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Attorneys 'dismayed’ by recent stop-and-frisk ruling

Criminal defense attorney Andrew Miller.

Brooklyn Daily Eagle

The United States 2nd Circuit Court of Appeals, whose jurisdiction includes New York, issued a ruling “staying” Manhattan Federal Court Judge Shira Scheindlin’s decision in the cases of Floyd, et al. v. City of New York, et al. and Ligon, et al. v. City of New York, et al. Collectively known as the “stop and frisk cases,” Scheindlin’s August rulings rendered a number of police stops unconstitutional and determined that while the stop and frisk policy, on its face, is constitutional, the application bore unconstitutional results.

New York City had vowed to appeal Scheindlin’s decision, with Mayor Bloomberg noting, “Throughout the case, we didn’t believe that we were getting a fair trial. This decision confirms that suspicion, and we will be presenting evidence of that unfairness to the Appeals Court.” The city brought their fight to the Appeals court and procured a tempered victory.

The three-judge court of appeals panel found that Scheindlin had acted outside of the judicial code of ethics by engaging in a “series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” The Code of Conduct for United States Judges demands that a judge “avoid impropriety and the appearance of impropriety in all activities” and “disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”  

Believing that Scheindlin’s interviews with the press “ran afoul” of the code, the panel removed Scheindlin from the cases and ordered a new judge be assigned. As the process of randomly selecting a new judge proceeds, all of Scheindlin’s initial rulings are put on hold.

Scheindlin spoke out against the circuit court’s decision, defending herself in a released statement. “All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case. And I did not,” she stated. “ Some of the reporters used quotes from written opinions in Floyd that gave the appearance that I commented on the case. However, a careful reading of each interview will reveal that no such comments were made.”

The circuit court’s ruling, while placing a hold on Scheindlin’s decisions, did not provide any determination on the merits of Scheindlin’s rulings and orders. In other words, the hold was only issued because of conduct deemed inappropriate not because of an error in the application of the law.  

“The stay by the Second Circuit Court of Appeals today has absolutely nothing to do with the positive reforms ordered in the lower court's ruling or the merits of the case in Floyd v. New York, including the appointment of a federal monitor to end the abuse of Stop and Frisk by the New York Policy Department (NYPD),” Brooklyn Councilmember Jumaane D. Williams said in a statement. “Instead, this stay has everything to do with an individual judge's own conduct, and even that is questionable. When the merits of the case were heard by the lower court, we won.”

Michael Cardozo, NYC corporation counsel, stated, "in short, the ruling of unconstitutional practices is no longer operative, and that question will now receive a fresh and independent look both by the appeals court and then, if necessary, by a different trial court judge.”

As the city was determined to fight the initial Floyd decision, the New York Civil Liberties Union has given notice that it will appeal the circuit court’s stay. “The NYCLU is appealing [the circuit court’s] decision,” said NYCLU Executive Director Donna Lieberman. “There is overwhelming evidence that the stop-and-frisk regime is unconstitutional and out of control — just ask any black or brown New Yorker,” she continued. “We expect the next mayoral administration to make reforming stop-and-frisk a top priority, and we are confident New York City will soon see a day when all New Yorkers’ basic rights are protected and respected.”

Mayoral candidate Bill de Blasio expressed his disappointment with the circuit court. "We shouldn't have to wait for reforms that both keep our communities safe and obey the Constitution," de Blasio said in a statement released through his campaign.

Brooklyn attorneys are also waiting to see how de Blasio, the front-runner in the mayoral race, will do. “ I respect the Circuit Court's ruling because they have reviewed the issues and heard arguments from both sides,” said Brooklyn lawyer Jay Schwitzman. “My concern is finding a balance between public safety and protecting civil liberties.  I am hopeful that soon to be Mayor de Blasio will find that balance.”

Some attorneys were not shocked by the ruling. “The 2nd Circuit decision is not unsurprising,” criminal defense attorney Andrew Miller told the Brooklyn Daily Eagle. “It is unfortunate because the stop and frisk policy is not being implemented well. It is not being monitored well. It needs reform.”

While not shock, the Center for Constitutional Rights, one of the legal service organizations assisting with the Floyd case, did not hold back in expressing its disappointment. “The City carried out a whisper campaign against Judge Scheindlin but never once raised any legal claims of bias, even it its papers to the Court of Appeals. 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.”

Further oral arguments will be heard after March 14, 2014 by the same panel of appeals judges.

November 4, 2013 - 9:00am


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