The Cardozo Letter

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.

The New York Sun
NY Sun
NEW YORK SUN CONTRIBUTOR

The most remarkable fact about the decision of the federal appeals court to remove Judge Shira Scheindlin from the stop-question-and-frisk lawsuit is that no one asked for it. The city didn’t ask for it. The Patrolmen’s Benevolent Association didn’t ask for it. Neither did former Mayor Rudolph Giuliani. Nor former U.S. Attorney General Michael Mukasey. The judges did it on their own.

It turns out there’s a name for that kind of action. When it is taken by a court of more than one judge — this one had three — it’s called nostra sponte, which is Latin for, roughly, “of our own accord.” What New York saw from the Second Circuit last week is a reminder that the mythological blind-folded woman who is traditionally used to depict Justice holds not only a set of scales but also a sword.

The court made a point of announcing that it hasn’t yet addressed the merits of the 4th Amendment and 14th Amendment issues in this case. But it also made plain that one doesn’t want to take a United States circuit judge for granted. It’s a principle that all of us New Yorkers will want to keep in mind as we watch the maneuvering that is going to take place on the stop-question-and-frisk controversy in the weeks and months ahead.

Starting with Bill de Blasio. He’s been promising for weeks that if he is elected mayor, he will drop the appeal of Judge Scheindlin’s decision, which found the stop-question-and-frisk program unconstitutional. But what about the possibility that the court could act before Mr. de Blasio gets a chance to drop the appeal? Is it possible that the court could dispose of this case on the merits before the end of the year?

That might seem like a stretch. But in the hearing Tuesday, the lead lawyer for the city, Celeste Koeleveld, had barely begun to speak when Judge Jose Cabranes leaned forward from the center chair and alerted her that the court intended to get into the question of why the city had been moving at what he called a “snail’s pace.” The court proceeded to get into the question, at one point suggesting the city had been “dragging its feet.”

From the public gallery it struck us that Ms. Koeleveld reacted a bit defensively for the star lawyer that she certainly is; she complained about the voluminous documents in the case. The court seemed to have little sympathy. It pointed out that the city’s was sending mixed signals — proposing a leisurely schedule that would run the hearings well into 2014 but claiming that Judge Scheindlin’s ruling was having negative impact on policing in the city.

The court’s concerns certainly rang a gong in the corporation counsel’s office. In a little-noticed move late last week, the city’s top lawyer, Michael Cardozo, wrote a letter to the clerk of the Second Circuit, Catherine O’Hagan Wolfe, saying the city would be filing its briefs by November 9, three weeks ahead of when they’d otherwise be due. It suggested — “if the court is so inclined” — that the other side in the case be “directed” to file their responding briefs by December 9.

In that case, Mr. Cardozo added, the city could submit its reply three days later, by the December 12, “so that the cases can be heard and decided by the end of the year.” The city’s lawyers, he added, “recognize that adoption of this briefing schedule would result in curtailment of appellees’ time to file their briefs.” But it noted that the other side in the case has “been aware of the thrust of the City’s merits arguments” since mid-September.

This cut no ice with the the opponents of stop-question-and-frisk. The Center for Constitutional Rights fired back a letter to the court the same day, quoting a remark in open court by Judge Barrington Parker, who wondered whether the marching orders for the city’s lawyers may change. The center called Mr. Cardozo’s letter a “crass political move” designed to prevent the remedy Judge Scheindlin had ordered from “going forward following the election.”

Yet in the hearing last week, the Circuit Court made it clear that it can move fast when it wants to. It noted the example set by another panel of the Second Circuit, which moved with jaw-dropping dispatch to overrule a United States District Judge, Paul Crotty, who’d let stand a law restricting the Republican candidate for mayor, Joseph Lhota, from taking a big campaign donation in the middle of a desperate election fight.

The appeals court in the election case, we noted at the time, had assembled a panel, reasoned out the case, and over-ruled the lower court in a matter of days. It was a breath-taking display of the alacrity with which a court can move when it recognizes the urgency of a situation. All we can add is that however urgent Mr. Lhota’s situation was, the policing case is twice — or thrice — as urgent, given the early signs that crime is escalating by the day as officers of the NYPD wonder how aggressive the courts are going to permit them to be.

We have already noted that when Mr. de Blasio’s lawyer urged the court last week to take a forward-looking view of the case, given that the appeals will run well into 2014, Judge Cabranes cut in. “Unless,” the judge said, “the court changes the schedule.” Mr. de Blasio’s lawyer acknowledged the point gracefully enough, and we’ll see in due course how he reacts to Mr. Cardozo’s letter to the court.

Our own view is that an early resolution of this case is in everyone’s interest — not only the city’s but also the plaintiffs, David Floyd and others, as well as the likely next mayor, Mr. de Blasio. The last thing Mr. de Blasio needs is a court-appointed monitor and a gaggle of left-wing professors running his police department. He needs to be able to set his own policing procedures, as he sees fit.

It’s conceivable, moreover, that even if the case does get carried over into next year, Mr. de Blasio’s hopes of being able to just drop the appeal may themselves be chimerical. The Patrolmen’s Benevolent Association, the Detectives Endowment Association, the Lieutenant’s Benevolent Association, and the Captains Endowment Association asked some weeks ago to be admitted as parties. If the court really wanted the issues to be thoroughly reviewed, it could admit them to carry on the case even if the city drops out.

The court, one can imagine, could do something else, too. The case has become a class action of New Yorkers who feel they are aggrieved by stop-question-and-frisk policing. But there are — as the New York Post in particular has so well reported — other New Yorkers, including in the minority communities, who ardently appreciate the aggressive policing to protect them against crime. It’s not unimaginable that the court could admit such a class as a party in place of the city. On what basis could the court do that? Well, as we’ve just seen, the court could act nostra sponte.

NY Sun
NEW YORK SUN CONTRIBUTOR

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.


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