In Re New York City Policing

21-1316
In re New York City Policing
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2021
No. 21-1316
IN RE NEW YORK CITY POLICING
DURING SUMMER 2020 DEMONSTRATIONS
JARRETT PAYNE, ANDIE MALI, CAMILA GINI, VIDAL GUZMAN,
CHARLIE MONLOUIS-ANDERLE, JAIME FRIED, MICAELA MARTINEZ,
JULIAN PHILIPS, NICHOLAS MULDER, COLLEEN MCCORMACK-
MAITLAND, VIVIAN MATTHEW KING-YARDE, CHARLES HENRY
WOOD, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY
SITUATED, PEOPLE OF THE STATE OF NEW YORK, BY LETITIA JAMES,
ATTORNEY GENERAL OF THE STATE OF NEW YORK, ADAMA SOW,
DAVID JAKEVIC, ALEXANDRA DE MUCHA PINO, OSCAR RIOS,
BARBARA ROSS, MATTHEW BREDDER, SABRINA ZURKUHLEN, MARIA
SALAZAR, DARA PLUCHINO, SAVITRI DURKEE, ON BEHALF OF
THEMSELVES AND OTHERS SIMILARLY SITUATED, SAMIRA SIERRA,
AMALI SIERRA, RICARDO NIGAGLIONI, ALEX GUTIERREZ,
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,
CAMERON YATES,
Plaintiffs-Appellees,
v.
CITY OF NEW YORK, NEW YORK POLICE DEPARTMENT, MAYOR ERIC
ADAMS, IN HIS OFFICIAL CAPACITY, BILL DE BLASIO, IN HIS
INDIVIDUAL CAPACITY, POLICE COMMISSIONER KEECHANT L.
SEWELL, IN HER OFFICIAL CAPACITY, DERMOT SHEA, IN HIS
INDIVIDUAL CAPACITY, CHIEF OF DEPARTMENT KENNETH E. COREY,
IN HIS OFFICIAL CAPACITY, TERENCE MONAHAN, IN HIS INDIVIDUAL
CAPACITY, SERGEANT GYPSY PICHARDO, SERGEANT KEITH CHENG,
OFFICER MATTHEW TARANGELO, OFFICER MATTHEW L. PERRY,
LIEUTENANT THOMAS R. HARDELL, OFFICER DAMIAN RIVERA,
OFFICER JACQUELINE VARGAS, LIEUTENANT MICHAEL BUTLER,
OFFICER AARON HUSBANDS, OFFICER JOSEPH DECK, OFFICER
THOMAS E. MANNING,
Defendants-Appellees,
OFFICERS JOHN DOES 1-32, OFFICERS JANE DOES 1-2, OFFICERS JOHN
DOES 1-26, OFFICER JANE DOE 1, OFFICER DOE ESPOSITO, SERGEANT
DOE CARABALLO, OFFICER ISMAEL HERNANDEZ CARPIO (NO. 19759),
JOHN/JANE DOES 1-10, DETECTIVE EDWARD CARRASCO (NO. 1567),
OFFICER TALHA AHMAD (NO. 21358), OFFICER KEVIN AGRO (NO.
8054), OFFICERS JOHN/JANE DOES 1-40, UMID KARIMOV, IN HIS
INDIVIDUAL CAPACITY, ALFREDO JEFF, IN HIS INDIVIDUAL CAPACITY,
DEBORA MATIAS, IN HER INDIVIDUAL CAPACITY, ANDRE JEANPIERRE,
IN HIS INDIVIDUAL CAPACITY, KENNETH C. LEHR, IN HIS INDIVIDUAL
CAPACITY, FAUSTO PICHARDO,
Defendants,
POLICE BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC.,
Proposed Intervenor-Defendant-Appellant. *
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: OCTOBER 5, 2021
DECIDED: MARCH 4, 2022
Before: LIVINGSTON, Chief Judge, and JACOBS and MENASHI,
Circuit Judges.
* The Clerk of Court is directed to amend the caption as set forth above.
2
Proposed Intervenor-Defendant-Appellant Police Benevolent
Association of the City of New York, Inc. (“PBA”) appeals the order
of the district court denying its motion to intervene in the
consolidated cases captioned In re New York City Policing During
Summer 2020 Demonstrations. The PBA asserts interests in the
litigation that it argues the parties to the actions cannot adequately
represent, and for that reason the PBA claims it is entitled to intervene
as of right pursuant to Federal Rule of Civil Procedure 24(a). We
reverse the district court’s denial of intervention with respect to the
actions seeking declaratory or injunctive relief. We affirm the district
court’s denial of intervention with respect to those actions that seek
neither declaratory nor injunctive relief.
PHILIP J. LEVITZ, Assistant Solicitor General (Barbara D.
Underwood, Solicitor General, and Anisha S. Dasgupta,
Deputy Solicitor General, on the brief), for Letitia James,
Attorney General of the State of New York, New York,
NY, for Plaintiff-Appellee People of the State of New York.
MACKENZIE FILLOW (Richard Dearing and Devin Slack,
on the brief), for Georgia M. Pestana, Corporation Counsel
of the City of New York, New York, NY, for Municipal
Defendants-Appellees.
ROBERT S. SMITH, Law Offices of Robert S. Smith (Richard
H. Dolan and Thomas A. Kissane, Schlam Stone & Dolan
LLP, on the brief), New York, NY, for Proposed Intervenor-
Defendant-Appellant Police Benevolent Association of the
City of New York, Inc.
Joshua S. Moskovitz, Law Office of Joshua Moskovitz,
P.C., New York, NY, for the Sierra, Wood, and Yates
Plaintiffs-Appellees.
3
MENASHI, Circuit Judge:
Proposed Intervenor-Defendant-Appellant Police Benevolent
Association of the City of New York, Inc. (“PBA”) appeals the denial
of its motion to intervene as of right pursuant to Federal Rule of Civil
Procedure 24(a) in six civil actions consolidated under the caption In
re New York City Policing During Summer 2020 Demonstrations. Both
New York State and private plaintiffs brought the actions, which
name as defendants the City of New York and its leadership (“City”),
the New York City Police Department and its leadership (“NYPD”),
and NYPD officers in their individual and official capacities. The
claims relate to police actions and practices in response to
demonstrations that occurred in the summer of 2020. We hold that the
district court erred in holding that the PBA did not have a cognizable
interest in the personal safety of its member officers at the merits
stages of the actions seeking injunctive or declaratory relief and that
such interests were adequately represented. We therefore reverse the
judgment of the district court as to those cases and remand with
instructions to grant the PBA’s motion to intervene.
BACKGROUND
I
In re New York City Policing During Summer 2020 Demonstrations
includes six civil actions. In each, the plaintiffs allege that the NYPD
acted unlawfully at demonstrations occurring in the summer of 2020.
A
Three actions were brought by individual plaintiffs on behalf
of themselves or putative classes against the City, the NYPD, and
NYPD officers. The plaintiffs in these actions allege violations of the
federal and New York State constitutions, New York civil rights law,
4
and common-law torts. The actions seek injunctive or declaratory
relief as well as damages. 1 Another action, People of the State of New
York v. City of New York, No. 21-CV-322, was brought by the New York
State Attorney General against the City and the NYPD, alleging
violations of the federal and New York State constitutions as well as
other violations of New York law, and seeks declaratory and
injunctive relief. The final two actions were brought by individuals on
behalf of themselves or putative classes against the City, the NYPD,
and NYPD officers, alleging violations of the federal and New York
State constitutions and common-law torts. These actions seek only
damages. 2
The complaints in each of the cases allege that the NYPD used
excessive force, engaged in unreasonable searches and seizures, and
violated First Amendment rights of the press and peaceful assembly.
The Sow plaintiffs, for example, refer to “militarized tactics,”
including “massive amounts” of NYPD officers “in riot gear
including riot helmets and militarized” vehicles intended to “alarm[]”
1 These actions are Payne v. de Blasio, No. 20-CV-8924; Sow v. City of New
York, No. 21-CV-533; and Sierra v. City of New York, No. 20-CV-10291. The
Sierra action seeks a declaratory judgment as well as damages. The Sierra
plaintiffs argue that their request for declaratory relief is “limited” to “a
request for ‘a declaration that past conduct was unlawful.’” Sierra, Wood,
and Yates Appellees’ Br. 3 (quoting In re New York City Policing During
Summer 2020 Demonstrations, No. 20-CV-8924, 2021 WL 2894764, at *5
(S.D.N.Y. July 9, 2021)). Because such a declaration would declare unlawful
“the City’s policies, practices, and/or customs,” App’x 337, Sierra is
properly considered alongside those actions that seek injunctive relief.
2These actions are Yates v. New York City, No. 21-CV-1904, and Wood v. City
of New York, No. 20-CV-10541. Two additional cases, Rolon v. City of New
York, No. 21-CV-2548, and Hernandez v. City of New York, No. 21-CV-7406,
were filed after the PBA’s intervention motion and are therefore not at issue
in this appeal.
5
and “deter[]” protesters. App’x 270. Likewise, the Attorney General
alleges in the People case that many NYPD officers who responded to
protests “appeared in full riot gear, including external Kevlar vests,
helmets, and forearm plates,” before “unlawfully arrest[ing] over 300
individuals” in a campaign of “excessive force” that culminated in
“mass detentions and arrests.” App’x 127-28.
Individual plaintiffs allege that such tactics were deployed
unlawfully against them when, for example, a “group of at least 100
NYPD officers form[ed] a line” and “began to move towards the
protesters with their helmets on and batons out.” App’x 245. An
officer then allegedly “pointed his drawn baton at” one plaintiff,
“lunged at” her, “forcefully knocked the phone” out of her hands,
“struck” her “across her chest,” and “began beating [her] on the arms
and upper body,” at which point “[a]dditional NYPD members
descended” to “beat her with their batons and kick[] her.” App’x 245-
46. The plaintiffs allege that such interactions reflect the NYPD’s
“long history of violence towards Black and Latinx people,” App’x
158, and “historical brutality against protesters,” App’x 271.
B
Four of the consolidated actions seek broad injunctive and
declaratory relief. For example, the Attorney General asks that the
district court
[e]njoin Defendants … from implementing, applying, or
taking any action whatsoever under its unconstitutional
policies or practices of employing excessive force, false
arrests, and retaliatory tactics … in the form of an order
requiring Defendants to take all affirmative steps,
including changing policies, conducting training, and
undergoing monitoring, among others, to … eliminate
6
ongoing unlawful policing practices and their effects,
and … prevent this unlawful conduct in the future.
App’x 148. The Attorney General further requests that the district
court “[i]ssue an order holding unlawful, vacating, and setting aside
Defendants’ policies or practices of employing excessive force and
false arrests, suppressing free expression and press reporting, and
retaliating against” who participated in the Summer 2020
demonstrations. App’x 148.
Similarly, the Sow plaintiffs request that the district court
“[i]ssue a permanent injunction enjoining Defendant City of New
York and the NYPD from violently disrupting protests.” App’x 299.
And the Sierra plaintiffs ask that the district court declare
unconstitutional “defendants’ conduct and the City’s policies,
practices, and/or customs of retaliating against peaceful protesters out
of hostility toward their message, arresting protesters without
probable cause, using excessive force against the protesters, and
targeting protesters for law enforcement action because of their
advocacy for racial justice and equality.” App’x 337.
By contrast, the plaintiffs in Yates and Wood seek neither
declaratory nor injunctive relief.
II
On March 3, 2021, the Police Benevolent Association of the City
of New York, Inc. (“PBA”) moved to intervene as of right in the
consolidated actions under Federal Rule of Civil Procedure 24(a). The
PBA is “the designated collective bargaining agent for the more than
23,000 police officers employed by the NYPD,” and its “core mission”
is “to advocate for and protect the interests of … the front-line police
officers of the NYPD.” App’x 66.9-66.10. The PBA argued that it had
interests at stake at both the merits and remedy phases of the
7
litigation and that the parties did not adequately represent those
interests.
The PBA identified an interest in maintaining officer safety that
would be affected if the policies that governed front-line officers’
rules of engagement with demonstrators were declared unlawful or
otherwise altered. According to the PBA, front-line officers who
responded to the Summer 2020 protests suffered multiple casualties.
For example, the PBA described a female officer who suffered
fractured vertebrae from being repeatedly kicked in the head at a
demonstration, even though she was wearing a helmet. App’x 66.24.
Another officer “was struck in the face with a brick,” which bounced
off the face shield of his helmet, striking his shoulder. App’x 66.25.
And in responding to a reported robbery at a retail store during the
protests, another officer was run over by the getaway vehicle, and he
“sustained injuries to his back, knee, and hip.” App’x 66.26-66.27.
The PBA also criticized the leadership of the City and the
NYPD for failing to provide guidance to police officers in advance of
protests occurring on May 29, 2020, and for adopting a posture of
“business as usual.” App’x 66.23. The PBA argued that “NYPD
management was taking a purely reactive and defensive approach,
and had failed to account for the escalating violence witnessed
around the country on previous nights and in New York City the
night prior,” and as a result “a significant number of police officers
assigned to protest details … were not equipped with disorder control
helmets,” a “standard” piece of protective equipment. App’x 66.23.
The PBA suggested that the approach of management caused officer
injuries, including one officer who was “hit in the back of the head
with a metal trash can” after he was “instructed by supervisors to
leave his helmet in the vehicle.” App’x 66.25. The PBA reported that
8
“nearly 400 police officers … were injured during the protests.” App’x
66.24.
In its motion papers, the PBA connected its interest in officer
safety to its role in negotiating collective-bargaining agreements with
the City. As the collective-bargaining agent for the officers, the PBA
has the right to bargain over “questions concerning the practical
impact that” even non-negotiable management “decisions … have on
terms and conditions of employment, including … questions of …
employee safety.” N.Y.C. Admin. Code § 12-307(b). However, the
PBA maintains that its interest in officer safety is “not limited to
‘collective-bargaining rights’” but independently serves as a
cognizable interest entitling it to intervene as of right. Appellant’s Br.
12.
The PBA argued that both the merits and remedies phases of
the litigation implicated its interest in officer safety because the
“sweeping demands for declaratory and injunctive relief in the
complaints” could “encompass restrictions on NYPD officers’ ability
to use defensive and non-lethal equipment … to protect themselves”
in future protests. App’x 66.18. Because any conclusions of the district
court on the merits would affect the scope of a resulting settlement
agreement between the parties and would constrain the policy
options available for new rules of engagement, the PBA said its
intervention at the merits stage is necessary.
III
The district court denied the PBA’s motion to intervene in the
consolidated actions on April 28, 2021. The district court
characterized the PBA’s interest as “an interest in [its] collective-
bargaining rights, and how any future injunctions or
settlements/consent decrees might impact working conditions or
9
officer safety.” In re New York City Policing During Summer 2020
Demonstrations, 537 F. Supp. 3d 507, 512 (S.D.N.Y. 2021). The district
court concluded that because “[a]t this early stage of the litigation, the
primary question … is whether certain NYPD policies are, in fact,
unconstitutional—an issue that has nothing to do with the unions’
collective-bargaining rights”—the PBA had no “protectable interest”
that would justify its intervention. Id. at 515. The PBA “might have an
interest” only “if the parties were to propose a settlement that would
result in changes to NYPD tactics/personnel procedures, or if the
[district c]ourt, at the remedy stage after liability was found, was
considering the imposition of injunctive relief that would have the
same effect” because “such relief might have a practical impact on the
unions’ collective-bargaining interests.” Id. at 512.
The merits stage of the litigation, according to the district court,
did not implicate a cognizable interest of the PBA in officer safety
because at the merits stage “the focus is on whether … certain NYPD
tactics during protests are unconstitutional,” id., and “[t]he unions
have not demonstrated why they have a protectable interest in
preserving any allegedly unconstitutional policies that the NYPD
might be employing,” id. at 515. The district court denied the PBA’s
motion to intervene “without prejudice to renewal if changed
circumstances give rise to a legitimate impact on the unions’ collective
bargaining rights,” id. at 516, in particular “if the City agrees to any
proposed settlement or consent decree that impacts the unions’
collective-bargaining rights, or if the [district c]ourt proposes to order
injunctive relief that does so,” id. at 520.
On appeal, the PBA argues that the district court abused its
discretion in denying the motion to intervene. The PBA contends that
it is entitled to intervene on the basis not only of its interest in
10
collective bargaining but also of its related but independent interest
in protecting the personal safety of its member officers. 3
DISCUSSION
“On timely motion, the [district] 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.” Fed. R. Civ. P. 24(a). To prevail on
a motion for intervention as of right, a movant 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.” “R” Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467
F.3d 238, 240 (2d Cir. 2006).
No one disputes that the PBA timely filed its motion. This
appeal turns on whether the PBA sufficiently identified a protectable
interest at stake in the litigation. “For an interest to be cognizable by
Rule 24(a)(2), it must be ‘direct, substantial, and legally protectable.’”
Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010)
(quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922
F.2d 92, 97 (2d Cir. 1990)). The district court concluded, and the
appellees contend, that the PBA failed to show that it has a cognizable
interest that the dispositions of the consolidated actions may impair
and that the parties do not adequately represent.
3The PBA also claims to have an interest in protecting the reputations of its
member officers. Because the interest in officer safety is sufficient to
establish a right to intervention under Rule 24(a), we need not consider the
PBA’s interests in officers’ reputations or in collective bargaining.
11
We review the district court’s denial of a motion to intervene as
of right for abuse of discretion. Id. A district court has abused its
discretion if it “based its ruling on an erroneous view of the law,”
“made a clearly erroneous assessment of the evidence,” or “rendered
a decision that cannot be located within the range of permissible
decisions.” Id. (internal quotation marks omitted).
We hold that the PBA identified a direct, substantial, and
legally protectable interest in officer safety that may be impaired by
the disposition of those actions seeking declaratory or injunctive relief
with respect to NYPD policies. The PBA also showed that its interest
was not adequately represented by the parties to those actions.
Accordingly, we reverse the judgment of the district court and
remand with instructions to grant the PBA’s motion to intervene in
those actions.
I
The PBA asserted an interest in the safety of front-line officers.
That interest may be impaired in litigation that could result in a
determination that NYPD policies governing the interaction of
officers and protesters are unlawful and must be altered. Therefore,
the PBA has a cognizable interest at stake in those actions seeking
declaratory or injunctive relief with respect to NYPD policies—that is,
the Payne, Sow, Sierra, and People actions. The district court erred in
concluding otherwise.
A
The district court mischaracterized the PBA’s interest as
“preserving any allegedly unconstitutional policies that the NYPD
might be employing, such as the use of excessive force or unlawful
arrests,” and it erred in holding that officer safety would not be
implicated in litigation over police policies because “officers are not
12
allowed to violate the constitutional rights of citizens.” 537
F. Supp. 3d at 515-16. This reasoning begs the question to be decided
in the litigation—whether the challenged policies are in fact
unlawful—and thereby confuses the merits of the litigation with the
standard for intervention under Rule 24(a)(2). As we have
emphasized, “except for allegations frivolous on their face, an
application to intervene cannot be resolved by reference to the
ultimate merits of the claims which the intervenor wishes to assert
following intervention.” Oneida Indian Nation of Wisc. v. State of New
York, 732 F.2d 261, 265 (2d Cir. 1984).
The merits question before the district court is whether certain
NYPD policies are permissible. The answer to that question may
require a change in those policies. And changing the policies that
govern officer conduct may affect officer safety. That means the
litigation—at the merits phase—may impair the PBA’s interest.
The district court quoted the Ninth Circuit in stating that “it
goes without saying that the unions ‘and the officers [they] represent
have no protectable interest in violating other individuals’
constitutional rights.’” 537 F. Supp. 3d at 515 (quoting United States v.
City of Los Angeles, 288 F.3d 391, 398-99 (9th Cir. 2002)). But the Ninth
Circuit—in that very passage—specifically rejected the view that
because a police union and its officers do not have an interest in
violating constitutional rights, the union lacks an interest in the merits
phase of litigation that will determine whether officers violated
constitutional rights:
Of course, as the district court noted, the Police League
and the officers it represents have no protectable interest
in violating other individuals’ constitutional rights. No
one could seriously argue otherwise. However, the
Police League claims a protectable interest because the
13
complaint seeks injunctive relief against its member
officers and raises factual allegations that its member
officers committed unconstitutional acts in the line of
duty. These allegations are sufficient to demonstrate that the
Police League had a protectable interest in the merits phase of
the litigation.
City of Los Angeles, 288 F.3d at 398-99 (emphasis added). We agree
with the Ninth Circuit that there is a crucial difference between an
interest in unconstitutional practices, on the one hand, and an interest
in the outcome of litigation seeking a determination that certain
practices are unconstitutional, on the other. In this case, as in City of
Los Angeles, the PBA does not have a protectable interest in acting
unlawfully. But it does have a protectable interest in the continuation
or alteration of policies that are alleged to be unlawful—and therefore
it has such an interest in the outcome of the litigation at issue here.
The district court improperly assumed that any decision on the
merits of the litigation would be limited to prohibiting unlawful
conduct and therefore the PBA could not show an interest that would
be impaired by such a decision. But Rule 24(a) assumes that questions
about the lawfulness of challenged conduct will be subject to
adversarial testing. If a proposed intervenor has an interest that may
be impaired by a decision that challenged conduct is unlawful, the
district court may not deny intervention on the ground that its
decision on the merits will be legally correct.
In Brennan v. New York City Board of Education, the district court
had concluded that non-minority employees of the defendant school
district lacked “a cognizable interest in their employment status and
seniority rights” that would justify intervention in a discrimination
case “because these benefits were presumptively obtained as the
result of discriminatory practices.” 260 F.3d 123, 129 (2d Cir. 2001).
14
We explained that “the district court’s ruling put the cart before the
horse.” Id. In the underlying litigation, it was “precisely the existence
or non-existence of prior discrimination and its relationship to [the
employees’] present status that they want to contest by intervening as
parties.” Id. at 130. It was possible to resolve that merits issue “only
after” the employees had “an opportunity for discovery and the
presentation of evidence as a party to the action.” Id.The district court’s decision in this case similarly put the cart
before the horse. The PBA seeks to contest the proposition that the
challenged policies are unlawful and should be changed. The district
court erred in denying intervention on the ground that this asserted
interest amounts to a defense of unlawful policies.
B
The district court also erred as a matter of law when it
concluded that the PBA’s interest in officer safety was derivative of
its interest in collective bargaining. The collective bargaining law
recognizes the importance of employee safety by authorizing
negotiation over “questions concerning the practical impact” of
management decisions on “employee safety.” N.Y.C. Admin. Code
§ 12-307(b). But the interest in officer safety is not limited to the PBA’s
collective-bargaining rights and is independently cognizable.
We have cautioned against requiring that a proposed
intervenor identify a narrow interest amounting to a legal
entitlement. In Brennan, the district court had denied intervention
because the non-minority employees had “no vested property right
in a particular position or appointment.” 260 F.3d at 128 (quoting
United States v. N.Y.C. Bd. of Educ., 85 F. Supp. 2d 130, 155 (E.D.N.Y.
2000)). In reversing the judgment of the district court, we explained
that “Rule 24(a)(2) requires not a property interest but, rather, ‘an
15
interest relating to the property or transaction which is the subject of
the action.’” Id. at 130 (quoting Fed. R. Civ. P. 24). Because the action
could require changes in the personnel policies of the school district,
which would affect the non-minority employees through the “loss of
relative seniority,” the intervenors met that standard. Id. Similarly, in
Bridgeport Guardians, we held that non-party employees had “an
interest in their employers’ employment practices” that justified
intervention in a discrimination case that could alter those policies.
602 F.3d at 474.
The appellees suggest that our decision in Floyd v. City of New
York, 770 F.3d 1051 (2d Cir. 2014), requires the conclusion that the PBA
lacks a cognizable interest. We are not persuaded. In Floyd, we
affirmed the denial of motions by police unions to intervene in
litigation over the NYPD’s “stop and frisk” practices, which yielded
“an order imposing remedies … in the form of various ‘reforms’” to
those policies. Id. at 1055. In that case, however, we noted that “there
was no evidence in the record showing that the union members’
careers had been tarnished, that their safety was in jeopardy, or that
they had been adversely affected in any tangible way.” Id. at 1061. By
contrast, the record in this case more clearly shows that changes to
policies affecting interactions between officers and protesters may
affect officer safety. The PBA introduced evidence that officers
suffered injuries during interactions with protesters because of
policies governing the rules of engagement with protesters and the
equipment issued to officers. See App’x 66.24-66.27. The plaintiffs in
the consolidated actions seek to change those policies to be more
protective of the protesters and correspondingly less focused on the
safety interest of the front-line officers. The PBA is asserting an
interest in officer safety that is “the mirror image” of the claims
16
pressed in the individual actions, Brennan, 260 F.3d at 130, and that
interest justifies its intervention.
C
The district court distinguished Brennan and Bridgeport
Guardians on the ground that the motions for intervention were filed
in those cases after “the parties to the lawsuit had agreed on a
settlement.” 537 F. Supp. 3d at 516. But in neither Brennan nor
Bridgeport Guardians did we hold that such an agreement was
necessary to establish a cognizable interest. To the contrary, we
focused on “the nature of appellants’ interest in the underlying
action,” in light of the relief being sought, and we cautioned district
courts against requiring too direct a connection between the interest
asserted and the relief sought. “[T]he effects of a loss of relative
seniority rights,” we said, “should not be regarded as too speculative
and remote to justify intervention save, perhaps, in a case where a
concrete effect on an employee is impossible.” Brennan, 260 F.3d at
129, 132 (footnote omitted). Given the relatively straightforward
connection between the relief sought in this case and the PBA’s
claimed interest, the PBA’s interest is not too remote.
In Floyd, we faulted the police unions for failing to move to
intervene before the parties agreed to the remedial order that settled
the litigation. We said that the “unions knew, or should have known,
of their alleged interests in these controversial and public cases well
before they filed their motions” because “the full scope of these cases
and the potential reform measures were readily apparent from years
of extensive public filings and intense media scrutiny.” Floyd, 770 F.3d
at 1054, 1058. We explained that the litigation “should have put the
unions on notice of the potential political and judicial dangers that
these cases posed to their interests well before” the remedial order
17
and, for that reason, we would not “allow[] the unions to revive a
now-settled dispute by intervening at this late juncture.” Id. at 1054,
1058.
Our decision in Floyd is incompatible with the conclusion that
the PBA must await a settlement agreement in order to establish an
interest justifying intervention under Rule 24(a)(2). As in Floyd, the
scope of these cases and the potential reform measures are apparent
from the character of the actions that seek to “hold[] unlawful” and
“vacat[e] … policies” that allegedly authorize “excessive force and
false arrests.” App’x 148. The nature and scope of any injunctive relief
and accommodations could turn on political calculations with respect
to which the individual officer defendants would not be influential
and to which they may not even be privy. Likewise, the nature and
scope of any injunctive relief would likely be influenced by the
circumstances shown in discovery and the resolution of issues that
may predate the remedy phase. We therefore hold that the PBA has
identified an interest that may be impaired by the disposition of the
consolidated actions.
II
We further hold that the PBA has “carried the minimal burden
required for a showing that representation by the existing parties may
be inadequate.” LaRouche v. FBI, 677 F.2d 256, 258 (2d Cir. 1982). The
district court correspondingly erred in concluding that the PBA’s
interest in officer safety was adequately represented by the City
defendants.
Intervention under Rule 24(a)(2) is warranted when there is
“sufficient doubt about the adequacy of representation.” Trbovich v.
United Mine Workers of Am., 404 U.S. 528, 538 (1972). This requirement
“is satisfied if the applicant shows that representation of his interest
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‘may be’ inadequate; and the burden of making that showing should
be treated as minimal.” Id. at 538 n.10. We have explained that an
employer may inadequately represent the interest of its employees
when the employer may have an interest in “bringing such litigation
to an end by settlements involving the displacement of employees
who are not parties to the action.” Brennan, 260 F.3d at 133. “The
employer may, in short, behave like a stakeholder rather than an
advocate” for those employees. Id.We observed in Floyd that it was not evident that the City “ever”
adequately protected the interests of NYPD officers. 770 F.3d at 1059.
We noted that “the interests of employers and their employees
frequently diverge, especially in the context of municipal
employment, where an employer’s interests are often not congruent
with the employee’s and the employer may argue that the employee
was acting outside the scope of his employment.” Id. Given “[t]his
inherent conflict,” we said that “it should have been readily apparent
to the [police] unions that their interests diverged from the City’s long
before the unions filed for intervention.” Id. And we emphasized that
the inadequacy-of-representation standard was met before any
settlement was discussed: “the unions should have known that their
‘interests might not be adequately represented’ far in advance of any
indication that the City might settle the dispute.” Id. (quoting Butler,
Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001)).
In this case, the PBA has shown that its interest might not be
adequately represented by the City. The PBA provided a detailed
account of how its view of the appropriate response to the Summer
2020 protests diverged from the views of the City and the NYPD.
Indeed, the PBA argued that the approach of the City and the NYPD
resulted in officer injuries. App’x 66.23. In addition, the PBA took
account of the “widely understood … views of the incumbent
19
municipal administration.” Floyd, 770 F.3d at 1058. As the PBA notes,
after the Attorney General filed the complaint in the People action
against the City, the Mayor of the City announced that he had met
with the Attorney General and “couldn’t agree more that there are
pressing reforms that must—and will—be made this year.” App’x
66.17-66.18. On this record, the PBA has met its burden to
demonstrate that the City’s representation may be inadequate.
We also agree with the PBA that “[t]he defense of individual
damage actions is not comparable to the defense of a high-profile,
politically charged litigation seeking ‘reforms.’” Reply Br. 9.
Accordingly, the individual officers named as defendants in some of
the actions do not necessarily represent the PBA’s interest. While the
individual officers might be interested in the impact of NYPD policies
on officer safety, their interests in the litigation are not “so similar” to
those of the PBA that “adequacy of representation” is “assured.”
Brennan, 260 F.3d at 133. Those officers may well be primarily
concerned with vindicating their own conduct because personal
liability would predictably affect each individual officer’s career.
Moreover, if the conduct alleged is found to violate “any rule or
regulation” of the NYPD, N.Y. Gen. Mun. L. § 50-k(3), the City will
have grounds to withhold indemnity. As a result, the individual
officers have reason to fear financial consequences, and concerns over
policing policies regarding officer safety are of discounted
importance. We therefore hold that the district court erred in denying
the PBA’s motion to intervene in those actions that seek declaratory
or injunctive relief regarding NYPD policies. 4
4 We do not believe that the PBA has shown a cognizable interest
inadequately represented in those actions that seek only damages against
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III
Because the PBA was entitled to intervention as of right for the
four litigations that seek declaratory or injunctive relief, we need not
address the district court’s denial of permissive intervention. As to
those two litigations that seek neither declaratory nor injunctive
relief, we review the district court’s denial of permissive intervention
under Federal Rule of Civil Procedure 24(b)(1) for abuse of discretion.
Permissive intervention is appropriate when a proposed intervenor
“has 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). The district court
did not abuse its discretion when it concluded that the PBA had not
identified such a claim or defense with respect to the damages-only
actions.
CONCLUSION
The district court abused its discretion in denying the PBA’s
motion to intervene as of right in the actions seeking declaratory or
injunctive relief with respect to NYPD policies. The PBA has a
cognizable interest in officer safety that may be impaired by the
disposition of those actions and that the parties may inadequately
represent. Accordingly, we REVERSE the district court’s judgment
denying intervention under Rule 24(a) as to Payne v. De Blasio, No. 20-
CV-8924; People of the State of New York v. City of New York, No. 21-CV-
322; Sow v. City of New York, No. 21-CV-533; and Sierra v. City of New
York, No. 20-CV-10291. We AFFIRM the district court’s judgment
denying intervention under Rules 24(a) and (b) as to those litigations
within the consolidated actions that seek only damages: Yates v. New
certain defendants for past conduct and that could not directly require a
change in NYPD policies. We affirm the district court’s judgment with
respect to those actions—namely, Yates and Wood.
21
York City, No. 21-CV-1904, and Wood v. City of New York, No. 20-CV-
10541.
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