Let Stop-and-Frisk Reform Move Forward

NEW YORK, NY - AUGUST 12: People walk by a New York City police officer in Times Square on August 12, 2013 in New York City.
NEW YORK, NY - AUGUST 12: People walk by a New York City police officer in Times Square on August 12, 2013 in New York City. The controversial policy employed by the New York Police Department (NYPD) in high crime neighborhoods known as stop and frisk, has been given a severe rebuke by a federal judge on Monday. U.S. District Court Judge Shira Scheindlin has appointed an independent monitor to oversee changes to the NYPD's stop and frisk tactic's after finding that it intentionally discriminates based on race. Both New York City Mayor Michael Bloomberg and New York City Police Commissioner Raymond Kelly. (Photo by Spencer Platt/Getty Images)

This week, three judges on the U.S. Court of Appeals for the Second Circuit, Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., are once again hearing oral argument in the long-running legal battle over the New York Police Department's stop-and-frisk practices. With New York City voters having delivered a decisive mandate for stop-and-frisk reform in last year's mayoral election, it is time for the Second Circuit to permit the reform process to move forward without any further delay.

Many New Yorkers may be surprised to learn that stop-and-frisk reform remains bogged down in appellate litigation at all. Only weeks after taking office, Mayor Bill de Blasio and NYPD Commissioner William Bratton settled the stop-and-frisk lawsuits and agreed to follow the reform process initiated last year by U.S. District Judge Shira A. Scheindlin, who concluded, after a two month trial, that the NYPD's practices involved unconstitutional racial profiling. The settlement was approved by U.S. District Judge Analisa Torres in July, and the de Blasio administration immediately took steps to withdraw the City's appeal, which was filed during the waning days of Michael Bloomberg's tenure as mayor.

However, New York's police unions fervently disagree with the decision of the mayor and the police commissioner to settle the litigation. In an attempt to undo this resolution, the unions -- which only showed interest in getting directly involved in the lawsuits after Judge Scheindlin issued her decisions -- have belatedly sought to pursue the City's appeal on their own.

Appropriately, Judge Torres declined to permit this "wait-and-see" maneuver, concluding in a carefully-reasoned, 108-page opinion that the unions' attempt to intervene came far too late. She also concluded that the unions lacked any legally protectable interests that were sufficiently distinct from the City's own interests to warrant their intervention.

Judge Torres also emphasized that the unions lacked standing to pursue an appeal when the City itself had now declined to do so. That ruling finds support in the Supreme Court's 2013 decision in Hollingsworth v. Perry, which turned away a similar effort by private supporters of California's Proposition 8, which prohibited same-sex marriage, to intervene to defend the proposition's constitutionality on appeal after California officials declined to appeal a lower court decision invalidating the proposition.

The interests of New York's residents would not be served by putting more roadblocks in the way of the stop-and-frisk reform process. As Judge Torres correctly observed, the unions "seek an appeal the City no longer wants to pursue in order to vindicate a policy the City no longer wants to implement."

By attempting to undo the stop-and-frisk settlement, the unions also seek to undo the implications of last year's mayoral election, for in a real sense, the stop-and-frisk program itself was on the ballot when voters went to the polls. In its final years, the Bloomberg administration faced steadily mounting criticism over a variety of policing practices, including its stop-and-frisk program. By 2012, polls indicated that most New Yorkers disapproved of the NYPD's implementation of its stop-and-frisk program.

When de Blasio announced his mayoral candidacy, his vow to overhaul what he described as a "broken stop-and-frisk policy" became a central part of his platform. Other candidates followed suit with their own criticisms and reform proposals, and stop-and-frisk reform quickly became a key issue in the Democratic primary campaign.

De Blasio strongly embraced Judge Scheindlin's decisions when they were issued, and pledged to drop the City's appeal if elected -- a position that contributed to his decisive victory in the primary election. By contrast, his Republican opponent, Joe Lhota, sharply criticized the judge's rulings and vigorously defended the Bloomberg administration's stop-and-frisk program.

The general election therefore presented voters with a stark choice concerning the post-Bloomberg direction of policing in New York City. Faced with that choice, voters handed de Blasio the largest margin of victory for a non-incumbent candidate in the City's history. Exit polls showed that a solid majority of voters agreed with de Blasio's position that the NYPD's stop and frisk practices had become excessive.

The appellate judges should respect the political choices of New York City voters by permitting the mayor to withdraw the City's appeal and implement the resolution that he has negotiated. No one should be under any illusions that the road ahead under that settlement will be an easy or straightforward one, even under the best of circumstances. But after years of litigation -- and a landslide election that handed de Blasio a clear mandate to engage in that reform process -- it is time to allow the City and its residents to turn the page.

Anil Kalhan is a law professor at Drexel University. He is the author, most recently, of "Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances," in the forthcoming issue of the Georgetown Journal of Legal Ethics.