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.

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

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  • icon
    DannyB (profile), 12 Nov 2013 @ 1:45pm


    New York police seem more anxious to frisk random strangers than even the TSA.

    And that's saying something.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Nov 2013 @ 2:00pm

    New York Welcomes it!

    Still no protests? Have there actually been any, or is there just poor reporting on it?

    America is dead, but this is not so surprising...
    Just need to wait for the rest of the body to finish rotting.

    Glad I do not live in NY.

    reply to this | link to this | view in chronology ]

  • identicon
    S. T. Stone, 12 Nov 2013 @ 2:07pm

    So, when do we get a proper defense of Stop-and-Frisk from the usual Techdirt trolls? After all, they seem to disavow the idea of due process, and S&F fits in with the type of legal system they want to see come to pass in regards to copyright, so…

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Nov 2013 @ 2:14pm

    Seems she really Is biased ..shame on her for actually reading the Constitution..Must have been the We the People part that really made her biased ..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Nov 2013 @ 2:15pm

    There seems to be this theme running from the administration of the White House, through the spying agencies, right on down to the local police that search and seizure should be fine with no court involvement. That any excuse, including one made up is fine and proper, whether or not the excuse has any real facts to it.

    Those who are in authority are riding a very fine line. One which if it pushes the citizenry far enough could come out not to be in their favor at all.

    reply to this | link to this | view in chronology ]

  • identicon
    Drew, 12 Nov 2013 @ 3:03pm


    I walked around NYC for three weeks without being molested by the police. I finally got up the nerve to go ask WTF? To which he replied lol you're white. Now move it along before we show you our shoot first ask later technique.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Nov 2013 @ 7:50pm

    If there was any justice

    The judge in the second appeals court would be the ones removed from power.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2013 @ 5:01am

    If the NYPD were attempting to deter crime they would be conducting their SnF program on Wall Street as that is where most crime is committed in that city.

    reply to this | link to this | view in chronology ]

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