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Motions Galore: Clock Is Ticking in NYC's Stop-and-Frisk Cases

By Gabriella Khorasanee, JD on November 13, 2013 | Last updated on March 21, 2019

The drama surrounding New York's stop-and-frisk case is not slowing. Just within the last week we've seen a flurry of motions from all sides (and now on Judge Shira Scheindlin's behalf too), raising issues that bring the political nature of the case to the forefront.

The big question on New Yorkers' minds is: how will this end? But the answer to that question really has to do with when, because as with many things, timing is everything.

Judge Scheindlin Challenges Removal

Less than two weeks ago, the Second Circuit removed Judge Scheindlin from the New York stop-and-frisk case she had been presiding over for years, saying she "ran afoul" of the judicial code of conduct. NYU Law Professor Burt Neuborne volunteered to represent Judge Scheindlin pro bono, and she accepted, reports The New York Times.

Neuborne, along with four other attorneys, filed a brief asking permission to challenge the removal of Judge Scheindlin from the case. The challenge is based on Judge Scheindlin's lack of "notice and opportunity to defend herself," according to the Times, which the brief asserts "was not merely a breach of the norms of collegiality and mutual respect ... [between] judges, it is an affront to the values underlying the Fifth Amendment's guarantee of procedural due process of law."

New York City's Motion to Vacate

Because Mayor-elect Bill de Blasio has stated that he would withdraw the city's appeal in these case, reports The AP, current Mayor Bloomberg has shifted into high gear to preserve his legacy of stop-and-frisk. Last week, the City asked for an accelerated schedule of appeal so that the issues would be resolved before year's end, before Bloomberg's term ends, reports The New York Times. However, the Second Circuit did not agree and the appeals schedule now extends into March 2014.

The City did not stop there, reports Bloomberg. In the wee hours of Saturday morning, the City filed a motion requesting the Second Circuit to vacate Judge Scheindlin's decision stating in its brief: "At a minimum, the District Court's misconduct makes it reasonable to question the impartiality of the District Court Orders, and at a maximum represents a violation of Appellant's Due Process rights ... ."

Plaintiffs' Motion to Vacate

On Monday, the Center for Constitutional Rights, attorneys for the plaintiffs, filed a motion to reconsider en banc to the Second Circuit. In its brief, the plaintiffs ask the Second Circuit to reconsider and vacate its decision removing Judge Scheindlin from the case.

Political Tango

The critical issue here is timing. If the City's motion to vacate the decision is granted before the end of the year, then de Blasio will not be able to drop the appeal, resulting in a huge waste of time and resources for the courts, not to mention the taxpayers of New York.

If the Second Circuit does not grant the City's motion to vacate Judge Scheindlin's decisions, then the case will necessarily drag into the new year and into de Blasio's term -- and we all know what that means for the appeal. We're all waiting, but only time will tell.

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