Southern District Judge Shira Scheindlin (See Profile) has refused to stay her order installing a monitor for the New York Police Department to oversee reforms of police stop-and-frisk tactics.

Scheindlin rejected a request by the attorneys with the New York City Law Department to stay her orders in the case of Floyd v. City of New York, 08 Civ. 1034, pending its appeal to the U.S. Court of Appeals for the Second Circuit.

The judge defended her decisions in Floyd and said the city was unlikely to prevail in the circuit as it challenges remedies she imposed in August following a trial in which she found the police department was engaged in the widespread practice of violating the Fourth Amendment's requirement for reasonable suspicion in making stops and violating the Equal Protection Clause because a disproportionate number of those stopped are black and Hispanic (NYLJ, Aug. 13).

"Contrary to statements by certain high-level city officials and pundits, this Court did not order an end to the practice of stop and frisk," Scheindlin said in a 17-page opinion and order. "Rather, this Court ordered that such activity be conducted in accordance with well-established controlling law from both the United States Supreme Court and the Second Circuit Court of Appeals."

After finding the city liable, Scheindlin on Aug. 12 appointed Peter Zimroth, a partner with Arnold & Porter, as monitor to ensure the department's policies comport with the Fourth and Fourteenth amendments; named Nicholas Turner of the VERA Institute of Justice as facilitator to meet with all "stakeholders" in the litigation and the community to suggest reforms; and directed the police to start a one-year pilot project in one precinct in each borough where body cameras are worn to record stop encounters.

She also ordered longer-term reforms in the recording of stops, in the training, supervision, monitoring and discipline of officers and in other areas, but with few measures to be immediately implemented.

The city in its request for a stay said Scheindlin erred in finding violations of the Fourth and Fourteenth amendments and "any actionable widespread pattern or practice deliberate indifference or causation," under Monell v. Department of Social Services, 436 U.S. 658 (1978).

It also claimed that the judge's injunctive relief in Floyd was "not narrowly tailored or clear enough to address found wrongs, particularly as it has no discernible end point or standards to measure success" (NYLJ, Aug. 28).

Scheindlin in her opinion said she found this argument "particularly troubling" and said the Floyd plaintiffs classified this a problem of "ripeness" "non-finality," and "non-appealability."

"Regardless of the legal basket in which the argument is placed, the result is the same," she said. "It takes time to fashion appropriate remedies."

"In short, the only activity at this stage is discussion between the Monitor, the Facilitator, and the parties to develop the remedies described above," she said, thus leaving the city with little chance of success at the circuit, because "The only action required of the City to date is attendance at meetings with the monitor."

Scheindlin said the hundreds of thousands of people subject to unconstitutional stops would suffer "irreparable harm" had she issued a stay.

She also criticized the city for claiming that "public interest" required a stay. "The City dramatically declares that if this Court's orders are not stayed, the 'long-standing record of crime reduction in this city' will be reversed," she said.

She faulted the city for noting in its papers arguing for a stay that the number of stops has fallen precipitously in the last year, a fact the city said could not be "ignored."

"There is little doubt that the decrease in stops from the zenith in 2011 to today is due, in part, to this Court's orders over the past several years, as well as the criticism of the City's stop and frisk practices from diverse sources throughout the City," she said. "Ordering a stay now would send precisely the wrong signal."

Darius Charney of the Center for Constitutional Rights, one of the lead lawyers for the plaintiffs, said, "I think the judge hit the nail on the head numerous times in the decision… We really hope the city will shift its attitude here from one of obstruction and litigiousness to one of more problem solving and cooperation because that's what the remedy process is really about."

Scheindlin took note of politicians who submitted papers arguing against a stay, including City Council Speaker Christine Quinn and Public Advocate and now-Democratic nominee for mayor, Bill de Blasio.

The decision leaves the city ready to take its stay request to the Second Circuit.

Corporation Counsel Michael A. Cardozo, in a statement said, "The city remains committed to reversing the District Court's underlying decision as expeditiously as possible, as evidenced by papers filed just last week in the Second Circuit Court of Appeals seeking an expedited appeal. The plaintiffs have opposed that motion, apparently preferring to keep police officers in limbo for the foreseeable future. We cannot afford such delay, as public safety is of paramount concern to the mayor and the police commissioner."

@|Mark Hamblett can be contacted at mhamblett@alm.com.