Days ago we learned that Judge Shira Scheindlin was contesting the order by a three judge panel of the 2nd Circuit to dismiss her from the New york City Stop & Frisk case, Floyd v New York City. Scheindlin's ruling, issued back in August, said that the policy, as applied by NYPD, was unconstitutional, and ordered certain remedies.
Now the Empire is striking back. Mayor Bloomberg, despite the fact that he will soon be history - replaced by someone who was elected on a platform opposing Stop & Frisk and who has said he would not continue to contest the court's order - has filed papers with the 2nd Circuit asking them to vacate Judge Scheindlin's decision (the 2nd Circuit panel has, up to now, while dismissing Scheindlin, only stayed her decision pending further consideration. Vacating the decision would mean ruling that it is null and void, as if it never existed).
According to the New York Times:
The Bloomberg administration, in its most aggressive push yet to erase the stain of a judge's rulings on police stop-and-frisk practices, asked a federal appeals court on Saturday to vacate her decisions, which had ordered sweeping changes including the appointment of a monitor...
The city's filing... seemed aimed in part at ensuring that Judge Scheindlin's rulings disappeared before Mr. Bloomberg leaves office.
Mayor-elect De Blasio, powerless until the New Year, could only express his frustration at the current administration's disrespect and willful ignorance of the election results:
An aide to Mr. de Blasio said on Saturday that the Bloomberg administration had neither consulted the mayor-elect on the city's move to vacate Judge Scheindlin's decisions, nor did Mr. de Blasio support such an effort. A Law Department spokeswoman also said that the city had not coordinated its legal strategy with Mr. de Blasio or his staff.
The Rebel Alliance is not, however, out of bullets. Today, the Center for Constitutional Rights, one of the litigants in
Floyd v City of New York,
filed its own request, asking
the entire Second Circuit Court of Appeals to reconsider an October 31, 2013 decision by a three-judge Second Circuit panel to remove District Judge Shira A. Scheindlin...
In today's filing, the Center for Constitutional Rights asked the Second Circuit to vacate the decision removing Judge Scheindlin from Floyd and noted that she is steeped in the complexities of the case, having presided over an earlier, related racial profiling case, Daniels v. the City of New York, as well as over the nine-week trial in Floyd, which included testimony from over 100 witnesses and resulted in an 8,000-page trial record.
In other words, they are attempting to go over the heads of the 2nd Circuit panel, which has been criticized loudly and widely for its decision. E.g,
The New York Times, in a major editorial opinion:
The United States Court of Appeals for the Second Circuit erred badly last week when it stayed the remedies ordered by Judge Shira Scheindlin of Federal District Court to correct the civil rights violations associated with New York City's stop-and-frisk policy, including an independent monitor to review police practices. It also unjustly damaged Judge Scheindlin's reputation when it removed her from the case.
The removal of Judge Scheindlin and the behavior of New York City's Mayor and City Attorney have been criticized by the legal profession as well. A number of legal scholars have questioned why the 2nd Circuit Panel did what it did and in some cases denounced it as unprecedented. For example, here is Anil Kalhan, Professor of Law at Drexel University,
criticizing the City's legal team:
The contortions in which ((Bloomberg's lawyers)) have engaged in this litigation suggest that extreme yoga must be a prerequisite for employment in (((New York City Attorney)) Cardozo's office. At no point during the many years in which the stop and frisk cases have been pending before Judge Scheindlin have the City's lawyers formally sought her recusal or disqualification or formally alleged any violations of the canons of judicial conduct...
And the 2nd Circuit panel:
In essence, Cardozo's motion invites the Second Circuit to take the outgoing, lame duck Mayor's side in what is fundamentally a political dispute...
... she has had no meaningful opportunity to defend herself against a raft of serious but questionable allegations that have been casually leveled by the motions panel itself and the Bloomberg administration...as Dean Erwin Chemerinsky wrote in the New York Law Journal last week, "judges are human," and the nature and circumstances of the panel's order makes it appear that the panel got "caught up in the ... deep emotions" of this highly charged case and "rushed to quickly take sides."
... not only did the panel not point to any exigent circumstances that demanded haste in ousting Judge Scheindlin, but it also seems highly unlikely that it could have done so, since... no legitimate circumstances genuinely demanding that immediate action really existed.
One might be tempted to get out the popcorn - there is no telling quite what will happen next.
But let's be clear. The right of millions to be treated with respect, instead of as de facto suspects by virtue of their age and skin color, is at stake here.
Let's hope that the echoing criticism of the 2nd Circuit panel's actions - from both lawyers and the public - will have an effect on both the substance and the speed of future decisions. Let's hope the the 2nd Circuit en banc will stop, look, onder "WTF??" (respectfully, of course) - just as many of their colleagues already have - and act appropriately to rein in Judges Cabranes, Walker and Parker, no matter how respectably they have otherwise conducted themselves.