At an inconclusive yet uncomfortably emotional hearing on Friday, a federal judge strongly suggested that he would turn down the request of several families of people who died at the World Trade Center to sift through a million tons of debris at the Fresh Kills landfill in a search for human remains left from the Sept. 11 terrorist attack.

The two-hour hearing, before Judge Alvin K. Hellerstein of Federal District Court in Manhattan, turned on questions of property law, burial rites, constitutionality and what of the deceased actually still remained at Fresh Kills — tissue, bone fragments or even what the judge referred to as some sort of “collective soul.”
The hearing came about because the city has asked Judge Hellerstein to dismiss a lawsuit filed in 2005 by 17 families who claim that the remains of their relatives still lie at Fresh Kills; as many as 1,000 more families have joined the suit in support.

Judge Hellerstein opened the day with a taciturn confession of self-inadequacy, saying he would never achieve a perfect solution in the case and in fact had hoped for a settlement. He praised the city for undertaking the “herculean job of repairing the gaping hole in our society” and said nothing would ever return dead loved ones to their families.

Nonetheless, he said, the case was a matter of law, and he pressed Norman Siegel, a lawyer for the plaintiffs, to explain how the city’s failure — if, indeed, it was one — to remove all human remains from the landfill had violated the United States Constitution.

Mr. Siegel, in essence, made two points: that the city had violated his clients’ “free exercise of religion” by denying them the chance to bury their dead properly, and that city officials had acted with “deliberate indifference” by mingling human remains with debris in an act that “shocks the conscience.”

“The elemental question is,” Mr. Siegel said, “are we prepared to leave hundreds of remains of human victims from 9/11 on top of a garbage dump?”

Although Judge Hellerstein acknowledged the emotional gravity of the moment — “You have a heart-rending claim,” he told Mr. Siegel — he seemed unconvinced that a constitutional violation had occurred. He noted that city officials had already sifted the debris at Fresh Kills with quarter-inch sieves — a degree of smallness he demonstrated by holding up a paper clip and pointing out the distance between its two concentric ovals.
In court papers, the plaintiffs have referred to a letter written in 2003 by Dr. Charles S. Hirsch, the city’s chief medical examiner, who stated he was “virtually certain” that at least some human tissue was mixed in with the dirt at Fresh Kills. That left Judge Hellerstein to decide whether a virtual certainty of at least some tissue was worth the upheaval of as much as 1.8 million tons of landfill debris.
The city gently suggested that it was not, and the first argument presented by its lawyer, James E. Tyrrell Jr., was a delicate one, as Mr. Tyrrell was the first to admit. For good or ill, he said, a plaintiff’s right to claim a body for burial turned on knowing that, in fact, it belonged to a loved one. That was impossible in this case because the remains at Fresh Kills are so small and scattered as to be unidentifiable.

No one seemed to relish being in court to argue such a macabre matter. Many of the plaintiffs sat in back, responding audibly to various arguments. Mr. Tyrrell, in particular, hedged each of his points with a generous nod toward the plaintiffs’ pain.

But it was Judge Hellerstein who seemed most obviously tortured. “I will never be able, no matter how wisely or perfectly I do my job, to answer the needs set up by this case,” he said by way of introduction. He seemed heavy-hearted in acknowledging that justice and the law often part ways.

In the end, he told Mr. Siegel that it would take him a long time to render a decision, but that his prospects for “dressing up his claims in constitutional clothing were not too bright.” What the plaintiffs ought to do, he said, is settle for a memorial at Fresh Kills.

“I’d like to help you achieve that,” he said. “It can be achieved.”