Professor Kate Shaw’s Texas Law Review article Beyond the Bully Pulpit won the American Constitution Society’s Cudahy Award on Regulatory and Administrative Law. Seventh Circuit Judge David Hamilton presented her paper at the ACS National Convention in early June. Congratulations to Professor Shaw!
By Pete Brush
Law360, New York (September 18, 2013, 8:06 PM ET) -- After coming under attack from Mayor Michael Bloomberg for ruling New York City's stop-and-frisk tactics unconstitutional, U.S. District Judge Shira A. Scheindlin adopted an unmistakably piqued tone of her own in rejecting a stay of her reform directives, a move experts say hints at the weight she places on the survival of her findings on appeal. The fact that Judge Scheindlin declined to put the brakes on her own recommendations was not particularly shocking, observers said, but — noting that she called the city's arguments circular and particularly troubling in her 17-page ruling Tuesday — they saw unmistakable notes of wrath.
“The language she used was stern, but it was not rude. There were hints of exasperation in it,” said Cardozo School of Law professor Ekow N. Yankah, who agrees in large part with the legal basis behind her initial August rulings that spawned the high-profile appeal in the Second Circuit. “You can hear the exasperation creeping in.”
Judge Scheindlin's Tuesday ruling, which included a jab at "certain high-level city officials" for what she saw as the mischaracterization of the impact of her decision, certainly did not rise to the level of acrimony found in Bloomberg's criticism of her in August. At the time — in language that stunned some legal experts — the outgoing mayor said Judge Scheindlin "doesn't know how policing works" and that she never had any intention of ruling in favor of the police.
Agreeing with Yankah about the generally deteriorating tone between the city and the court on the stop-and-frisk matter was New York City Police Department Sgt. Edward D. Mullins, president of the 4,700-active duty member Sergeants Benevolent Association, which harbors doubts about whether Judge Scheindlin's proposed fixes including a body-camera pilot program and a federal monitor are the right way to go.
Even though he sees a raft of ancillary concerns — including police morale, labor and policy questions that will arise especially from body cameras — he lamented the tone between the city and the court and said it didn't have to become so acrimonious. “What should have happened all along is that there should have been some deep conversations on stop, question and frisk between the police, the mayor and credible community leaders — not the naysayers — but people who have legitimate concerns and who are respected in their communities,” he said. Given the stakes and the obvious distance between the city and the court on stop-and-frisk, Yankah said Judge Scheindlin's tone was not surprising.
“She intends for her remedies to be thoughtful and long-term,” he said. “The best scenario is that this ends up being comparable to a 'Miranda'-type decision for New York City, where we change how legitimate policing works.” Now that the stay ruling has come down, the city has vowed to appeal it to the Second Circuit just as it is challenging the initial decisions themselves.
A source said late Wednesday that the city would ask the Second Circuit for a stay within "the next few days." It was unclear how the timing would work on that but, according to Mullins, police feel a sense of urgency because they are craving assurances that any steps they end up taking won't ultimately be unwound. “I see no harm in sitting down with somebody,” he said, referring to impending meetings between the federal monitor — Arnold & Porter LLP trial lawyer Peter Zimroth — and police.
“The reverse is that the process could move quickly. He's a highly credible attorney. I don't see him coming in and single-handedly demanding changes, but we don't know that. The body camera issue is going to be especially contentious.” But Judge Scheindlin, too, appeared mindful of how the timing could play out, noting Tuesday that “the vast majority of these reforms will not be implemented” until after Zimroth, along with community outreach facilitator Nicholas Turner, meet with cops to develop the remedies she outlined. “No other specific relief is imminent, much less ordered,” Judge Scheindlin said.
That part of her ruling appeared designed not just to calm fears that she was demanding for the police department to turn away from its time-honored tactics — which have had the high-sign from the U.S. Supreme Court for decades — but also sought to give cover to those like Zimroth who are tasked with moving the city and its police department forward, according to Yankah. “If anything, that ruling suggests that [Zimroth] should be careful going forward,” he said. "The ruling is meant to shield him from feeling a need for excessive speed.”