Wall Street Journal
August 13, 2013

Stop-and-Frisk Appeal Is Weeks Away

City Has Vowed to Fight Ruling That Found Police Policy Unconstitutional

By Sean Gardiner, Tamer El-Ghobashy and Michael Howard Saul

Despite New York City's vow to fight a federal court judge's ruling that the New York Police Department's stop-and-frisk policy is racially biased and unconstitutional, any legal challenges to that decision could be weeks or even months off.

Within hours of U.S. District Judge Shira Scheindlin's ruling Monday, city lawyers said they would appeal her appointment of an outside police monitor and will seek a court order to stop any of the monitor's proposed changes to the New York Police Department's stop-and-frisk policy.

Through a spokeswoman, the head of the city's Law Department, Michael Cardozo, declined to comment on the status of the appeal Tuesday.

A city official with knowledge of the case said city appellate lawyers met Tuesday trying to hash out the best strategy for challenging the decision.

That legal battle would entail first applying to Judge Scheindlin to issue a stay to her order. If she turns that request down, as expected, the city would turn to the Second U.S. Circuit Court of Appeals to stay the judge's ruling.

The challenges wouldn't likely occur for at least a few weeks while the lawyers research their options, the official said. Other appellate attorneys say the process could take months.

According to federal law, a ruling of liability against the city is, by itself, not appealable. Neither is just the installation of a monitor.

Instead, the city can only apply to stay, or stop, what is known as an "appealable order," which has to be an action ordered by the court at the monitor's suggestion, according to Judge Alberto Rivas, of Middlesex Superior Court in New Jersey and former monitor over the New Jersey State Police racial profiling case.

Mr. Cardozo said on Monday that the city first will have to sit down with the court monitor as the judge ordered in this case. But, he said, "as soon as the monitor has entered any order that requires us to do something specifically, we will then be seeking a stay from the Second Circuit. I can't predict precisely how long that will take."

Peter Zimroth, the former head of the city's Law Department, who Judge Scheindlin appointed monitor in the NYPD's stop-and-frisk case, didn't return calls seeking comment about his timetable to implement some of the reforms the judge ordered, including starting a pilot program in which police officers are equipped with "body-worn cameras."

Judge Rivas said that in New Jersey it took at least five or six months and many meetings before he worked out with state police and Department of Justice officials the details of "what's going to be measured" and how best to do that.

New Jersey had reached a settlement, known as a consent decree, with the Department of Justice in 2000 after a two-year federal investigation into allegations that the state police were racially profiling individuals in its traffic stops.

"We had some long meetings, we had some heated meetings but we were able to bridge over any differences," Judge Rivas said.

At the same time, he noted that the state of New Jersey agreed to the consent degree. "That's not the case in New York and that's a huge difference," he said.

More than five million people have been stopped and sometimes frisked during Mayor Michael Bloomberg's 12 years in office by police officers who say they suspected criminal activity. More than 80% of those were black or Hispanic and 90% were released without being charged.

Mr. Bloomberg and Police Commissioner Raymond Kelly criticized Judge Scheindlin's ruling Monday, crediting stop-and-frisk with driving down crime. Mr. Cardozo said the city plans to appeal because it believes the judge made "a number of fundamental errors" in her ruling.

For instance, Mr. Cardozo said the law regarding the constitutionality of stops requires that each stop be viewed individually. But he said the judge made her ruling based on statistical assumptions about approximately 4½ million stops, without looking at the circumstances of each stop.

Christopher Dunn, associate legal director of the New York Civil Liberties Union, said appeals courts rarely overturn factual findings but instead look at errors in how the law was applied. In this case, Judge Scheindlin's decision is based heavily on factual findings, he said.

"In the trial court, this was a fight about whether the NYPD in fact was or was not engaged in racial profiling and making unjustified stops, and Judge Scheindlin found that it was, relying almost entirely on the department's own data and on testimony by police officials," he said.

Judge Rivas said that although the New Jersey State Police leadership understood the need to change their practices relatively early in the process, the state police remained under monitorship for nearly a decade because some rank-and-file state troopers resisted the proposed changes.

"Unless you get the hearts and minds of the [NYPD] sergeants on board, it's going to be a long slog," he said.

The New York case is complicated by the fact that the City Council is expected to override Mr. Bloomberg's vetoes of two bills, one that would create an inspector general to monitor the NYPD and another to make it easier for people to sue the department for racial profiling.

Unions representing the city's police say their members are deeply concerned about the proposed changes.

"We're being put in a position where we are constantly proving our innocence, while the rest of society is innocent until proven guilty," said Patrick Lynch, president of the city's largest union, the Patrolmen's Benevolent Association. "It's demoralizing to the police officer. The individual police officers feel that they are under siege."

Ed Mullins, the president of the Sergeants Benevolent Association, said the proposed Inspector General and racial profiling bills will "have a chilling effect on police officers doing their job."

"You become susceptible to lawsuits," he said. "Why would I jeopardize my career, my family and my pension?"

City Council Member Brad Lander, a Brooklyn Democrat and a chief sponsor of both bills, said Tuesday there are enough votes to override the mayor's expected vetoes next week.

"We have a deep belief that it's important and possible for officers to do their jobs effectively and comply with the constitution," Mr. Lander said.

Write to Sean Gardiner at sean.gardiner@wsj.com, Tamer El-Ghobashy at tamer.el-ghobashy@wsj.com and Michael Howard Saul at michael.saul@wsj.com