Court halts NYC stop-and-frisk ruling, removes judge

Demonstrators hold signs protesting the New York Police Department's ''stop and frisk'' crime-fighting tactic outside of Manhattan Federal Court in New York, March 18, 2013.

Credit: Reuters/Lucas Jackson

By Joseph Ax

NEW YORK | Thu Oct 31, 2013 6:43pm EDT

NEW YORK (Reuters) - A U.S. appeals court froze court-ordered reforms to the New York City Police Department's controversial stop-and-frisk program and removed the judge who found the police tactic unconstitutional because she "ran afoul" of the judicial code of conduct.

The 2nd U.S. Circuit Court of Appeals ruling was at least a temporary victory for Mayor Michael Bloomberg and the NYPD, who have argued that stopping, questioning and frisking suspicious people has led to a steep decline in crime rates.

The three-judge panel said its ruling should have no impact on the merits of the case, but was a rebuke of Scheindlin, who became a hero of civil rights and civil liberties groups when, in August, she struck down parts of stop-and-frisk.

The court's removal of U.S. District Judge Shira Scheindlin from the case was an exceedingly rare action and an indication of how displeased the judges were with her.

The judges faulted Scheindlin for failing to appear impartial by making public statements about the case and by granting media interviews in which she answered critics of her ruling.

"We could not be more pleased with the Court's findings," said Corporation Counsel Michael Cardozo, the city's chief attorney, who called Scheindlin's ruling "unjustified and deeply problematic."

The case "will now receive a fresh and independent look both by the appeals court and then, if necessary, by a different trial court judge," Cardozo said.

As part of her ruling, Scheindlin ordered a federal monitor to oversee changes to NYPD practices.

Her ruling was widely celebrated by racial minorities in New York who complained that innocent people were being caught up in the police sweeps.

It also played a role in the campaign for mayor of New York City in which candidate Bill de Blasio, who won the Democratic nomination and became the front-runner for next Tuesday's election, blasted stop-and-frisk as unfair.

The appeals court also took issue with how Scheindlin interacted with lawyers in a December 2007 hearing while she presided over another stop-and-frisk lawsuit involving some of the same lawyers.

"If you got proof of inappropriate racial profiling in a good constitutional case, why don't you bring a lawsuit?" Scheindlin asked. "What I am trying to say - I am sure I am going to get in trouble for saying it - for $65 you can bring that lawsuit."

She said the lawyers could mark it as "related," ensuring that it would be assigned to her docket rather than to another judge at random.

The New York Civil Liberties Union said it would appeal the ruling, and the Center for Constitutional Rights called the reassigning of the case "troubling and unprecedented."

De Blasio, who said stop-and-frisk was evidence of "two New Yorks" - one for the privileged elite and another for the poor and disadvantaged - said he was "extremely disappointed in today's decision."

"We have to end the overuse of stop-and-frisk and any delay only means a continued and unnecessary rift between our police and the people they protect," de Blasio said.

Police supporters applauded the ruling.

"That's great news," said former NYPD Commissioner Howard Safir. "Stop-and-frisk is a legal tactic, not a policy. What police are doing are stopping people based on victims' descriptions" of perpetrators.

Heather MacDonald, author of the book "Are Cops Racist?" and a vigorous defender of the NYPD's use of stop-and-frisk, also celebrated the ruling but said it was no indication the appeals court would overturn Scheindlin's ruling.

"Appellate judges tend to take a deferential stance towards trial judges' fact-finding, and that's what a lot of this case hangs on," Mac Donald said.

(Additional reporting by Chris Francescani and Nate Raymond; Writing by Daniel Trotta; Editing by Toni Reinhold)

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Court halts NYC stop-and-frisk ruling, removes judge

Demonstrators hold signs protesting the New York Police Department's ''stop and frisk'' crime-fighting tactic outside of Manhattan Federal Court in New York, March 18, 2013.

Credit: Reuters/Lucas Jackson

By Joseph Ax

NEW YORK | Thu Oct 31, 2013 6:43pm EDT

NEW YORK (Reuters) - A U.S. appeals court froze court-ordered reforms to the New York City Police Department's controversial stop-and-frisk program and removed the judge who found the police tactic unconstitutional because she "ran afoul" of the judicial code of conduct.

The 2nd U.S. Circuit Court of Appeals ruling was at least a temporary victory for Mayor Michael Bloomberg and the NYPD, who have argued that stopping, questioning and frisking suspicious people has led to a steep decline in crime rates.

The three-judge panel said its ruling should have no impact on the merits of the case, but was a rebuke of Scheindlin, who became a hero of civil rights and civil liberties groups when, in August, she struck down parts of stop-and-frisk.

The court's removal of U.S. District Judge Shira Scheindlin from the case was an exceedingly rare action and an indication of how displeased the judges were with her.

The judges faulted Scheindlin for failing to appear impartial by making public statements about the case and by granting media interviews in which she answered critics of her ruling.

"We could not be more pleased with the Court's findings," said Corporation Counsel Michael Cardozo, the city's chief attorney, who called Scheindlin's ruling "unjustified and deeply problematic."

The case "will now receive a fresh and independent look both by the appeals court and then, if necessary, by a different trial court judge," Cardozo said.

As part of her ruling, Scheindlin ordered a federal monitor to oversee changes to NYPD practices.

Her ruling was widely celebrated by racial minorities in New York who complained that innocent people were being caught up in the police sweeps.

It also played a role in the campaign for mayor of New York City in which candidate Bill de Blasio, who won the Democratic nomination and became the front-runner for next Tuesday's election, blasted stop-and-frisk as unfair.

The appeals court also took issue with how Scheindlin interacted with lawyers in a December 2007 hearing while she presided over another stop-and-frisk lawsuit involving some of the same lawyers.

"If you got proof of inappropriate racial profiling in a good constitutional case, why don't you bring a lawsuit?" Scheindlin asked. "What I am trying to say - I am sure I am going to get in trouble for saying it - for $65 you can bring that lawsuit."

She said the lawyers could mark it as "related," ensuring that it would be assigned to her docket rather than to another judge at random.

The New York Civil Liberties Union said it would appeal the ruling, and the Center for Constitutional Rights called the reassigning of the case "troubling and unprecedented."

De Blasio, who said stop-and-frisk was evidence of "two New Yorks" - one for the privileged elite and another for the poor and disadvantaged - said he was "extremely disappointed in today's decision."

"We have to end the overuse of stop-and-frisk and any delay only means a continued and unnecessary rift between our police and the people they protect," de Blasio said.

Police supporters applauded the ruling.

"That's great news," said former NYPD Commissioner Howard Safir. "Stop-and-frisk is a legal tactic, not a policy. What police are doing are stopping people based on victims' descriptions" of perpetrators.

Heather MacDonald, author of the book "Are Cops Racist?" and a vigorous defender of the NYPD's use of stop-and-frisk, also celebrated the ruling but said it was no indication the appeals court would overturn Scheindlin's ruling.

"Appellate judges tend to take a deferential stance towards trial judges' fact-finding, and that's what a lot of this case hangs on," Mac Donald said.

(Additional reporting by Chris Francescani and Nate Raymond; Writing by Daniel Trotta; Editing by Toni Reinhold)

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Analysis: In removing stop-and-frisk judge, U.S. court enters rare territory

By Joseph Ax and Julia Edwards

NEW YORK | Thu Oct 31, 2013 9:47pm EDT

NEW YORK (Reuters) - In a series of interviews in May, U.S. District Judge Shira Scheindlin said federal judges are too cautious in exercising their creativity and independence.

On Thursday, her own efforts to avoid that pitfall landed her in trouble with the 2nd U.S. Circuit Court of Appeals, which removed her from a high-profile case involving the New York City Police Department's controversial stop-and-frisk program. Her actions had compromised the appearance of impartiality, the court said.

Such a move is rarely seen from a federal appeals court and signaled that the three judges who wrote the decision were deeply troubled by her actions. But ethics experts said they did not expect Scheindlin to face any formal discipline.

In August, Scheindlin ruled that the stop-and-frisk tactic, in which patrolling officers stop suspicious individuals and search them, had an unconstitutional and disproportionate impact on minorities. She ordered a federal monitor to supervise broad reforms of the department's practices.

In a brief order, the panel found that Scheindlin had "run afoul" of the judicial code of conduct for giving media interviews. The code says judges should not comment on the merits of pending cases.

The court also chastised Scheindlin for encouraging the plaintiffs in the stop-and-frisk case to file a lawsuit and mark it as "related" to another case before her, thus ensuring that she would preside over the case.

Scheindlin's actions ensured that her objectivity could reasonably be questioned, the court concluded.

In a statement, Scheindlin rejected the 2nd Circuit's reasoning, saying she simply instructed the plaintiffs in the case that bringing a "related lawsuit" was the appropriate procedural action.

She also denied that she ever discussed the case in any interview.

"All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case," she said. "A careful reading of each interview will reveal that no such comments were made."

Medical student David Floyd was one of the plantiffs in a lawsuit brought by four black and Hispanic men who claimed police improperly targeted them because of their races.

DISCIPLINE IS RARE

There have been a handful of other instances in which appellate courts have cited a judge's conduct in reassigning a case.

Last year, for example, the 3rd Circuit removed U.S. District Judge William Martini in Newark from a pair of criminal cases, including a murder case against former prosecutor Paul Bergrin.

The decisions, which came on the same day but were written by different appeals court panels, found that Martini had wrongly limited the government's prosecution in the Bergrin case and had improperly accused the government of misconduct in a separate case.

Ethics experts said it is extremely rare for judges to face discipline in such cases.

"It is hard enough to discipline a state judge here in New York, but it is rarely used in a federal context," said Ronald Minkoff, a partner at Frankfurt Kurnit Klein & Selz and an adjunct professor at Benjamin N. Cardozo School of Law at Yeshiva University.

Under federal rules, the chief judge of the 2nd Circuit would initiate any investigation into an allegation that a judge had engaged in misconduct, whether a formal complaint has been filed or not.

The chief judge then has the discretion to dismiss the claims, conclude that corrective actions have been taken, conclude that intervening events have made a review unnecessary or refer it to a special committee for recommendations, which are then sent to a panel of judges for final determination.

Thursday's order by the 2nd Circuit gave no indication that any such inquiry was in the works.

The 2nd Circuit has not admonished a judge since 2004, when Circuit Judge Guido Calabresi apologized for making comments comparing President George W. Bush's election to the rise of Adolf Hitler and Benito Mussolini.

The chief judge at the time, John Walker, accepted the mea culpa, and in light of the apology a review panel dismissed five complaints against Calabresi.

Scheindlin has clashed with the 2nd Circuit on occasion in other high-profile cases. In 2003, the appeals court overturned her finding that the United States detention of a militant suspect, Osama Awadallah, was illegal.

A jury eventually acquitted Awadallah in 2006.

(Reporting by Joseph Ax and Julia Edwards; Editing by Eddie Evans and Lisa Shumaker)

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Federal appeals court reinstates abortion restrictions in Texas

By Brendan O'Brien

Fri Nov 1, 2013 1:33am EDT

n">(Reuters) - A U.S. appeals court on Thursday reinstated a Texas abortion restriction that was blocked by a lower court this week, allowing nearly all of the state's sweeping anti-abortion law to go into effect.

The decision by the 5th Circuit Court of Appeals means doctors who perform abortions in Texas must have admitting privileges with local hospitals within 30 miles of their clinic, according to court documents.

The Texas law passed in July was the most fiercely debated proposal to restrict abortions in the United States this year. Republican efforts to pass the law sparked an unsuccessful filibuster by Democratic state Senator Wendy Davis, which propelled her into the national spotlight and encouraged her to announce she will run for governor.

"This new ruling represents a huge pro-life victory," said the Texas Alliance For Life in a statement.

The Appeals Court overturned U.S. District Judge Lee Yeakel's ruling on Monday, a day before the law was due to go into effect, that a section of the measure pertaining to admitting privileges was unconstitutional after supporters said it would force clinics to close.

"This fight is far from over. This restriction clearly violates Texas women's constitutional rights by drastically reducing access to safe and legal abortion statewide," said Cecile Richards, the president of Planned Parenthood Federation of America, the family planning and reproductive health group.

Supporters of the right to abortion have warned that the reinstated measure could force up to one third of the state's clinics to close immediately, cutting off access for some 22,000 women, because those clinics have not been able to gain admitting privileges for their physicians since the law passed.

Whole Woman's Health will close three of its five facilities in Texas on Friday because of the ruling, according to Amy Hagstrom Miller, the organization's founder and CEO, who spoke on the Rachel Maddow Show on Thursday.

"Just this evening, we had to call all our patients and cancel their appointments for tomorrow," Miller said.

Doctors do not have the required admitting privileges at the three clinics located in Fort Worth, San Antonio and McAllen.

However, Planned Parenthood of Greater Texas said in a statement on Thursday that its "doors are still open."

Attorney General Greg Abbott, a Republican who is running for Texas governor, had asked the 5th Circuit Court of Appeals to overturn Yeakel's ruling and requested a full court hearing on the issue in January.

"This unanimous decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women," he said in a statement.

The appeals court granted Abbott a hearing on the issue in January.

However, the court let stand Yeakel's ruling that blocks the state from enforcing the U.S. Food and Drug Administration's abortion pill protocol for women who are 50 to 63 days pregnant if a doctor determines a surgical abortion is unsafe.

In 2012, another federal judge in Austin struck down the state's law requiring women to get a transvaginal ultrasound before abortions. An appeals court reversed that decision and the ultrasound requirement has gone into effect.

Earlier this week, Elizabeth Nash, state issues manager for the Guttmacher Institute, a research organization that supports the right to abortion, said nine states, including Texas, passed laws requiring doctors to have admitting privileges, but they are in effect only in Kansas, Tennessee and Utah.

Laws were blocked by courts in four other states and have not yet taken effect in Arizona, Nash said.

Some 18 states, including Texas, have enacted laws restricting drug-induced abortions or holding them to the stricter federal guideline, Nash said.

Such laws have gone into effect in 14 states, but have been blocked by legal action in North Dakota, Wisconsin and Oklahoma, and are being challenged in Iowa, she said.

(Reporting by Brendan O'Brien and Lisa Maria Garza; Editing by Cynthia Johnston, Paul Simao and Ken Wills)

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Supreme Court Ruling on Defense of Marriage Act Cases

On Tuesday, June 26, 2013, the Supreme Court ruled in two cases regarding same-sex marriages.

These two rulings will impact how married couples of the same gender will file their income taxes and estate taxes. Just what the impacts will be: this is something we'll be figuring out over the next few months.

Summary of the Cases:

"In United States v. Windsor, the Court held that Section 3 of the Defense of Marriage Act, which excluded same-sex unions from the federal definition of marriage, is an unconstitutional deprivation of the equal liberty of persons protected by the Fifth Amendment." (SCOTUSblog, "Evening Round-up of News on Today's Opinions")

"In Hollingsworth v. Perry, the Court decided that the proponents of California's ban on same-sex marriage did not have standing to appeal the district court's order overturning the ban." Thereby, California Proposition 8, which banned same-sex marriage, is overturned. California may resume issuing marriage licenses once the judicial injunction against issuing marriage licenses to same-sex couples is lifted. (Also from SCOTUSblog, "Evening Round-up of News on Today's Opinions")

Tax Implications of these Supreme Court decisions:

Legally married same-sex couples may* now be able to file federal income tax returns as married rather than as unmarried. They may be able to amend previously filed tax returns to change their filing status and to recalculate their tax. Generally speaking, amended federal returns can be filed for any years still open under the three-year statute of limitations on refunds. However, refunds could be claimed on older years if the couple previously filed a protective claim to keep the statute of limitations open.

Same-sex married couples may* now be eligible for the marital deduction for federal estate taxes. They may be able to amend previously filed estate tax returns to have the marital deduction apply.

Same-sex married couples may* now be eligible for federal tax benefits previously available only to opposite-sex married couples, such as tax-free health insurance benefits.

Same-sex couples may* now be eligible for other federal benefits, such as spousal Social Security benefits.

* When I say "may" in the previous sentences, here's what's going on. There seems to be a question of whether gay and lesbian spouses can file as married if they reside in a state that does not recognize same-sex marriages. It's not particularly clear at this point what the answer is. What is clear to me: gay and lesbian spouses can file as married if they live in a state that recognizes their marriage. This is because marital status for federal tax purposes is determined by the states.

What We Don't Yet Know

I expect that the Internal Revenue Service will issue guidance on a range of federal tax issues. In particular, I expect the IRS to issue the following types of guidance:

whether there will be standardized procedures for filing amended returns and processing previously filed protective claims;whether there will be standardized procedures for seeking refunds of income tax and payroll taxes on employee benefits for same-sex couples; andwhether all same-sex married couples will be permitted to file as married on their federal tax return, or whether this applies only to couples residing in those states that recognize same-sex marriage.

Further, the IRS will need to reprogram their computer systems to allow for gay and lesbian couples to file as married. Currently, the IRS's computer systems reject tax returns where both spouses have the same gender.

Here's some related articles on the subject of taxes for gay and lesbian married couples.

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Tax Issues of the Supreme Court Ruling that DOMA is Unconstitutional

Today I had the good fortune of speaking with Nanette Lee Miller, CPA, who is the National Leader of Marcum LLP's LGBT & Non-Traditional Family Practice Group. She shared with me her thoughts on the tax implications of the Supreme Court's decision in United States v. Windsor that section 3 of the Defense of Marriage Act is unconstitutional.

The Supreme Court ruling impacts "same-sex married couples if they live in California or in a state with legally recognized marriages for same-sex couples," Miller said. Such couples can now file joint or separate returns married and amend previously filed returns to change their filing status and recalculate their federal income tax.

"What if a same-sex married couple now resides in state that doesn't allow for gay marriage? In the past, the IRS has a policy guideline where state where the couple is a resident trumps the state where the marriage license was granted. This is an area that will need to be re-addressed by the IRS," Miller said.

Tax Planning Issues for Same-Sex Spouses

For gay and lesbian couples "tax planning around marriage is nothing new, it's just like planning for traditional married couples," Miller said. Issues to consider in tax planning for married couples often looks at tax-free employee benefits (such as health insurance) for both spouses, and considering estate and gift tax issues around transferring assets between spouses. Miller recommends, "Same-sex married couples may want to revisit their estate plan to take into consideration the unlimited marital deduction, even if the estate plan was looked at recently."

"Gay marriage is not a moral issue, it's an economic issue," Miller points out. Some of the tax-related financial issues that gay married couples may want to consider include:

Employer-provided health insurance coverage. Under the Defense of Marriage Act, health insurance benefits provided to a same-sex spouse of an employee was added to that spouse's W-2 income for federal income tax. Those benefits are pre-tax now that same-sex marriages are recognized at the federal level.

Inherited Individual Retirement Accounts. Under the Defense of Marriage Act, when a person who is not a spouse inherits an IRA, that the funds in that IRA must be distributed over a set period of time, usually five years. However if a spouse inherits an IRA from his or her same-sex spouse can now treat the inherited IRA as his or her own and rollover the funds into his or her own IRA. This changes the timing of when and over what duration funds must be distributed from the IRA.

Estate tax. Same-sex married couples now enjoy an unlimited marital deduction against the federal estate tax. When one spouse inherits assets from a deceased spouse, those assets are not included when calculating the taxable portion of the deceased spouse's estate.

Gift tax. Same-sex married spouses are permitted to give an unlimited amount of assets between each other without gift tax consequences. Previously, same-sex spouses had to consider the annual gift tax limitations for transferring assets between themselves.

Social Security Benefits. Same-sex spouses may now be eligible for higher Social Security benefits. It may take "Social Security two or three months to figure out" how to address this issue, Miller said.

Procedural Issues

Miller recommends that we "wait and see" on a variety of procedural issues. She expects the IRS to come up with procedures to address issues around filing returns and amending returns to take into account all the tax changes impacting same-sex married couples.

There's already one procedural issue that we could think of. Same-sex spouses in community property states had to split the net income between both spouses if one spouse had self-employment income on a Schedule C. Both spouses reported half the total Schedule C income and each spouse had to pay the self-employment tax on that income. Now that same-sex spouses are recognized as married for federal tax purposes, "the self-employment tax on Schedule C issue goes away for same-sex married couples in community property states." Same-sex spouses would now be eligible to file jointly or separately, and with the self-employment tax applied only to the spouse who actually earned the Schedule C income. This could change the annual Social Security earnings of both spouses, which in turn could impact future Social Security benefits. They may also be a change in the self-employment tax liability if the Schedule C income was over the annual wage base for calculating the Social Security tax.

Miller imagines that the IRS will allow same-sex spouses to voluntarily revise previous tax returns, and that will be "mandatory going forward" to file as married. She expects that "within 6 months this will be sorted out."

Issues for Registered Domestic Partners and Civil Unions

The Supreme Court ruling does not impact Registered Domestic Partners and Civil Unions. For these taxpayers it's "business as usual," Miller said. Registered Domestic Partners and Civil Unions are still considered unmarried for federal tax purposes and may need to allocate income and deductions if their state has community property laws.

Miller alerted me that CCH has released its Tax Briefing, "Supreme Court Strikes Down DOMA" [pdf]. Her firm, Marcum LLP, has published a map showing which states recognize same-sex marriages. That map is located at www.marcumllp.com/LGBT-Unions.

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