“This is no ordinary case” is how the Patrolmen’s Benevolent Association begins its latest filing in the stop-question-and-frisk lawsuit.
What an understatement. It gets ever more amazing with each passing week.
It is a case in which the trial judge was cashiered by a higher court for failing to maintain the appearance of impartiality.
The city switched sides to support the plaintiffs and is itching to pay their lawyers a fortune in taxpayers’ money.
In the latest move, the police unions on Monday asked the Second Circuit Court of Appeals to let them defend the cops where Mayor de Blasio doesn’t want to. They moved immediately after being turned down by a district judge, Analisa Torres.
Why does this matter? Bill de Blasio ran on a promise to end the program at the heart of this suit, and his police commissioner has already backed off on stop-question-and-frisk.
This is not just about the good name of New York’s Finest, who were, in effect, branded as racists by Judge Shira Scheindlin’s ruling. De Blasio won’t be mayor forever, and crime could come make a comeback.
If a final settlement leaves Scheindlin’s remedies and restrictions intact, the police will be burdened for years to come. The strategy pursued by Commissioner Ray Kelly to achieve record low crime will be off the table.
It might seem a stretch for a labor union to sue to take on management’s duties, but there’s a precedent.
The Ninth Circuit agreed to let the union step in to defend the LADP when the city wouldn’t in a civil-rights case involving allegations of improper searches.
The appeals judges let the police union intervene, warning against “marginalizing” those, like the cops, “who have some of the strongest interests.”
By then, though, the LAPD case had already been settled. New York’s stop-question-and-frisk case hasn’t been settled.
That’s right: It’s still a live case. The appeals court, while maintaining its hold on the case, sent the matter down to a new district judge so that a settlement could be explored.
In that proceeding, the city agreed to essentially all the restrictions Scheindlin wanted on the cops, and Torres said that settlement was OK with her.
But the appeals court has yet to release the case, and the PBA says the first question should be whether it will be allowed to intervene.
If so, a settlement would be far less likely. That’s because the PBA and the other unions don’t like the burdens the ruling would put on the rank and file.
The PBA thinks it can win on the merits, meaning that it thinks Scheindlin erred by using a handful of stops to invalidate a stop-question-and-frisk program involving millions of stops.
But the PBA’s filing also raises a potential bombshell: the question of standing. Law professor Katherine Macfarlane flagged it in an article published by Brooklyn Law School in December.
Macfarlane bases her argument on another LA case, which went to the US Supreme Court, City of Los Angeles v. Lyons.
LA cops had stopped an African-American man, Adolph Lyons, for driving without a taillight and, without provocation, put him in a chokehold.
The court said Lyons could sue for damages for that. But it ruled that he had no standing to seek an injunction blocking such actions in the future — as it was just too speculative.
Lyons, the PBA argues, spotlights “a fundamental jurisdictional flaw” in New York’s stop-question-and-frisk case. It says that David Floyd and the other plaintiffs never had standing to request the kind of broad injunction that Scheindlin ordered.
Questions of standing can be raised at any time; the judges themselves can raise it on their own. In other words, there’s a possibility that, even at this stage, the whole stop-and-frisk case could come to naught.
The judges of the Second Circuit have already made clear they’re savvy critters. “We all read the papers” is how Judge Barrington Parker Jr. put it in open court.
So they know that New York City is at a turning point in the war on crime. They will go by the book, no doubt.
But they will know how important the case is and will make sure everyone who deserves to intervene gets to the bar.