Stop & frisk: Why the city must appeal

Judge Shira Scheindlen’s alarming ruling on the NYPD’s use of stop, frisk and question could cause a great deal of trouble even for those who support it, especially the mayoral candidates who are leading in the polls.

Many of the would-be mayors have indicated that, should they take the reins of city government, they’ll withdraw any appeal of the decision that the Bloomberg team has filed. This will leave a lot of people unhappy — and a number of issues unresolved.

One concern of critics is that the evidence presented by the plaintiffs was insufficient to justify so sweeping a decision, particularly since the plaintiffs refused to allow a jury to decide the issue.

The city lawyers argued that police stops of blacks and Hispanics simply reflected descriptions provided by victims crime reports, but the judge ruled that the appropriate measure is the percentage of blacks and Hispanics in the population. Hmm: Not so long ago, a perennial complaint of minority leaders was that police gave scant attention to black-on-black crime, and instead devoted their resources to protecting white areas. Now the police may have to give a pass to some suspects lest they exceed their racial quota for questioning.

While she affirmed that stop-and-frisk was lawful, the judge set so many restrictions on its use that it will make it almost impossible to carry it out. One notion is that it could be salvaged by using more experienced officers to conduct stops. Yet some mayoral candidates have proclaimed they’ll add several thousand rookies to the force; are we going to only use them for parade duty, not crime-fighting?

Another idea is that all will be well if cops are filmed. Defense lawyers must be having a good laugh over that one. Defendants will claim that the camera was turned off, didn’t record what actually happened or the tape was edited. We already hear the same allegations about taped confessions.

There are other reasons the city should appeal. To put it simply, lower-court decisions are not infallible. Recently, the Circuit Court ruled against a District Court Judge Nicholas Garaufis, who’d been hearing a civil suit against the Fire Department. The higher court even went so far as to re-assign key parts of the case to another judge because it found his conduct of the case had raised serous concerns about his impartiality.

If the lower court decision is correct, why should anyone object to a review of it by a higher court? If Scheindlin’s decision is overturned, the city’s crime-fighting program will be saved. If not, we’ll have to accept the findings.

If a new mayor aborts the current administration’s effort to have its day in court, criticism of Scheindlin’s ruling and opposition to its implementation will remain red-hot. It will also signal that the city’s litigation decision will now be conducted according to political considerations, not legal ones.

Finally, much is at stake, not only in New York but nationally regarding the way police departments operate. There are too many questions about the ruling on stop and frisk not to present them to a higher forum.

So let the case go forward and put these issues to the test.

Thomas A. Reppetto is the former president of the Citizens Crime Commission of New York City and author of “American Police, 1945-2012.”

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