Photo by Douglas Palmer

A recent federal appeals court decision will effectively bar the New York Police Department from reviving the tactic known as “stop, question, and frisk” or “stop and frisk” until at least 2019—two years after the end of Mayor Bill de Blasio’s current term. The ruling will apply even if a new mayor supporting stop-and-frisk wins office in 2017. Under the decision of the U.S. Second Circuit Court of Appeals, no one will ever have the opportunity to challenge District Judge Shira Scheindlin’s 2013 ruling that the tactic violated the Constitution, even though the appeals court removed Scheindlin from the case due to her “appearance of partiality.”

In its latest decision, the court held that city police unions lacked standing to continue the Bloomberg administration’s appeal of Scheindlin’s ruling, which de Blasio abandoned when he settled the case earlier this year. Scheindlin had held that stop-and-frisk, as implemented, violated the Fourth and Fourteenth Amendments. In an accompanying “remedial order,” while declaring that she wasn’t “ordering an end to the practice of stop-and-frisk,” she effectively did just that, by prohibiting stops not based on “individualized . . . suspicion that the person stopped has committed, is committing, or is about to commit a crime” (emphasis in original). Thus, menacing-looking gang members lurking outside a bodega could no longer be questioned based on “an inchoate and unparticularized suspicion or hunch” that they were up to no good. Scheindlin also imposed detailed reporting requirements for each stop and appointed a monitor to ensure that her orders were carried out

Four weeks after Scheindlin’s ruling, Bill de Blasio won the Democratic mayoral primary on an anti-stop-and-frisk platform. The police unions had already moved to intervene in the case, and join in the city’s appeal of Scheindlin’s ruling. The Circuit Court granted the city’s motion for a stay of the ruling, and in doing so also took the highly unusual step of removing Scheindlin and reassigning the case to a new district judge. The court did this on its own initiative, finding that Scheindlin had maneuvered with the plaintiffs to get the case assigned to her. The court also upbraided her for granting a series of media interviews during the litigation, resulting in stories in which her hostility to the police was manifest. (A profile in The New Yorker quoted a former Scheindlin clerk saying, “What you have to remember about the judge is that she thinks cops lie.”) While the court did not accuse Scheindlin of actual misconduct, and expressed no view on the merits of the case, its action suggested that it would be inclined to review her decision skeptically when hearing the city’s appeal.

After becoming mayor, de Blasio acted quickly to preempt the possibility that the court might throw out Scheindlin’s ruling. The new administration reached a settlement with the plaintiffs that represented an almost total capitulation, accepting Scheindlin’s 37-page remedial order with one small modification: The court-appointed monitor will be removed in three years, and the order will expire—and the court’s jurisdiction will end—in five years, but only if the city demonstrates “substantial compliance” with Scheindlin’s order. Since the clock won’t start running until all appeals are exhausted, the order will thus remain in effect until at least the fall of 2019. The new district judge approved the de Blasio administration’s settlement and refused to allow the police unions to pursue an appeal. In its decision last week, the Second Circuit Court affirmed the denial of the unions’ intervention motions and dismissed the appeal, thus binding the city to Scheindlin’s unreviewed order for at least five years.

The court largely based its decision on two dubious contentions: First, it found that the police unions’ motions were untimely, even though the relevant timeliness rule is flexible and the unions had moved within days of de Blasio’s primary win. Second, the court stated that allowing the unions to continue the appeal “would amount to condoning a collateral attack on the democratic process” and “erode the legitimacy of decisions made by the democratically elected representatives of the people.” This is wrongheaded. De Blasio would have been free to implement his perceived electoral mandate to end stop-and-frisk even if the court had taken up the appeal and found the practice constitutional.

What the court has done is to preclude de Blasio—and any successor who might be elected with a different mandate in 2017—from changing course in response to changed political circumstances. If crime spikes, the city won’t be able to reinstitute stop-and-frisk without going through the burdensome process of seeking modification of Scheindlin’s order. Thus, in its zeal to protect “the democratic process,” the court may wind up thwarting it in a way that threatens public safety.


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