Second Chance for the NYPD?
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
It looks like the stop-question-and-frisk case is going back to the riders of the Second Circuit of the United States Court of Appeals. That’s the signal from the Patrolmen’s Benevolent Association, which filed on Wednesday notice it is appealing a decision of the district court denying New York City’s police officers a chance to defend their good name. We wish them luck. Both merits and the constitutional issues in this case deserve a chance to be heard before the Second Circuit, particularly because the original judge, Shira Scheindlin, was found to have failed to maintain the appearance of impartiality.
Time, moreover, is of the essence here. It has been plain since early in this case that Judge Scheindlin was the wrong judge to be decider, particularly given that there was no jury. The moment Judge Scheindlin ruled against the City — essentially calling the police bigots — the Bloomberg administration should have been going flat out to get it reversed. It did move, but not quickly enough. Every day that passed with the ruling in place put our officers at a disadvantage, and the city’s dilatory behavior mystified the Second Circuit.
This we know because the Second Circuit said so. That was in October, in its first hearing in the case. The city’s lawyer, pressing for a stay of Judge Scheindlin’s ruling, had barely begun to speak before Judge Jose Cabranes, seated between Judges John Walker and Barrington Parker, interrupted to ask her to explain why the city, while castigating the trial judge for ruling against the police, had been “dragging its feet” on the appeal. Before the hearing was over Judge Walker indicated he was troubled by the plaintiffs’ implication that the NYPD has shown “bad faith and deliberate disregard of rights” reminiscent of the Jim Crow-era South.
The court seemed particularly perplexed by the Bloomberg administration’s dawdling because an election was approaching in which the Democratic nominee, Bill de Blasio, was opposed to appealing Judge Scheindlin’s ruling. In the event, the hearing was barely over a day when the Second Circuit stunned the city by removing Judge Scheindlin from the case. The court acted, as courts sometimes can, sua sponte, meaning on its own. It stayed the district court ruling and sent the case back down to a different judge. New Yorkers went ahead and elected Mr. De Blasio mayor, and he moved to drop the city’s appeal.
This is how the police unions emerged in a key position. If the city wasn’t going to defend their good name, they wanted to be able to do so. Nor was their good name all that was at stake. Other elements of Judge Scheindlin’s rulings give them, as our front line in the war against crime, what they see as standing. So Patrolmen’s and other unions filed to intervene and continue the appeal even if the city dropped it. What happened last week is that the new district judge, Analisa Torres, turned the unions down, saying the unions had waited too long. That would mean the case could soon be over, with Judge Scheindlin’s ruling more or less intact, though the 2nd Circuit has maintained the mandate, meaning nothing is going to happen of which it fails to approve.
Hence the importance of the Patrolmen’s appeal. Their filing in the case strikes us as worthy of full consideration, and the 9th Circuit Court of Appeals, in Los Angeles, has offered a precedent that a police union can intervene in a case like this. New Yorkers deserve more than pettifoggery over deadlines. We are, after all, at a turning point in the war against crime. Stop-question-and-frisk is just the keystone. Squeegee men are starting to appear again. The district attorney in Kings County is backing off from prosecuting “minor” marijuana offenses. Broken Windows policing is in question. In the chokehold case, as the New York Post has been pointing out, Mr. de Blasio is in danger of losing control of the situation to demagogic actors like the Reverend Al Sharpton.
In this context, it is one thing for the mayor to back off from stop-question-and-frisk as a matter of policy. It is another thing for the Courts to say the cops have to retreat because the heroic results they brought in during the Raymond Kelly years are based on a bigoted program. If this is not an actual case and controversy, which is what is required for the courts to stay involved, it’s hard to imagine what is.