NY court won't hear from stop-and-frisk judge

AP News
Posted: Nov 13, 2013 11:00 PM

NEW YORK (AP) — A federal appeals court refused Wednesday to reconsider its order removing a judge from court cases challenging the New York Police Department's stop-and-frisk policy.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in Manhattan had removed federal Judge Shira Scheindlin last month, saying she had misapplied a ruling that allowed her to preside over the stop-and-frisk cases and had made statements in media interviews that jeopardized the appearance of judicial objectivity.

Her attorney Burt Neuborne filed papers last week, asking the panel to reconsider the order and saying the appeals judges had offended due process by ousting her without letting her defend herself. Scheindlin ruled in August that police officers sometimes carried out stop-and-frisk unconstitutionally by discriminating against minorities.

On Wednesday, the panel denied Neuborne's request, saying it lacked a procedural basis.

"We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case," the judges ruled.

The decision said "the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin — as to which we have expressly made no finding" — but solely because of conduct codes that said judges should not be part of a proceeding in which "impartiality might reasonably be questioned."

"Frankly, if that had been the language in the first order, I doubt we would have been in court," said Neuborne.

Scheindlin found that stop-and-frisk discriminated against minorities and appointed a monitor and a facilitator to find better ways to employ the tactics.

Stop and frisk has been around for decades, but its use grew dramatically under Mayor Michael Bloomberg's administration to an all-time high in 2011 of 684,330 stops, mostly of black and Hispanic men. To make a stop, police must have reasonable suspicion that a crime is about to occur or has occurred, a standard lower than the probable cause needed to justify an arrest. Only about 10 percent of the stops result in arrests or summonses, and weapons are found about 2 percent of the time.

Stop and frisk drew further rebuke in a first-of-its-kind analysis by the state's top prosecutor set to be released Thursday, which found that close to half of those arrests failed to result in convictions.

New York Attorney General Eric Schneiderman's report analyzed 150,000 stop-and-frisk arrests from 2.4 million stops between 2009 and 2012. It found that only 1.5 percent of arrests resulted in a jail or prison sentence — and a tenth of 1 percent led to convictions for violent crimes.

The mayor's office and the NYPD didn't immediately return messages seeking comment on Schneiderman's report.

On the ruling removing Scheindlin, City lawyer Michael Cardozo said the court's refusal to reconsider was correct.

"The Second Circuit clearly explained how the judge's comments compromised the appearance of impartiality and required reassignment to a different district judge," Cardozo said in a statement.

After being removed, Scheindlin issued a statement saying she had properly presided over the cases because they were related to a previous case she had heard. She also consented to interviews under the condition that she wouldn't comment on an ongoing case.

"And I did not," she said.