Judge Shira Scheindlin was removed from both stop-and-frisk cases in question, and the court of appeals judges ordered they be reassigned to a new judge at random while the city's appeal is heard. Credit: Thinkstock
A three-judge Court of Appeals panel that heard the city's motion to stay the federal stop-and-frisk ruling on Tuesday handed down an order on Thursday granting the city's request and blocking Judge Shira Sheindlin's remedies.
They took an additional, seemingly aggressive step, however: Their order removed Scheindlin from both stop-and-frisk cases under consideration.
The Second Circuit judges had many questions Tuesday for city lawyers and the opposing counsel who brought both suits against the NYPD in Floyd v. City of New York and Ligon v. City of New York.
The latter specifically dealt with stop-and-frisk as practiced by NYPD officers in the Clean Halls Program at some residential buildings in the Bronx; the former was the high-profile case decided this August. In her Floydruling this August, Scheindlin declared the NYPD's practice of stop-and-frisk unconstitutional and discriminatory. She issued several remedies, including a federal monitor with oversight over the NYPD and a facilitator to enforce reforms.
The city repeatedly complained about Scheindlin taking the case, and her effectively exclusive authority over all stop-and-frisk cases under the "related cases rule." The Second Circuit judges on Tuesday broached those complaints and Scheindlin's possibly encouraging attorneys to bring cases to her using the rule. One judge made mention of coverage in the New York Times, ostensibly from a May 5 article they cite in their Thursday order. The New York Times article quotes Scheindlin apparently advising some attorneys trying to re-open an old suit in 2007 to bring a new suit and mark it related to the old one.
“If you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?” asked Scheindlin, as quoted in both the New York Times article and Thursday appeals court order. “You can certainly mark it as related.”
In their order on Thursday, the Second Circuit judges said Scheindlin "ran afoul of the Code of Conduct for United States Judges," suggesting she did not "avoid impropriety or the appearance of impropriety in all activities" and that she should have recused herself from the proceeding when her impartiality was questioned publicly.
The judges seemed to take issue in particular with "a series of media interviews and public statements." In court on Tuesday, the judges had also commented on Scheindlin's engagement with media.
Following the Court of Appeals judges' order on Thursday, the Center for Constitutional Rights, which brought Floyd, noted that the city did not, in their appeal, request the case be assigned to a new judge.
"The City carried out a whisper campaign against Judge Sheindlin [sic] but never once raised any legal claims of bias, even in its papers to the Court of Appeals," the Center said in a statement.
But as the May 5 New York Times article notes, city lawyer Celeste Koeleveld did, on at least one occasion, asked Scheindlin to "return this case to the wheel for random assignment" to a different judge. Scheindlin declined to do so.
The Center's statement suggests that it is now perhaps the Court of Appeals judges who could be giving the appearance of impropriety now.
"That, unprompted, they should reassign the case from a judge deeply steeped in the issues for the last 14 years, who gave the City every opportunity to defend itself in the course of this litigation, is troubling and unprecedented," the statement said.
The judges' order stays both Scheindlin's ruling – deeming the way the NYPD conducts stop-and-frisk unconstitutional — and the remedies she outlined in Floyd. It also stays her opinion and order in Ligon, handed down in January. The Ligon order, halting the use of stop-and-frisk in and around some residential buildings in the Bronx, was already suspended by a preliminary injunction; however, the NYCLU attorneys who brought the case were working to get the injunction lifted.
The cases will now be assigned to a new district judge while the appeals process continues. Oral arguments in the appeal won't be heard until sometime after March 14, 2014, the order stated.
But the presumptive next mayor, Democrat Bill de Blasio, has already said the city law department would not continue the appeal under his administration, should he be elected this Tuesday. De Blasio is polling at least 40 points ahead of his Republican opponent Joe Lhota.
During oral arguments on Tuesday, the judges themselves questioned the purpose of continuing with this schedule for the appeal, given how clear de Blasio has been about his opposition to it.
In a statement following the Court of Appeals' order, de Blasio said: "I'm extremely disappointed in today's decision. We shouldn't have to wait for reforms that both keep our communities safe and obey the Constitution. We have to end the overuse of stop-and-frisk — and any delay only means a continued and unnecessary rift between our police and the people they protect."