The New York City charter delegates the “control” and “administration” of the NYPD to a police commissioner appointed by the city’s elected mayor. It further grants the commissioner responsibility “for the execution of all law and the rules and regulations of the department.”
By agreeing to a court-appointed monitor for the NYPD earlier this year, New York City Mayor Bill de Blasio has violated those binding provisions. Bill Bratton, de Blasio’s choice for police commissioner—he called Bratton “the best police leader in the United States”—accepted the position knowing that the court-appointed monitor would be looking over his shoulder. Why? It’s a fair bet that Bratton hoped to salvage the policing techniques he pioneered during a previous stint as Gotham’s top cop, when he helped rescue New York City from its crime-plagued past.
As police commissioner under Mayor Rudolph Giuliani in the mid-1990s, Bratton called the patrol tactic properly known as stop, question, and frisk (but more commonly known as stop and frisk) “a basic tool” that is “the most fundamental practice in American policing … done every day, probably by every city force in America.” And, he added, “If the police are not doing it, they are probably not doing their job.”
Bratton was correct. In 1990, Mayor David Dinkins’s first year in office, an astounding 2,245 murders took place in New York. In 2012, after almost 20 years of stop, question, and frisk—and other innovative policing techniques—the number of murders had fallen to just 417, a decline of 81 percent. Other major crimes had similarly declined, despite a 10 percent increase in New York’s population. The verdict on stop, question, and frisk? New Yorkers won and criminals lost.
In 2007, Federal District Judge Shira Scheindlin invited lawyers in an already-concluded case to bring a lawsuit attacking stop and frisk and engineered its assignment to her courtroom. Last year, she issued a 198-page opinion declaring the NYPD’s use of stop, question, and frisk unconstitutional, and mandating the court-appointed overseer. Mayor Michael Bloomberg’s administration appealed the ruling, and a randomly chosen panel of three appellate judges unanimously voted to halt Scheindlin’s decision pending appeal.
Then, in an extraordinary action, the panel removed Scheindlin from the case, saying that she had created “the appearance of partiality” by improperly inducing the lawsuit, assigning herself as judge, and giving “a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.”
Expecting the appeals court to reverse Scheindlin’s decision and lift court-appointed oversight of the NYPD, the de Blasio administration moved to withdraw the city’s appeal and return the case to the lower court, where a settlement could be reached. It was an unusual moment—the mayor essentially surrendering in a case that the NYPD was likely to win.
But that wasn’t the end of the story: Five police associations, representing most of the NYPD’s uniformed personnel, had earlier moved to intervene in the appeal “to ensure that the Court may review the [Scheindlin] decision on the merits.” Scheindlin’s decision, the associations asserted, set “rules for their day-to-day activities” and abridged “their ‘state-law rights to negotiate about the terms and conditions of their members’ employment.’” Under Bloomberg, the city consented to the police associations’ intervention; under de Blasio, the city seeks to withdraw its consent. The appellate court has asked the lower court to decide the intervention motions and consider any proposed settlement.
The newly assigned judge, Analisa N. Torres, is a rookie, having assumed the federal bench less than a year ago. But several factors suggest that she will not easily approve a settlement reinstating Scheindlin’s ruling.
First, she got a clear signal that the appellate panel disliked Scheindlin’s ruling.
Second, in her prior position as a state Supreme Court justice, she ruled on a case (People v. Ventura) that featured a police procedure similar to stop and frisk. Though she deemed that procedure unlawful, she upheld the right of police to stop and require identification from “a person who is standing in a vestibule of a [housing project] building known for drug activity.”
Most relevant, she noted with approval that the police may “stop and detain a person when the officer has reasonable suspicion that the person is committing … a crime” and “frisk a person for weapons where he reasonably suspects that there is danger of physical injury.”
The stop-and-frisk story is not over. The courts may yet prevent de Blasio from depriving the police of this “basic tool” against crime.
Gerald Walpin served as inspector general of the Corporation for National and Community Service under President George W. Bush. He is a litigating attorney who practices in various courts, including the southern district of New York, and the author of The Supreme Court vs. The Constitution (Significance Press 2013). This article originally appeared on the Manhattan Institute’s City Journal website.
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