Yesterday, a federal appeals court panel not only put the landmark New York Police Department stop-and-frisk ruling on hold; it also removed the trial judge from the case, finding that she had violated ethics rules. The slight against U.S. District Judge Shira Scheindlin surprised many — city lawyers hadn’t even requested that Scheindlin be removed or raised ethical objections in the case. And legal scholars have questioned the rare and extraordinary move to remove Scheindlin based on comments to reporters and lawyers that appear in dispute, without a hearing or arguments from either party. In fact, Judge Scheindlin issued her own press release defending the court’s the allegations against her.
Thursday’s ruling did not call into question the merits of the appeal, and Scheindlin’s landmark ruling that found NYPD engaged in unconstitutional racial profiling may still be upheld. But findings that she violated ethics rules have the potential to undermine her decision in several ways.
In the short-term, the ruling means Mayor Michael Bloomberg’s NYPD will not be subject to federal monitoring while the U.S. Court of Appeals for the Second Circuit considers the city’s appeal, and will not yet be required to undertake suggested reforms such as a camera pilot program. The medium term will in part hinge on the outcome of next week’s mayoral election. If Bill de Blasio wins the mayoral election, he says he intends to drop the appeal and to reform the stop-and-frisk program in any case. Opponent Joe Lhota said he would continue with the appeal.
The long term repercussions could be the most significant of all. First, if the appeal continues after a new mayor takes office, there is a small possibility that the U.S. Court of Appeals for the Second Circuit is not done doling out remedies for its finding that Scheindlin violated the Code of Conduct. If the court finds that Judge Scheindlin’s conduct prejudiced the case, it could upend months of trial and Scheindlin’s 200-page opinion, by remanding the case for a new trial before a different judge. Legal experts say such a ruling is very unlikely, but possible. “If the court finds that the judge had no business sitting in the first place because the judge was required by 28 USC 455 to recuse herself, not to sit at all, from the beginning, then that opinion would be vacated, there would be a new trial, so it could be heard before an impartial judge,” Hofstra University legal ethics scholar Monroe Freedman said. Legal ethics lawyer John Steele, who writes for the blog Legal Ethics Forum, also said it was possible but unlikely that the judges could remand the case if they find Scheindlin prejudiced the case.
If Scheindlin’s ruling is not overturned by the appeals panel — on legal ethics or any other grounds — the city will be subject to federal monitoring. And whether or not the new mayor drops the new appeal, the judge assigned to replace Scheindlin will have a heavy hand in both oversight and enforcement of the ruling going forward. If a judge is assigned who doesn’t agree with Scheindlin’s ruling, the enforcement could be significantly diluted.
“The long-term impact is that she will not be riding shotgun over the process moving forward and so now you have a massive luck of the draw situation,” said Steele. “… My guess is the New York City Police Department on average will be better off.”
By March, the earliest the court will hear oral argument, New Yorkers will have a better sense of what that police department will look like under a new mayor.