Circuit Rebuffs Scheindlin on Stop/Frisk

, New York Law Journal

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New York police conduct a stop and frisk
New York police conduct a stop and frisk in 2009.

Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.

The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York, 13-3088, and it stayed pending appeal Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.

Two days after oral argument on whether to stay Scheindlin's appointment of monitor Peter Zimroth, a partner at Arnold & Porter, to help remedy police violations of the Fourth and Fourteenth Amendments, the Second Circuit said Scheindlin (See Profile) presented the appearance of partiality both in how she came to preside over the Floyd case in the first place and in interviews she gave to reporters.

Judges Jose Cabranes (See Profile), Barrington Parker (See Profile) and John Walker (See Profile), in a three-page order, stayed Scheindlin's Aug. 12 liability opinion in Floyd, where she found a top-down police department practice of making hundreds of thousands of stops without reasonable suspicion of criminal activity, and that blacks and Hispanics were targets of those stops (NYLJ, Aug. 13).

The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx (NYLJ, Jan. 9).

Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon. In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year.

On Tuesday, the judges were sitting as a motions panel hearing arguments on the Law Department's application for a stay of the judge's rulings pending appeal. Arrguing the case were Celeste Koeleveld of the Law Department, lead plaintiffs' lawyer Darius Charney of the Center for Constitutional Rights as well as counsel in Ligon and a number of amici.

Thursday, the panel assigned itself to hear the case on the merits, citing "judicial economy."

Despite the critical tone of questions and statements Cabranes and Walker made Tuesday over the scope of Scheindlin's remedial order, the circuit stated yesterday, "we intimate no view on the substance or merits" of the appeals.

The Center for Constitutional Rights issued a statement saying its lawyers were "dismayed that the Court of Appeals saw fit to delay the long-overdue process to remedy the NYPD's unconstitutional stop-and-frisk practices, and we are shocked that they cast aspersions on one of the most respected members of the federal judiciary and reassigned the case."

What's being said

  • Kay

    Of course the plaintiffs' lawyers are disappointed by these orders. They stood to make millions from Judge Scheindlin, as did Scheindlin's hand-picked "monitor" and other chosen ones who would profit handsomely from a years-long takeover of the NYPD by Scheindlin. But instead of just expressing disappointment, the plaintiffs' lawyers resorted to surprisingly acerbic hyperbole, accusing the Circuit judges of improperly casting "aspersions" on Scheindlin, notwithstanding that Scheindlin's judicial code violations would be plain to a first year law student. Adherence to that code is essential to public confidence in the integrity and impartiality of the federal courts, and to both lawyers' and litigants' need to believe they've been given a fair shake before a judge. Going on a public tear against the Second Circuit judges for doing their duty is unbecoming of counsel - and not smart.

  • DSK

    Sounds like reverse Judge shopping...

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