FRISKED AND STOPPED: SCHEINDLIN A FEDERAL JUDGE IS TOSSED OFF A CASE
http://online.wsj.com/news/articles/SB10001424052702304073204579170102937970362?mod=WSJ_Opinion_AboveLEFTTop
That sure was a blockbuster ruling Thursday from the Second Circuit Court of Appeals, staying a federal judge’s decision against New York City’s “stop and frisk” police practice and tossing the judge off the case. The ruling throws a curve into the last week of New York mayor’s race and complicates the liberal campaign to block police practices that have greatly reduced crime.
The shocker came as the Second Circuit hears New York City’s appeal of Judge Scheindlin’s ruling, in which she declared that stop and frisk violated the Constitution’s Fourth Amendment. New York police have for years stopped, questioned and searched for weapons if they have reasonable cause to believe someone may be connected to a crime. Cheered on by a liberal media campaign, Judge Scheindlin declared it illegal. She also appointed a panel of liberal worthies to micromanage New York’s finest, an affront both to the police force and self-government.
The Second Circuit panel is a long way from judging the merits of the appeal. But the three judges noted in their ruling Thursday that “upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (‘A judge should avoid impropriety and the appearance of impropriety in all activities.’)”
Specifically, the court said Judge Scheindlin had “compromised” the appearance of partiality by improperly inviting a stop-and-frisk suit. In a December 21, 2007 hearing on an earlier case, Judge Scheindlin stated: “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.”
Associated Press
She also stated that, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” And she concluded by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.”
That point about a “related” case is crucial because it allowed Judge Scheindlin to grab the stop-and-frisk case for herself, rather than follow the district court’s established practice of assigning cases randomly to judges. As the Second Circuit noted on Thursday, two of the attorney groups working on that earlier case helped another defendant file the stop-and-frisk case that Judge Scheindlin accepted as “related” and which she used to find stop-and-frisk illegal.
This is all a remarkable abuse of court practice, and it suggests bias against the NYPD. The Second Circuit also rebuked Judge Scheindlin for “a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” These also revealed her predisposition to rule against the police.
The bombshell means that the case is remanded to another district court judge, who will implement the stay until the appeals court rules on the merits next year. Given Judge Scheindlin’s dubious ruling, we’d expect a reversal on the law. By the way, the Second Circuit panel includes Bill Clinton appointees Jose Cabranes and Barrington Parker, as well as John Walker, a George H.W. Bush appointee. Judge Cabranes is one of the most widely respected on the appellate bench.
The case also has larger political significance given that the front-runner to win Tuesday’s mayoral election, Public Advocate Bill de Blasio, has vowed to stop Mayor Mike Bloomberg’s appeal of Judge Scheindlin’s ruling. If Mr. de Blasio wins and drops the appeal, the Second Circuit would be well within its rights to vacate Judge Scheindlin’s entire ruling on grounds of misconduct.
Even before that pass, Judge Scheindlin’s removal strips away the constitutional cover that Mr. de Blasio has used to attack stop and frisk. Now he can’t hide behind a biased federal judge but has to say whether he’d change stop and frisk as a matter of his own policy choice. Joe Lhota, the Republican former transit official who is trailing in the polls, ought to drive the issue and the risk to public safety through Election Day.
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