Last Thursday, the United States Court of Appeals for the Second Circuit denied Judge Shira Scheindlin’s motion to vacate the order of the panel, which removed Judge Scheindlin from presiding on any further proceedings in Floyd v. City of New York, 12 Civ. 2274 (SAS).
This Court of Appeals decision is the latest twist in the legal drama that ensued following the Floyd decision.
In its decision on Thursday, “the panel clarified that it had not ruled that Scheindlin violated the code of conduct, only that the ‘appearance of partiality required reassignment.”
As this issue gains widespread attention – drawing in the likes of lawyers, law professors, former Mayor Rudolph Giuliani, and police unions – it remains to be seen how the Second Circuit will proceed. But one thing is certain: the institutional reputation of this previously unusually well respected court has suffered.
The Floyd case has taken unexpected turns. After Judge Scheindlin’s decision finding the NYPD stop and frisk practices unconstitutional, the City appealed. Although the City did not raise the question of Judge Scheindlin’s recusal, the Second Circuit ordered her removed from the case and her ordered remedies stayed. Then Bill De Blasio was elected mayor of New York City, pledging, among other things, to halt the stop and frisk policy and presumably to withdraw the appeal. Now Judge Scheindlin has moved to be reinstated.
Where does all of this leave the Second Circuit’s order removing Judge Scheindlin. Although the order was based, in part, on a finding that Judge Scheindlin had interfered with the Court’s case assignment procedures, the City was present when this alleged impropriety occurred and never moved to recuse her; nor did the City’s appeal raise the issue before the Second Circuit. Presumably, if the Mayor-elect withdraws the appeal, though, the order of removal will disappear. Or will it? What happens to the ordered remedies that have been stayed? What happens to Judge Scheindlin’s motion?
One thing that is clear is that this entire procedure is unprecedented. What is likely to happen? What is in limbo? The thought arises: why did the well-respected Second Circuit panel reach out to remove Judge Scheindlin knowing that Bill DeBlasio was so likely to win and so likely to withdraw the appeal? Is this confusion good for the system and its perception by the public?
Judge Asks to be Put Back on New York ‘Stop-and-Frisk’ Case, Reuters, Nov. 6, 2013.
Joseph Goldstein, Court Blocks Stop-and-Frisk Changes for New York Police, N.Y. Times, Oct. 31, 2013.
United States Court of Appeals for the Second Circuit Order of Oct. 31, 2013, staying the District Court’s January 8, 2013 Floyd “Opinion and Order,” as well as the August 12, 2013 Floyd “Liability Opinion” and “Remedies Opinion” and removing Judge Shira A. Scheindlin after concluding that the District Judge violated the Code of Conduct for United States Judges, Canon 2.
The Criminal Justice Society at Pace Law School held a symposium last Tuesday (Oct. 22, 2014) on the future of stop and frisk in New York City. Prof. David Dorfman moderated, and the panelists were Prof. Randolph McLaughlin, of Pace Law School; Mayo Bartlett, a Pace alum and private criminal defense attorney in White Plains; Heather MacDonald, a fellow at the Manhattan Institute; and Police Officer David Rullo, a Pace student and a police officer in New Jersey.
The panelists began by debating the merits of Judge Scheindlin’s decision in Floyd, finding that the NYPD’s stop and frisk practices unconstitutional. The disagreement was not so much over the Judge’s holding as it was over the facts upon which it rested, with Ms. MacDonald asserting that some of the fact finding was not supported by the evidence. There was also disagreement about whether the Judge was correct in concluding that the racial breakdown of stop and frisk should reflect population demographics, as opposed to the demographics of who commits crimes.
Substantial discussion concerned the need for training police officers: Officer Rullo thought training on the constitutional dimensions of stop and frisk was inadequate and Ms. MacDonald thought the police should have training on how to treat people with respect. Ultimately, Ms. MacDonald raised a concern that hamstringing the police in stop and frisk would lead to more crime, while Mr. Bartlett and Prof. McLaughlin focused on how many innocent people are arrested under current stop and frisk practices. All of the panelists were concerned about the impact of stop and frisk – or of stopping the stop an d frisk policy – on the community.
The panelists also proposed solutions. Mr. Bartlett emphasized the need for incorporating police officers into the community. A reform of the stop and frisk policy based on police presence would foster community relationships that could help police officers deter crime.
With the NYC mayoral election looming, many people worry about whether the crime rate will rise after Floyd and with a new administration. Many people are debating whether we should reintroduce community policing and, if so, what the impact will be on the community.