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August 31, 2014 / 5 Elul, 5774
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Court Ruling On Stop And Frisk Offers An Important Opportunity

In an unusual ruling, the U.S. Court of Appeals in Manhattan removed the trial judge from the celebrated stop and frisk case and stayed implementation of the restrictions she imposed on the NYPD in its use of the crime-fighting tool.

Though the court did not address the merits of U.S. District Judge Shira Scheindlin’s finding that the current stop and frisk program violated the rights of blacks and Hispanics, it did focus on what it saw as the appearance of the judge’s bias against the program.

The appellate court ruled that Judge Scheindlin “ran afoul” of certain provisions of the Code of Conduct for United States Judges. One provision provides that “A judge should avoid impropriety and the appearance of impropriety in all activities.” Another says “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

The court said “the appearance of impartiality surrounding this litigation was compromised by [Judge Scheindlin’s] improper application of the …. ‘related case rule’ ” (which generally allows lawyers to request that a judge who previously presided over cases similar to theirs be assigned – at that judge’s discretion – to their case) “and by a series of media interviews and public statements purporting to respond publicly to criticism of [her].”

The court also noted that in an earlier case involving stop and frisk over which she presided, Judge Scheindlin told the plaintiff’s lawyer, “[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.”

She also said, “[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.” Later in court she said, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” The current lawsuit was then brought and found its way to Judge Scheindlin.

The court also pointed out that Judge Scheindlin gave interviews about the case and criticism of her to the New York Law Journal, the Associated Press and The New Yorker magazine – a definite no-no.

Over the years Judge Scheindlin has developed a reputation for coming down hard on procedures followed by the NYPD. So whatever one thinks of the stop and frisk program, it isn’t difficult to understand why those favoring it as currently administered would have serious doubts about whether the restrictions imposed by Judge Scheindlin were fair.

The court’s decision presents the new mayor of New York with an opportunity to revisit the issue of stop and frisk and perhaps even calm the passions of a divided city. If done properly, most New Yorkers on either side of the issue will perceive that they have been given a fair shake and accept what is decided.

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