City Used Memo Leak to Drag Stop-and-Frisk Judge Through the Mud, Lawyers Say


In an act of desperation, the city of New York has used the media to launch a “despicable” attack on the federal judge presiding over a landmark stop-and-frisk trial, attorneys for the plaintiffs say.

Early Wednesday morning, the New York Daily News published a story describing an internal report compiled by Mayor Michael Bloomberg’s staff that purports to show that judge Shira Scheindlin is “biased against law enforcement.”

By lunchtime, the Center for Constitutional Rights, which represents the plaintiffs, had fired off a response, calling the report an “inappropriate stunt.”

Following court yesterday afternoon, Darius Charney, one of CCR’s lead attorneys on the case, said the allegations achieved a level of absurdity he has never encountered before.

“I’ve heard some ridiculous, outrageous accusations thrown out by the city over the years,” Charney said. “But this is the most ridiculous one I’ve ever heard, and I actually find it despicable.”

The report’s emergence coincides with the final week of testimony in the trial. From 2004 to 2012 the department reported 4.4 million stops; nearly nine out of 10 the subjects, the vast majority of whom were black or Latino, were released without an arrest or summons. Plaintiffs in the case say the stops have amounted to widespread constitutional rights violations, including unlawful search and seizure and racial profiling.

On Monday, Scheindlin is expected to issue her ruling in the case. Wednesday’s article suggested her decision could be motivated by factors beyond the evidence and testimony.

According the to the Daily News‘ review of the city hall report, Scheindlin’s record, “shows she issues an unusually high number of written opinions finding that the NYPD and other law enforcement agencies make illegal searches and seizures.”

“Scheindlin came down against law enforcement in 60% of her written ‘search-and-seizure’ opinions dating to when she started on the bench in 1994. That’s the highest rate of any of the 16 current and former Manhattan federal judges the study looked at since 1990,” the article goes on to say. “Court records show she’s tossed out evidence such as drugs, ammunition and wiretaps because she deemed it was obtained illegally by the NYPD, the U.S. Marshals Service, the FBI or the Bureau of Alcohol, Tobacco and Firearms.”

The mayor’s office examined 15 cases “in which Scheindlin issued a written ruling on the legality of evidence,” according to the article. Six of the cases went “in favor of law enforcement,” one of the cases went “partly against law enforcement” and eight of the cases “went completely against law enforcement.”

Bloomberg’s office did not provide comment to the Daily News, nor did the office respond to a request for comment from the Voice, so the conclusion and full scope of the report remain unclear.

Scheindlin, however, told the paper the report is “‘completely misleading” in that it is limited to her written opinions and does not include her bench rulings, adding that she denies motions to suppress evidence in “nearly all” of her search and seizure bench rulings. Chris Dunn of the New York Civil Liberties Union noted in the article that only one of Scheindlin’s opinions against law enforcement has been overturned on appeal.

A former prosecutor, Scheindlin was appointed as a senior U.S. district court judge for the Southern District of New York by Bill Clinton in 1994. As a result of the so-called “related case rule,” she has presided over several NYPD cases. Under the rule, cases that share a “similarity of facts and legal issues” or resulted from the “same transactions or events” can be designated as related. In 1999, Scheindlin was randomly assigned a case, Daniels v. City of New York, which challenged the NYPD’s stop practices following the fatal police shooting of Amadou Diallo.

Daniels became the predecessor to the trial that has been unfolding in Scheindlin’s lower Manhattan courtroom for the last two months, Floyd v. City of New York. In addition to Floyd, Scheindlin is currently presiding over two other class action law suits targeting the department’s stop and frisk practices. She already ruled on one of the cases in January, determining the NYPD had systematically violated the constitutional rights of private housing residents in the Bronx. She is considering remedies for that suit in conjunction with Floyd.

“The fact that there are three stop and frisk class action lawsuits in front of judge Scheindlin, is nothing unusual,” Charney said, arguing the more important question is why the department keeps getting sued for its treatment of the city’s residents.

“No one seems to be asking why is it that the NYPD is currently defending three class-action lawsuits about its stop-and-frisk practices brought by three separate groups of plaintiffs, three completely separate groups of plaintiffs’ lawyers?” he said.

Charney said he finds the city’s criticism of the judge “despicable” for a number of reasons.

“They are blatantly and deliberately trying to influence the outcome of a trial that they are a party to and they are trying to do [it] through the press,” he said. “This judge was appointed by the president of the United States, confirmed by the United States senate, has served with utmost integrity for more than a decade. She’s considered a legal authority in the country on many legal issues around civil procedure and electronic discovery.”

Scheindlin’s near total authority over major stop-and-frisk cases has clearly disturbed some of the status quo’s most ardent defenders, including NYPD Commissioner Ray Kelly, who believes she has sided with civil rights advocates.

“In my view, the judge is very much in their corner and has been all along throughout her career,” he told the Wall Street Journal last month.

“This is not a conspiracy of CCR or a conspiracy of the ACLU,” Charney said of the suits challenging the department.

Given the timing of the leak and the nature of the allegations it made, Charney believes the disclosure of the report was “an act of desperation.”

“We’ve been at trial now for nine weeks,” he said. “I think the evidence that’s been presented, the testimony that’s been heard, overwhelmingly shows that they are engaging in longstanding, widespread constitutional violations. And instead of mounting a defense on the merits of those claims, they have resorted to baseless ad hominem attacks of a distinguished member of the federal bench.”