IN RE: NEW YORK CITY POLICING DURING SUMMER 2020 DEMONSTRATIONS

Background

Six consolidated civil-rights lawsuits alleged that the City of New York, the New York Police Department, city leaders, and individual officers engaged in unconstitutional conduct during racial-justice and police-reform demonstrations in the summer of 2020. The cases alleged excessive or unnecessary force, unlawful arrests or detention, restrictions on expression and press reporting, and retaliation against protesters, journalists, and bystanders. Five cases were brought by individuals, including class-action cases, and sought damages under 42 U.S.C. § 1983; some also sought injunctions. The sixth, brought by the New York Attorney General on behalf of the State, sought declaratory and injunctive relief concerning NYPD policies and practices.

The Sergeant’s Benevolent Association (SBA) and Detectives’ Endowment Association (DEA) sought to intervene in the State’s case. The Police Benevolent Association (PBA) sought to intervene in all six cases. The unions asserted interests in collective-bargaining rights, officer safety, officer reputations, and possible effects on disciplinary proceedings and policies.

Legal standard

Federal Rule of Civil Procedure 24(a) permits intervention as of right when a timely applicant has a direct, substantial, and legally protectable interest in the action; disposition of the action may impair that interest; and the existing parties may not adequately protect it. The applicant must satisfy each requirement. Rule 24(b) allows permissive intervention when the applicant has a claim or defense sharing a common question of law or fact with the main action, but the court has discretion whether to allow it.

Collective-bargaining interests

The court held that the unions’ asserted collective-bargaining interests were too remote and speculative to support intervention at this stage. No settlement, consent decree, injunction, or specific NYPD policy change had been proposed. The court therefore could not determine whether any eventual change would have a practical impact on workload, staffing, employee safety, or other matters within the unions’ collective-bargaining rights.

The court also noted that New York City law gives the City authority over several managerial matters, including directing employees, taking disciplinary action, and determining the methods and personnel used to conduct government operations. The unions had not identified a specific policy they sought to preserve or a specific proposed change to which they objected. The court concluded that the unions had no protectable interest in preserving allegedly unconstitutional policies and that the City could argue that its policies were lawful.

The court denied the unions’ motions to intervene in the merits of the litigation based on their claimed collective-bargaining interests. That denial was without prejudice to renewal if changed circumstances created a legitimate impact on those interests, such as an agreed settlement or proposed injunctive relief.

Interests concerning individual officers and discipline

The court separately rejected the unions’ asserted interest in possible effects on individual officers’ reputations, civil lawsuits, disciplinary proceedings, or criminal prosecutions. In the State’s case, no individual officer was named as a defendant, and the complaint focused on structural reform rather than liability for particular officers. The court therefore found no basis for intervention based on possible collateral consequences from that case.

In the other five cases, some individual officers were defendants. The court nevertheless concluded that the City’s Corporation Counsel was defending the officers who had been served and that the unions had not shown that the City could not adequately protect their interests. The court also stated that, if an actual conflict required separate representation, the affected officers could obtain their own lawyers; union intervention would not itself resolve that conflict.

The court further held that the unions had no cognizable interest in generally controlling NYPD disciplinary policies because New York City law gives the City exclusive authority over those policies. As to the PBA’s argument concerning reputational harm in the five cases involving individual officers, the court noted that the PBA had raised the argument for the first time in its reply brief. The court stated that the argument was waived, and also concluded that, even if considered, it would not justify intervention.

Permissive intervention

The court denied the unions’ alternative request for permissive intervention for substantially the same reasons. Because the unions had not shown a cognizable interest in the litigation concerning collective bargaining or collateral consequences, they had not shown a claim or defense sharing a common question of law or fact with the main actions as required by Rule 24(b)(1)(B).

Disposition

Judge Colleen McMahon denied the three unions’ motions to intervene, including intervention as of right and permissive intervention. The denial was without prejudice to renewal if the City agreed to a proposed settlement or consent decree affecting the unions’ collective-bargaining rights, or if the court proposed injunctive relief that did so. The clerk was directed to remove the three motions from the list of pending motions.