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New York Daily News


What Scheindlin Hath Wrought

November 03, 2013

By Heather Mac Donald

The judge’s bad behavior in stop-and-frisk cases has set the city back. Now it must be decisively overturned.

A panel of the U.S. Court of Appeals for the Second Circuit has issued a humiliating rebuke to U.S. District Court Judge Shira Scheindlin for her efforts to control the New York Police Department. Since August, Scheindlin has installed over the NYPD a federal monitor, a “community facilitator” and a panel of left-wing law professors, all reporting to her, to implement her August ruling that the department has a deliberate policy of illegally stopping and questioning black and Hispanic New Yorkers.

That ruling was bad enough — permeated by Scheindlin’s ignorance of policing and crime, it credulously accepted the most specious allegations against the NYPD that the Center for Constitutional Rights, the lead attorneys in the case, could cook up. But it is the prelude to that decision which has now landed her in such extraordinary hot water. Not only has the Second Circuit stayed her August opinion, it has actually removed her from any further involvement in the lawsuit. The reason? She violated the judicial code of conduct by encouraging the Center for Constitutional Rights to file the suit in the first place and by making sure that she had jurisdiction over it, the panel found.

Such judicial removals are almost unheard of. The only precedent in recent memory comes from May 2013, when another Second Circuit panel banned district court judge Nicholas Garaufis from deciding whether the city had intentionally discriminated against black applicants to the New York Fire Department. Garaufis’ comments on that aspect of the case had “lost any semblance of neutrality,” the panel ruled. But it allowed Garaufis to continue hearing the rest of the case against the FDNY.

Scheindlin, by contrast, is completely out. And for good reason. Her complicity in the genesis of Floyd vs. New York completely undermines her impartiality. In 2007, the settlement in an earlier Center for Constitutional Rights stop, question and frisk suit against the NYPD was about to expire. The Center sought to extend the case, even though there was no provision in the settlement for doing so.

Scheindlin, who also presided over that earlier case, told the Center: Rather than litigating with the city over the extension, why don’t you just bring another stop, question and frisk lawsuit? If you do so, she said: “I would accept it as a related case.” This invitation was doubly problematic: Not only was she soliciting litigation from the plaintiffs, but there was, at that point, no outstanding lawsuit which her proposed new suit was related to.

The related case rule, which trumps the usual random assignment of cases to judges, is intended to create administrative efficiencies by placing closely similar suits before the same judge. But in the instance of this new suit, which became Floyd vs. New York, Scheindlin was reaching out and grabbing jurisdiction on the basis of a non-existent case, simply in order to retain her control over the NYPD. Such judicial maneuvering turned out to be a harbinger of an opinion that would bend common sense to find the NYPD guilty of unconstitutional policing.

After birthing Floyd, Scheindlin’s strong-arm tactics only continued. She tried to force the city either to drop its appeal of her class certification in Floyd or to accept without contest a preliminary injunction against the NYPD in yet another stop, question, and frisk lawsuit. (Certifying a class allows an attorney to purportedly represent hundreds of thousands of plaintiffs, and allows a judge to impose far more sweeping remedies on a defendant.)

The city refused to cave in to her unjustified pressure and continued to challenge both the class certification in Floyd and the preliminary injunction motion in that second suit, Ligon vs. New York. (Scheindlin ruled against the city in Ligon in January 2013, and consolidated the remedies portion of Ligon with Floyd.)

The Second Circuit panel also disciplined Scheindlin for several interviews she gave to the press while Floyd was pending. Those interviews, like her violation of the related case rule, the panel said, compromised the requisite “appearance of [JUDICIAL]impartiality.” Besides removing Scheindlin from Floyd (now assigned to another district court judge), the panel has stayed her ruling in Floyd until it hears the city’s full appeal in March 2014.

That means that for now, the NYPD need not answer to the federal monitor or facilitator, and can continue to stop and question individuals who appear to be engaged in criminal activity.

What happens next, however, is deeply uncertain. The New York Civil Liberties Union plans to contest the panel’s removal of Scheindlin, according to Reuters, but it is unlikely to make much headway in light of the unanimous nature of the panel’s decision.

Mayoral contender Bill de Blasio, predicted to win the mayor’s race on Tuesday, has long vowed to drop the city’s appeal of Scheindlin’s opinion in Floyd. Indeed, de Blasio’s attorney told the Second Circuit panel last week that his client was perfectly content with a federal monitor and judicial control over the NYPD.

The panel was incredulous, since such an arrangement will eviscerate the mayor’s own authority, cripple the department’s crime-fighting capacity and cost taxpayers enormous sums in attorneys’ and monitors’ fees. It is an odd mayor who is willing to cede his authority even before he assumes it.

But if de Blasio drops the city’s appeal before the panel rules on the merits of Scheindlin’s ruling in March, it is not clear what the status of Scheindlin’s ruling will be, nor who has the authority to determine that status.

Former Mayor Rudy Giuliani and former U.S. Attorney General Michael Mukasey are seeking permission to continue the appeal as friends of the court; it remains to be seen whether they will succeed in this attempt.

In its two remaining months in office, the Bloomberg administration could justifiably argue that Scheindlin’s impartiality is now in such doubt that her entire opinion in Floyd should be thrown out on that ground alone. But as of now, the opinion is merely stayed, not vacated, and if de Blasio withdraws the appeal, the Second Circuit would not get the opportunity to vacate the ruling.

De Blasio could also settle the suit with the Center for Constitutional Rights, stipulating to their allegations in Floyd and agreeing to all their requested remedies which Scheindlin had already granted. The new trial judge would need to approve the settlement, which might also involve a consent decree and yet another federal monitor, since de Blasio seems so eager to create competing power structures over the NYPD.

Alternatively, de Blasio could order a massive curtailment of the NYPD’s stop policies and then ask the new district court judge to throw out Floyd on the ground that it is now moot. Such a strategy would allow de Blasio to position himself as a champion of the NYPD against the plaintiffs’ suit while substantively caving on everything that the Center for Constitutional Rights has asked for.

The status of the other two stop, question and frisk lawsuits over which Scheindlin is still presiding is even more vexed. Scheindlin took jurisdiction in 2010 over Davis vs. New York, which challenges trespass stops in and around public housing, on the ground that it was “related” to Floyd. She took jurisdiction of Ligon vs. New York, which challenges trespass stops in and around private buildings in the Bronx, in 2012, on the same ground.

But if Scheindlin should not have had jurisdiction over Floyd in the first place, her jurisdiction over the next two cases is arguably tainted by that original sin. Moreover, she has already gushed unabashedly over the plaintiffs’ statistical expert in Floyd, Columbia law professor Jeffrey Fagan, and expressed near contempt for the city’s expert, NYU’s Dennis Smith. Fagan and Smith play the identical roles in Davis and Ligon as they did in Floyd.

It is a foregone conclusion how Scheindlin will receive their statistical reports in those next two cases. And if de Blasio is elected, he could also decide to settle Davis and Ligon favorably to the plaintiffs.

In short, it is imperative that Scheindlin’s ruling in Floyd be wiped off the books entirely. Her opinion contains patent lies against Police Commissioner Ray Kelly and validates a specious methodology for finding a police department guilty of racial profiling. It erects wholly unjustified legal barriers to an officer merely questioning someone on the street. It discredits an officer’s use of his street smarts to detect if someone may be engaged in criminal activity.

Unfortunately, if Bill de Blasio wins City Hall, as seems almost inevitable, the handcuffs that Scheindlin’s ruling places on the police department are far more likely to stand.

Original Source:



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