by Tim Cushing
Lawyers representing the city of New York have filed a request for a stay of Judge Scheindlin’s decision and court order pending appeal. Scheindlin found components of the NYPD’s stop and frisk unconstitutional in her decision and ordered several remedies, including the installation of independent oversight, changes to the UF250 (stop and frisk) form, an overhaul of the stop and frisk program itself and mandatory lapel cameras for police officers.
The six-page filing delivers pretty much the same talking points Bloomberg and Kelly have deployed since day one: stop and frisk lowers the crime rate, minorities will be hurt if it goes away, even the tiniest bit of disruption or oversight will throw 35,000 NYPD officers into complete disarray, etc.
The letter projects a certain confidence that Scheindlin has completely blown this decision. One would think projecting a little contrition would go over better, but experience has shown that Bloomberg (especially) and Kelly aren’t much for contrition.
First, defendants have a substantial likelihood of success on appeal. Defendants contend, inter alia, that: (l) the District Court erred in finding violations under the Fourth Amendment; (2) the District Court erred in finding violations in Floyd under the Fourteenth Amendment; and (3) the District Court erred in finding any actionable widespread pattern or practice, deliberate indifference or causation under Monell v, Dep’t of Soc. Servs., 436 U.S 658 (1978). Finally, the injunctive relief ordered in Floyd, is not narrowly tailored or clear enough to address found wrongs, particularly as it has no discernible end point or standards.to measure success.
So, that’s the opening salvo. From that point on, the arguments for the stay are based on the assumption that the city’s appeal will overturn the decision. A portion of the “irreparable harm” stems from the fact that the NYPD will be forced to train its officers not to violate constitutional rights and, if the decision is reversed, retrain them to go back to violating constitutional rights. It would seem that officers, especially long-term ones, would easily lapse back into the old ways, but that’s the argument.
[N]ot only will defendants be harmed by having to train on what they believe are errors of law, should defendants later prevail on the appeal, the officers will have to be retrained again, undoubtedly leading to severe and possibly irreparable disruption and confusion among the rank and file. Similar issues arise with regard to changes in monitoring, supervision, discipline and changing the UF250 form, as they are premised on the same errors of law.
Obviously, this is an insurmountable hurdle. With a bit more foresight, the city might realize that these issues with the stop and frisk program aren’t just going to go away, even if this decision is overturned. There’s something seriously wrong with the way the program is handled, and the NYPD is still going to be facing a lot of litigation in the forseeable future.
Whatever the expenses of retraining (and possibly “re-retraining” back to the old way), they should be easily outweighed by the department paying out fewer settlements to abused citizens. New York spent over $700 million on settlements in the last year alone, which covered suits claiming negligence, police abuse and property damage. It expects that total to rise to over $800 million per year by 2016. If following the orders results in only a 10% drop in settlements, that gives the city between $70-80 million to work with.