Appeals Court Stays Stop and Frisk Ruling

by Stephen Lendman

Stop and frisk is longstanding NYPD policy. It reflects brazen racial profiling. It affects hundreds of thousands of Black and Latino New York city residents annually.

No evidence proves it's effective. Plenty shows it's racially motivated. It violates core constitutional rights. It's one of many abusive practices.

On August 12, US District Court for the Southern District of New York Judge Shira Scheindlin issued a landmark ruling. It was scathing.

She said NYPD "adopted a policy of indirect racial profiling." Doing so violates "violated their constitutional rights in two ways:

(1) they were stopped without a legal basis in violation of the Fourth Amendment, and

(2) they were targeted for stops because of their race in violation of the Fourteenth Amendment."

Limits on stops are "paramount," she said. They must "be based on 'reasonable suspicion' as defined by the Supreme Court of the United States."

They must "be conducted in a racially neutral manner."

"The enshrinement of constitutional rights necessarily takes certain policy choices off the table."

"No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life."

"Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract unwanted attention."

Equal protection under the law is fundamental, said Scheindlin. "The Constitution prohibits selective enforcement based on considerations such as race."

Judge Scheindlin acted responsibly. It doesn't matter. According to the Court of Appeals for the Second Circuit, she "ran afoul" of the judiciary's code of conduct.

She did so, it said, by compromising the "appearance of the impartiality surrounding this litigation."

The Center for Constitutional Rights (CCR) initiated a federal class action lawsuit against New York City. Floyd, et al. v. City of New York, et al. challenged "NYPD's practices of racial profiling and unconstitutional stop-and frisks."

CCR called Floyd New York's "trial of the century." It cut to the very heart of discriminatory police practices. CCR sued to end them.

On October 29, it headlined "Attorneys Urge Appellate Court to Reject City's Attempt to Delay Remedial Process."

They urged the court to affirm the stopping of "unconstitutional stop and frisk practices." Judge Scheindlin ordered input from community stakeholders most affected.

She did so to determine just and proper remedies. None so far were ordered. NYPD's stop and frisk policy violates Fourth Amendment protections against unreasonable searches. It states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In other words, stopping and frisking someone requires reasonable suspicion that a crime has been, is being, or will be committed. Indiscriminate police actions are unconstitutional.

Former Supreme Court Justice William Douglas once warned against giving "police greater power than a magistrate." Doing so, he said, "is to take a long step down the totalitarian path."

Federal courts today have few like Douglas. The Supreme Court has none. It's stacked with Federalist Society members.

They include Chief Justice John Roberts, Antonin Scalia, Samuel Alito, Anthony Kennedy, and Clarence Thomas. They're ideological extremists. So are most appeals court justices.

In response to Judge Scheindlin's ruling, CCR issued the following statement:

"The court has correctly recognized that thousands of New Yorkers whose rights are violated regularly by the NYPD’s stop and frisk practices - and not the City itself - are the ones who would be harmed by this latest attempt to delay reforms."

"After more than a decade of unconstitutional and racially discriminatory police practices, overwhelming legislative support for changes, and a massive mobilization by affected communities, it is long past time for the City to end its resistance and participate in making those changes."

"If Mayor Bloomberg truly seeks a police force that serves New Yorkers, here is his opportunity - come to the table and help make it a reality."

On October 29, CCR urged appellate court justices to reject this attempt to reverse Floyd.

For over a decade, New York resisted reforms. Abusive stop and frisk policies continued. According to CCR Senior Staff Attorney Darius Charney:

"Delaying the joint remedial process will only continue to harm the communities who have suffered massive violations of their constitutional rights for so long: it is in the community's interest that we begin the discussion without further delay."

CCR added that "(n)umerous city community groups, faith healers, unions, and policing experts submitted declarations."

They affirmed that delaying the remedial process harms city interests. In 2012, New York city's population exceeded 8,300,000. Blacks and Latinos comprise a majority (around 55%).

They have the most to gain or lose. Floyd gives them protection they haven't had for years. It's high time they got it.

Not according to hard right appellate court justices. They acted irresponsibly. They stayed Judge Scheindlin's ruling. They didn't reverse it. They ordered Floyd reassigned to a new district court judge.

Ironically its John Koeltl. In 2006, he unjustly sentenced Lynne Stewart to 28 months in prison. She was convicted despite having committed no crimes.

On appeal, her case was remanded back to Koeltl. He disgracefully increased her sentence to 10 years.

Lynne today suffers from Stage 4 cancer. She's dying. She's denied life-saving treatment. Koeltl denied her compassionate release request.

Imagine how he'll treat New York city Blacks and Latinos. With as much disdain as shown Lynne seems likely.

At the same time, he was instructed to put off "all proceedings and otherwise await further action."

The appeals court hasn't yet ruled on whether Judge Scheindlin's decision reached the right constitutional conclusion.

"We intimate no view on the substance or merits of the pending appeals," it said. The process extends into 2014. By then, New York will have a new mayor.

Democrat Bill de Blasio looks likely to win. Polls show he's far ahead of his Republican opponent. He issued a statement saying:

"We have to end the overuse of stop and frisk, and any delay only means a continued and unnecessary rift between our police and the people they protect."

If elected, it remains to be seen if his policy matches his rhetoric. He can simply order the practice stopped.

CCR said the following the Second Circuit's ruling:

"We are dismayed that the Court of Appeals saw fit to delay the long-overdue process to remedy the NYPD’s unconstitutional stop-and-frisk practices, and we are shocked that they cast aspersions on the professional conduct of one of the most respected members of the federal judiciary and reassigned the case."

"The City carried out a whisper campaign against Judge Scheindlin but never once raised any legal claims of bias, even in its papers to the Court of Appeals."

"That, unprompted, they should reassign the case from a judge deeply steeped in the issues for the last 14 years, who gave the City every opportunity to defend itself in the course of this litigation, is troubling and unprecedented."

According to NYPD's own internal records, around 90% of stop and frisk victims are innocent. They're unjustly targeted. Violating their constitutional rights raises serious concerns.

It's one of many abuses minority Americans endure. It reflects a slippery slope toward totalitarian injustice.

On October 31, New York's ACLU vowed to appeal. It issued a statement saying:

"The New York Civil Liberties Union this afternoon promised to fight a federal appeals court's decision postponing the remedy proceedings in New York City’s stop-and-frisk abuse case."

"The decision, issued by the Second Circuit Court of Appeals, did not overturn the landmark ruling that the NYPD's abuse of stop-and-frisk is unconstitutional."

NYCLU's Executive Director Donna Lieberman added:

"There is overwhelming evidence that the stop-and-frisk regime is unconstitutional and out of control - just ask any black or brown New Yorker."

"We expect the next mayoral administration to make reforming stop-and-frisk a top priority, and we are confident New York City will soon see a day when all New Yorkers' basic rights are protected and respected."

New York Times editors weighed in. They took a principled stand. Most often they're irresponsible on imperial lawlessness and other major issues. They headlined "A Bad Ruling on Stop-and-Frisk," saying:

The Second Circuit Court acted "unwise(ly)." It stayed Judge Scheindlin's ruling. (I)t overreached in taking the extraordinary step of removing (her) from the long-running litigation."

It mischaracterized her responsible ruling. It added insult to injury by alleging "she created the 'appearance of impropriety' by granting press interviews while the case was pending before her."

She had every right to do so. At the same time, she avoided discussing Floyd. She defended herself against a malicious city smear campaign. "I know I'm not their favorite judge," she said.

"I do think that I treat the government as only one more litigant. I don't think they're entitled to deference."

"I think some of the judges are a little more timid to maybe disagree with the US attorney's office."

"They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office. They know the people there, whatever. I try not to do that."

She called targeting her judicial independence a "below the belt attack." Reports that Mayor Bloomberg ordered it made it worse, she added.

"It's very painful," she stressed. "Judges can't easily defend themselves" publicly. "To attack a judge personally is completely inappropriate and intimidates (them) or it is intended to intimidate (them) or it has an effect on other judges and that worries me."

At times, "(y)ou could be in danger physically," she added. Maybe New York cops will target her. Maybe they'll be ordered to do so.

According to Times editors:

"Judge Scheindlin did not strike down the program, which, when properly used, is an important crime-fighting tool."

"But she sensibly ordered the city to use it in a manner that does not discriminate against minorities and that complied with constitutional protections against unreasonable search and seizure."

"Under the Fourth Amendment, police officers can legally detain people on the street when there is a reasonable suspicion that the person is committing, has committed or is about to commit a crime."

"In addition to violating people's rights, the program, as practiced for years in New York, undermined trust in the Police Department in black and Hispanic communities throughout the city."

"Given all the damage done by this program, the next mayor should end this saga by withdrawing the city's appeal and instituting the cogent reforms laid out by Judge Scheindlin."

Most often Times editors act irresponsibly. Give credit where it's deserved. This time they stood tall.

Judge Scheindlin deserves high praise for ruling justly. Implementing her important reforms should proceed straightaway.

New York's most disadvantaged deserve that much and more. It remains to be seen whether any justice will be forthcoming. So much already is lost nationwide.

Stephen Lendman lives in Chicago. He can be reached at lendmanstephen@sbcglobal.net.

His new book is titled "Banker Occupation: Waging Financial War on Humanity."

http://www.claritypress.com/LendmanII.html

Visit his blog site at sjlendman.blogspot.com.

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