Creative Commons-licensed photo by Alangreig

A motion to reconsider a ruling in a lawsuit brought by victims of stop-and-frisk against the policy and practice carried out by the New York Police Department has been filed in the Second Circuit Court of Appeals.

Federal judge Shira Scheindlin of the United States District Court of New York ruled on August 12 ruled that stop-and-frisk violated the Fourth Amendment and Fourteenth Amendment rights of victims. She ordered remedies, “including immediate changes to the NYPD’s policies,” and wrote, “Targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality.”

Scheindlin issued an order on liability—that the city was liable for violating the victims’ rights—and an order on remedy—the remedies that would be imposed on the NYPD to ensure its policy “conformed” with the US Constitution.

The city of New York appealed. A motion to stay the court’s remedial order was filed. On October 31, the Second Circuit granted the stay. The case was also remanded to the district court and assigned to a new judge, increasing the possibility that the NYPD would not have to change its policy at all even though a judge had found it “intentionally discriminatory.”

In a submitted motion, lawyers for the victims call the Second Circuit’s order to remove a district judge “apparently unprecedented and procedurally defective.” The judges determined she “ran afoul” of the “Code of Conduct for United States Judges.” The judges found an “appearance of impropriety” in her “routine suggestion, six years ago (at a conference in which she denied the plaintiffs’ contempt motion against the city, that if the plaintiffs had evidence of continuing constitutional violations they could file a new case as ‘related’ to Daniels v. City of New York, a case then before her that also challenged the constitutionality of the NYPD’s stop-and-frisk practices.”

Judges also cited “media interviews the judge gave” when this current case, Floyd et. al. v. City of New York et. al., had been pending. She defended herself “against attacks” made by the city but “refused to discuss the merits” of the case before her.

“Basic procedures,” lawyers argued, were dispensed with, and no “evident need” or “explanation for such extraordinary action” was given. “The ethics of a district court judge who for years presided over a significant proceeding, when the parties themselves never raised the issue, must follow appropriate procedural rules to ensure any resulting removal or reassignment is fair, warranted and just,” the filing adds.

Interestingly, the Second Circuit did not find the judge had violated the part of Code of Conduct intended to regulate “judicial comments to the public.”

“The city had no right to seek disqualification” of the district court judge, the motion argues. The city should have sought recusal or disqualification much earlier in the case but apparently did not until just before this ruling by the Second Circuit.

As for the comments to media, “Once media began questioning Judge Scheindlin’s impartiality during the trial, she arguably had an obligation to educate the public on her judicial approach.”

Anyone looking at details in this case would have a tough time not thinking Scheindlin had really “run afoul” of the NYPD and the Code of Conduct for judges was what the Second Circuit, in service to the NYPD, consulted to develop a pretext for removing Scheindlin from the case.

Scheindlin concluded in her decision:

The City acted with deliberate indifference toward the NYPD’spractice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

For this indictment of the racist policy and practice carried out by the NYPD, the city of New York and the police, led by Ray Kelly, had to find some maneuver to block an order by the judge to force a change in the “preventive policing” model the city has embraced.

They had to send a message to judges: cross the NYPD and we’ll find another judge who is more loyal to us and won’t question policing that is based upon the color of a person’s skin.