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NYC stop-and-frisk judge's bid for reinstatement denied

People hold signs protesting against the Stop-and-Frisk program, at a news conference outside the Federal Court in New York November 1, 2013
People hold signs protesting against the Stop-and-Frisk program, at a news conference outside the Federal Court in New York November 1, 2013

By Joseph Ax

NEW YORK (Reuters) - A federal appeals court on Wednesday rejected a judge's challenge of its decision to remove her from the high-profile stop-and-frisk case against the New York City Police Department.

The same three judges at the 2nd U.S. Circuit Court of Appeals, who reassigned the case two weeks ago because U.S. District Judge Shira Scheindlin had "run afoul" of the code of judicial conduct, said she had no standing to question their ruling.

At the same time, however, they issued a separate opinion explaining that they made "no findings of misconduct, actual bias, or actual partiality."

Instead, they said, her actions, which included appearing to steer the lawsuit to her courtroom and granting several media interviews, "might cause a reasonable observer to question her impartiality."

Scheindlin ruled in August that the police department's stop-and-frisk tactics, in which patrolling officers stop and search individuals on the street based on "reasonable suspicion," amounted to a form of indirect racial profiling.

Blacks and Latinos comprised more than 80 percent of all police stops in 2012, despite making up just over half the population.

Scheindlin also appointed a federal monitor to oversee broad reforms to the department's use of the strategy.

The decision last month to pull her off the case by Judges Jose Cabranes, Barrington D. Parker and John Walker represented an extraordinary exercise of their discretion, particularly since the city did not ask for her removal.

But Wednesday's opinions appeared to be an effort to soften that blow, emphasizing that the court only found that Scheindlin had compromised her appearance of impartiality, not committed actual misconduct.

"We recognize that it is frustrating to work extensively on a case that is later reassigned, and that reassignment, even if only based on an appearance of partiality, is a displeasing occurrence for any district judge, particularly for a long-serving and distinguished one such as Judge Scheindlin," the court wrote.

The judge was unavailable to comment.

Burt Neuborne, a law professor at New York University who filed Scheindlin's request, said he was happy to see that the court had clarified its decision to remove her from the case.

"They seem to me to go out of their way to say that they are not saying that she did anything wrong, that it's just an appearance thing," he said.

City officials, including Mayor Michael Bloomberg and Police Commissioner Raymond Kelly, have long complained that Scheindlin is biased against the police department.

Scheindlin's orders were put on hold by the 2nd Circuit until the city's full appeal on the merits of the case is heard in the spring.

Mayor-elect Bill de Blasio, however, has said he will abandon that appeal in favor of accepting reforms to stop-and-frisk, which he vigorously criticized during the campaign.

In an apparent effort to accelerate the appeal before de Blasio takes office in January, the Bloomberg administration has asked the 2nd Circuit to vacate Scheindlin's orders immediately in light of its decision to remove her from the case. The appeals court has not yet ruled on that request.

(Editing by Bob Burgdorfer)

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