The U.S. Second Circuit Court of Appeals shocked many observers last week with its “Halloween Massacre” of Judge Shira Scheindlin's landmark ruling that had overturned New York City's stop-and-frisk policy.
However, upon closer inspection, this ruling can be seen as the latest in series of decisions by the judges of the Second Circuit that reveal an extreme deference to police and governmental authority that has become all too common in the post-9/11 era. This deference is matched by a disdain for the basic constitutional protections the rest of us are supposed to enjoy.
In recent years the Second Circuit, which covers New York, Connecticut and Vermont, has refused to condemn torture and rendition, upheld suspicionless searches of subway riders, insisted on a longer prison sentence for dying people’s lawyer Lynne Stewart and cast down District Judge Katherine Forrest’s brave injunction against Section 1021 of the National Defense Authorization Act which allows for the indefinite military detention of U.S. citizens.
The United States is divided up into a total of eleven Circuit Court regions and each of these appeals courts review decisions made by the lower District Courts in their respective regions. Only the District Court judges hear testimony; the Courts of Appeal are there to decide issues about the application of the law, and usually have the final say in a case. The U.S. Supreme Court generally has no obligation to accept a case for review, and most human rights lawyers try to stay far away from the Roberts court.
In their stop-and-frisk ruling, Judges Jose Cabranes, John M. Walker and Barrington Parker not only stayed Judge Shira Scheindlin’s remedial orders in two cases involving stop-and-frisk, but also took the highly unusual step of booting her off the case, claiming that she was biased against the NYPD.
The quoted remarks that the Second Circuit panel found improper, i.e. that “for $65, you can bring that lawsuit,” were made in 2007, when the Center for Constitutional Rights (CCR) was arguing that the city was in contempt of a 2003 decree signed by Judge Scheindlin in the suit against the Street Crimes Unit, the squad responsible for the 41 shots that killed Amadou Diallo. The 2003 consent decree in Daniels v. NYC outlawed racial profiling and imposed audits on the NYPD, requiring it to state the legal basis for each stop, on a form called “the UF-250," and to provide the forms to CCR on a quarterly basis.
In 2007, with the NYPD failing to comply with the audits, CCR tried to get the Judge to extend the period of monitoring the stop-and-frisks. At the City’s request, she nixed the contempt charges that day, but told the CCR lawyers they were free to bring a new suit with their proof. Thus, their new suit, Floyd v. NYC, was designated as “related” to the earlier litigation. This meant that Judge Scheindlin would be assigned to hear it as well.
Located at Foley Square in lower Manhattan, the 3-judge panel that dismissed Judge Scheindlin was composed of African-American Judge Barrington Parker, Jr, a Bush II-appointee; John M. Walker, a cousin of Bush I and Bush II; and Jose Cabranes, recently appointed to the secret FISA appeals court by John Roberts.
Well-respected Southern District Judge Analisa Torres will now hear and decide the case, unless, as is hoped for, Mayor-elect Bill de Blasio withdraws the appeal upon taking office in January.
Happily, Judge Scheindlin will continue on a case challenging the NYPD’s aggressive, racist harassment of New York City Housing Authority residents every time they enter or exit their building, under the guise of seeking trespassers. She recently granted class-action status in this suit, Davis v. NYC, brought by the NAACP Legal Defense Fund. The Ligon v. NYC case that was taken away from her challenged the NYPD’s expansion of this aggressive policy to Bronx apartment buildings where owners supposedly signed a “Trespass Affidavit,” permitting the NYPD to police hallways of private dwellings. Judge Scheindlin had also granted class action status and an injunction in January, enjoining the policy, and used the facts of that case to develop the remedy she announced in mid-August in Floyd.
The Scheindlin Effect
What is most remarkable about the conduct of Judge Scheindlin is that her reputation alone was apparently enough to make the NYPD revise their tactics. While the Floyd and Ligon cases were pending before her, the number of stop-and-frisks fell by half this year compared to last, in addition to a 22 percent drop from 2010 to 2011 in the number of stops.
Scheindlin deserves credit for the purposeful, creative and responsive remedies that she ordered in a 198-page opinion she issued on August 12 of this year in Ligon and Floyd.
She appointed Peter Zimroth, a former Manhattan Chief Assistant District Attorney and Chief attorney for New York City under Mayor Ed Koch, to oversee reforms and training of the NYPD, including supervision and discipline of officers to ensure compliance with her orders. (Trial testimony established that even where officers could state no unbiased reason for a stop, the officer faced no punishment). In addition, she ordered that in at least one precinct per borough, that cops wear cameras to film civilian encounters for a one-year period. She also required the police to give a card to each individual stopped, giving the legal justification for the stop. This was to be a joint remedial process between CCR and the NYPD, to include two community meetings in each borough. The purpose of the meetings, she said, was “to take the pulse of the community.” Further, the temperature of the community was then to be reported back to the Judge for possible further remedies!
In this writer’s opinion, it was the thorough-going, democratic remedies Judge Scheindlin ordered that made her the recipient of such unprecedented ire from the appeals court.
It is ironic that this panel that remanded the case to a different judge to hear the whole 3-month trial testimony all over again, should cite “the interest of judicial economy” as their reason for doing so. What is worse, and ultimately most revealing, is that they cited it in their two-page order as a reason why any future appeals from the stop-and-frisk litigation should go to them and only them.
Ann Schneider is a member of the NYC Chapter of the National Lawyers Guild. The opinions expressed in this article are those of the writer and do not necessarily reflect the position of the organization as a whole.
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