Editor's note: This article has been updated since publication to reflect changes in the Floyd case.
Bill de Blasio, who is projected to skate into City Hall as New York’s next Mayor, has earned enormous voter support based, at least in part, on his early and unrelenting attacks on the New York Police Department’s controversial “Stop, Question and Frisk” policies. Now, the likely next mayor is set to become the putative defendant in Floyd v. City of New York, the landmark lawsuit that challenged and had seemed just months ago to end the policy on the grounds that it was unconstitutional and racially discriminatory.
On Thursday, just days before New York City’s mayoral election, the US Court of Appeals for the Second Circuit blocked the remedies imposed by the trial judge who found in August that the department’s stop-and-frisk practices violated the constitutional rights of young black and Hispanic men who were stopped and searched without legal basis. The Second Circuit’s three appellate judges were also sharply critical of federal District Court Judge Shira Scheindlin, who presided at the Floyd trial, and took the rare step of removing her from the case and having it reassigned it to another judge, Analisa Torres.
Following a trial and deliberation period that lasted over seven months, Scheindlin had issued a lengthy decision  analyzing the evidence and the law, concluding that changes had to be made in the way the NYPD did business; Scheindlin’s remedies included setting up a monitor position to to oversee wayward cops.
Following her August decision and order, Scheindlin issued a stay or delay in implementing it so the City could appeal. Earlier this week the appeals court criticized the City  for its tardiness in seeking a permanent stay. But on Thursday they issued an order that de Blasio, as well as lawyers for the Floyd plaintiffs have called, “shocking” and “outrageous.”
While the three appellate judges were to consider only the stay, leaving other issues for the actual appeal, they nevertheless displayed uncommon hostility toward Judge Scheindlin's actions, findings, and even toward Scheindlin herself. In excoriating language from the bench, they found that she was not impartial, that she gave inappropriate interviews, and that she had improperly encouraged the litigation. That last point referred to the fact that three years ago Judge Scheindlin had indicated that she would be the judge if a lawsuit was commenced, since she had already heard a similar, “related” case which she had decided in favor of the City.
But according to one of the plaintiff’s lead attorneys, Jonathan Moore, she was the appropriate judge because a new case such as Floyd would test whether the City was in compliance with her orders in the original case, Davis v. City of New York. She was saying, according to Moore, “‘I have been with the case for eight years. I have to deal with the question of violations and deliberate indifference to constitutional issues.’”
Moreover, the City had not objected to the new case, Floyd, going to Scheindlin, one of the most liberal federal judges, despite her prosecutorial background. What the City did do in the middle of the trial, however, was release a report on her which attorneys for the plaintiffs say was not only improper but was meant to influence the judge and have a chilling effect on her—in other words, intimidate her.
Moving forward, Moore, the NYCLU, the Center for Constitutional rights and attorneys representing the Floyd plaintiffs have said there will be an application for an en banc hearing, or an opportunity to be heard by the entire appellate bench, not just three of its members. Moore intends to ask the three judges who issued this week’s order to recuse themselves because of their inflammatory statements about Scheindlin—statements which did not involve the issue before them, and which the plaintiffs had no opportunity to argue. While judges do not get to correct accusations made about them, Scheindlin did issue a statement in her own defense, saying that although she did give some interviews, they were intended to correct what the city was saying about her being biased, and that she never discussed the case with the media.. In yet another ironic twist, the three appellate judges, John M. Walker, José A. Cabranes and Barrington D. Parker, assigned the future of the case to themselves, perhaps finding the appeals to come “related” to the motion for a stay.
Christopher Dunn, legal director of the NYCLU, says that the plaintiffs will continue the fight. The City’s lawyer, Michael Cardozo, has expressed delight that yesterday’s ruling sent the case to be relitigated before a new judge. But, given the probability of a de Blasio win next week, a new trial appears unlikely.
Whether by random selection or not the case was at first reassigned to Judge John Koeltl. However, he has declined the case, which is unusual for a sitting judge who does not have senior status. It is unknown whether he has a conflict of interest which would disqualify him, or whether he's been bruised enough. (He has also been the subject of an extraordinary order from the Circuit forcing him to change his sentence of lawyer Lynne Stewart from 18 months to 10 years.)
The latest assignment is to Analisa Torres, a relatively inexperienced judge with a decidedly liberal background. As a state judge she suppressed evidence in a public housing arrest arising out of an unlawful search. Considering how new she is to the federal bench this must have been a random assignment, as it is unlikely that such a new appointee would have been hand picked for a case with such high visibility. Yet if the case is not going to be retried it may be moot.
The big question now for the future of stop-and-frisk is, what happens to the case and to the practice under a de Blasio administration? For now, none of Scheindlin’s remedies, including the involvement of the monitor she has already appointed, have any effect. The appeals court has scheduled submission of briefs for early in the new year, soon after the mayor is sworn in. It is so far unclear who will fill high level appointments, including the Corporation Counsel and the Police Commissioner, during the campaign de Blasio specifically said that neither the current head of the Law Department, Michael Cardozo, nor Police Commissioner Ray Kelly would be asked to join his administration.
In the meantime a legal team will have to be in place, but more important, so will a strategy. Consistent with the position of candidate de Blasio, motions for a stay and even an appeal might be withdrawn. To continue the appeal and therefore challenge Scheindlin’s decision would require a reversal of de Blasio’s platform and, presumably, his political philosophy—that is, it would mean agreeing with the Bloomberg-Cardozo-Kelly camp that there was no pattern of constitutional violations, and even agreeing that perhaps the judge was biased, and that the remedies should not be imposed.
That would be a schizophrenic and brutally cynical result. In January, then, Mayor de Blasio could direct his Corp Counsel, whoever that might be, to withdraw the appeal, leaving Judge Scheindlin’s decision and Order in place. Without a party appealing, there is no appeal. No appeal, no reversal. Liability for the unconstitutional conduct has already been established and is the law of the case. The Circuit court cannot, on its own, simply undo the trial and its results, and have a new trial without reversing the existing decision and order after an appeal. The role and powers of the newly assigned Judge Torres are unclear.
Moore says, “We have seen outrages, but this is one of the most outrageous slaps at judicial independence. It is a warning, if you take on city government you are going to be slapped down. It is a travesty of justice. This time it’s the federal appeals court saying: ‘To People of New York: Drop Dead’”
In the meantime, the City Council has, over Mayor Michael Bloomberg’s veto,
enacted local legislation requiring a police Inspector General, a kind of ombudsman within NYPD, but that person would not necessarily be charged with monitoring stop-and-frisk practices.
At this point in the struggle over the practice, at least one thing is clear: As the Mayor-elect interviews candidates for his administration, the words stop, frisk and monitor are surely part of the conversation.