Appeals Court Refuses To Overturn Ruling That Ends Stop And Frisk In NYC [Updated]

from the court-stops-motion,-misses-opportunity-to-thoroughly-Fisk-it dept

[Update: New York defense attorney Scott Greenfield sends over some input on this latest twist in the stop and frisk saga. The situation isn't quite as simple as my post made it appear. While time is running out for the city of New York to battle this ruling before de Blasio steps in, it still has options available that could make this a much tougher battle for opponents of the program.

The motion panel denied summary reversal, but that has zero to do with the appeal. It was just an interim ploy. Whether de Blasio will continue the appeal, drop it or settle the case has yet to be seen. It's awkward for de Blasio, as even if he agrees that the Bloomberg policy is dead wrong, he won't want to give up control to an outside monitor.

But by no means is this a done deal on any end. The only thing denied was summary reversal; everything else remains on the table, so to suggest it's all over is not at all correct. There remains a whole lot left in issue and bad things can still happen. Very bad things.

One of those bad things is this:

There is still plenty of time for the city to get its brief in under Cardozo/Bloomberg arguing for reversal. This will really put the screws to de Blasio, who would not only have to withdraw the appeal, but do so after the city has submitted and the brief is out there for the world to see.

So, this has only deflected one of the many legal arrows Bloomberg's counsel can fire off before he exits office. Bloomberg has defended stop-and-frisk bitterly and obstinately over the years, so there's no reason to believe more last-ditch efforts aren't being made.]

It looks as though time may run out on Mayor Bloomberg and his fight against Judge Scheindlin's stop and frisk decision. Even though the Second Circuit Court (questionably) removed Scheindlin from the case for "appearances of bias and impropriety," it has not allowed New York City to use that as leverage to have her ruling tossed.

A federal appeals panel on Friday denied a request by lawyers for New York that it overturn a judge’s sweeping ruling on the Police Department’s stop-and-frisk practices, all but ending the Bloomberg administration’s ability to legally challenge the ruling.

For the time being, Scheindlin's court-ordered remedies (body cameras, installation of independent oversight) are still on hold while the court waits to hear the city's appeal. The city still has the option to re-file this motion once the appeals process has run its course, but by that time, Bill de Blasio will be the new mayor and he has previously stated his opposition to the NYPD's stop-and-frisk program.

Lis Smith, a spokeswoman for Mr. de Blasio, said the mayor-elect had “been clear: We must move forward on making fundamental reforms to stop-and-frisk. By ending the overuse of this practice, we will make New York safer and begin to repair the relationships between community and police.”

Mayor Bloomberg's intense defense of the questionable program may turn out to be wasted energy. De Blasio could very well decide Scheindlin's ruling is correct and drop the city's appeals.

The vast amount of evidence, much of it collected by the NYPD itself, shows the program resulted in hundreds of thousands of stops of minorities over the last decade, but not much in the way of crime fighting. Despite the constant arguments that it's responsible for the city's declining crime rates, the stop-and-frisk program resulted in very few convictions or confiscated weapons. (This visualization shows just how inefficient the program is at finding guns.)

Considering these two factors, the program looks very much like a form of intimidation -- something that may lead to reduced crime, but that's hardly a solid indicator (or a justification) of its supposed usefulness towards that stated end. All sorts of efforts may lead to reduced crime (warrantless searches, a camera in every house) but the ends don't justify the unconstitutional means, something Bloomberg and police chief Ray Kelly could never seem to wrap their heads around.

Filed Under: bill de blasio, mike bloomberg, nyc, shira scheindlin, stop and frisk

Appeals Court Rejects Judge Scheindlin's Request To Refute Allegations Of Partiality And Impropriety

from the this,-unfortunately,-WAS-expected dept

Judge Scheindlin's motion asking the Second Circuit Court of Appeals to withdraw its orders until she's been given a chance to defend herself against its allegations of impropriety and bias has been declined.

As unusual as the court's decision to remove her from the controversial case was, Scheindlin's motion was even more so. The Second Circuit's decision doesn't spend much time revisiting its own unusual actions (that's handled in a separate opinion), and instead simply notes that Scheindlin really doesn't have much, if anything, in the way of seeking recourse for her sudden removal.

A brief revisiting of the events leading to Scheindlin's removal sets the stage:

After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.

The problem with this recitation is that it assumes the basis for the court's removal of Scheindlin is solid. Obviously, the court that removed her would believe so, but that's a tough sell elsewhere -- especially when it relies so heavily on three interviews (linked to in my previous post) that don't seem to give the same impression to other readers that it did to these three judges. As for the matter of nudging a plaintiff towards filing a case as related (the Floyd v. New York case), that claim relies on a couple of quotes from a lengthy proceeding and her instruction to mark this case as "related" so it would route to her is something other judges have stated they would have done in the same position. Adding it all up, the entity displaying the most impartiality seems to be the Second Circuit Court itself.

Having decided her removal was merited, the court moves on to why it won't be entertaining any arguments otherwise. Very simply, there's no procedural basis for either of the motions filed on her behalf -- either representing herself or having her legal reps appear as amicus curiae. (Yes. Her legal team did that as well.)

We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one.

In other words, Scheindlin should have recused herself at some point due to an appearance of impropriety or partiality that even the Second Circuit court has "expressly made no finding" in terms of the merits of those claims. And since she failed to do so at the merest hint of this "appearance," the circuit court did it for her.

Further arguments against Scheindlin's motion fall along the lines of "This sucks for you subjectively, but that subjective suckage isn't reason enough to generate a bunch of new precedents for these situations. Try not to take it personally."

We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.

To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.

While I disagree with the court's assessment (which it continues to assert is not an assessment) of Scheindlin's bias, I really can't argue with its refusal to allow Scheindlin to defend herself against the allegations it repeatedly claims it never raised. The underlying basis that a presiding judge has no legal interest in the outcome of cases, and therefore suffers no legal injury when booted off cases, is a good baseline to uphold. Anyone concerned about "activist judges" should be pleased to see that Rule 21 (the Rule applied to remove Scheindlin) doesn't provide forcibly "recused" judges an avenue to argue their way back into a case they likely shouldn't be handling. This court's decision to boot Scheindlin may have a weak basis, but allowing this novel form of redress to get its foot in the door will only lead to further regrettable activity down the road.

This isn't to say I agree with the decision to remove Scheindlin -- just that I agree with the reasoning behind the denial of her motion. Scheindlin is correct in her assessment that she will suffer reputational damage from the circuit court's actions, and it would be great to see some avenue of recourse opened up for her, but an unprecedented en banc hearing (or her lawyers' somewhat bizarre "appearance as amicus curiae") isn't the right course to take -- not if we don't want every Rule 21 removal to devolve into judicial "naked mudwrestling."

The small positive aspect of this rejection is that the court claims it's playing it safe by removing Scheindlin at this merest appearance of partiality. If so -- if its assertions that it "makes no findings" as to her alleged bias and impropriety are true -- then any attempts to get the court to reverse the decision by using this removal as leverage will be ignored, and the appeals will simply be considered on their legal/constitutional merits alone. If not -- if the court has allowed its forced recusal to color its perception of Scheindlin's decision -- then this case will be booted back to the district court for reconsideration -- or overturned completely -- in record time.

Filed Under: impartial, judges, nyc, shira scheindlin, stop and frisk

NYPD Unions, City Counsel Seek To Secure Bloomberg's Stop-And-Frisk Legacy Ahead Of New Mayor Taking Office

from the we-want-to-keep-our-wrong-the-way-it-is! dept

It's been less than two weeks since the Second Circuit Appeals Court issued a stay on Judge Scheindlin's decision finding elements of the NYPD's stop-and-frisk program unconstitutional and, very oddly and with little evidence, kicked the judge off the case for appearances of "bias" and "impropriety."

What prompted the appeals court to remove Scheindlin remains a mystery. The information supplied in that decision's footnotes hardly indicate any impropriety or bias on Scheindlin's part. Scheindlin's press release points out two things:

1.) the Daniels case in which she allegedly showed an "appearance of impropriety" by suggesting a plaintiff file a case (Floyd v. New York -- the stop and frisk case under discussion) as "related" in order for it to be accepted by her court was done to avoid violating the protective order in Daniels -- something the plaintiff's attempt to bring contempt proceedings would have done. By marking it as "related," the plaintiff could pursue the city without violating the protective order.

2.) the articles in which she allegedly showed bias against the NYPD actually showed nothing of the sort. Certain quotes may have been framed by the writers to indicate this, but Scheindlin provided the interviews with the understanding that she would not discuss the pending stop-and-frisk case.

Another federal judge, Richard Kopf, called it a "cheap shot."

The Second Circuit's spontaneous decision, apparently without briefing and coming out of the blue, was factually predicated upon a "relatedness" question mentioned in the record before the Court of Appeals and in the footnoted NYT article referred to by the Circuit. But, if that was really the reason for the trial judge's removal, the decision was both wrong, and, worse, unnecessary.

Scott Greenfield goes even further:

Let's get real here: Judge Scheindlin is the government's worst nightmare. She gives the defense, the accused, the black, the Hispanic, a fair shake. She has demonstrated throughout her career that she will not let agents or assistants roll over the Constitution. They despise her for not being a team player, and dread a case getting sent to her courtroom.

As for Local Rule 13, the related case rule, she did nothing that isn't done daily. Worse yet, most of the time the related case rule works to the government's favor, as judges who sign search and wiretap warrants get the cases when the takedown comes, making it essentially impossible to obtain neutral review of their grant of the warrants. The government survives on this ploy, and we all know it. This isn't about the Circuit panel beating up on the local rule.

The discussion as to whether the city (meaning its lawyers, the NYPD's legal counsel and Mayor Bloomberg) was able to bring enough heat to push Scheindlin out is ongoing. Keep in mind that the "improprieties" of Davis case -- the appeals court's justification for Scheindlin's removal -- occurred in 2007. [Full relevant conversation embedded below.] It's been nearly six years since and no questions have been raised about Scheindlin's judicial propriety until now.

Does someone in New York have enough influence to nudge a federal appeals court in a certain direction? We'd all like to believe federal courts can't be swayed by local interests, but there's definitely a lots of pressure being exerted in hopes of overturning Scheindlin's decision.

First and foremost, newly elected mayor Bill de Blasio hasn't been shy about his opposition to stop-and-frisk. As the new mayor, he certainly has the power to end the stop-and-frisk program as well as rescind the city's appeal of the ruling. Or at least he could have until the Second Circuit froze everything in place pending rewritten appeals, some of which have already made their way to the court.

The city's police unions have filed a request to be allowed to continue fighting Scheindlin's decision even if de Blasio drops the appeal. The arguments are familiar and weak: change of any kind with disrupt the police force irreparably.

"What we want to do is to make sure that the reforms that were recommended by the last court do not go into place," PBA president Patrick Lynch said. "This court appeal must go forward. We want to make sure the police officers' opinions are heard in the court."

The unions said the rulings would unfairly taint the integrity of the police force and re-write rules governing officer conduct.

"This affects how we do our job, it protects our contract and labor rights and it affects the responsibilities that we have on a regular basis on the street," Lynch said.

If Lynch is truly concerned about the decision "tainting" the "integrity of the police force," he's several hundred million dollars worth of city settlements too late. "Re-writing" these rules would simply make them compliant with the Constitution, something the NYPD should have been safeguarding all along, rather than just when forced to by lawsuits.

The city's counsel, Michael Cardozo, has done the unions one better: he's asking for the decision to be vacated entirely. Cardozo's motion leverages the appeals court's "appearances of impropriety and bias" into full-blown, factually baseless claims that Scheindlin is, and always has been, a hater of all things cop- and city-related.

In the filing on Saturday, Michael A. Cardozo, the corporation counsel, said that Judge Scheindlin's decisions "continue, unfairly and improperly, to cloud the public's perception of the N.Y.P.D."

"The district court's orders lend credence to the notion that the N.Y.P.D. unfairly targets minorities for stops and frisks," Mr. Cardozo wrote, "undermining its ability to carry out its mission effectively."

He also made reference to Judge Scheindlin's findings that in stopping and frisking people, the department had violated the Constitution and resorted to a "policy of indirect racial profiling."

"Wrongly labeling the N.Y.P.D. — and the City — a racial profiling entity and flouter of the Fourth Amendment should be sufficient injustice to vacate the Orders," Mr. Cardozo wrote.

What Cardozo is arguing runs counter to the statistics collected by the NYPD itself on stop-and-frisk. It does target minorities unfairly and these stops frequently go beyond the legal concept of the Terry stop, doing away with reasonable suspicion in favor of a checklist that could be filled out post facto to attribute suspicion to such vagaries as "furtive movement" or "actions indicative of casing."

This is a last-minute push by Bloomberg's administration to control the future and leave de Blasio facing an uphill battle against a police force openly contemptuous of any attempts to control it. As ugly as that is, it's even worse that Bloomberg apparently needs to have this last win -- and last word -- before he turns over the reins to his successor.

Scheindlin has also weighed in, asking through her counsel for the appeals court to withdraw its order until such point that her alleged wrongdoing can be discussed "at an appropriate point in the proceedings," rather than giving Floyd v. New York the dubious honor of being the host of a judicial "naked mudwrestling match."

At this point, everything is up in the air, but its apparent the Bloomberg administration and "his" police department are unwilling to make even the smallest change to current practices, despite racking up millions of dollars in settlements every year and a growing number of people unwilling to cede more of their civil liberties, no matter how "effective" the unconstitutional program is.

Filed Under: michael bloomberg, nyc, nypd, shira scheindlin, stop and frisk

Appeals Court Puts A Hold On NYC Stop And Frisk Ruling; Boots Judge From Case For 'Appearance Of Bias'

from the didn't-see-that-one-coming dept

In a rather surprising decision, the Second Circuit Court of Appeals has blocked Judge Scheindlin's stop and frisk ruling which found portions of the program unconstitutional and ordered the addition of independent oversight and the deployment of body cameras by certain NYPD precincts.

The city immediately requested a stay pending appeal, stating (among other things), that following the ruling would place undue burden on the NYPD to comply. Somewhat hilariously, the city argued that training its cops to behave in a more constitutional fashion would be incredibly expensive and ultimately counterproductive if the decision was overturned (as it felt it would). Judge Scheindlin denied this request.

Scheindlin's decision hasn't been overturned but it has been kicked back to the district court and a stay has been granted. However, Scheindlin herself won't be handling any further deliberations. The appeals court has kicked the judge off the case, claiming impropriety and a "display of bias" on her part.

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

The footnotes shed additional light on the court's claims.

In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.”

She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month.

The second footnote points to three articles that appeared in May of 2013 in which the judge responded to various criticisms of her court. Scheindlin's comments in the three articles listed (here, here and here) don't seem to cross any lines, but the court may be referencing something Bloomberg's legal team assembled as an indication of her alleged bias against the NYPD. From AP's article:

The AP interview came after a New York Daily News article revealed that the staff of Mayor Michael Bloomberg had reviewed her record to show that 60 percent of her 15 written "search-and-seizure" rulings since she took the bench in 1994 had gone against law enforcement.

As it stands now, the case sits in the Southern District Court of New York awaiting the circuit court's decision on the city's appeal. A randomly chosen judge will handle the case going forward, which at the moment involves nothing more than enforcing the stay.

This isn't promising news for anyone hoping to see stop-and-frisk curbed. While the appeals court states that removing Scheindlin has no bearing on its view of the merits of the decision or the city's appeal, it does seem to indicate that Bloomberg's legal team have an easier battle ahead of them, especially when their amended appeal will have Scheindlin's "appearance of bias" to use.

Filed Under: appeal, nyc, shira scheindlin, stay, stop and frisk

Federal Judge: NYC Stop And Frisk Violates The 4th Amendment

from the yeah,-no-kidding dept

For anyone who might not know already, New York City's infamous stop and frisk program is the completely useless policy of the police department to go around randomly molesting anyone they deem to be suspicious, or more correctly described as brown-skinned. It appears that everyone who isn't a member of the NYPD or the current mayor of New York hates this program as much as I do, including AG Eric Holder and the NY City Council. Still, that didn't keep Chuck Schumer from trying to export this interracial softcore porn policy to the federal level by recommending Police Chief Ray Kelly as the head of the Department of Homeland Security. Kelly's resume, however, may take a bit of a hit.

That's because a federal judge recently declared that the stop and frisk program violated tens of thousands of people's constitutional rights, which is the kind of thing that most folks frown on.

In a decision issued on Monday, the judge, Shira A. Scheindlin, ruled that police officers have for years been systematically stopping innocent people in the street without any objective reason to suspect them of wrongdoing. Officers often frisked these people, usually young minority men, for weapons or searched their pockets for contraband, like drugs, before letting them go, according to the 195-page decision.

These stop-and-frisk episodes, which soared in number over the last decade as crime continued to decline, demonstrated a widespread disregard for the Fourth Amendment, which protects against unreasonable searches and seizures by the government, according to the ruling. It also found violations with the 14th Amendment.

Now, it's worth noting that Scheindlin didn't order that the program be stopped immediately or set a time and date for Mayor Bloomberg's lobotomy, which I found disappointing, but instead has appointed an outside legal counsel to oversee the police department and ensure that any random stopping and frisking of citizens is done constitutionally. That means no stops without reasonable suspicion. The problem, however, has been how police officers thus far have fudged their own reports on why they were stopping people.

While the Supreme Court has long recognized the right of police officers to briefly stop and investigate people who are behaving suspiciously, Judge Scheindlin found that the New York police had overstepped that authority. She found that officers were too quick to deem as suspicious behavior that was perfectly innocent, in effect watering down the legal standard required for a stop.

Obviously no outside legal overseer is going to be able to witness any sizable number of these stops, meaning there is a high likelihood that officers will continue to manufacture suspicion that is unfounded. In addition, it's well known that police officers consider themselves members of a fraternal organization, with all of the implications such a membership carries with it. How accurate a picture this outside counsel will get of these stops moving forward is an open question with a likely problematic answer.

That's why, while we should all be pleased that Judge Scheindlin ruled against stop and frisk, I think it would have been far better to scrap it entirely and make police play by the rules that are already prescribed by our constitution.

Filed Under: 4th amendment, crime, discriminatory, michael bloomberg, nyc, nypd, privacy, ray kelly, search, shira scheindlin, stop and frisk