Legal Issues

Appeals Court Offers a Golden Opportunity on Stop and Frisk


Once he’s elected, Bill De Blasio will name a new police commissioner to replace the outgoing Ray Kelly

Photograph by Andrew Burton/Getty Images

Once he’s elected, Bill De Blasio will name a new police commissioner to replace the outgoing Ray Kelly

A Halloween Day surprise from the federal appeals court in New York provides an unusual opportunity for compromise in the realm of public policy. Lord knows, what with the Tea Party-inspired lunacy in Washington, we could use a reminder of what compromise and judiciousness look like.

On Oct. 31, the U.S. Court of Appeals for the Second Circuit halted a trial judge’s order requiring sweeping changes in the New York Police Department’s aggressive anticrime policy known as stop and frisk. In a highly unusual action, the Second Circuit removed U.S. District Shira Scheindlin from the case, citing her lack of impartiality as illustrated in part by public statements she made to the media while the case was before her. The appellate court didn’t reverse Scheindlin’s earlier order; instead the Second Circuit set a briefing schedule as if it intends to consider the city’s objections to the order.

What happens next? Liberal activists who challenged stop and frisk as discriminatory against blacks and Hispanics angrily vowed they would vindicate Scheindlin and appeal the Second Circuit’s ruling. That’s a tad odd, though, given that New York is about to hold a mayoral election, and Bill de Blasio, the Democrat who’s way ahead in the polls, has said he agrees with Scheindlin’s ruling and wants to curtail stop and frisk. Who would be defending stop and frisk before the Second Circuit? It’s no wonder that the Wall Street Journal‘s Law Blog headlined its second-day post, “The Murky Future of New York’s Stop-and-Frisk Case.”

Here’s a path out of the murk, one that has the side benefit of providing a reminder about the potentially healthy—as opposed to belligerent—relationship between the federal courts and a local political system like New York’s: settlement.

Once he’s elected, de Blasio will name a new police commissioner to replace the outgoing Ray Kelly. The new top cop—one rumored candidate is former NYPD commissioner Bill Bratton—will not be personally identified with stop and frisk in its current form. De Blasio and his new commissioner will doubtless want to reshape NYPD policy toward the high-crime neighborhoods where stop and frisk has been employed. No matter what de Blasio has said on the campaign trail, he and his administration would not welcome having to operate under the supervision of a federal monitor, as required by the now-negated Scheindlin ruling. Nor would the new mayor want to remain under the indefinite scrutiny of the federal judiciary, making his police department vulnerable to the continual hectoring of its most litigious critics.

So, after the balloons and confetti are swept away and the de Blasio team gets down to work, it should reach out promptly to the left-leaning lawyers who engineered the challenge to stop and frisk. They need to come to a consensus on how the NYPD can continue its decades-long successful campaign to reduce violent crime, while at the same time respecting the Constitution’s ban on discriminatory government policies. No sensible activist, official, or ordinary citizen wants the police to stop patrolling rough neighborhoods. The question is how to do it the right way.

The coincidence of the Second Circuit intervention and the mayoral election provides a terrific chance to get this debate out of the courtroom and back into the realm of policy formation, where the balance between safety and liberty ought to be debated. The opportunity is so striking it almost makes one wonder whether the timing of the Second Circuit’s action—which caught most observers unawares—was a total coincidence after all.

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, tells the story of the Chevron oil pollution case in Ecuador.

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