Honor of the NYPD

One of the things at stake in the appeal of the stop, question, and frisk case is the good name — the honor — of New York’s Finest. This was certainly in sharp relief Tuesday, when Commissioner Kelly was prevented from speaking at Brown University by a student mob. At practically the same hour in federal appeals court in Manhattan, a panel of judges who ride the Second Circuit heard a lawyer for the Center for Constitutional Rights attempt to save his case by suggesting that Mr. Kelly had made a racist remark, even though the commissioner had denied it.It makes us hunger for, among other things, a ruling from the Second Circuit that will, in no uncertain terms, clear the good name of the men in blue. God knows they deserve it, and not just because they risk their own lives and limbs to curb a wave of crime that terrorizes no population so much as the minority communities in the city. We don’t belittle either the 4th Amendment or 14th Amendment principles that are at stake in the case. But someone needs to make clear that whatever the debate on police tactics is about, the NYPD is not led by racists.That is a fact of which the Second Circuit sages seemed to be aware. They sat looking down on the lawyers and bronze busts of their own famous forebears, Judges Henry Friendly and Billings Hand* in a courthouse named for Thurgood Marshall. At one point, one of the circuit riders, Judge John Walker Jr., suggested that remedies ordered by the lower court judge, Shira Scheindlin, in the stop, question, and frisk case displayed “total hostility” toward the police. Such remedies, Judge Walker suggested, would be more appropriate where a police department was being intransigent.Judge Walker, in a gracious but determined way, seemed to be troubled by any suggestion that the NYPD had been exhibiting “bad faith and deliberate disregard of rights” reminiscent of the Jim Crow-era South. Unless it had been behaving in such a way, he suggested, the better, the more normal course would be first to ask the police to institute reforms, rather than to order a special monitor and other disruptive measures that would result in the NYPD being run by a federal district court.The whole hearing yesterday had a surreal air, because it was taking place but a week from when New Yorkers are going to elect a new mayor. The candidate the polls suggest will win the race, and handily, is, in Bill de Blasio, an outspoken critic of the stop, question, and frisk program that is at the center of the case. The judges made it clear that they were aware that the pending election was, as Judge Jose Cabranes put it, “a specter haunting this appeal.”Judge Cabranes had opened the hearing by alerting the city’s lawyers to the fact that he intended to get into the question of why, if the ruling by the trial judge, Shira Scheindlin, against the police, portended such trouble — why, then, have the city lawyers been proceeding in its appeal at such a “snail’s pace,” to use the judge’s phrase. This is a question that has been bothering a number of important figures around town, making some wonder whether Mayor Bloomberg has been paying attention.It turns out that question was also bothering another of the judges, Barrington Parker, who raised the political context of the case and asked: “Are we going to be faced with a situation in which your marching orders are going to change?” Judge Parker stressed the burden the city has in trying to overturn the finding of the district court.Judge Cabranes raised the most explosive question in the litigation, whether the stop-question-and-frisk case had been properly assigned to Judge Scheindlin in the first place. He referred to the New York Times by its nickname, “the newspaper of record.” He was apparently referring to a report in May by the paper’s Joseph Goldstein,** who sketched 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.”The import was not lost on those who were gathered in front of the high bench and between the statues of Judges Friendly and Hand. Daniel Connolly, representing two of the friends of the court — Mayor Giuliani and Attorney General Mukasey — spoke bluntly on the point. He characterized the possibility the Times had uncovered — that Judge Scheindlin had suggested the plaintiffs file the lawsuit as — as something that “should give this court grave pause.”What the appeals judges can do about that question is unclear to us. But there was toward the end of the hearing a sharp reminder of their vast powers. It came when a lawyer for Mr. de Blasio stood up asked the court to take a forward-looking view. He suggested the appeal would have to be heard next year, when his client would be mayor. “Unless,” Judge Cabranes cut in to remind him, “the court changes the schedule.”The implication seemed to be that the riders of the Second Circuit could, if they get their back up, deal with the case before Mr. de Blasio gets a chance to end the appeal. Presumably they could stay Judge Scheindlin’s Rube-Goldberg-contraption of a ruling. Conceivably they could send the whole matter back down to the district but to a different judge — one less inclined to countenance the besmirching of the good name of the NYPD.__________* Usually known by his middle and last names, Learned Hand.** Formerly of The New York Sun.

Honor of the NYPD

Honor of the NYPD

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