For fans of blind justice few things are as exciting as the drama unfolding in the Second United States Circuit Court of Appeals in the case captioned as Floyd v. New York. It involves the policing practice known as stop-question-and-frisk. This strategy has been pursued by New York’s police commissioner, Raymond Kelly, to make New York the safest big city in the country, if not the world.
One would think this would have brought Mr. Kelly—who has held nearly every rank in the New York Police Department—the Nobel Prize, particularly because the victims of crime in New York are overwhelmingly members of the minority community. Instead, Kelly’s campaign has made him a lightning rod for leftist sentiment, which has now come to a head in the most astonishing fashion.
The case was originally brought in 2008 by an African-American man named David Floyd, who was stopped, questioned, and frisked when he was using a batch of keys to help a tenant in a building his grandmother owned enter the basement apartment. Floyd was the named plaintiff in what became a class action case on behalf of minority New Yorkers who had been stopped, questioned, and frisked, even though—it would turn out—they were doing nothing illegal.
There have been something like five million stops, of which but a small minority—one in eight, by some counts—resulted in charges. On the one hand, there is no doubt that many of those stopped have found it a disagreeable or even humiliating experience. On the other hand, there is no doubt that many New Yorkers are grateful for the breathtaking plunge in crime on Kelly’s watch and are prepared to credit stop-question-and-frisk for at least some of the blessing of peace.
The dispute is over whether the whole program is constitutional. That was the ruling of the United States district judge who took the case, Shira Scheindlin, and heard it without a jury. She is a left-wing lawyer of the first water, and after a trial earlier this year she found that the program violated two of the most famous provisions of the Constitution, the Fourth and Fourteenth Amendments.
The Fourth Amendment prohibits the government from violating the rights of the people to be secure in their persons, houses, papers, and effects from “unreasonable searches and seizures.” It is a hugely important amendment. If the Bill of Rights were the Himalayas, it would be K2 or Annapurna. The Fourteenth Amendment, which was brought into the Constitution after the Civil War, prohibits any state from denying to “any person within its jurisdiction the equal protection of the laws.” Also huge.
Scheindlin reckoned the program was unconstitutional and proceeded to order a complex regime to deal with the violations she’d found. She set up a lawyer to monitor the NYPD. She appointed a panel of left-wing professors to second-guess the cops. She ordered a pilot program in which some cops would have to wear cameras. The cash register started ringing up a legal tab running into many millions. Mayor Bloomberg, to his credit, promptly launched an appeal.
Bloomberg, however, was already a lame duck, and the city was far down the campaign trail for his successor. Over the summer the primary election handed up a likely winner in Warren “Bill” de Blasio, the one candidate who had made opposition to Bloomberg’s legacy and to stop-question-and-frisk the centerpiece of his campaign. De Blasio cheered Judge Scheindlin’s ruling and promised to end stop-question-and-frisk once he took office.
As the summer wore on, doubts began to be heard in the city about whether Bloomberg’s municipal law department was really serious about fighting for the policy. It seemed to be hanging back, filing an appeal but taking a less aggressive stance than it might have, and even filing a proposed schedule that would have extended the case into 2014, when de Blasio would be in a position to order the law department to drop the appeal altogether.
This is how things stood when the appeals panel of the Second Circuit walked into Courtroom 1705 at the Thurgood Marshall United States Courthouse in Foley Square. There wasn’t an empty seat in the place. One far-left group had asked its allies to pack the courtroom, and some members of the overflow crowd were forced to view the proceedings on a video screen in an adjacent room. The lawyers sat between bronze busts of the famed judges Henry Friendly and Billings Learned Hand.
The circuit riders proved to be among the best of America’s appellate bench. They included John Walker Jr., a relative of President George Walker Bush, and Barrington Parker Jr., an African-American and the son of Barrington Parker Sr., who’d been made a district judge by President Nixon and promptly blocked Nixon from implementing certain wage and price controls. In the center was José Cabranes, who had come to Washington from Puerto Rico and had risen to become general counsel of Yale and eventually a towering figure on the Second Circuit.
The lead lawyer for the city, Celeste Koeleveld, had barely started to speak when Cabranes interrupted, warning her that, while she’d have all the time she needed, he intended to ask why the city had been pressing its appeal at a “snail’s pace.” In the fray that ensued, Judge Walker questioned the “total hostility” the lower court judge had displayed toward the police and suggested she was behaving as if the NYPD had exhibited “bad faith and deliberate disregard of rights” reminiscent of the Jim Crow South.
Judge Parker raised the political problem, saying “We all read the newspapers,” and asked the city’s lawyers: “Are we going to be faced with a situation in which your marching orders are going to change?” At one point the court asked whether there was evidence of racism among the police brass. A lawyer for the Center for Constitutional Rights cited a hearsay remark a left-wing state senator had attributed to Commissioner Kelly. The repetition of the allegation, long-since denied by Kelly, brought a gasp from the back of the courtroom.
It was Judge Cabranes who raised what turned out to be the most explosive issue: whether the district judge, Shira Scheindlin, had improperly suggested the original case be filed, and then whether she took it for her own court by improperly classifying it as a case related to others she’d heard. Toward the end of the hearing, a lawyer for Bill de Blasio himself asked the court to take a forward-looking view, given that the case wouldn’t be heard until 2014.
“Unless,” Cabranes interrupted him to say, “the court changes the schedule.”
It took the court less than 48 hours to issue an order that has flabbergasted the city. It stayed Judge Scheindlin’s order of remedies, bringing to a halt the whole claptrap scheme she had set up to second-guess the police department. It removed her from the case altogether, saying she’d violated the judicial code of conduct by displaying, through her public statements in the press, the appearance of partiality, and that she’d abused the related case rule to bring the matter into her court in the first place.
It remanded the case back to the same district but to a different judge, which it said must be chosen by the usual random process. It did so for the sole purpose of implementing the circuit court’s order. The words that stick in my own mind are: “the mandate shall stay with this Court.” In other words, as I read it, the Circuit panel is not letting go of the matter and will tolerate no shenanigans from the lower courts or the next mayor. Judge Scheindlin retained a lawyer and is trying to get the Circuit Court reversed.
The circuit panel made a point of saying that they weren’t yet ruling on merits, meaning the profound Fourth Amendment and Fourteenth Amendment questions that lie at the heart of the case remain unresolved. So this is one of those cases that will bear watching next year, particularly with the election of de Blasio to be the city’s next mayor. The order the Circuit Court issued is stamped on its first page in huge type in red with the word MANDATE. It serves to remind New Yorkers of the majesty and the blindness of American justice and what can happen when an appeals bench gets the impression that either are being trifled with. It’s also a reminder that the statue of blind justice holds a scale in one hand but, in the other, a sword.