Stop-and-frisk ruling on hold

November 6, 2013

Lucy Herschel explains how a federal appeals court is blocking a judge's historic decision to declare the NYPD's hated "stop-and-frisk" policy unconstitutional.

ON AUGUST 12, District Court Justice Shira Scheindlin issued a historic ruling that the New York Police Department's racial profiling policy known as "stop-and-frisk" violated the constitutional rights of its victims. Scheindlin determined that stop-and-frisk relied on a "policy of indirect racial profiling," and she mandated a set of reforms, including an independent monitor for the NYPD. This long-overdue victory in Floyd v. the City of New York came after a nine-week trial, 23,000 pages of evidence, more than 8,000 pages of testimony and 14 years of related litigation.

But with a single hearing and a two-page ruling, the 2nd U.S. Circuit Court of Appeals blocked all this on October 31.

A three-judge panel from the higher court issued a biting rebuke of Scheindlin, claiming she violated the "appearance of impartiality" in judging the case, and removing her from all related stop-and-frisk cases. The decision effectively put on hold all the mandated reforms from Schendlin's decision and threw her findings into a legal limbo.

Judge Shira Scheindlin
Judge Shira Scheindlin (Joel Spector)

"Basically, this court is saying to the citizens of New York, who have followed this case and who were very uplifted by the fact that a federal judge stood up to protect the rights of all citizens of the city of New York...the panel of the 2nd Circuit [said]: 'Drop dead, New York,'" said Jonathan Moore of the Center for Constitutional Rights (CCR) and the lead attorney in the Floyd case. "It's embarrassing, it's unprecedented, and it's a travesty of justice that this panel did this."

So what was Scheindlin's crime that required the circuit court to stay her decision? Supposed "improper application of the Court's 'related case rule'"--which allows for related litigation to be directed to the same judge--when she advised lawyers in the original stop-and-frisk case to file a new lawsuit and to direct it to her as related. In addition, the circuit court ruling references media interviews and public statements Scheindlin made in response to earlier accusations of impartiality.

But Scheindlin suggested the plaintiffs file a new lawsuit in the context of her ruling against them and for the City when she refused to extend the provisions of the original lawsuit.

Even more ironically, the interviews referenced by the 2nd Circuit are ones in which Scheindlin notes what sees as other judge's bias in favor of government attorneys--and emphasizes her impartiality.

"I do think that I treat the government as only one more litigant," Scheindlin said in one of the stories cited, a May 29 AP article. "I don't think they're entitled to deference...They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from that office, they know people there, whatever. I try not to do that." In a New Yorker article, Scheidlin is quoted as saying, "I don't think I'm the favorite of the U.S. Attorney's office for the Southern District. Because I'm independent...I'm not afraid to rule against the government."

In other words, Scheindlin is accused of being biased on the basis of media interviews where she primarily discusses her lack of bias in favor of the government. Perhaps the 2nd Circuit didn't like Scheindlin's suggestion that other judges do show deference to federal prosecutors.

In appealing Scheindlin's decision, lawyers for the city didn't raise any issues about Scheidlin's impartiality, nor did they ever object to the Floyd lawsuit being assigned to her. As Emily Bazelon points out at, this means the issue was never discussed in court documents or at a hearing, and so Scheindlin was never given a chance to respond.

In a highly unusual and seemingly vindictive move, the Circuit Court judges went out of their way, looking beyond the record in front of them, to disqualify Scheindlin.

SCHEINDLIN HAS long been a target of New York City Mayor Michael Bloomberg and Police Commissioner Ray Kelly, who have sought to paint her as biased against the city and especially law enforcement. According to Juan Gonzalez, speaking on Democracy Now following the appeals court decision, the mayor's office "created a dossier that it then shopped to various media around the city, [trying] to get them to write articles to reflect the Bloomberg administration's viewpoint that the judge was biased."

But as activists in the police accountability movement know, the real bias is in favor of law enforcement, and it comes from the city government and the state and federal courts. As Djibril Toure, an activist with the Malcolm X Grassroots Movement and defendant in the original Daniels v. the City of New York case from the early 2000s, said in an interview:

There's a tremendous amount of hypocrisy in this ruling...We've seen so many cases of people being killed by police officers under questionable circumstances and so few of those officers have even been punished in any way...The system has been so biased for so long in favor of police officers that [Scheindlin's] honest assessment seems to them to be biased. She's just saying what everyone else in the city sees, which is that innocent people of color are being stopped in large numbers for no reason.

The Bloomberg administration no doubt been desperate to stem the growing movement against stop-and-frisk in New York City. As a result of the Daniels case, the city was forced to hand over data revealing that between 2004 and 2012, 4.4 million people, overwhelmingly Black and Latino, were stopped by the NYPD. Some 88 percent of reported stops resulted in no arrest or ticket--meaning that stopping and searching millions of innocent people of color is just normal operating procedure for the NYPD.

Protests against stop-and-frisk have mounted in the last two years, including a mass silent vigil and march down Fifth Avenue in 2012 and hundreds of smaller protests and direct actions at police precincts and elsewhere. Scheindlin's ruling in August was quickly followed by the City Council passing the Community Safety Act, which authorized the creation of an inspector general's office to be a watchdog over the NYPD, and made it easier for New Yorkers to sue if they are racially profiled by police.

Incoming Mayor Bill de Blasio, who will replace Bloomberg after defeating Republican Joe Llota in a landslide on November 5, first surged to the front of the pack this summer in part because of his prominent opposition to stop-and-frisk. The mayoral primary election campaign leading up to the vote in September produced the rare spectacle of leading Democrats tripping over each other to prove their opposition to a major police tactic.

DESPITE THE triumphalism from supporters of stop-and-frisk, it's important to remember that Scheindlin's landmark ruling hasn't been overturned. The 2nd Circuit hasn't yet ruled on the city's appeal of the Scheindlin decision, which won't be heard until the spring.

But after the three-judge panel blocked the reforms required of the NYPD, the outlook isn't hopeful at this level of the "justice" system. This is the same 2nd Circuit--with the same head Justice John Walker, first cousin of former President George H.W. Bush--which ruled in Brown v. Oneonta that that it wasn't unconstitutional for police, while searching for a Black suspect, to stop every single Black male they could find in the town of Oneonta, going so far as to obtain a list of all African American male students from a local college.

Luckily, the fate of stop-and-frisk doesn't depend solely on the justices of 2nd Circuit. For his part, Bill de Blasio, in his previous office as the city's Public Advocate, filed an amicus brief against the City's request for a stay of Scheindlin's ruling and has pledged to drop the city's appeal once in office. Moreover, as the new mayor, de Blasio will have direct control over NYPD policy and could directly end the use of stop-and-frisk, regardless of what the courts say.

But it remains to be seen exactly how de Blasio will manage this situation once in office. Since winning the primary, de Blasio's promises to "end" stop-and-frisk have morphed into talk about "reforming" the policy. Even more troubling, de Blasio's short list for the next police commissioner includes William Bratton--the same Bill Bratton who initiated Rudolph Giuliani's tough-on-crime regime in the 1990s with an aggressive "broken windows" doctrine of policing that likewise relied on harassing large numbers of people of color over minor violations.

Anti-police violence and police accountability activists across the city understand the need to keep the pressure up against the NYPD's intimidation tactics. Communities United for Police Reform, a coalition that played a major role in pushing for the passage of the Community Safety Act, has called a protest the day after Election Day to pressure de Blasio to make good on his promise to drop the city's appeal of Scheindlin's decision.

As Djibril Toure put it:

The court delay is not surprising because we understand there's a political nature to the 2nd Circuit. What's more important is that the discussion on stop-and-frisk and over aggressive policing has started and amplified over the last two years. The tide has turned in terms of public perception of these tactics. I don't think we're going to go back to a situation where 700,000 people are being stopped on a yearly basis.

Police Commissioner Ray Kelly felt the turning tide outside the city last week when a planned lecture at Brown University was disrupted by student protest and canceled. The department has been backpedaling on its open defense of racial profiling--stop-and-frisks have declined from a high of 684,724 in 2011 to 533,042 in 2012 to even lower in 2013. However, Cop Watch activists patrolling neighborhoods with the most stop-and-frisks report a continued heavy police presence, even if they are fewer stops.

The fight against police brutality and aggressive police tactics will be long and hard. But momentum is still on the side of activists fighting against the NYPD's abuses and violence.

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