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2013-11-01

Court Blocks NYPD Stop-and-Frisk Reforms, Removes Judge Who Found Program Unconstitutional

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A sweeping set of changes to the New York City Police Department’s controversial "stop-and-frisk" program has been put on hold. In August, U.S. District Judge Shira Scheindlin found the program unconstitutional, saying police had relied on a "policy of indirect racial profiling" that led officers to routinely stop "blacks and Hispanics who would not have been stopped if they were white." While she did not halt the use of stop-and-frisk, Scheindlin appointed a federal court monitor to oversee a series of reforms. The city appealed Scheindlin’s ruling, saying it made officers "passive and scared" to frisk suspects. On Thursday, it got what it was hoping for, and much more. An appeals court stayed the changes, effectively postponing the operations of the monitor, while allowing police officers to continue using stop-and-frisk tactics. In a striking move, the court also took the unusual step of removing Scheindlin from the case, saying she "ran afoul" of the judiciary’s code of conduct and compromised the "appearance of impartiality surrounding this litigation" by granting media interviews while the case was pending before her. All of this comes as stop-and-frisk has been a major issue in New York City’s mayoral election, which takes place this Tuesday. "The next mayor should consider withdrawing the appeal," says Sunita Patel, co-counsel on the stop-and-frisk federal class action lawsuit and a staff attorney with the Center for Constitutional Rights. "Any fair-minded and neutral judge to look at the record … will come up with the same conclusion. There was a nine-week trial. There is 23,000 pages of evidence here, 8,000 pages of trial transcript. No one could come to a different conclusion than Judge Scheindlin." (Photo courtesy of Anna Tesar)

Transcript

This is a rush transcript. Copy may not be in its final form.

JUAN GONZÁLEZ: A sweeping set of changes to the New York City Police Department’s controversial "stop-and-frisk" program has been put on hold. In August, U.S. District Judge Shira Scheindlin found the program unconstitutional, saying police had relied on a, quote, "policy of indirect racial profiling" that led officers to routinely stop "blacks and Hispanics who would not have been stopped if they were white." While she did not halt the use of stop-and-frisk, Judge Scheindlin appointed a federal court monitor to oversee a series of reforms, including a pilot program that would require officers to wear cameras on their bodies to record their interactions with the public. She also ordered a "joint remedial process" to solicit public comments on how to reform the department’s tactics.

Well, the city appealed the judge’s ruling, saying it made officers "passive and scared" to frisk suspects, and on Thursday it got what it was hoping for—and much more. A Second Circuit Court ruling stayed the changes, effectively postponing the operations of the monitor, while allowing police officers to continue using stop-and-frisk.

AMY GOODMAN: In a striking move, the court also took the unusual step of removing Judge Scheindlin from the case. It ruled she had, quote, "ran afoul" of the judiciary’s code of conduct and compromised the, quote, "appearance of impartiality surrounding this litigation," unquote. A panel of three judges issued a two-page order that criticized Judge Scheindlin for granting media interviews and for making public statements while the case was pending before her. In one of the interviews cited in the order, Judge Scheindlin defended herself from what she called "below-the-belt" attacks by the city for seeking to portray her as unfair to the New York Police Department. New York Police Commissioner Ray Kelly reacted to the news Thursday night.

COMMISSIONER RAY KELLY: I have always been—and certainly haven’t been alone—concerned about the partiality of Judge Scheindlin. And we look forward to the examination of this case, a fair and impartial review of this case based on the merits.

JUAN GONZÁLEZ: All of this comes as stop-and-frisk has been a major issue in New York’s mayoral election, which takes place this Tuesday. Bill de Blasio, the Democratic nominee for mayor, who is leading his Republican opponent Joe Lhota by 40 points in recent polls, said he was, quote, "extremely disappointed" by the decision.

AMY GOODMAN: Well, for more, we’re joined by Sunita Patel, staff attorney with the Center for Constitutional Rights, co-counsel on the stop-and-frisk federal class action lawsuit.

Can you talk about the significance of this decision? I mean, we talked to you after the decision. It was quite stunning, saying that stop-and-frisk was unconstitutional, appointing a—saying a monitor had to be put in place to come up with reforms for the police department. But all of that has been turned around, stayed last night.

SUNITA PATEL: Well, it’s very disappointing and shocking. The decision was very disappointing and shocking.

I think that we need to make sure we’re clear on what was actually in front of them. The city was asking for a stay of a reform process. Although the judge said all of these things needed to be put into place immediately, she also deferred this to the monitor, a process whereby the city would have a role in shaping what those reforms would be. None of those reforms were actually ordered to happen immediately. And in the face of speculative harms and speculative reforms, the city went to the appellate court saying, "Please, stop these conversations from happening." And, you know, that doesn’t meet the legal standard.

So, the court did something that was very unusual, which was sort of ignore the legal issue in front of them and say, "We’re going to stay it." They didn’t give an opinion or decision for why, and then said that they are going to take the case away from a judge who has been very intimately familiar for over a decade.

JUAN GONZÁLEZ: Well, in the ruling, the three-judge panel mentioned that the judge had possibly violated the ethics requirements of judges. I want to read from that May 5th New York Times article the Second U.S. Circuit Court of Appeals cited in its decision. Reporter Joseph Goldstein wrote, quote, "In a brief interview, Judge Scheindlin, who was nominated to the bench by President Bill Clinton, declined to discuss the related-case rule in the context of the various stop-and-frisk cases. But speaking generally, she observed that 'some judges are less inclined to accept a case as related, some judges are more inclined to accept it as related.'

“In open court, the matter has rarely been discussed. But it did arise in late 2007. Although the 1999 lawsuit had been settled, the plaintiffs returned to court in that case to accuse the department of a surge in racially motivated street stops under the policing practices of a new mayoral administration.

“In court, Judge Scheindlin suggested a route other than trying to reopen the old case.

"'If you got proof of inappropriate racial profiling in a good constitutional case, [she said,] why don't you bring a lawsuit?’ she asked. 'You can certainly mark it as related.'"

So, basically, what was happening was that the panel was saying that she was, in effect, pushing the plaintiffs in this case to make it a related case and, in essence, really appearing to not be an impartial judge, as she’s required to be.

SUNITA PATEL: I mean, you know, and this—and this idea that there is some appearance of misconduct is just very troubling, from our perspective. It is not uncommon for judges to accept as related cases, and that is actually the Southern District’s rule, that courts should accept as related cases with the same issues, the same facts, the same parties. And here you had a situation where a judge denied the city—sided with the city. The city said, "We don’t want the plaintiffs to be able to keep this case open for another five years." She said, "You know what? I agree with you, New York Police Department and City of New York. I actually think they should have to file a new case."

JUAN GONZÁLEZ: But also, what’s controversial in this situation is not only the court’s decision that the judge may have breached impartiality, but also what’s not mentioned is the efforts by the city to character-assassinate the judge. The city actually created a dossier that it then shopped to various media around the city, tried to get them to write articles to reflect the Bloomberg administration’s viewpoint that the judge was biased.

SUNITA PATEL: Wow! I actually didn’t know that fact, and that is quite remarkable.

AMY GOODMAN: Well, in May, the New York Daily News article—the New York Daily News published an article that said the staff of Mayor Bloomberg had reviewed Judge Scheindlin’s record and found she ruled against law enforcement in 60 percent of her 15 written search-and-seizure rulings since she took the bench in 1994. Scheindlin responded to the report, saying, quote, "Judges can’t really easily defend themselves. ... To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me," she said.

Another response came from Chris Dunn of the New York Civil Liberties Union. He pointed out that only one of Scheindlin’s opinions against law enforcement was overturned on appeal. He said, quote, "Nothing about these cases remotely suggests any sort of bias against police officers or the NYPD. What actually is remarkable here is [that] the city would attempt to sully or intimidate Judge Scheindlin. That is both unseemly and doomed to fail," he said.

JUAN GONZÁLEZ: I should add on that, because I—the Daily News reporter who wrote that story is a very good friend of mine. The city not only created the dossier and sought to get media coverage, but then did not want it known that it was the one that produced the information. And in fact, the—City Hall was very angry with the Daily News when it mentioned in the article that it was the city that had created the original information.

SUNITA PATEL: Well, because that’s—you know, that is potentially unethical behavior to try to intimidate a judge in the midst of an ongoing trial. It is quite remarkable. And, you know, I think here the other question is: What was the circuit looking at? You know, they didn’t have before them a motion from the city saying that there was some bias by the court, that I know of. The city did not object to the case being assigned as related or being taken as related. You know, I think that this is quite a remarkable and troubling move.

And it’s—you know, it’s also very important for us to know that public opinion is on our side. Reform is going to happen one way or the other. You know, there’s no question the public dialogue has changed, and the police department knows that business as usual is not going to be tolerated by the city and the people here.

JUAN GONZÁLEZ: Well, the Times, The New York Times, in its editorial condemning this decision today, suggested that if Bill de Blasio wins the mayor’s race, he should just withdraw the city’s appeal. Is that legally possible?

SUNITA PATEL: Yes. I mean, we would certainly agree with that, that the next mayor should consider withdrawing the appeal. There is—we don’t think that this appeal is meritorious, especially not at this stage, when no reforms have actually been ordered. And any fair-minded and neutral judge to look at the record, as the next—you know, it’s already been reassigned, as the next judge may have to do, will come up with the same conclusion. There was a nine-week trial. There’s 23,000 pages of evidence here, 8,000 pages of trial transcript. I mean, no one could come to a different conclusion than Judge Scheindlin.

AMY GOODMAN: The judge who is taking on this case, Judge Koeltl, is the judge who ultimately sentenced Lynne Stewart, the civil—the civil rights attorney, to 10 years in prison, though he had originally started with a later—with a lesser sentence. So Judge Koeltl will take on this case. Jeffrey Toobin is one of the people who interviewed Judge Scheindlin, the interview—these interviews criticized by the appeals court, said, in the end, well, the court may be able to stay this, but they can’t stay the election of de Blasio, who says that he will challenge all of this. So where do you go from here?

SUNITA PATEL: Well, we—you know, we are considering what options we have to challenge what the court’s done. We will see what happens there. But at this point, the district court—

AMY GOODMAN: You were in the midst of meeting with the monitor?

SUNITA PATEL: We have been ordered to meet with the monitor and move forward with the reform process.

AMY GOODMAN: As the city has.

SUNITA PATEL: As the city has.

AMY GOODMAN: And yet, this will stop now.

SUNITA PATEL: And that will stop at this point.

AMY GOODMAN: Well, Sunita Patel, we want to thank you very much for being with us, staff attorney with the Center for Constitutional Rights. She’s co-counsel on the stop-and-frisk federal class action lawsuit.

This is Democracy Now!, democracynow.org, The War and Peace Report. When we come back, we’re heading to Canada. We’ll be joined by the two Canadians, journalist John Greyson and Dr. Tarek Loubani, who were held by the Egyptian regime in prison for 50 days. Stay with us.

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