Walter Choroszewski Stock Connection Worldwide/Newscom

Walter Choroszewski Stock Connection Worldwide/Newscom

The U.S. Court of Appeals for the Second Circuit recently entered an important order in the case involving the New York City Police Department’s (NYPD) controversial “stop and frisk” policy.

For some time, the NYPD has vigorously pursued “stop and frisk” in an effort to reduce gun-related violence. Officers stop and question parties suspected of criminal activity, and officers “frisk” suspects—pat down the suspect’s outer garments—believed to be armed. In 1968, the Warren Court endorsed that practice in Terry v. Ohio. Every local, state, and federal law enforcement agency uses it.

The NYPD’s practice, however, has become controversial, hailed by some and condemned by others. On the one hand, the mayor and police commissioner attribute the marked decline in homicides to this practice. On the other hand, people stopped and frisked often cry “foul.” Why? From 2004 to 2012, NYPD officers stopped more than 4 million suspects, and 80 percent were black or Hispanic.

Last summer, the critics won a temporary victory. Federal Judge Shira Scheindlin issued a broad ruling that the NYPD stop-and-frisk practice violated the Fourth Amendment and Equal Protection Clause of the Fourteenth Amendment. The city appealed that decision to the Second Circuit, which stayed the district court’s ruling until the appeal is decided. That has the effect of leaving the NYPD’s practice in place for the time being.

The court, however, also ordered the case reassigned to another trial judge in the meantime because Judge Scheindlin violated the code of judicial conduct in two ways. She appeared to encourage plaintiffs in another case to file this lawsuit so that it she could decide it, and she made public statements, some in media interviews, responding to criticisms levied against her about the litigation. Accordingly, the Second Circuit held, Judge Scheindlin’s remarks gave rise to “an appearance of impropriety.”

The Second Circuit’s decision is unusual but not unheard of. The D.C. Circuit issued a similar ruling in 2001 in United States v. Microsoft when District Judge Thomas Jackson gave media interviews about the case while he was in the process of deciding it.

The Second Circuit’s order also seems right. Public respect for the judicial process is critical. Ethical rules require judges not only to be impartial but also to appear impartial. Judges, like umpires, must use the same strike zone for each team and must call balls and strikes without regard to what team is at bat and how their calls affect that team.

Moreover, the public must believe that judges decide cases impartially. Few could honestly say that a judge who appears to be rooting for one side or the other can nonetheless be fair, and no one could honestly say that a judge itching to decide a case will give each side its due. Perhaps Judge Scheindlin was correct in ruling that the NYPD has acted unlawfully—a subject that I have addressed elsewhere—but regardless of the merits of her ruling, she should not have commented publicly on a pending case, to say nothing of urging a plaintiff to file it so that she could decide it.

No judge should be seen as trolling for a case, because no one would trust that judge to decide it fairly. The Second Circuit found that prospect troubling here and remedied it.

Now, on to the merits.