One of the first things Mayor-elect Bill de Blasio is going to have to do is figure out whether he really wants to reverse the city’s decision to appeal the federal court’s stop-question-and-frisk decision. Come Jan. 1, he’ll have the power to reform policing himself, without the need for a court-appointed monitor.
My own advice (not that he’s asked for it) is to take the time to think the question through. For starters, he’ll want to talk it over with whomever he hires as police commissioner. The city’s next top cop will have his or her own views on what kind of oversight the NYPD really needs.
The way things stand now is that a federal appeals court has stayed Judge Shira Scheindlin’s finding that the city’s use of stop-question-and-frisk tactics violates the 4th and 14th amendments to the Constitution. Those magnificent measures prohibit unreasonable searches and vouchsafe the equal protection under the laws. The stay also suspends Scheindlin’s remedies, including the special monitor she set up.
The appeals court also threw Scheindlin off the case for violating the judicial code of conduct. It ordered a new judge, who turns out to be Analisa Torres, an appointee of President Obama, to do nothing but implement the stay of Scheindlin’s ruling and await further action by the higher court, which has pointedly kept the case pending its decision on the merits of the constitutional claims.
At a hearing last week, the three circuit judges voiced confusion at how the Bloomberg administration handled the appeal. On the one hand, the city was suggesting Scheindlin’s ruling was creating chaos for the cops. On the other hand, as it was put by one judge, the city was “dragging its feet” on the appeal.
The logical thing for the city would have been to move right there in open court for an immediate change in the schedule, so that its appeal could be heard before Mayor Bloomberg’s term was over. Instead, its lawyer, Celeste Koeleveld, complained about the lengthy transcript in the case. The judges must have been amazed.
The top lawyer for the city, Michael Cardozo, finally wrote a letter to the circuit court, proposing to advance the appeals schedule so the whole matter could be heard before year’s end. But he waited nearly two days before sending it off to the court.
It landed the same day the judges threw Scheindlin off the case and set the appeals hearing for the first quarter of next year — i.e., when de Blasio will be mayor. It’s unclear if Cardozo’s slow approach cost the city the chance to get the case heard this year. It is clear that the stage is set for several possible dramas.
One is that the appeals judges could accept Cardozo’s offer and advance the hearing to December. That proposal was met with a fierce letter from the Center for Constitutional Rights, which is supplying many of the lawyers for the plaintiffs’ case against the police. It called Cardozo’s offer a “crass political move” aimed at preventing Scheindlin’s remedies from “going forward following the election.”
Or the court could allow the city to drop out but admit another party to the case so that it could carry the appeal. Several police unions have asked for just such status. Conceivably, another class — say, of minority New Yorkers asserting a right to be protected by aggressive policing — could be admitted.
Or the judges may conclude that the most important constitutional point is that elections have consequences — so if the new mayor wants to drop the case, he can be their guest. That’s where it really gets tricky for de Blasio.
On the one hand, dropping the case and allowing Scheindlin’s ruling to go into effect could be a big financial gift to the left-wing lawyers who have carried the case against the city, since the city could be on the hook for millions in legal fees for the lawyers who won. It would also make good on a campaign promise.
On the other hand, it would radically weaken the office to which de Blasio is about to accede.
De Blasio made some remarks during the campaign suggesting he thought the monitor would be a “temporary reality.” Yo ho ho. His travels in the Soviet Union ought to have taught him the vanity of that kind of hope. If he really wants a free hand to set policy at 1 Police Plaza, the last thing he’ll want is for Scheindlin’s ruling to stand.