If Bill de Blasio were really smart — and he may turn out to be — he’d upend the stop, question and frisk case by going into federal court with a request to switch sides. He’d tell the court he can handle the NYPD and has no interest in having it run by a federal judge.
That’s my own takeaway from the astounding hearing Tuesday at the federal courthouse in Foley Square.
The appeals court is considering the city’s request to stay Judge Shira Scheindlin’s ruling that found the city’s stop-question-and-frisk program to be unconstitutional and set up a monitor over the Police Department.
The hearing started with Judge Jose Cabranes accusing the city of “speaking out of two sides of its mouth” by castigating the trial judge for ruling against the police but “dragging its feet on the appeal.” It ended up with him warning that the appeals court could yet resolve the case before Mayor Bloomberg’s term is over.
It wasn’t just Cabranes. Another judge on the panel, Barrington Parker, remarked that the schedule proposed by the city’s Law Department would put off until March 2014 a full hearing of its appeal — which, he suggested, is hard to square with the city’s claim that Scheindlin’s ruling is “seeding uncertainty, chaos and trouble.”
Parker also brought up the political context surrounding the case: the fact that voters next week are likely to bring in a new mayor whose view of the policing program is diametrically opposed to Bloomberg’s.
“We all read the newspapers,” Parker told the city’s lawyers and then asked: “Are we going to be faced with a situation in which your marching orders are going to change?” Cabranes called the pending election “a specter haunting this appeal.”
Cabranes also raised the question of whether the case had been properly assigned to Scheindlin in the first place. He referred to “the newspaper of record,” an apparent reference to a New York Times report in May about how Scheindlin had taken the case by deeming it related to others she’d heard.
The story touched on what the Times called “the possibility of judge shopping.” Daniel Connolly, the lawyer for former Mayor Rudolph Giuliani and former US Attorney General Michael Mukasey, was particularly forceful on this point: He described the possibility that Scheindlin had suggested the plaintiffs file the lawsuit as something that “should give this court grave pause.”
Judge John Walker Jr. suggested that Scheindlin’s proposed remedies, in their breadth and scope, showed “total hostility” toward the police. Such remedies, he offered, would be more appropriate where a police department itself had shown “overt hostility.”
At one point, the court asked whether there was any evidence of racism on the part of police brass. Darius Charney, a lawyer for the Center for Constitutional Rights, shocked at least some in the courtroom by replying that Police Commissioner Ray Kelly had made a remark that could be construed as racist — an apparent reference to an allegation by state Sen. Eric Adams that the commissioner has denied.
Judge Walker was clearly troubled by the implication that the NYPD has shown “bad faith and deliberate disregard of rights” reminiscent of the Jim Crow-era South. Absent such intransigence, he suggested, a judge would normally first ask the police themselves to institute reforms less disruptive and costly than the mechanisms Scheindlin has ordered.
The judges also probed the question of whether the next mayor would want the NYPD run by a federal judge, which is what got me thinking about the logic of de Blasio switching sides, standing on principle and signaling that he’s prepared to take responsibility for the NYPD.
This was underscored toward the end of a hearing in which the court seemed to nurse doubts about the way Scheindlin handled the case from the start. The judges recognized the lawyer representing the public advocate — that is, de Blasio. The appeal isn’t going to be completed until “well into the term of the next mayor,” the lawyer, John Siegal, suavely assured the court.
“Unless,” Judge Cabranes cut in to remind him, “the court changes the schedule.”