Second Circuit kicks Judge Scheindlin off the "stop and frisk" cases

The Court of Appeals has stayed implementation of a trial court's stop and frisk order that held New York City liable for racial profiling. The district judge who issued that ruling has also been kicked off the case. The Second Circuit ruled that she violated the judicial code of conduct in steering stop and frisk cases her way and speaking publicly on her ruling.

The case is Ligon/Floyd v. City of New York, issued on October 31. The Second Circuit (Walker, Parker and Cabranes) does not identify the trial judge, but everyone knows it's Judge Scheindlin, who worked her tail off on this case, issuing a mammoth ruling in summer 2013 that held the City violated the Constitution in effecting stop and frisks without reasonable suspicion to believe that thousands of people were committing any criminal activity. Judge Scheindlin also ruled that the City's stop and frisk practices constituted racial profiling in violation of the Fourteenth Amendment.

The City is appealing the ruling, and it asked the Second Circuit to stay (or put off) implementation of Judge Scheindlin's remedial orders until the appeal is resolved. These remedial orders include the appointment of a monitor who would oversee the police department. Appellate judges rarely remove a trial court from the case. The Court of Appeals did so here. It says:

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.

What did Judge Scheindlin do wrong? The Second Circuit says that, in another case in December 2007, she said, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also said, “[W]hat 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 added, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” She predicted she would get in trouble for saying this, and she did. The Floyd case was filed shortly afterwards, and it was assigned to Judge Scheindlin. Judges can take on cases that are related to the ones they already have in the interests of judicial efficiency. The decision suggests the "related case" rule can be abused.

 As for the news articles in which the judge spoke on the case, one of them (from Jeffrey Toobin) is at this link. The other articles (from the New York Law Journal and Associated Press, are titled, "Stop-and-Frisk Judge Relishes her Independence" and "NY 'Frisk' Judge Calls Criticism 'Below-the-Belt.'"

The Toobin article is interesting for other reasons. Judge Scheindlin said that she doesn't like trials; she likes writing opinions. "There you get to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.” The article is also interesting for the below paragraph:

According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the basis of illegal police searches far more than any of her colleagues—twice as often as the second-place judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased against cops. (Scheindlin has said that the study is misleading, because it reflects only her written opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.) Still, she embraces her maverick status. Many judges in the Southern District previously worked as prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges, especially because so many of our judges come out of that office, become government judges,” Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights. These issues come up, and I take them quite seriously. I’m not afraid to rule against the government.”

What strikes me about the Second Circuit's ruling is that the court does not tell us why the district court's order is stayed. Usually, the government has to show irreparable harm if the order is implemented pending appeal. Maybe the Court of Appeals thinks the issues raised by the case are so far-reaching that it's best to wait until the case is over to put Judge Scheindlin's order in effect. In any event, if the case survives appellate review, another judge will have to worry about all of this. For now the Second Circuit has not spoken to the merits of the case, i.e., whether Judge Scheindlin got it right or wrong on stop and frisk.