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.