Facing oversight of the aggressive stop-and-frisk program that saw more police stops of young black men than there are young black men in New York City, Mayor Michael Bloomberg (I) made a last-ditch attempt over the weekend to invalidate the ruling that found his police department engaged in unconstitutional racial profiling.
Mayor-elect Bill de Blasio (D) committed during his campaign to drop the appeal to the stop-and-frisk ruling, so Bloomberg only has until January to undermine the ruling against one of his administration’s signature programs. Last month, an appeals panel took the extraordinary step of removing the trial judge, Shira Scheindlin, from the case, finding that Scheindlin violated ethics rules. Seizing upon that finding, the city filed a new motion Saturday arguing that Scheindlin’s 200-page ruling based on months of testimony should be immediately vacated in its entirety — even before the court reviews briefs and oral arguments in 2014.
“The very nature of the judicial misconduct found by this Court … has necessarily created a situation where the District Court’s impartiality throughout the litigation might reasonably be questioned, at a minimum,” the motion argues.
The appeals panel’s ruling that Scheindlin violated ethics rules drew immediate alarm from prominent ethics experts and even a Republican-appointed former chief federal judge, who questioned the court’s reasoning, but said at the very least the court should have held hearings and heard arguments before making such a dramatic ruling against a respected jurist. Ethics experts told ThinkProgress that, even with the court’s extraordinary ruling, the chance that it would order an entirely new trial is slight, and would require a finding that the misconduct prejudiced the entire trial — a more extreme conclusion than the court’s finding that Scheindlin’s “impartiality might reasonably be questioned.”
Even the city recognized in its motion that vacating Scheindlin’s ruling would be a “rare” remedy. But it argues that Scheindlin’s alleged conduct — telling lawyers that she would take this litigation as “related” to another case, and purportedly talking to reporters about the case — so tainted public perception that it doesn’t matter whether or not she had “actual bias.” This argument is likely Bloomberg’s last shot at invalidating the ruling that ordered federal oversight of his stop-and-frisk program. Oral argument in the case will not be scheduled until at least March, and if de Blasio drops the appeal, the court monitoring and other reforms ordered by Scheindlin will likely go into effect.
Meanwhile, Judge Scheindlin herself has intervened in the case, represented by several prominent lawyers, to ask that that the appeals panel withdraw its unprompted ethics findings and prevent the “unseemly dispute among judges” from “distracting attention from the underlying merits.” One of the lawyers leading this effort, NYU legal scholar Burt Newborne, called the latest move by Bloomberg administration lawyers “judicial McCarthyism.”