Friday, November 15, 2013

134.4 - Outrage of the Week: 2nd Circuit blocks stop-and-frisk fixes, removes judge

Outrage of the Week: 2nd Circuit blocks stop-and-frisk fixes, removes judge

We have a two-tier outrage this week.

Back in August, I was able to happily report that US District Court Judge Shira Scheindlin had delivered "a stinging and long-overdue smackdown" of New York City's racist stop-and-frisk policy which effectively racially profiled young black and Hispanic men as criminals, stopping them for things such as, to quote police reports, "furtive movements," which could include talking to someone on the street, or not talking to someone on the street, or looking at a cop, or not looking at a cop, or whatever else was convenient at the moment.

Tier one here is that two weeks ago, on October 31, in what a number of observers called a "stunning" ruling, the Second Circuit Court of Appeals blocked implementation of all of the measures she had ordered to remedy the city's unconstitutional practice, including the appointment of an independent monitor, requiring the lower court to hold “all proceedings and otherwise await further action” from the Appeals Court.

That is, the court allowed the city to resume and continue with stop-and-frisk until such time as it heard all the appeals about Judge Scheindlin's underlying finding that the practice violated the Fourth Amendment, which could take well into next year. Put more bluntly, the court in effect said "justice for people being unlawfully stopped and searched can wait until we get around to it."

That's bad enough, but the second-tier outrage is the one that really made legal jaws drop: The court removed Judge Scheindlin from the case, claiming she presented the “appearance of partiality" on the grounds of having run afoul of rules about "related cases," a rule under which cases that present the same essential issues can go before the same judge. What happened is that Judge Scheindlin declined a motion to re-open an old stop-and-frisk case but said that if the plaintiffs wanted to file a new case, she would regard it as related (and so take the case) because part of the argument what that the city had violated an order she herself had issued some time past.

But one, that is a totally legitimate application of the "related case" rule and two, no one had requested that she be removed from the case. As the Center for Constitutional Rights noted, the city "never once raised any legal claims of bias, even in its papers to the Court of Appeals." Removing Judge Scheindlin was something that the Second Circuit did entirely on its own, unprompted and unrequested.

David Cole, a Professor of Law at Georgetown University Law Center, called the court's action "unheard of."

A New York Times editorial called it "a bad ruling," "overreach," and "extraordinary."

Nancy Gertner, a law professor at Harvard Law School and a former US District Court judge, said it was the members of the Second Circuit, not Judge Scheindlin, who violated the rules of judicial conduct. She called the court raising issues not raised by any party to the case a “cheap shot.”

And Richard George Kopf, a sitting District Court judge in Nebraska, called Scheindlin's removal "bullshit" and the Second Circuit court's reasoning "laughable." It even, he says, invites speculation about "what else is going on."

Indeed it does. But even if that "what else" is not clear, one other thing is: This is an outrage.


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