Am I the only one who wonders whether Mayor de Blasio and The New York Times are getting out ahead of their skis on the stop-and-frisk case?
The mayor held a press conference in Brownsville to announce the city is dropping its appeal of the court ruling that held that city cops have been using the tactic in a racist way. The Times, in an editorial, declared the case all but over.
No one seems to be paying attention to an order that promptly came down from the Second Circuit. The court noted that the city has “filed a motion on consent, seeking remand to the district court for the purpose of exploring a resolution of this case” — but it didn’t grant the motion right then, as it could have.
Instead, it referred to motions it had earlier received from various police unions asking to intervene so they could defend the cops in the case de Blasio wants to drop. It ordered that the “proposed intervenors file a response to this motion.” It gave them until Feb. 7 (Friday), at noon.
Then the court told the already existing parties to the case, the plaintiffs and the city, that they could “reply to the proposed intervenors’ submission” by noon on Feb. 14. And it pointedly ordered the clerk of the court, Catherine O’Hagen Wolfe, to make sure that the police unions had a copy of de Blasio’s motion — since the city hadn’t deigned to keep them in the loop.
What does all that mean in plain English? It means that you don’t want to take the Second Circuit Court of Appeals for granted. Judges Jose Cabranes, Barrington Parker and John Walker Jr. may yet approve de Blasio’s motion and leave the cops to take the hindmost. But the judges seem determined to give all sides a chance to have their say; they’re perplexed by the way the whole case has been handled.
They said so in open court in the first big public hearing at the circuit, expressing incredulity at the lackadaisical way the city was pursuing its appeal. After that hearing, the circuit removed the district judge from the case over the way she’d arranged to take the dispute at the outset. It found she’d failed to maintain the appearance of impartiality.
That decision floored the city (and the Times, too; its editorial read like the writer had just been revived with smelling salts).
If the case is in fact over, it will be because in America there has to be an actual case or controversy before the courts can get involved (otherwise, courts could rule on whatever they want). Not even a police union has an automatic right to intervene in a case if the other parties have settled their differences.
But the fact that the right to intervene is not automatic doesn’t mean it doesn’t exist.
In November, the police unions filed papers arguing that they had an interest that was “protectable” and that the district court’s decision had been “unsound.” They noted that the removal of Judge Scheindlin raised questions on the merits of her decisions and that, if left in place, her rulings would “unfairly taint the integrity” of New York’s 35,000 cops.
No one disputes that the November election is going to have consequences. De Blasio is now mayor and can order his police commissioner to back off from stop, question and frisk. Commissioner Bill Bratton has signaled he intends to do just that. Fair enough. The proof will be in the pudding, so to speak — that is, in whether Bratton can match or improve on the astonishing drop in crime under Commissioner Ray Kelly.
I’m told, though, the police unions will indeed file an answer to the city’s motion. Why would the court have put them to the trouble? Maybe because this case has now become about whether anyone will have the chance to defend the cops before judges who have maintained the appearance of impartiality. We all deserve that.
So the Times might want to keep those smelling salts handy.