Floyd v. City of New York

Filing 267

MOTION, for leave to respond, on behalf of Movant Rudolph W. Giuliani and Michael B. Mukasey, FILED. Service date 02/14/2014 by CM/ECF. [1156844] [13-3088, 13-3461, 13-3524]

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
____________________________________
DAVID FLOYD, et al.,
Plaintiffs-Appellees,
v.
Docket No. 13-3088
CITY OF NEW YORK, et al.,
Defendants-Appellants.

MOTION OF MICHAEL B. MUKASEY AND RUDOLPH W. GIULIANI
FOR LEAVE TO FILE BRIEF AMICI CURIAE
IN SUPPORT OF PROPOSED POLICE INTERVENORS’ OPPOSITION
TO THE CITY OF NEW YORK’S MOTION FOR REMAND

Daniel S. Connolly, Esq.
Rachel B. Goldman, Esq.
BRACEWELL & GIULIANI LLP
1251 Avenue of the Americas
New York, NY 10020
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Amici Curiae Michael
B. Mukasey and Rudolph W.
Giuliani

Pursuant to Rule 29 of the Federal Rules of Appellate Procedure, Michael B.
Mukasey and Rudolph W. Giuliani (“Amici”) hereby move for leave to file a brief
amici curiae in support of (i) the memorandum of law in opposition to the City of
New York’s (“City”) motion for limited remand (“Remand Motion”) filed by the
Patrolmen’s Benevolent Association of the City of New York, Inc. (“PBA”), the
Detectives Endowment Association, Police Department, City of New York, Inc.,
the Lieutenants Benevolent Association of the City of New York, Inc., and the
Captains’ Endowment Association of New York, Inc. (“PBA Opposition”) and (ii)
the opposition of Sergeants Benevolent Association (“SBA”) to the Remand
Motion (“SBA Opposition”), each of which were filed on February 7, 2014.
DISCUSSION
The Amici have served in several of the highest public offices concerned
with law enforcement and governance of the City of New York and the United
States; they have served as United States Attorney General, Chief Judge of the
United States District Court for the Southern District of New York, Mayor of the
City of New York, and United States Attorney for the Southern District of New
York, among other offices.
In light of their substantial experience across several decades, including
significant involvement with the New York City Police Department (“NYPD”), the
Amici are uniquely suited to provide insight into the City’s Remand Motion, which

in fact seeks to implement the district court’s Remedies Opinion and Order, dated
August 12, 2013 (“Remedies Order”), and Liability Opinion issued on the same
date (“Liability Order”) (collectively, “Orders”), and the standing of the PBA, the
SBA and other proposed intervenor police associations (“Police Intervenors”) to
address these issues. The Orders suffer from serious errors of law, all of which
were previously and extensively briefed and argued before the Court in the context
of the City’s motion for a stay pending appeal, which the Court granted, and as set
forth in the City’s appeal and 88-volume appendix. The Orders should be
reviewed in full by the Court in light of their legal infirmities and issues of great
public interest involved.
A full review, rather than a remand resulting in a consent decree effectuating
the Orders, is also vitally important, especially given this Court’s decision to
disqualify the district court judge who issued the Orders due to an appearance of
partiality. To grant remand would effectively sanction the district court judge’s
rulings notwithstanding this Court’s determination that she be removed from the
case.
Moreover, the Amici are interested in ensuring that the NYPD’s and the
City’s progress in substantially reducing crime in the City of New York over the
past twenty years within the bounds of the Constitution is not unjustly reversed to
the detriment of the public. The Amici’s extensive background with the City’s

proper exercise of its police function, including the NYPD’s use of stop-questionand-frisk and other policing tactics and initiatives, as well as their familiarity with
the relationship between the executive and judicial branches of government
provides them with a distinct and compelling perspective on the impact of granting
the City’s Remand Motion.1
Accordingly, the Amici respectfully request permission to file the attached
brief amici curiae to emphasize and add to arguments made by the Police
Intervenors in their memoranda in opposition to the Remand Motion. Specifically,
the Amici seek to expound upon two issues raised by the Police Intervenors: the
importance of this Court’s review of the Orders issued by the now-disqualified
district court judge and the merits of granting the Police Intervenors’ motions to
intervene at this stage.
First, the Amici submit that the “resolution” the Remand Motion seeks at the
district court is in fact a request to fully implement the findings and mandated
remedies of the Orders, which are deeply flawed and center on several issues of
great public importance. Because of the district court’s substantial misapplication
of existing law below, this Court should deny remand and retain jurisdiction in
order to decide this appeal on the merits. Further, appellate review is considerably
important under the unique circumstances of this case in light of this Court’s
1

The Amici note that they are currently employed in the private sector and have no
interest in the outcome of this case aside from the continued effective and constitutional
operation of the NYPD and the safety of the residents of the City of New York.

decision to remove the district court judge who issued the Orders. To grant
remand and allow the Orders to be implemented would trump concerns of judicial
impartiality and would serve only to hinder public confidence in the judicial
process, thereby undermining this Court’s orders.
Second, in addition to the substantive grounds for intervention discussed in
the Police Intervenors’ filings, see PBA Opposition at 8-13; SBA Opposition at 712, 18-19, judicial efficiency compels granting the Police Intervenors’ motions to
intervene so they may prosecute the appeal of these vitally important issues
affecting the City’s millions of residents. Accordingly, the Remand Motion should
be denied and the Police Intervenors’ motions to intervene granted.
CONCLUSION
For the foregoing reasons, the Amici respectfully request that the Court grant
leave to file the attached brief amici curiae in support of the Police Intervenors’
memoranda in opposition to the Remand Motion.

Dated: February 14, 2014
New York, New York
Respectfully submitted,
/s/ Daniel S. Connolly
Daniel S. Connolly, Esq.
Rachel B. Goldman, Esq.
BRACEWELL & GIULIANI LLP
1251 Avenue of the Americas

New York, New York 10020
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Counsel for Amici Curiae Michael B.
Mukasey and Rudolph W. Giuliani

CERTIFICATE OF SERVICE
I hereby certify that on February 14, 2014, I caused the foregoing motion for
leave to file brief as amici curiae, and the attached amici curiae brief, to be filed
with the Court electronically by CM/ECF, which will automatically send notice of
the filing to all parties registered in the CM/ECF system for this matter.

DATED: February 14, 2014
/s/ Daniel S. Connolly