Mayor Michael Bloomberg and police commissioner Raymond Kelly expand public appearances in place of testifying in court
A landmark trial that has picked apart the New York police department's controversial stop-and-frisk policy enters its second month on Monday without a word of testimony from its highest-profile defenders. But that does not mean that mayor Michael Bloomberg and his long-serving police chief Raymond Kelly have gone unheard.
Perhaps sensing that they have nothing to lose, with the judge in the case delivering multiple rulings against them, Bloomberg and Kelly have taken the stand not at the courtroom in lower Manhattan but at press conferences and in rounds of media interviews.
While both have long supported stop-and-frisk, their public defense of the practice has been increasingly pointed as the trial has progressed. Speaking at police headquarters on Tuesday, Bloomberg declared the NYPD was "under attack" and mounted an impassioned 22-minute defense of the department, rejecting the central claims in the ongoing case. The following night, Kelly told ABC News the NYPD is run like a major business and said African Americans were not stopped as much as they might be.
Appearing on a local NY1 news show, Road to City Hall, last month, Kelly spent over half of his near 14-minute interview defending stop-and-frisk. And in a recent Wall Street Journal interview, Kelly suggested the judge in the case, Shira Scheindlin, might be biased in favor of the plaintiffs. "In my view, the judge is very much in their corner and has been all along throughout her career," he said.
It is true that Scheindlin has repeatedly ruled against the city. In 2003, in the precursor to this trial, she ordered the NYPD to maintain a constitutional policy against racial profiling. In the latest case, after rejecting numerous appeals from the city, Scheindlin granted it class-action status last year. In January Scheindlin issued a decision in a related case regarding police stops in private Bronx buildings in which she said the department's practices were "systematically" unconstitutional.
Attorneys for the plaintiffs in the latest case say they have attempted to call Kelly to testify. But the city reportedly said he was too busy and offered recently retired chief Joseph Esposito instead. Esposito testified last month. The mayor has not been called.
That does not mean the city has not attempted to have his words heard in court. When New York state senator Eric Adams testified that Kelly once told him stop-and-frisk is intended to "instill fear" in black and Latino men, an attorney for the city attempted to read from a 2011 affidavit from the commissioner in which he apparently rejected Adams' claims. Judge Scheindlin would not allow it. "If he'd like to come here, he's welcome in this courtroom," Scheindlin said. "If he's not going to be here we're not going to have his statement."
Though their statements will not be read into the record, Kelly and Bloomberg have actively spoken on the issues that are at stake in the trial. The two regularly point to the efficacy of stop-and-frisk, arguing that it has been instrumental to New York City's historic drop in murders. Scheindlin, meanwhile, has repeatedly stated that the ongoing trial does not seek to determine how effective the practice is, but instead how constitutional it is.
The CCR's legal director, Baher Azmy, said Kelly and Bloomberg are seeking to make arguments in public that would not have been admissible in court. "It appears by their agitation and defensiveness that they feel a little bit worried," he said. "I don't think they would be this testy if they were confident about the results."
Stop-and-frisk is the most talked-about law enforcement issue of New York City's intensifying mayoral race, and Kelly has said he would like to see the candidates offer more concrete examples of how to better fight crime in the city. "We need something of substance," he told NY1. "How do you save that young man, that 16- or 17-year-old who's on the corner in the Bronx tonight, from being shot?"
As Kelly spoke that evening, his hypothetical example became a reality when 17-year-old Alphonza Bryant was shot and killed standing in front of a Bronx apartment building, just blocks from where his father was murdered 14 years earlier. Addressing a crowd of senior officers at NYPD headquarters on Tuesday, Bloomberg devoted a large portion of his fiery speech to Bryant's death, arguingt it did not matter to New York's civil liberties groups nor the city's largest newspaper.
"There was not even a mention of his murder in our paper of record, the New York Times," Bloomberg said. "All the news that's fit to print did not include the murder of a 17-year-old Alphonza Bryant. After his murder, there was no outrage from the Center for Constitutional Rights, or the NYCLU," he added.
The NYCLU – the New York Civil Liberties Union – responded with a barrage of tweets directed at the mayor and a statement from executive director Donna Lieberman. "It's a lot easier to trash the NYCLU than to acknowledge the widespread dissatisfaction the community feels with an NYPD that acts like it's above the law and accountable to no one," it read.
Eric E Sterling, president of the Criminal Justice Policy Foundation, and former counsel to the House of Representatives judiciary committee, said the fact that neither Bloomberg or Kelly are testifying is hardly a surprise. "It would draw enormous news attention to the lawsuit," he told the Guardian, adding that it would be viewed as a "tremendous political victory" for the plaintiffs, regardless of the ultimate outcome of the case.
"It's not an uncommon litigation strategy … in the case of a suit against some kind of an institution or bureaucracy, to influence public opinion by making statements about the litigation," Sterling said. For Bloomberg and Kelly, he added, "this is all about politics".
He added: "It's very much the court of public opinion in which they are concerned". Sterling believes the mayor and the commissioner have chosen to challenge the case in the media, in part, because their chances of succeeding in court are slim. "The case against the police is so damning. The evidence, I believe, is quite overwhelming that there is an illegal and unconstitutional pattern of New York City police behavior in these stop-and-frisk cases."