One Police Plaza

Stop and Frisk Hokus Pokus

November 4, 2013

The way the city’s media has described it, you might believe Ray Kelly was the big winner in the Stop and Frisk sweepstakes after the Second Circuit Court of Appeals removed federal judge Shira Scheindlin from the case.

Not so fast, readers.

True, Kelly sure sounded like a winner.

The city’s police commissioner for the past 12 years described Scheindlin’s findings on Stop and Frisk as “grossly unfair” and said they “unfairly blemished” the NYPD for “sheer political purposes.” Then he said, “Maybe this [the Appeals Court decision] clears up some of that.”

Say what you will about Kelly — and God knows, NYPD Confidential has said plenty — he is a keeper, a true force of nature.

At least for the moment, he appears to be standing taller than ever. Certainly taller than last Tuesday when the privileged boys and girls of Brown University heckled him off the stage over Stop and Frisk.

But in fact the Appeals Court hasn’t cleared up anything.

Yes, they removed Judge Scheindlin from the case. But the Court chose not to criticize her findings — that the NYPD under Kelly engaged in racial discrimination by violating the constitutional rights of black and Latino men.

Nor did they criticize her remedy: a federal police monitor to supervise the department.

Rather, the Appeals Court put the remedy — the monitor — on hold, pending the city’s appeal of her findings.

Mayor Bloomberg also sounded like a winner, albeit less of one than Kelly.

Revealing that he knows as little about the judicial system as he does about the police department, Mayor Mike pronounced himself “very satisfied,” with the Appeals Court’s decision. He added that the decision indicated a “high probability” that the city’s appeal of Scheindlin’s ruling would succeed.

In fact, the Appeals Court’s decision indicated no such thing. More importantly, the city’s presumed next mayor, Bill de Blasio, said last week that he would withdraw the city’s appeal.

Republican Mayoral Candidate Joe Lhota also sounded like a winner.

Lhota, who has praised both Kelly and the NYPD’s Stop and Frisk policy during his campaign, said that the Appeals Court’s decision meant that “the entire core” of de Blasio’s campaign collapsed.

Lhota may or may not believe that. If he does, he may have forgotten Bloomberg’s third-term run around the Democratic process, which was also at the core of de Blasio’s primary campaign.

Moreover, unless Lhota pulls off a miracle [Polls show him some 40 percentage points behind de Blasio] nobody will care or even remember anything he said.

Lhota’s chief backer, former mayor Rudy Giuliani, sounded even more like a winner than Lhota.

Like Kelly, Giuliani is a force of nature. Like Lhota, he has praised both the NYPD’s Stop and Frisk policy and Kelly, even though Giuliani fired him when Giuliani became mayor in 1994 and replaced him with Bill Bratton. Kelly never forgave either of them and spent the Bratton years, sniping from the sidelines, trying to reshape his legacy.

Giuliani actually called on de Blasio to apologize to the NYPD for seconding Scheindlin’s finding that Stop and Frisk was, in effect, a racist policy.

Apologize? That’s rich, coming from a mayor who never apologized to anyone for any of the cruel and evil things he did to people — starting with his own family.

De Blasio’s response should settle Rudy down for a while. Said de Blasio: “I’m not looking to him for advice on police-community relations.”

Of course, the uncontested loser in the Stop and Frisk sweepstakes is Judge Scheindlin. What can be more embarrassing than being booted from a high-profile case over issues that were never raised during the litigation?

But that’s what happened. In their appeal of her Stop and Frisk finding, city lawyers never called for her removal.

Nor did they raise the issue of improperly steering the case to herself — which the three Appellate judges cited as a reason for removing her.

No matter how you slice, splice or dice it, those three big boys on the bench made it personal. They don’t like the lady.

Now here is where things becomes tricky.

Let’s start with De Blasio’s statement after the Appeals Court decision that, as mayor, he will withdraw the city’s appeal of Scheindlin’s ruling.

Withdrawing the city’s appeal means that Scheindlin’s Stop and Frisk ruling stands.

Ditto her call for a police monitor.

Her ruling will become the final word in the case,

Most likely, de Blasio will settle with the plaintiffs — those black men who filed the original lawsuit before Scheindlin — and begin implementing changes to Stop and Frisk on his own.

Those changes might avoid a police monitor.

Already, the number of stop and frisks have declined. Those numbers, which increased dramatically since Kelly returned as commissioner in 2002, rose to a high of 684,724 in 2011 but fell to 533,042 in 2012, a decrease of 22 per cent.

Why the decline? Kelly will never admit it but he obviously felt pressure as more and more people protested his Stop and Frisk policy and the threat of the lawsuit before Scheindlin loomed.

And, guess what? Although the number of stops fell dramatically, the number of murders and shootings also fell.

Meanwhile, the case has been reassigned to Judge Analisa Torres. A graduate of Harvard and Columbia Law School who was nominated for the federal bench by President Obama and confirmed by the Senate this past April, Torres, like Scheindlin, has been critical of the NYPD’s use of stop-and-frisk in the past. Her job will be to supervise Scheindlin’s ruling.

History will remember that Scheindlin’s being booted from the case was less significant than her ruling: that the department under Kelly engaged in intentional racial discrimination.

For Kelly, the Court of Appeals decision becomes the ultimate Pyrrhic victory.

What remains unclear is whether the Appeals Court’s decision helps Bill Bratton or Phil Banks to the inside track as Kelly’s successor.

The key issue would seem to be whether, as mayor, de Blasio wants to run the department from City Hall through the more pliable Banks. Or whether he feels he needs someone of Bratton’s stature to counter Kelly, who, if history is a guide, will be sniping from the sidelines, trying again to reshape his legacy.

MORE TIME WITH BERNIE. Bernard Bailey Kerik celebrated his release from federal prison with a coming out interview on the Today Show last week. New York City’s 40th police commissioner took the high ground and spoke about the need for prison reform.

Meanwhile, Bernie’s secret lady [See NYPD Confidential, Aug. 26, 2013], who visited him regularly while he was in stir but whom Kerik jilted upon his release, posted four letters on her website that Kerik purportedly wrote to her while he was incarcerated.

“I posted the letters because he [Kerik] called me a liar,” wrote the lady in an email, asking that her name not be revealed. “He was implying I was a ‘crazy, obsessed stalker’ who wouldn’t let go. Very hurtful. I want people to know he hasn’t really changed. He needs to make money. I suppose lip service to the cause of prison reform will keep the money rolling in. So be it. At least he’ll have less time to obsess on me…”

Kerik did not return a call to his cell phone.

Readers can log on to www.doingtimewithbernie.com and judge for themselves where Kerik’s interest lies. A warning: Adults only.

Edited by Donald Forst