The circumstances surrounding the New York City Police Department’s stop-and-frisk policy are making a segment of the city fearful and uncertain, afraid even to do their jobs, lawyers told an appeals court panel yesterday.
Remarkably, the lawyers weren’t talking about the young black and Latino men overwhelmingly targeted for stop-and-frisks. Rather, they were bemoaning the plight of the police, who they say have been at sea ever since Judge Shira Scheindlin determined in August that their stop-and-frisk habits were unconstitutional and racially discriminatory.
To remedy the suffering of the police on this account, lawyers for New York City, the police unions and a lawyer speaking on behalf of former Mayor Rudolph Giuliani urged the three-judge panel of the US Court of Appeals for the Second Circuit to impose a stay on Scheindlin’s order yesterday.
“The opinion is already having an effect on policing in New York,” Celeste Koeleveld, a lawyer for the city, told the court, noting that stops are down 50 percent citywide. Officers are now “hesitant to use a very, very important tool” in policing, she said.
City and union lawyers also sought to portray Scheindlin’s order as an excessive judicial intrusion into the city’s executive functions, undermining the political accountability of the Police Department.
Steven Engel, a lawyer for the Patrolmen’s Benevolent Association, quoted an opinion in the somewhat similar Brown v. Oneonta case suggesting that Scheindlin’s order would “impose paralyzing inhibitions on law enforcement officers in minority communities. That is because fear of lawsuits, investigations and departmental discipline will tend to make the police in minority communities defensive, passive and scarce. No doubt, some people will think that is a good idea, but no community has yet elected to rely on police protection furnished by a corps of federal judges.”
Lawyers for the plaintiffs in the case, Floyd, et al., v. City of New York, et al., dismissed the suggestion that the order was having a debilitating effect on the police department. For one thing, said Darius Charney of the Center for Constitutional Rights, the supposed “chilling effect” bemoaned by the NYPD and its supporters, the 50 percent drop in stops, dates to the first half of 2013—before the Floyd trial had even concluded.
In any case, Charney said, while Scheindlin’s lengthy order will ultimately require some changes from the NYPD, so far it “requires the city to do nothing more than participate in a consultative process.”
Christopher Dunn of the New York Civil Liberties Union, whose case against suspicionless NYPD stops in the Bronx is also tied up in the Floyd order, said that the process Scheindlin has ordered has barely begun. “She has said ‘I’m going to make you do that,’ ” Dunn said. “But—this is very important—she has not said ‘Do this now.’ ” The only burden placed on the police to date, Dunn said, is that “They had to have their lawyers come to meetings.”