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USCA2 Stays "Stop and Frisk" Injunction, Bounces Judge

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In August, Federal District Judge Shira Scheindlin issued an injunction in the stop-and-frisk case.  AP described the ruling as "a stinging rebuke to a policy [Mayor Bloomberg] and the New York Police Department have defended as a life-saving, crime-fighting tool that helped lead the city to historic crime lows."

Judge Scheindlin came in for a rebuke of her own today.  Not only did the Court of Appeals stay her order, it went on to say:

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 impartiality 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),1 and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.

Whack!  The footnotes follow the break.
1. 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. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.

2. See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY "Frisk" Judge Calls Criticism "Below-the-Belt," The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.

4 Comments

The question is whether the Second Circuit will decide the case on the merits and hand down its mandate before the new mayor gets sworn in.

The new mayor, who is all but a Marxist, will simply withdraw the city's appeal if it's not decided by inauguration day. If it has been decided, he can still end stop-and-frisk on his own, but it will be politically a good deal more difficult.

Max Boot wrote a book about "gavelitis." "Judge" Scheindlin seems to have an advanced case.

I am not as gung ho about the NYPD's implementation of the policy as others, but it seems uproariously ridiculous to say that a policy that on paper follows an 8-1 SCOTUS decision is unconstitutional. (By the way, I do agree with Scheindlin's conclusion about what the proper denominator is---it's similar to what I've said here before.)

Scheindlin wanted to throw the baby out with the bathwater. Whatever NYPD's issues (planting drugs etc.), the fact remains that hundreds of lives have been saved from ruin as a result of better policing.

The question remains about her fitness to continue having the privilege of being a federal judge. In my view, she is an embarrassment to the federal bench, and no member of this free society should ever have to submit to her coercive powers.

On the subject of the new mayor, what I'm most interested in is how long it will take for his policies to restore New York City to the condition it was in during the early Nineties and before. I don't doubt that crime will go up during de Blasio's [first] term as mayor, but I wonder if it will go up far enough over the next four years for voters in the city to spot the connection between the policies they voted for and the inevitable upsurge in crime. I suspect that it will take New Yorkers a lot more than four years get the message, just as it did in the late twentieth century. To return to Marx: ... the first time as tragedy, the second time as farce.

I don't know what it is about so many liberals and Democrats---they just seem to have a soft spot for criminals.

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