have standing to defend a government policy once the government authorities have opted not to defend it against constitutional challenge on appeal?

The answer, if there is one, would go like this: the sponsors of Prop 8 were trying to assert an interest in representing the sovereign, but the unions are asserting their members' own personal interest in having the City honor its contractual obligations.  That may not be enough of an interest to warrant standing on appeal, but it does make the case somewhat different from Perry.

Indeed, even if the police unions lack standing to pursue the appeal once the City drops its appeal, the unions may be entitled to go back into court and collaterally challenge Judge Scheindlin's initial ruling in a new lawsuit.  In Martin v. Wilks, the Supreme Court allowed white firefighters to bring a collateral challenge to an affirmative action program that had been established as part of a consent decree to settle a civil rights suit, on the ground that neither the white firefighters nor parties who effectively represented their interests had been parties to the original suit, and under longstanding principles, judgments only have preclusive effect on parties and those in privity with parties.  To be sure, the 1991 Civil Rights Act purported to overrule Martin, but only with respect to employment cases, not as a general matter. Accordingly, if the police unions do indeed have a cognizable interest, they might be able to re-open Judge Scheindlin's remedial ruling down the road, even if they are denied the right to pursue an appeal now.

To be clear, none of the foregoing remotely justifies the appeals panel's rush to judgment against Judge Scheindlin--but it may begin to clarify what's at stake as a practical matter.