Panel Challenges City on Delay in Seeking Stay in Stop/Frisk

, New York Law Journal

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The New York City Police Department conducts random searches of backpacks and bags at the turnstile entrance to subway lines.

Judge Shira Scheindlin's ruling ordering a monitor to reform New York City Police Department stop-and-frisk practices that she found unconstitutional was attacked by the city as a dangerous judicial overreach Tuesday before the U.S. Court of Appeals for the Second Circuit.

Arguing for a stay of Scheindlin's August ruling just one week before stop-and-frisk opponent Bill de Blasio could be elected as the next mayor of New York City, Celeste Koeleveld of the Law Department said Scheindlin's order of a monitor and her finding that police targeted minorities for stopping and frisking without reasonable suspicion of criminal activity has sowed confusion in the police department and endangered public safety.

"I believe we are challenging legal conclusions that are fundamentally flawed," Koeleveld said during a remarkable two-and-one-half hours of arguments before Second Circuit Judges Jose Cabranes, Barrington Parker Jr. and John Walker.

Koeleveld insisted that the impending mayoral election, and the possibility of changes in police practices imposed from the top down by City Hall and a new legal strategy at the Law Department, shouldn't stop the court from hearing the appeal quickly.

"We all read the papers" about the Nov. 5 election, Parker said. "Are we going to be faced with a situation where your marching orders are going to change?"

"I read the papers too," Koeleveld said. "The problem is, this case is here today and it raises very important issues" about municipal liability, pattern and practice, civil rights litigation and judicial authority.

"We are in a court of law where we have to address these issues head on," she said.

But Darius Charney of the Center for Constitutional Rights, co-counsel for the plaintiffs in Floyd v. City of New York, said the city's own arguments belie its claim that anyone is being harmed by Scheindlin's orders.

The remedial order signed by Scheindlin after she found the NYPD liable for widespread violations of the Fourth and Fourteenth amendments, Charney said, calls for "nothing more than participation in a consultative process" between the police, the plaintiffs, and other stakeholders along with the monitor, former Corporation Counsel Peter Zimroth, who will "develop a set of proposed reforms" for Scheindlin to sign off on.

Walker disagreed, saying the judge's order has real impact and could only be justified on a showing of bad faith by the police. Walker said such broad relief is more suitable to situations where there is entrenched institutional hostility, such as the fight over segregation in the "Deep South" in the days of George Wallace and Orval Faubus.

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