Payne et al v. De Blasio et al

Filing 148

AMENDED MEMORANDUM DECISION AND ORDER DENYING MOTIONS TO INTERVENE: For the reasons set forth above, the three unions' motions to intervene are denied, without prejudice to renewal if the City agrees to any proposed settlement or consent decr ee that impacts the unions collective-bargaining rights, or if the Court proposes to order injunctive relief that does so. The clerk is directed to remove the motions at Dkt. Nos. 45, 48, and 51 from the Courts list of pending motions. This is a written decision. (Signed by Judge Colleen McMahon on 4/28/2021) (nb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________________________________x
In Re: New York City Policing During Summer 2020
Demonstrations

________________________________________________x

20-cv-8924 (CM)(GWG)
20-cv-10291 (CM)(GWG)
20-cv-10541 (CM)(GWG)
21-cv-322 (CM)(GWG)
21-cv-533 (CM)(GWG)
21-cv-1904 (CM)(GWG)

MEMORANDUM DECISION AND ORDER DENYING MOTIONS TO INTERVENE
McMahon, J.:
These six consolidated civil rights actions were filed between October 2020 and March
2021 against the City of New York, the New York Police Department (NYPD), leaders of both
entities, and multiple individual NYPD officers. The lawsuits allege that defendants engaged in –
and continue to engage in – unconstitutional conduct in response to demonstrations throughout
New York City.
Before the Court are motions to intervene filed by labor unions representing three large
groups of police officers: the Sergeant’s Benevolent Association (SBA), the Police Benevolent
Association (PBA), and the Detectives’ Endowment Association (DEA).
The SBA and DEA seek to intervene in just one of the six consolidated cases: People of
the State of New York v. City of New York, et al., No. 21-cv-322, which is the only case not brought
on behalf of individual plaintiffs and the only case that does not seek any compensatory damages.
The PBA seeks to intervene in all six cases; it makes essentially the same arguments as the other
two unions.
For the reasons set forth below, the unions’ motions to intervene are denied at this time.
Denial is without prejudice to renewal until we reach a point in the litigation where there might be
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some “practical impact” on the unions’ collective-bargaining rights. See N.Y.C. Admin. Code §
12-307(b). At present, however, that is not the case.
I.

Background

These six consolidated cases arise from civilian interactions with NYPD officers during
protests for racial justice and police reform that occurred throughout the summer of 2020. The
lawsuits allege that the NYPD behaved unconstitutionally in responding to the protests, and that
officers used excessive and unnecessary force against nonviolent protestors, journalists, and
bystanders. Plaintiffs claim that these responses are reflective of a pattern of unconstitutional
conduct by the NYPD in responding to peaceful protests.
Five of the six actions are filed on behalf of individuals who were present at various
demonstrations. See Payne v. De Blasio, No. 20-cv-8924; Sierra v. City of New York, No. 20-cv10291; Wood v. De Blasio, No. 20-cv-10541; Sow v. City of New York, No. 21-cv-533; Yates v.
New York City, No. 21-cv-1904. Payne was brought on behalf of a group of identified individuals;
Sierra, Wood and Sow were filed as class actions, with the named plaintiffs seeking to represent a
class of individuals who were wronged by police conduct during the protests. In addition to claims
against the City, all five of these cases also allege claims against individual NYPD officers (some
named, some not yet identified) and seek compensatory damages under 42 U.S.C. § 1983 on behalf
of the named plaintiffs and, presumably, absent class members in the class action cases. Two of
the five cases – Payne and Sow – also seek injunctive relief against the City, to prevent the
continuation of policies the plaintiffs assert are illegal.
The sixth case, People of the State of New York v. City of New York, No. 21-cv-322, is filed
in parens patriae by the Attorney General of the State of New York. The only defendants in People
are the City, Mayor Bill De Blasio, Police Commissioner Dermot Shea, and NYPD Chief of

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Department Terence Monahan (the “City defendants”). The complaint in People alleges three
claims under 42 U.S.C. § 1983 and another eight claims under New York law, with the State
claiming jurisdiction to pursue the action pursuant to Executive Law § 63(1) and the parens patriae
doctrine, which “allows states to bring suit on behalf of their citizens in certain circumstances by
asserting a ‘quasi-sovereign interest.’ ” Connecticut v. Physicians Health Servs. of Connecticut,
Inc., 287 F.3d 110, 119 (2d Cir. 2002) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel.
Barez, 458 U.S. 592, 601 (1982)). The lawsuit does not allege any claims against any individual
NYPD officer, and the amended complaint, which focuses exclusively on the practices and policies
of the NYPD, seeks only declaratory and injunctive relief.
At a February 22, 2021 hearing, the Court set March 3 as the deadline for any nonparties
to file motions to intervene. By that date four such motions were filed, three by the police unions
and one by a pro se plaintiff. As noted above, the SBA and DEA have moved to intervene only in
the People action; they do not claim any interest in any of the actions filed by individual plaintiffs
seeking monetary relief. 1 The PBA seeks to intervene in all six of the consolidated cases.
Each union asserts similar interests. The SBA wishes to intervene to “defend against
potential remedies that will impair police officer safety and the ability of officers to fulfill their
duty to protect the public,” to “defend against court findings and orders on the particular
allegations,” and “to defend against potential remedies that can infringe on collective bargaining
rights.” (Dkt. No. 47 at 1–2). The DEA asserts interests in the integrity of “statutorily created
collective bargaining rights,” “the terms and conditions contained in its collective bargaining

1
An action consolidated with others under Fed. R. Civ. P. 42(a) “retains its independent character.” Hall v. Hall, 138
S. Ct. 1118, 1125 (2018). “[C]onsolidation does not merge the suits; it is a mere matter of convenience in
administration, to keep them in step. They remain as independent as before.” Id. at 1127 (quoting Johnson v.
Manhattan R. Co., 61 F.2d 934, 936 (2d Cir. 1932). Hall held that any final decision in a case is an appealable decision,
even if other cases with which it had been consolidated had not yet resolved.

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agreement,” and “the health and safety of DEA members.” (Dkt. No. 53 at 2). And the PBA asserts
interests in officers’ “personal safety, their collective bargaining and other statutory rights,” as
well as “their reputations and other interests that stand to be affected.” (Dkt. No. 49 at 2).
The unions’ purported interests can be grouped accordingly: (1) an interest in their
collective-bargaining rights, and how any future injunctions or settlements/consent decrees might
impact working conditions or officer safety; and (2) an interest in how any findings of fact made
by the Court might impact officer reputations, any disciplinary proceedings involving individual
officers, or how the NYPD handles disciplinary procedures more generally. Fundamentally, the
unions are worried that this litigation will lead to changes in NYPD policy over how future protests
are handled, and they insist they need to be able to defend against any changes they find
objectionable.
Both the plaintiffs and City defendants have filed briefs in opposition to the unions’
motions.
At this stage of the litigation, the focus is on whether the defendants are liable for what
plaintiffs allege – that certain NYPD tactics during protests are unconstitutional. When framed this
way, no interest asserted by the unions is implicated. The unions might have an interest if the
parties were to propose a settlement that would result in changes to NYPD tactics/personnel
procedures, or if the Court, at the remedy stage after liability was found, was considering the
imposition of injunctive relief that would have the same effect. Theoretically such relief might
have a practical impact on the unions’ collective-bargaining interests, although that is far from
clear. But any such interest is too speculative at the current stage of the litigation to warrant
intervention.
Accordingly, the unions’ motions to intervene are denied.

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II. Discussion
A. Legal Standards
Federal Rule of Civil Procedure 24(a), which governs nonparty intervention as of right
states, in relevant part, as follows:
On timely motion, the court must permit anyone to intervene who . . . claims an
interest relating to the property or transaction that is the subject of the action, and
is so situated that disposing of the action may as a practical matter impair or impede
the movant’s ability to protect its interest, unless existing parties adequately
represent that interest.
Courts have distilled these requirements into four factors: “an applicant must (1) timely
file an application, (2) show an interest in the action, (3) demonstrate that the interest may be
impaired by the disposition of the action, and (4) show that the interest is not protected adequately
by the parties to the action.” Floyd v. City of New York, 770 F.3d 1051, 1057 (2d Cir. 2014)
(quoting “R” Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006)).
The burden is on the party seeking intervention to demonstrate each of these factors, and the
“[f]ailure to satisfy any one of these [four] requirements is a sufficient ground to deny the
application.” “R” Best Produce, 467 F.3d at 241 (quoting In re Bank of New York Derivative Litig.,
320 F.3d 291, 300 (2d Cir. 2003)). Additionally, a party’s stated interest in the action must be
“direct, substantial, and legally protectable. . . . An interest that is remote from the subject matter
of the proceeding, or that is contingent upon the occurrence of a sequence of events before it
becomes colorable, will not satisfy the rule.” United States v. Peoples Benefit Life Ins. Co., 271
F.3d 411, 415 (2d Cir. 2001) (cleaned up).
If a party is not entitled to intervene as of right, a court still has discretion to add the party
to the litigation. Rule 24(b) governs permissive intervention, which is appropriate, “On timely
motion” for anyone who “(A) is given a conditional right to intervene by a federal statute; or (B)

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has a claim or defense that shares with the main action a common question of law or fact.” Courts
consider “substantially the same factors whether the claim for intervention is ‘of right’ . . . or
‘permissive.’ ” “R” Best Produce, 467 F.3d at 240.
B. The Unions are not Entitled to Intervene as of Right
The unions’ motions to intervene are timely. But the plaintiffs and defendants both contend
that (i) none of the unions’ asserted interests is presently cognizable, and (ii) even if they were,
there is no reason why they would be impaired or would not be adequately protected by the current
defendants (factors two, three, and four of the Rule 24(a) analysis).
1. Interest in collective-bargaining rights
The unions principally assert that this litigation could affect their collective-bargaining
rights, as any injunctive remedy might result in changes to NYPD policies that could affect the
hours, wages, and/or working conditions of NYPD officers. They claim that the City defendants
cannot adequately protect the collective-bargaining interests of union members, because
employers are inherently conflicted when negotiating changes that could affect employee working
conditions.
But whatever interest the unions have in their collective-bargaining rights are too remote
from the merits of this litigation to be considered “direct” or “substantial.” Peoples Benefit Life
Ins. Co., 271 F.3d at 415. Whether police officers engaged in unconstitutional policing during the
BLM protests, and if so whether they were following City policy, has nothing to do with the
collective-bargaining agreements between the unions and the City. The City has not yet proposed
any specific changes to NYPD policy as a result of this litigation, and any changes to NYPD policy
that may materialize as a result of this lawsuit might not impact any collective-bargaining rights
at all. As the Second Circuit recognizes, not all consent decrees that alter NYPD policy implicate

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a police union’s collective-bargaining rights. The key determination is whether the agreement
actually “prevents the unions from collectively bargaining” or affects changes that have a
“ ‘practical impact’ on ‘questions of workload, staffing and employee safety’ that are within the
scope of the unions’ collective bargaining rights.” Floyd, 770 F.3d at 1061–62 (quoting N.Y.C.
Admin. Code § 12-307(b)). Such a determination cannot be made in the absence of a proposed
injunction or agreement. None exists.
Floyd is directly on point. In Floyd, these same unions sought to intervene to prevent a
settlement between plaintiffs and New York City in which the City agreed to change aspects of
the NYPD’s “stop-and-frisk” policy. The unions argued that the settlement implicated two
substantial interests: “restoring the reputations of their members and preventing the erosion of their
collective bargaining rights.” Id. at 1060. The Second Circuit held that neither interest was
cognizable. The asserted “reputational” interest of union members was “too indirect and
insubstantial to be ‘legally protectable,’ ” ibid.; and the unions failed to show how the reforms in
the settlement “would have any ‘practical impact’ on . . . the unions’ collective bargaining rights”
as “no provision in the agreement prevents the unions from collectively bargaining,” id. at 1061–
62.
The unions’ asserted collective-bargaining interests in this litigation are even more remote
than those in Floyd. In Floyd, a proposed settlement had been agreed to and so could be referenced
when determining which, if any, of the unions’ collective-bargaining rights were affected. But
here, the City has not yet agreed to any settlement. On the contrary, the City has moved to dismiss
all of the cases filed against it, claiming that plaintiffs lack standing and that none of the complaints
state a claim upon which relief can be granted. (Dkt. No. 106).

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The unions have not demonstrated why – absent any specific details of a settlement – this
litigation has at present any “practical impact” that “directly” or “substantially” affects their
collective-bargaining rights. They do not point to specific NYPD policies they wish to preserve,
nor do they outline any specific changes to which they would object. Instead, they make general
references to how this litigation might threaten officers’ health and safety. This hardly qualifies as
a “direct” or “substantial” threat on any specific collective-bargaining right. And while the DEA
cites to several provisions of their collective-bargaining agreement in an attempt to show which
provisions might potentially be impacted by a settlement, its suggestions are speculative at best,
since there is no settlement. One of the unions actually acknowledges that “it may be uncertain, at
this stage, whether the outcome of the case will impair the PBA’s interests.” (Dkt. No. 49 at 9).
My only quarrel with that statement is the use of the word “may;” it is uncertain at this stage
whether the PBA’s interests will be affected by this lawsuit.
Additionally, the unions do not have any right to bargain about how NYPD officers are
managed or disciplined; that authority rests exclusively with the City. New York City
Administrative Code § 12-307(b) explicitly “exempts from mandatory collective bargaining
certain managerial prerogatives.” Floyd, 770 F.3d at 1061. These include the rights to “determine
the standards of services to be offered by its agencies . . . direct its employees; take disciplinary
action; relieve its employees from duty . . . and . . . the methods, means and personnel by which
government operations are to be conducted.” N.Y.C. Admin. Code § 12-307(b). Fundamentally, it
is a “right of the city . . . [to] exercise complete control and discretion over its organization and the
technology of performing its work.” Ibid. In short, this means that the City has unilateral authority
to direct and manage NYPD officers, and the unions have no similar interest unless, per N.Y.C.

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Admin. Code § 12-307(b), there were a decision by the City to settle on terms that have a “practical
impact” on the “terms and conditions of [union members’] employment.”
All this being so, the Court cannot simply assume that any and all changes to NYPD policy
that might result from these lawsuits would affect union interests.
If these lawsuits do ultimately result in concrete proposed changes to NYPD policy, then
and only then might the unions have an interest in the subject matter of the litigation. Whether their
interests were impacted would depend on the terms of the proposed settlement or injunctive relief.
The injunction-seeking plaintiffs are seeking only to change unconstitutional NYPD policies –
which is to say, policies that are by their very nature unlawful. For example, the State’s amended
complaint in People focuses only on the “policies or practices of employing excessive force and
false arrests, suppressing free expression and press reporting, and retaliating against New York
Residents who participate[d] in the 2020 Racial Justice Protests.” (Amended Compl. in People v.
City of New York, 21-cv-322 at 82, Dkt. No. 51). The State asks that defendants and “their officers,
employees, and agents, and anyone acting in concert with Defendants” be enjoined “from
implementing, applying, or taking any action whatsoever under its unconstitutional policies or
practices” and that defendants should “take all affirmative steps, including changing policies,
conducting training, and undergoing monitoring, among others, to ensure” there will be no illegal
conduct in the future. (Ibid.) (emphasis added). The remedy sought by Payne and Sow – the other
two cases that seek injunctive relief – similarly focus only on the alleged “unconstitutional policies
and practices of employing excessive force, unlawful arrests, excessive detention, and retaliation”
against protestors. (Payne First Amended Compl., Dkt. No. 54 at 61; see also Sow First Amended
Compl., No. 21-cv-533, Dkt. No. 49).

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These allegations make clear that whatever injunctive relief might ultimately be crafted
will target only “unconstitutional policies or practices.” At this early stage of the litigation, the
primary question (the “subject” of the action) is whether certain NYPD policies are, in fact,
unconstitutional – an issue that has nothing to do with the unions’ collective-bargaining rights.
Fed. R. Civ. P. 24(a)(2). Indeed, it goes without saying that the unions “and the officers [they]
represent have no protectable interest in violating other individuals’ constitutional rights.” United
States v. City of Los Angeles, 288 F.3d 391, 398–99 (9th Cir. 2002). The unions have not
demonstrated why they have a protectable interest in preserving any allegedly unconstitutional
policies that the NYPD might be employing, such as the use of excessive force or unlawful arrests
during constitutionally protected protest activity. Nor have they explained why the City is not
perfectly capable of arguing that its policies are not, in fact, unconstitutional.
Even if the unions were allowed to intervene, they would have little ability to prevent the
City from settling any of the cases if it wanted to. The Supreme Court has held that:
It has never been supposed that one party – whether an original party, a party that
was joined later, or an intervenor – could preclude other parties from settling their
own disputes and thereby withdrawing from litigation. Thus, while an intervenor is
entitled to present evidence and have its objections heard at the hearings on whether
to approve a consent decree, it does not have power to block the decree merely by
withholding its consent.
Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 528–
29 (1986). Thus, the unions could only offer their objections to the Court regarding any potential
settlement, but they would not be able to preclude other parties from entering into that settlement
if it does not infringe on any collective-bargaining rights. The unions can raise any concerns that
it has at the time a settlement is proposed, or at the time the Court is considering an injunctive
remedy. But since no settlement has yet materialized, and – as at least one union concedes – one

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may never materialize, any interest that the unions have in protecting its collective-bargaining
rights are currently “too remote” to be considered cognizable. Floyd, 770 F.3d at 1061.
The cases that the unions cite in support of their position – cases in which nonparties were
permitted to intervene – all involved motions filed after the parties to the lawsuit had agreed on a
settlement. The nonparties in those litigations outlined clear objections to specific provisions of
the settlement, and thus could point to exactly what working conditions or future interests were
affected. See, e.g., Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 474 (2d Cir. 2010)
(objections to changes affecting promotions); Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 129
(2d Cir. 2001) (objections to changes affecting seniority rights and employment status/rank). The
unions do not assert similarly non-speculative objections to possible settlements in this litigation.
In short, “[A]ny injury based on not-yet-developed reforms is speculative” and is not
cognizable to justify intervention as of right. Floyd v. City of New York, 302 F.R.D. 69, 125
(S.D.N.Y. 2014), aff’d 770 F.3d 1051. Therefore, the unions have no right to intervene at this stage
of the litigation.
Finally, the unions also claim that they need to intervene to protect the safety of their
members, and that any changes to NYPD policy could put officers at increased risk when policing
future demonstrations. But the unions have not demonstrated that officer safety would be affected
by litigation over whether those very officers were acting in a manner that violated citizen rights
as guaranteed by the United States Constitution and New York law. After all, officers are not
allowed to violate the constitutional rights of citizens. And contrary to the unions’ suggestion, the
City has every interest in proving that its police officers were not doing so. Their arguments
regarding an inherent conflict of interest between the City and the union when it comes to

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collective bargaining are wholly inapplicable when it comes to ensuring either officer safety or
constitutional compliance.
Accordingly, the Court denies the unions’ motion to intervene in the merits of this litigation
based on a purported interest in their collective-bargaining rights. This denial is without prejudice
to renewal if changed circumstances give rise to a legitimate impact on the unions’ collective
bargaining rights – such as if a settlement is agreed to or injunctive relief is ordered.
2. Interest in disciplinary proceedings of individual officers
The unions also assert that any findings made in this litigation could impact how individual
officers are disciplined for their actions related to the protests or how the NYPD disciplines officers
generally. They claim that any conclusions on liability, or factual findings related to what a specific
individual officer did or did not do, could have collateral consequences for those officers in other
civil lawsuits, departmental disciplinary proceedings, or even criminal prosecutions. The unions
assert that the City is unlikely to defend the officers against the accusations against them. (See Dkt.
No. 47 at 7–8; Dkt. No. 53 at 13).
a. The Unions’ do not have a cognizable interest in any collateral consequences of People
v. City of New York
All three unions seek leave to intervene in People. But the People complaint does not name
any individual officer as a defendant, nor do the allegations contained within it identify any specific
officers. The complaint only references anonymous “NYPD Officers” when describing general
NYPD tactics that need reforming. (People Amended Compl. at ¶¶ 3–5, 50, 62, 70, 111, 113, 116,
121, 144, 181). There is no possibility that any of the unions – or any of their members – could be
held legally liable as a result of the People litigation, because the lawsuit is aimed at structural
reform, not specific grievances against individual officers.

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The unions insist that a Ninth Circuit case, United States v. City of Los Angeles, 288 F.3d
391 (9th Cir. 2002), renders their motions meritorious. For two reasons, City of Los Angeles does
not control here.
City of Los Angeles was part of the fallout of the Los Angeles Police Department’s Rampart
CRASH unit scandal, which involved allegations of serious misconduct and corruption among
specific LAPD units, including the routine use of excessive force, planting of evidence, false
arrests, and improper searches and seizures. 2 The federal government sued Los Angeles to enjoin
certain practices of the LAPD. Prior to the filing of the lawsuit, the federal government and the
City had negotiated a consent decree that mandated several changes to LAPD policy. Thus, on the
same day that the federal government filed its complaint, the United States and Los Angeles also
filed a “Joint Application to Enter Consent Decree” with the district court to approve their prenegotiated order. Id. at 396.
The Los Angeles Police Protective League, the union representing the LAPD rank-andfile, sought to intervene – not only out of a desire to be included in negotiations over the terms of
the settlement, but also out of a desire to argue the merits of whether there had actually been any
unconstitutional conduct by LAPD officers at all. The Ninth Circuit allowed the League to
intervene. It held that the union had “a protectable interest in the remedy sought by the United
States,” since it had “state-law rights to negotiate about the terms and conditions of its members’
employment,” id. at 399–400, and that the union had a “protectable interest in the merits phase of

The Rampart scandal involved members of the LAPD’s anti-gang unit, known as Community Resources Against
Street Hoodlums, or CRASH. Some of the allegations against CRASH officers included their involvement in
“unjustified shootings . . . that were covered up”; that “planting of drugs on suspects” became an “accepted practice
by some officers in the division,” and that officers of the unit “framed 99 people over three years.” Scott Glover and
Matt Lait, A 2nd Rampart Officer Tells of Corruption, L.A. Times, Jan. 28, 2000,
https://www.latimes.com/archives/la-xpm-2000-jan-28-mn-58583-story.html (last visited Apr. 28, 2021); see also
Tina Daunt and Jim Newton, Council Backs U.S. Demand to Reform Police, L.A. Times, May 10, 2000
https://www.latimes.com/archives/la-xpm-2000-may-10-mn-28482-story.html (last visited Apr. 28, 2021).
2

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the litigation,” because there were “factual allegations that its member officers committed
unconstitutional acts in the line of duty,” id. at 399. Since the lawsuit accused LAPD officers of
unconstitutional conduct, the Ninth Circuit reasoned that the union had a cognizable interest in
protecting its officers against such allegations.
The Second Circuit has already declined to follow City of Los Angeles in a case where
police unions tried to intervene in ongoing federal litigation. In Floyd, it noted that the “decision
by a sister Circuit” was “not binding in this Circuit.” Floyd, 770 F.3d at 1061 n.33. Our Circuit’s
rejection of the case as precedent is, obviously, extremely persuasive to this Court, and offers
reason enough to follow Floyd and deny the motions to intervene, rather than apply City of Los
Angeles to this case.
But there is a second reason not to follow City of Los Angeles: its facts are radically
different than the facts before this Court. People was not filed to obtain court approval for a consent
decree, the terms of which were negotiated prior to any action being commenced. There is no
“Joint Application to Enter Consent Decree” in this case, but rather hotly contested allegations that
NYPD officers engaged in unconstitutional behavior during last summer’s protests because they
were following unconstitutional departmental policies. Although the complaint in People mentions
that some officers may have violated official NYPD use-of-force policy at times during the
protests, those officers are not identified, and their conduct is not the focus of the case. The State’s
allegations focus on uses of force that were sanctioned by high-level decisionmakers. The few
mentions of NYPD officers acting in violation of official policy are included as examples of
officers who were allegedly carrying out official departmental policies permitting the use of
various types of force, including “indiscriminately inflicting pepper spray and baton, bicycle, and
body strikes as crowd control tactics”; “using potentially deadly force, such as baton strikes to the

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head”; “using kettling to corral, trap, and unlawfully arrest, detain” protestors; failing to ensure
“adequate dispersal orders and opportunities to disperse” before arresting protestors;
“unreasonably tight plastic zip-ties to effect mass arrests without adequate monitoring of or
response to complaints by detainees”; and “restricting the right of journalists, legal observers, and
members of the public to monitor and report on police conduct” throughout the protests. (People
Amended Compl. at ¶¶ 435, 445, 455).
In City of Los Angeles, there was no such allegation. Rather, the government alleged that
the department had a policy and practice of ignoring the illegal behavior of the officers it employed
– behavior like planting evidence and testifying falsely. The government did not allege that perjury
and planting evidence were the official policy of the LAPD; instead, it contended that rogue
officers’ actions were not being ferreted out and disciplined due to “the failure of the City
defendants to adopt and implement proper management practices and procedures.” (City of Los
Angeles, No. 00-cv-11769, Dkt. No. 123 (C.D. Cal. June 15, 2001)). Of particular significance to
the district court in Floyd was the fact that the City defendants in City of Los Angeles “had no
interest in defending the [police] conduct” at issue; only an interest in ensuring that their policies
regarding officer discipline were satisfactory. Floyd, 302 F.R.D. at 107. That is simply not the case
here; the City is vigorously defending both its policies and the conduct of its officers during last
summer’s protests.
Moreover, the situation here is no different than the situation in Floyd, where individual
officers were at risk of being found liable in lawsuits brought against them for following the policy
of “stop and frisk.” The officers who have been sued in the lawsuits other than People are being
defended by the Corporation Counsel; and Floyd suggests that a union has no right to intervene in

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a lawsuit to protect the “interests” of officers who may be sued at some later date for following an
allegedly unconstitutional NYPD policy.
Contrary to the unions’ argument, there is no reason to conclude that the current City
defendants are unable to adequately defend the interests of any NYPD officer.
The unions suggest that ongoing departmental disciplinary proceedings against certain
NYPD officers for their actions during the summer 2020 protests creates a conflict with any NYPD
officer being sued in federal court, and so renders the City unable to represent those officers
adequately. But while the Corporation Counsel may choose to withhold representation if it
concludes that “the act or omission upon which the court proceeding against the employee is based
was or is also the basis of a disciplinary proceeding by the employee’s agency against the
employee,” see N.Y. Gen. Mun. L. § 50-k, it is not required to decline representation, and no such
election has as yet been made in any of the cases in which officers are named as defendants. To
the contrary: the Corporation Counsel has filed answers on behalf of some of the individual
defendants in the consolidated actions. 3 This hardly suggests that the City is about to throw the
officer defendants “under the bus.” Indeed, Corporation Counsel regularly defends NYPD officers
in federal court while the NYPD conducts an internal review of possible misconduct, as required
by statute. See 38A N.Y.C.R.R. § 1-01 et seq. (outlining procedures of the Civilian Complaint
Review Board). And none of the officers has asked to be separately represented, though they could
certainly bring in their own lawyers if they thought their interests were not being adequately

The reason that the City has not filed motions on behalf of all defendants is that it took the inexplicable position that
eight of the named defendants – all of whom were served with process and the original complaint between January 21
and March 8 – had to be personally served with the amended complaint as well. The time has now passed for defense
motions to dismiss, and as this case is being litigated on an expedited basis, the Court will not alter the schedule
already set in order to accommodate belated motions. The Corporation Counsel has been ordered to answer on behalf
of those defendants. (Docket #139). However, rulings made on some of the defense motions may well redound to the
benefit of the answering officers; and the defendants can assert any and all affirmative defenses in their answers, so
they will suffer no prejudice.

3

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represented. See Mercurio v. City of New York, 758 F. 2d 862, 865 (2d Cir. 1985) (per curiam);
Lieberman v. City of Rochester, 681 F. Supp. 2d 418, 424 (W.D.N.Y. 2010) (“. . . the Officers
could hire private counsel at their own expense, if they so choose”).
Furthermore, union intervention in a lawsuit would not solve the problem if there were a
conflict of interest between the City and the officers. The solution to a conflict of interest is for the
officers to be afforded the right to obtain their own outside counsel. If the City believes that there
is a conflict of interest, or if one arises during the representation, the officers must be notified,
Corporation Counsel must withdraw, and the officers must have the opportunity to have new
attorneys appear on their behalf. Having the union come in as a party does nothing to cure any
conflict that might exist. And allowing the unions to intervene in People – an action in which no
officers are being sued – would hardly be of assistance to the officers who are defendants in the
other cases.
Finally, to the extent that the unions are asserting that they have an interest in the
disciplinary policies of the NYPD generally, such interests are both (i) not cognizable (no changes
in disciplinary policies having been agreed on) and (ii) not within the unions’ ken. New York City
law provides the City with exclusive authority to determine the disciplinary policies of NYPD
officers. See N.Y.C. Admin. Code § 14-115(a); New York City Charter § 434(a). The New York
Court of Appeals has held that these statutes “ ‘state the policy favoring management authority
over police disciplinary matters in clear terms’ and ‘express a policy so important that the policy
favoring collective bargaining should give way.’ ” Matter of City of New York v. Patrolmen’s
Benevolent Ass’n of City of New York, Inc., 14 N.Y.3d 46, 58 (2009) (quoting Matter of
Patrolmen’s Benevolent Ass’n of City of New York, Inc. v. New York State Pub. Empl. Relations
Bd., 6 N.Y.3d 563, 576 (2006)).

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Thus, the Court finds that the unions do not satisfy the second, third, and fourth factors of
the Rule 24(a) analysis with respect to any interest in the collateral consequences of the People
litigation. The unions’ motions to intervene as of right in the People lawsuit is, therefore, denied.
b. The PBA has not demonstrated that the City would be unable to represent officer
interests against reputational harm in the other cases
The only remaining question is whether the PBA’s alleged interest in the collateral
consequences of this litigation compel the court to authorize its intervention in the five remaining
cases – all of which name individual officers as defendants. For the reasons outlined above, the
answer is no.
I note that, unlike the SBA and DEA, the PBA did not fully raise the issue of collateral
consequences in its opening memorandum of law regarding intervention. In its opening
memorandum, the PBA makes only a passing mention of possible “reputational harm” to
individual officers, and instead focuses mostly on how the litigation might affect the PBA’s
collective-bargaining rights. (See Dkt. No. 49 at 8–11). The PBA discusses the possibility of the
collateral consequences of the litigation for the first time in its reply brief. “[A]rguments raised for
the first time in a reply memorandum are waived and need not be considered.” Tutor Time
Learning Ctrs., LLC v. GKO Grp., Inc., No. 13-cv-2980 (JMF), 2013 WL 5637676, at *1
(S.D.N.Y. Oct. 15, 2013); see also, e.g., Connecticut Bar Ass’n v. United States, 620 F.3d 81, 91
n.13 (2d Cir. 2010).
But assuming that the PBA had not waived this argument, the immediately preceding
analysis demonstrates that PBA has neither shown that the City is unable to protect their officers’
interests in avoiding liability in the associated litigations or that allowing it to intervene would
protect the officers’ interests.
C. The Court Declines to Grant the Unions Permissive Intervention
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Courts generally consider the same factors for permissive intervention under Rule 24(b) as
it does for intervention as of right under Rule 24(a). See “R” Best Produce, Inc., 467 F.3d at 240.
The unions’ motion in the alternative to be granted permissive intervention is denied for
substantially the same reasons as the Court has just outlined with respect to the Rule 24(a) analysis.
Because the unions have not demonstrated a cognizable interest in the merits of the litigation with
respect to its collective-bargaining rights or to any collateral consequences, they have not asserted
“a claim or defense that shares with the main action a common question of law or fact.” Fed. R.
Civ. P. 24(b)(1)(B).
CONCLUSION
For the reasons set forth above, the three unions’ motions to intervene are denied, without
prejudice to renewal if the City agrees to any proposed settlement or consent decree that impacts
the unions’ collective-bargaining rights, or if the Court proposes to order injunctive relief that does
so.
The clerk is directed to remove the motions at Dkt. Nos. 45, 48, and 51 from the Court’s
list of pending motions.
This is a written decision.

Dated: April 28, 2021
New York, New York

______________________________________
United States District Judge

BY ECF TO ALL COUNSEL

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