Judge Shira Scheindlin’s ruling ordering a monitor to reform New York City Police Department stop-and-frisk practices that she found unconstitutional was attacked by the city as a dangerous judicial overreach Tuesday before the U.S. Court of Appeals for the Second Circuit.
Arguing for a stay of Scheindlin’s August ruling just one week before stop-and-frisk opponent Bill de Blasio could be elected as the next mayor of New York City, Celeste Koeleveld of the Law Department said Scheindlin’s order of a monitor and her finding that police targeted minorities for stopping and frisking without reasonable suspicion of criminal activity has sowed confusion in the police department and endangered public safety.
“I believe we are challenging legal conclusions that are fundamentally flawed,” Koeleveld said during a remarkable two-and-one-half hours of arguments before Second Circuit Judges Jose Cabranes, Barrington Parker Jr. and John Walker.
Koeleveld insisted that the impending mayoral election, and the possibility of changes in police practices imposed from the top down by City Hall and a new legal strategy at the Law Department, shouldn’t stop the court from hearing the appeal quickly.
“We all read the papers” about the Nov. 5 election, Parker said. “Are we going to be faced with a situation where your marching orders are going to change?”
“I read the papers too,” Koeleveld said. “The problem is, this case is here today and it raises very important issues” about municipal liability, pattern and practice, civil rights litigation and judicial authority.
“We are in a court of law where we have to address these issues head on,” she said.
But Darius Charney of the Center for Constitutional Rights, co-counsel for the plaintiffs in Floyd v. City of New York, said the city’s own arguments belie its claim that anyone is being harmed by Scheindlin’s orders.
The remedial order signed by Scheindlin after she found the NYPD liable for widespread violations of the Fourth and Fourteenth amendments, Charney said, calls for “nothing more than participation in a consultative process” between the police, the plaintiffs, and other stakeholders along with the monitor, former Corporation Counsel Peter Zimroth, who will “develop a set of proposed reforms” for Scheindlin to sign off on.
Walker disagreed, saying the judge’s order has real impact and could only be justified on a showing of bad faith by the police. Walker said such broad relief is more suitable to situations where there is entrenched institutional hostility, such as the fight over segregation in the “Deep South” in the days of George Wallace and Orval Faubus.
“What’s out there now is an order that says what they’re doing is unconstitutional,” Walker said. “There are practical consequences to her decisions,” that have to have a “chilling effect.”
Cabranes echoed that thought later, saying of officers on the street “They got the message” of Scheindlin’s ruling, adding, “Don’t you think the message is ‘If I don’t bother questioning [a suspect] further, it’s not my problem.’?”
The mayoral election and the likelihood that de Blasio, currently New York City’s public advocate, will win the election and reverse course on stop-and-frisk was acknowledged more than once by the judges and lawyers as the “elephant in the room.”
Addressing that issue as amici was John Siegal of Baker & Hostetler, who said de Blasio was against a stay and felt the consultative process called for in the remedial order should continue.
Cabranes asked whether the “public advocate is dying to have the Police Department be run by a Southern District judge?”
“No, absolutely not,” Siegal said, emphasizing the remedial order was a temporary measure and a “quick, consultative process” after which the court will issue its orders and step aside.
“The legal process continues regardless of the political process,” Siegal said, adding that the appeal would not be complete until well into the next mayor’s term.
Cabranes opened the session by pressing Koeleveld on why, if the citizens of New York are being harmed because Scheindlin’s ruling has made police gun shy, has the city moved to appeal the remedial orders at a “glacial” and “painfully slow pace” since the August decision. Cabranes wondered aloud if the Law Department was engaged in the “pretense of ineffectiveness” made famous by Mohammed Ali’s “rope-a-dope” strategy.
Why did the city “drag its heels?” he wanted to know, even as public officials were deriding Scheindlin’s decision as a menace to public safety.
“If you had acted with real urgency, you could have been before this court a long time ago,” Cabranes said.
Koeleveld responded that the city was hoping for a faster appeal, but the “other side” was “delaying things.”
Parker said that when the Law Department asked for, but was denied, an expedited appeal, “You said the district court’s [order] was seeding uncertainty, chaos and trouble in the New York City Police Department. It’s hard for me to square those assertions” with a proposed briefing schedule that would have delayed oral arguments until the spring.
Attacking the Record
Parker was also the most skeptical of Koeleveld’s dismissal of Scheindlin’s factual findings and how high a hill the city had to climb to earn a stay.
“The problem you have is you have a record where the district court made detailed factual findings,” Parker said. “What you have to address is the rather substantial burden of demonstrating that all of these findings are clearly erroneous.”
That is when Koeleveld said it was Scheindlin’s legal conclusions that justify a stay and, ultimately, a reversal, including Scheindlin’s finding of “indirect racial profiling” based on a “smattering” of anecdotes and statistical analysis. Scheindlin, she said, also failed by “ignoring the totality of the circumstances at each stop.”
Daniel Connolly of Bracewell & Giuliani, appearing for amici Rudolph Giuliani and former federal judge and Attorney General Michael Mukasey, argued that Sheindlin’s rulings make police “defensive, passive and scared.” Connolly said in his brief that Giuliani and Mukasey entered the case because of concern the Law Department was dragging its feet.
Steven Engel of Dechert LLP appeared for amici the Patrolmen’s Benevolent Association of the City of New York and the Detectives Endowment Association and Courtney Saleski of DLA Piper LLP appeared for amici Sergeants Benevolent Association. Both warned of the harm done to the police department and public safety in asking the court for a stay.
Mathew Brinckerhoff of Emery Celli, Brinckerhoff & Abady, appeared for former Assistant Attorney General for Civil Rights Bill Lann Lee, who played a central role in Justice Department suits that ended with police department monitors being appointed for large urban police departments, including Los Angeles and Cincinnati. Brinckerhoff said monitors have actually improved the police-community relations.
The city’s “luxurious” briefing schedule, he said, stood in contrast to its “histrionic” statements about the immediate impact of Scheindlin’s rulings, which he said require the city do nothing.
But Christopher Dunn of the New York Civil Liberties Union, lead counsel in the related case over stop-and-frisk trespass arrests in the Bronx, Ligon v. City of New York, said that if “Ray Kelly thought we had a serious public safety issue” with the judge’s order “we would have been” in the Second Circuit “that night.”
Dunn said Scheindlin “is not requiring them to do anything yet,” and even Scheindlin’s more explicit orders have no immediate impact. The judge’s remedial order includes a pilot program whereby police in one precinct in each borough wear body cameras to record stops. It also requires changes to police forms documenting stops.
@|Mark Hamblett can be contacted at email@example.com.