Stop-and-frisk: Appeals court halts changes to policy, rebukes US judge

In a victory for outgoing Mayor Bloomberg, the appeals court took the federal judge who ordered the stop-and-frisk changes off the case, saying she 'ran afoul' of the judicial code of conduct.

By Harry Bruinius, Staff writer / October 31, 2013

In a stunning rebuke to the federal trial judge who declared New York’s stop-and-frisk police tactic unconstitutional this summer, a federal appeals court on Thursday halted the reforms the judge ordered and took her off the case, ruling she “ran afoul” of the judicial code of conduct.

The two-page ruling by the 2nd US Circuit Court of Appeals is a gratifying victory for the outgoing administration of New York Mayor Michael Bloomberg and Police Commissioner Raymond Kelly, each of whom had argued – at times bitterly – that the federal judge, Shira Scheindlin, was unfairly biased against the New York Police Department.

The ruling said Judge Scheindlin failed to be impartial when she suggested to plaintiff attorneys – during a landmark 2007 racial profiling case against the NYPD – that they should file another broader constitutional complaint. The Court of Appeals cited her words – and other comments given to the news media – and ruled she had improperly guided the case to her courtroom.

“If you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?” she told the attorneys. "[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 said referring to the filing fee. "And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.”

The attorneys filed the stop-and-frisk case a month later, and Scheindlin’s quip about getting in trouble proved prophetic.

The case also proved to be the most significant political drama in New York this year when Scheindlin said the NYPD’s stop-and-frisk tactics violated the Fourth Amendment’s protection against unreasonable search and seizure and the Fourteenth Amendment’s "equal protection" clause, by illegally profiling black and Hispanic men.

She ordered a revision of the department’s practices and appointed an independent monitor to oversee changes in the NYPD, sparking furious reactions from Mayor Bloomberg and Commissioner Kelly.

Now that the federal appeals court has yanked Scheindlin off the case, her constitutional ruling may be in doubt as well as the court orders a new judge to be randomly assigned to the case. The court will also decide on the Bloomberg administration’s appeal.

“When appeals judges take this type of a wide step, I think it sends a message as to what they will do ultimately when they consider the merits of the case,” says Randolph McLaughlin, co-chair of the civil rights practice group at Newman Ferrara LLP in New York. “If they remove the federal judge who both issued a liability decision and remedy decision, I don’t think it bodes well for the liability case either.”

But the stop-and-frisk controversy also directly led to the unexpected rise of Public Advocate Bill de Blasio, whose relentless critique of stop-and-frisk galvanized a broad-based coalition that propelled him to a stunning victory in the Democratic primary. And Mr. de Blasio is currently crushing Joe Lhota, the former transportation chief, in most polls, leading 65 percent to 24 percent in this week’s Quinnipiac poll.

"I'm extremely disappointed in today's decision," de Blasio said Thursday evening in a statement. "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 means a continued and unnecessary rift between our police and the people they protect."

And a de Blasio administration – which appears very likely at this point – would have a much greater effect on the city’s police policies than federal court rulings, observers say.

“Tuesday we will have an election, and it certainly seems at this juncture that Bill de Blasio will be sworn in as mayor,” says Mr. McLaughlin. “And he has taken a pretty strong position against this policy. I’m not saying, as I understand it, that he will eliminate stop-and-frisk as a practice, but he will modify or change it – without the racial profiling.”