Commentary Magazine


Topic: Shira Scheindlin

A Stop-and-Frisk Ruling All Sides Can Cheer

Whatever one thinks of the NYPD policy known as stop and frisk, yesterday’s appeals court ruling was a welcome act of judicial restraint. In August, Judge Shira Scheindlin ruled against stop and frisk’s constitutionality on flimsy arguments after conducting an irresponsible and transparent show trial against the New York Police Department. Yesterday, the Second Circuit appeals court granted a stay of the ruling and Scheindlin’s proposed changes to the policing policy.

But the appeals court went further, reprimanding Scheindlin’s behavior and ordering her to be removed from the case:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges … and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” … and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

What Scheindlin had done was improperly steer the case to her court so she could control the outcome, having telegraphed ahead of time that she wanted to put a stop to the tactic. The case that followed undermined her intentions, because the reality of stop and frisk is so far removed from the left-wing demagogues’ fantasy slander of the police. Scheindlin ruled against the evidence anyway, because she had come to her decision beforehand.

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Whatever one thinks of the NYPD policy known as stop and frisk, yesterday’s appeals court ruling was a welcome act of judicial restraint. In August, Judge Shira Scheindlin ruled against stop and frisk’s constitutionality on flimsy arguments after conducting an irresponsible and transparent show trial against the New York Police Department. Yesterday, the Second Circuit appeals court granted a stay of the ruling and Scheindlin’s proposed changes to the policing policy.

But the appeals court went further, reprimanding Scheindlin’s behavior and ordering her to be removed from the case:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges … and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” … and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

What Scheindlin had done was improperly steer the case to her court so she could control the outcome, having telegraphed ahead of time that she wanted to put a stop to the tactic. The case that followed undermined her intentions, because the reality of stop and frisk is so far removed from the left-wing demagogues’ fantasy slander of the police. Scheindlin ruled against the evidence anyway, because she had come to her decision beforehand.

Because I have defended the policing tactic at the center of this–it has been found constitutional by the Supreme Court because it is constitutional, and it has saved countless lives, especially among minority communities–it would be easy to dismiss this as championing judicial restraint simply to save a policy of which I approve. But the truth is that this ruling is far better for the anti-stop and frisk crowd than Scheindlin’s ruling was.

The reason for that is simple: although Ray Kelly and the NYPD get high approval marks, on Tuesday in all likelihood Bill de Blasio will be elected mayor. De Blasio is an inexperienced ideologue (he was inspired to government service by his time spent with Marxist Sandinistas and honeymooned in Cuba), and as such has openly campaigned against responsible public servants like Kelly and the NYPD. Opponents of stop and frisk saw the momentum moving their way, after twenty years of Giuliani-Bloomberg public safety campaigns.

And just as de Blasio’s son Dante had become the public face of the de Blasio campaign, lending even more credence to de Blasio’s claim to understand the impact of city policing on the African-American community, Scheindlin swooped in and made the case all about her. A mayor who promised to end stop and frisk that was elected in a landslide lends a heavy dose of democratic legitimacy to his policing policies. An activist judge who steers a case to her courtroom and then has to be removed from the case because of her inappropriate behavior does the opposite.

This discussion takes place on a host of controversial issues. One argument against a broad Supreme Court ruling in favor of gay marriage, for example, was that the country is making its peace with same-sex marriage and elected state legislatures are already enacting marriage-equality legislation. A court ruling imposing social rules on the country risks removing that democratic legitimacy and thus polarizing the two sides far more, as happened with Roe v. Wade, an example of judicial overreach that has ensured the matter would not be settled by democratic means.

This line of argument was that the cause of gay-marriage legalization had the most to benefit from the court staying out of the way of popular change, especially because it seemed so unnecessary. The same can be said for stop and frisk’s opponents. They are on the verge of electing their champion. Additionally, Scheindlin’s ruling was of course going to be appealed, thus freezing the process. It’s entirely possible that Scheindlin’s ruling would have ended up delaying changes to stop and frisk, while also stripping away the legitimacy of those changes.

This is why judicial restraint is so important in a democracy, and why those on both sides of stop and frisk should cheer the Second Circuit’s infusion of propriety into the case.

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The NYC Mayoral Election and Public Safety

In one of its several reaction stories on yesterday’s irredeemably shoddy judicial ruling against the NYPD’s stop-and-frisk tactic, the New York Times calls attention to the sudden relevance of the mayoral candidates to this court case. The administration of Michael Bloomberg is appealing the ruling, but the Times points out that it is likely Bloomberg’s term in office will end before the appeals process does. So the Times explains how various New York mayoral candidates would handle it.

The Republican candidates, Joseph Lhota and John Catsimatidis, both said they would continue Bloomberg’s fight to keep the city’s minority neighborhoods safe. That was in stark contrast to the Democratic candidates, who seemed to be in general agreement that confused judicial activists, instead of criminal justice experts or concerns for public safety, should drive police policy. They seem worried, in fact, that the city might win its appeal and thus rather than be advocates of the city and its residents, they want to stop the process in its tracks:

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In one of its several reaction stories on yesterday’s irredeemably shoddy judicial ruling against the NYPD’s stop-and-frisk tactic, the New York Times calls attention to the sudden relevance of the mayoral candidates to this court case. The administration of Michael Bloomberg is appealing the ruling, but the Times points out that it is likely Bloomberg’s term in office will end before the appeals process does. So the Times explains how various New York mayoral candidates would handle it.

The Republican candidates, Joseph Lhota and John Catsimatidis, both said they would continue Bloomberg’s fight to keep the city’s minority neighborhoods safe. That was in stark contrast to the Democratic candidates, who seemed to be in general agreement that confused judicial activists, instead of criminal justice experts or concerns for public safety, should drive police policy. They seem worried, in fact, that the city might win its appeal and thus rather than be advocates of the city and its residents, they want to stop the process in its tracks:

Four Democrats vying to succeed Mr. Bloomberg pledged on Monday to overhaul the stop-and-frisk tactic and end the city’s appeal of the decision if elected: Bill de Blasio, the public advocate; John C. Liu, the city comptroller; Christine C. Quinn, the City Council speaker; and William C. Thompson Jr., a former city comptroller….

While many of the Democratic candidates have said they would work to decrease the frequency of stops, they have not said exactly how they would overhaul the stop-and-frisk practice.

The exception is Mr. Liu, who has called for banning the tactic entirely.

That follows the phenomenon I wrote about yesterday, in which liberal demagogues assail the police but admit to not having any constructive alternative ideas. It may sound dangerous to advocate for tearing down the system of public safety without so much as a backup plan for what replaces it, but all the Democratic candidates appear to believe the current weakness of the city’s Republican Party means that Democrats can make the breakdown of the social order their election platform and still win.

Heather Mac Donald writes today in the New York Post that the anti-NYPD campaign requires a denial of observable reality. As if on cue to confirm Mac Donald’s framing, the Times publishes a “news analysis” today as well, which seeks to connect the stop-and-frisk ruling and the recent announcement by Attorney General Eric Holder that federal prosecutors would not pursue mandatory minimum sentences for certain drug offenses:

Two decisions Monday, one by a federal judge in New York and the other by Attorney General Eric H. Holder Jr., were powerful signals that the pendulum has swung away from the tough-on-crime policies of a generation ago. Those policies have been denounced as discriminatory and responsible for explosive growth in the prison population.

But that is either completely wrong or a convenient sleight of hand to fool the reader into buying the fabricated connection. It’s true that mandatory minimums prevent the justice system from adapting to the times and from using discretion and judgment in the pursuit of criminals. There has been bipartisan support for reforming or suspending mandatory minimums, and the process certainly has resulted in the disproportionate incarceration of minority males.

But stop-and-frisk does not belong in that category. The tactic seeks to prevent crimes and therefore to prevent incarceration. Not only are minorities in the city safer because of stop-and-frisk, but the proactive approach to crime prevention is a useful tool in seeking to reduce the prison population. Indeed, as I noted yesterday, Judge Shira Scheindlin’s ridiculous ruling was based in part on the fact that the police were arresting so few of the men subject to stops.

It was suspicious, Scheindlin claimed, that the police didn’t seem to be arresting anyone. That, of course, is the point: stop-and-frisk gets illegal guns off the street and suppresses criminal activity. If you can prevent violent crime, there is no need to arrest anyone for those nonexistent crimes. It is absurd, then, for the Times to pair Scheindlin’s ruling with mandatory minimums. Scheindlin’s ruling makes it far more likely that incarceration will increase.

Scheindlin’s idea of policing–shared, according to the Times, by the Democratic candidates–would take young males out of the local economy, break up families, and bring increases in crime. Any resulting middle-class flight would hurt the city’s tax base and thus the services that the city’s poor rely on, as well as drive up prices in the receiving neighborhoods, further pricing the non-wealthy out of the city. It’s a cycle New York, like the country’s other major cities, has experienced before. And it’s a cycle that liberal judicial activists and the city’s Democratic mayoral candidates are apparently ready to inflict on the city once again.

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The Ridiculous Ruling Against the NYPD

Today Judge Shira Scheindlin ruled against the NYPD’s legal and effective “stop and frisk” program, erroneously finding elements of it unconstitutional. It was nice of her to wait until after the case to release her decision, since it’s doubtful she waited until the end of the trial to construct it. Indeed Scheindlin’s decision, which will put the lives of New York City’s minorities at great risk, was no surprise. She made it clear from the beginning she was going to rule against the NYPD, and her decision to grant the plaintiffs’ request that the trial be jury-free ensured she would have total control over the outcome.

Her lack of remorse in sacrificing the safety of minorities to pursue her activist crusade against the police was only part of the inanity of her decision. In the New York Times’s write-up of the case this morning, the paper–which has been an outspoken opponent of protecting heavily minority neighborhoods in the city–provides a revealing look into Scheindlin’s mindset. First, the Times notes that stop-and-frisk occurrences “soared in number over the last decade as crime continued to decline.” I eagerly await the moment the Times makes the connection between the drop in the crime rate and stop and frisk (hint: the latter results in the former). Later, the Times summarizes one of Scheindlin’s objections to the practice:

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Today Judge Shira Scheindlin ruled against the NYPD’s legal and effective “stop and frisk” program, erroneously finding elements of it unconstitutional. It was nice of her to wait until after the case to release her decision, since it’s doubtful she waited until the end of the trial to construct it. Indeed Scheindlin’s decision, which will put the lives of New York City’s minorities at great risk, was no surprise. She made it clear from the beginning she was going to rule against the NYPD, and her decision to grant the plaintiffs’ request that the trial be jury-free ensured she would have total control over the outcome.

Her lack of remorse in sacrificing the safety of minorities to pursue her activist crusade against the police was only part of the inanity of her decision. In the New York Times’s write-up of the case this morning, the paper–which has been an outspoken opponent of protecting heavily minority neighborhoods in the city–provides a revealing look into Scheindlin’s mindset. First, the Times notes that stop-and-frisk occurrences “soared in number over the last decade as crime continued to decline.” I eagerly await the moment the Times makes the connection between the drop in the crime rate and stop and frisk (hint: the latter results in the former). Later, the Times summarizes one of Scheindlin’s objections to the practice:

She noted that about 88 percent of the stops result in the police letting the person go without an arrest or ticket, a percentage so high, she said, that it suggests there was not a credible suspicion to suspect the person of criminality in the first place.

Thus we are now aware that Scheindlin has no idea what she’s talking about–not to mention the fact that her reasoning would suggest the officers would be less suspicious if they made more arrests during the stops. Though all this might tempt readers to skip the text of Scheindlin’s actual written decision, I can assure that anyone who makes the effort will be duly rewarded. For example, in one of the most revealing passages of the text, Scheindlin writes the following, in her introduction:

It is important that this Opinion be read synergistically. Each section of the Opinion is only a piece of the overall picture. Some will quarrel with the findings in one section or another. But, when read as a whole, with an understanding of the interplay between each section, I hope that this Opinion will bring more clarity and less disagreement to this complex and sensitive issue.

In other words, if you simply read the words of her decision, even without legal training you will be shocked by the incompetence. Each section will likely be wrong on the merits, and thus cast doubt on her conclusion. But if you read it “synergistically” it will make sense. This is the Magic Eye book of judicial decisions: if you stare at the page just the right way, its hidden meaning will appear. Of course, the moment you stop staring cross-eyed or change the lighting, it will revert back to its previous form, in which it deceptively appears to be a 200-page humorless New York Times editorial.

The truth is, the best way to understand this trial is to read an early-August piece in the New York Times headlined “More Complaints Than Proposed Solutions at Trial Over Police Searches.” Scheindlin doesn’t argue that stop and frisk is illegal; what she doesn’t like is the frequency with which this legal tactic is utilized. So the story details how the NYPD might reform the practice once she rules against the department. Here is how the story opens:

The judge overseeing the trial examining the constitutionality of the New York Police Department’s stop-and-frisk practices had a novel idea for how to reduce illegal police stops.  

“What did you think of a body-worn camera?” the judge, Shira A. Scheindlin, of Federal District Court in Manhattan, asked the lawyers assembled before her. It was the last question the judge asked during the trial, which ran from March to May.

“I’m intrigued by it,” she explained, observing how helpful it would be if police officers recorded what transpired during stops, which are frustratingly difficult to reconstruct in the courtroom months or years after the fact.

The topic of body cameras seemed to come out of nowhere; the technology had been mentioned in passing by one witness, but none of the lawyers had suggested that it be employed.

This scene, in which a federal judge is essentially spending the trial talking to herself out loud as lawyers and reporters watch in puzzled amazement, is sadly a pretty accurate description of the trial overall. The same story later notes that “as the trial ended, it seemed that Judge Scheindlin was casting about for ideas on how she might fix the problem.”

It’s a problem she was seeking to create, and she had no earthly idea how the city was going to clean up the mess she was about to make of public safety. Notice a steady line of reasoning through her thought process. She doesn’t like the number of stops being made by the police without additional arrests, which would seem to make any constitutional objection to stop and frisk even more acute. But not to Scheindlin. And she thinks the sheer number of stops erodes the dignity of the civilians involved, so her suggestion for how to alleviate this is… to have the police secretly videotape the stops!

That is, Scheindlin seems to intuitively understand that her anti-NYPD ruling will create problems that can best be solved by more heavyhanded policing. It is a ringing endorsement, paradoxically, of the incredible work the NYPD has done in reducing crime and returning dignity to the streets of New York. That Scheindlin can so blithely attempt to sweep away those gains probably sounds silly. But that is not Scheindlin’s fault. If you aren’t looking at this “synergistically,” you really only have yourself to blame.

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