Three days before he was sworn in as New York City’s 109th mayor, Bill de Blasio announced he would drop the city’s appeal of Judge Shira Scheindlin’s ruling finding the NYPD’s aggressive stop-and-frisk tactics unconstitutional.
That was good news for New Yorkers. Nearly 90 percent of the 4.4 million people the police stopped for questioning between 2004 and 2012 had done nothing wrong, according to evidence presented at a nonjury trial Scheindlin conducted last spring.
But the announcement leaves in limbo a devastating ruling by a federal appeals court panel, which removed Scheindlin as the judge presiding over challenges to the NYPD’s stop-and-frisk policing since 1999. The removal order was a crushing blow to Scheindlin’s professional standing and sent a chilling message to other judges: tread carefully when handling cases that challenge government action.
Scheindlin issued two rulings last August. One found the NYPD’s stop-and-frisk procedures unconstitutional, and the other ordered the city to implement reforms under the supervision of a court-appointed monitor.
The class plaintiffs in the stop-and-frisk challenge have asked the entire Court of Appeals for the Second Circuit to review the removal order, issued by a three-judge panel of the court. But given the legal posture of the case—a new judge has already been assigned to preside over it, and the panel has ordered the request for review held in “abeyance”—it is likely the full-court review will never take place.
Should the panel’s removal order remain on the books, it would set a terrible precedent. The court’s removal of Scheindlin even before it decided the appeal was very likely unprecedented. Moreover, the ruling was so marred by departures from customary practices as to raise questions about the panel’s neutrality.
In a sign of undue haste at a court known for its attention to detail, the unsigned ruling contained a glaring error, which the three judges were forced to correct two weeks later. Further, the panel removed Scheindlin even though the city never sought her removal in the case; the panel then faulted her for taking a step the city had not objected to six years earlier—and it did so in a manner that precluded her from defending herself from the suggestion that she had been unethical.
Research by University of Virginia Law School professor Toby Heytens, soon to be published in the Stanford Law Review, underscores the aberrant nature of the panel’s removal order. Heytens found that appeals court replacements of trial judges have been highly unusual. More important, he did not find a single case issued by any of the nation’s thirteen federal circuit courts in which removal was required before an appeal had been decided on the merits.