Who Will Defend the NYPD?

January 30, 2014

Mayor de Blasio seems to be taking it as a foregone conclusion that he is going to be able to settle the stop, question, and frisk litigation by dropping the appeal. That is the goal of the motion he filed Thursday with the riders of the Second Circuit of the United States Court of Appeals. He announced he wants to settle with the plaintiffs and said he’s prepared to accept a monitor of his police department, a breath-taking concession of authority that he tried to sugar coat by saying it would be limited to three years contingent “on us meeting our obligations.” Commissioner Bratton, who has a keen nose for danger, seemed to sense some room for slippage. Said he: “The quicker we move down this road, the better for all concerned.”

Hmmmm. The Second Circuit may not be in such a rush, at least to judge by the four sentences in its order yesterday. The first sentence says: “The City of New York has filed a motion on consent, seeking remand to the district court for the purpose of exploring a resolution of this case.” The second sentence then refers to several parties who have asked to intervene to defend against the lawsuit if the city drops out. They include the police unions. “IT IS HEREBY ORDERED that the proposed intervenors file a response to this motion by February 7, 2014 at noon.” In other words, the court wants to hear from the parties who might be prepared to carry on the appeal.

The third sentence refers to the existing parties to the suit, that is, the plaintiffs who brought the case and the city that now wants to drop its appeal and settle. Says the Second Circuit: “The parties may reply to the proposed intervenors’ submission by February 14, 2014 at noon.” So the Court appears determined to give all parties and would-be parties a full hearing. The fourth sentence is aimed at Catherine O’Hagan Wolfe, the court’s own clerk. It directs her — and the order goes out over her signature and seal — “to serve the City of New York’s motion upon counsel for the proposed intervenors.” The city hadn’t deigned to do that, and it seems the Court doesn’t want to let things slip.

If and when all these briefs and responses are filed, then the sages who ride the circuit are going to consider them. Maybe they will say that the police unions have no standing to intervene in this case, even though a city that only a few weeks ago was defending its officers to the hilt has turned around on a dime and decided it doesn’t want to defend them. A lot is at stake, though. The good name of the NYPD is at stake. The freedom of the next mayor as well as the current mayor to run the police force as he or she deems fit, this is at stake. Also at stake is millions, maybe tens of millions of dollars in legal fees that the city could have to pay to lawyers who are friends of Mr. de Blasio if the Circuit grants Mr. de Blasio’s motion.

We are not suggesting that the money is the motive for Mr. de Blasio and his allies. We are just saying that, whatever his motives (and we’re prepared to stipulate that they’re idealistic), the money is one of the consequences of settling. It looks to us like the Court is not going to let any of this happen without everyone getting a full and fair hearing, all — as the expression goes — according to Hoyle. That's wise. It’s important that the fullest possible consideration be given to whether a tarnish like this should be laid on New York’s Finest without someone getting the chance to argue the constitutional questions at the appeals level. Who will be permitted to defend the men and women who defend the city?