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Stop and frisk is probably dead anyway

The removal of the anti-stop-and-frisk judge won't save the policy.
Demonstrators march during a protest in New York June 17, 2012.
Demonstrators march during a protest in New York June 17, 2012. Thousands of New Yorkers marched in silence down Fifth Avenue to demand an end to the New York Police Department's \"stop-and-frisk\" program, which the protesters say disproportionately targets black and Latino males.

New York City's lawyers expressed glee Thursday after learning that Judge Shira Scheindlin, who ruled against them in the constitutional challenge to "stop and frisk," had been removed from the case. The groups challenging the policy were less pleased.

"There's no basis; this was not only a fundamentally flawed decision but an outrageous decision and an attack on the independence of judges," says Darius Charney, an attorney with the Center for Constitutional Rights, the group that sued the city over stop and frisk. "To accuse a judge of violating judicial ethics on such a non-existent record is just outrageous."

Yet in the long term, stop and frisk as practiced by the New York City police has likely already lost, even with Scheindlin gone.

The Center for Constitutional Rights had charged that the city's stop and frisk policy violated the constitutional rights of New Yorkers by discriminating against them on the basis of race. Judge Sheindlin had agreed, ordering the city to submit to a federal monitor to oversee the changes to the city's policing practices. The three judges who removed Sheindlin blocked her August ruling finding that the city's application of stop and frisk was unconstitutional. The judges wrote that Scheindlin "ran afoul" of the Code of Conduct for United States Judges with statements to the media and her suggestion to a future plaintiff that they file the lawsuit that eventually became the stop and frisk case. 

Up to 80% of those stopped in New York City under stop and frisk were black and Latino. Responding to criticism that the policy amounted to racial profiling, Mayor Michael Bloomberg countered that 80% was not nearly enough, saying that “we disproportionately stop whites too much and minorities too little.” City officials claimed the policy was necessary to stop crime, but the crime rate in New York is low and was on a modest decline even before stops increased exponentially in recent years. 

It is very unusual for a judge to be removed in this fashion, particularly without a request from either party to the case. "A removal at this stage is astoundingly rare," says Steven Lubet, a professor at Northwestern Law and an expert in legal ethics. Having handled related cases for years, Charney says, Scheindlin knows the facts of the stop and frisk case at a level that any new judge will struggle to reach.

Though the city had not requested Scheindlin be removed for bias, Bloomberg had publicly attacked Scheindlin for failing to be impartial after the city lost its case. ”Given the judge’s public comments and media interviews throughout the case, this decision was certainly not a surprise,” Bloomberg said at a press conference following the ruling.

The only other similar case Lubet could point to was Judge Thomas Penfield Jackson, who presided over the Microsoft antitrust case in the late 1990s. In that case however, Jackson had spoken candidly to reporters in chambers about the parties to the case, and often in disparaging terms. According to his obituary in The New York Times, Jackson had told the reporters that then-Microsoft CEO Bill Gates had “a Napoleonic concept of himself,” and "compared Microsoft’s declaration of innocence to the protestations of gangland killers."  Jackson then ruled that Microsoft would have to be broken up into two separate companies, a ruling that was later vacated.

There is nothing remotely as dramatic cited in the order removing Scheindlin. In fact, she has often emphasized her lack of bias, telling a reporter that "I do think that I treat the government as only one more litigant." Jeffrey Toobin, the New Yorker reporter whose pre-trial profile of Scheindlin was cited in the order removing her, called the court's decision "preposterous." 

Legal ethics experts who spoke to msnbc were more divided on the matter. "Based on what I've been able to read, it doesn't seem as though it required disqualification," Lubet says, though he cautioned that because there had never been a hearing, the court might be acting on information not referred to in the order.

Charles Geyh, a professor at Indiana University's Maurer School of Law, felt differently. "I think that for my way of thinking, when judges are criticized, they've got to have thick enough skins to not get out there and start slugging it out," says Geyh. In one interview, Scheindlin had criticized what she called a "below-the-belt attack" on her impartiality by Mayor Bloomberg. 

She shouldn't have hit back, Geyh says: public criticism is "the price they pay for being judges."

In a related lawsuit preceding the stop and frisk case, Scheindlin had encouraged the future plaintiffs to bring the case that eventually became the stop and frisk challenge. “What 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," she said. In Geyh's view, "I am going to get in trouble for saying it" was a tell.

"She knows that--as a practical matter--she knows her job is not to encourage people to file civil actions," says Geyh. Charney says that the idea that Scheindlin somehow "engineered" the stop and frisk case is "fiction," and that the context of the statement was that the CCR was attempting to have the city held in contempt. Scheindlin not only refused to do that, Charney says, she was merely pointing out that the CCR was bringing up new issues that would have to be dealt with in a separate lawsuit than the one she was hearing.

Yet Scheindlin's removal may but postpone the inevitable. Although the Second Circuit court blocked Sheindlin's ruling, it did not overturn it, and the judges who wrote the opinion took pains to note that their decision should not be taken as implying that the court would side with the city on the merits. 

The best news for the New Yorkers affected by stop and frisk is that New York City Democratic mayoral candidate Bill de Blasio is on the verge of becoming mayor. De Blasio won the Democratic nomination in part on his opposition to stop and frisk, articulated in an emotional ad featuring his biracial son. He has pledged to change the policy. Bloomberg had refused to settle the lawsuit.

It's possible, even likely, that negotiations between civil liberties groups and a de Blasio administration could lead to an agreement that would end stop and frisk as currently practiced by the NYPD. That would prevent the need for an appeal, or a new trial, and with it, the risk of a ruling in favor of the city. Or worse, given how conservative-leaning higher courts have handled civil rights cases, a ruling holding racial profiling (in all but name) constitutional.

"This ruling will not torpedo the reform of stop and frisk," says Donna Lieberman of the NYCLU, which is appealing the court's decision. "It may make it more complicated."