Stop & Frisk Lives To Fight Another Day … For Now

Legal Fire Coming?

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By Attorney Melba Pearson
Special to THELAW.TV

Back in August, a federal judge in New York ruled that the New York Police Department's "Stop and Frisk" policy was unconstitutional. The city's mayor and police department appealed … and, yesterday, a panel of appellate judges gave them a temporary break while bashing the trial judge.

The United States Court of Appeals for the Second Circuit of New York said that the trial judge, Shira A. Scheindlin, "ran afoul" of the judiciary's code of conduct by compromising the "appearance of impartiality surrounding this litigation." According to their ruling, she arranged for the case to come to her court, which makes it seem that she wanted a certain outcome. She also gave interviews to the media and made public comments about the case while it was pending before her.

This comes as a huge blow to the plaintiffs who brought the suit. The lawsuit, which was filed in 2008, claimed that the police department stopped minority men without a legal reason. One of the main people bringing the lawsuit was a medical student, who was stopped on two separate times near his home.

The appeals court made it very clear that they were not ruling on the merits of the lawsuit. They were basically reversing her ruling based on her actions and told the police department to hold off on any of the changes that Judge Scheindlin ordered until 2014. During that time, a new trial judge will look at the case and decide whether or not the "Stop and Frisk" policy is unconstitutional. The appeals court did not say that Judge Scheindlin came to the wrong conclusion. They just felt she did not act in the impartial way that judges must behave.

If the evidence from the trial case remains the same, it is highly possible that another judge would come to the same conclusion. During the trial of this lawsuit, police officers testified that they were given quotas. They were told that they had to do a certain amount of stop and frisks per month or else their careers were at risk. Evidence was presented that officers were told to target young minority men between the ages of 14 and 20. In finding the law unconstitutional, Judge Scheindlin pointed to the numbers. Over 80 percent of the stops between 2004 and 2012 involved African Americans and people of Hispanic descent; 90 percent of those stopped were not arrested. African Americans and Hispanics only make up 50 percent of New York City's population.

However, we hold judges to a higher standard. A trial must be fair from start to finish. If, in fact, Judge Scheindlin did make the case come to her courtroom (as opposed to the case being randomly assigned), this makes it seem like she had an agenda. Under the federal code of judicial ethics, judges must remove themselves from any cases in which they have a personal bias or prejudice. If Judge Scheindlin felt very strongly that the "Stop and Frisk" law should be overturned, then she should not have presided over the case. Judges are not allowed to comment on cases that are in front of them or are currently pending in any court. Judges can make comments in the courtroom while the case they are presiding over is in session. But, off the bench, there is pretty much a "gag" order. By giving interviews, Judge Scheindlin exposed herself to criticism and to being accused of being biased.

The saga will continue. The NYPD's "Stop and Frisk" will continue as is until another judge says otherwise. Rest assured there will be plenty of legal fire coming from each side of this equation.

The author Melba Pearson is a prosecutor in South Florida. Follow her on Twitter @ResLegalDiva.

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