Sunday, November 10, 2013

The City of New York wants instant vacatur of Judge Scheindlin's stop and frisk ruling

The City of New York is asking the Second Circuit to vacate Judge Scheindlin's stop and frisk rulings immediately, without the benefit of full briefing or oral argument, claiming that her judicial bias tainted the entire proceedings and has "unfairly and improperly ... cloud[ed] the public’s perception of the NYPD."

The case is Floyd/Ligon v. City of New York. On October 31, the Second Circuit stayed Judge Scheindlin's remedial orders pending appeal, including her directive that a neutral monitor oversee the NYPD. The Circuit Court said that Judge Scheindlin had violated the Judicial Code of Conduct by steering the case into her courtroom and in making public comments during trial. A few days ago, Judge Scheindlin filed a motion asking the Court of Appeals to restore her to the case, arguing that she did nothing wrong in applying the "related case" rule and that she did not publicly talk about the stop and frisk case but, more broadly, her judicial philosophy and approach to judging.

Judge Scheindlin's motion turned this into a dogfight. I appreciate her spunk in filing the motion, but I can't imagine the Court of Appeals reversing itself on a high profile issue like this, acknowledging that it had wrongly humiliated a district court judge. But the City of New York has now one-upped Judge Scheindlin: it wants the Second Circuit to throw out her lengthy rulings altogether, right now, this instant.

The Corporation Counsel signed the brief in support of this motion. In 1988, the Supreme Court said that an appellate court has authority under Federal Rule 60(b) to vacate a district court ruling if the trial judge violated rules governing judicial impartiality. The City cites that case in support of this motion. In Liljeberg v. Health Services Acquisition, the Court said "[t]he Rule does not particularize the factors that justify relief, but we have previously noted that it provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,' while also cautioning that it should only be applied in 'extraordinary circumstances.'" This case is sufficiently extraordinary, Corporation Counsel Michael Cardozo says, for the following reasons:

1. "The District Judge’s improper extrajudicial comments during and after the bench trial confirm that the taint of partiality, or appearance of a lack of impartiality, carried through the entire Floyd
and Ligon proceedings."

2. The City adds that "[t]he risk of injustice to Appellant if the District Court Orders are allowed to stand is incomparably acute and unique. The District Court’s Orders lend credence to the notion that the NYPD unfairly targets minorities for stops and frisks, undermining its ability to carry out its mission effectively. ... Public perception of the NYPD has been clouded by the District Court’s condemnatory ruling and the immense attention paid to it, compromising confidence in the integrity of law enforcement. As the Corrected Mandate has now revealed the partiality of all of the Floyd and Ligon proceedings and the resulting orders, vacatur is appropriate to stem the tide of diluted trust and confidence in the NYPD that the mere existence of the District Court Orders fosters, even with the stay currently in effect. Wrongly labeling the NYPD – and the City – a racial profiling entity and flouter of the Fourth Amendment should be sufficient injustice to vacate the Orders now, but add to that the injustice that would be produced by the potential collateral estoppel effect of the Liability Order on future cases, and the onerous burden on the taxpayers in following the Remedies Order. It will also send the clear message to all district court judges to apply the related case rule properly in future cases. Moreover, vacating the District Court Orders will send a necessary message to the bar that 'judge-shopping' by exploiting the improper application of the related case rule will not be countenanced.'"

3. Public commentary on this controversy has raised questions about whether Judge Scheindlin really talked about this case during her media interviews. The City recognizes this, arguing that "[t]o be sure, reasonable minds may differ as to whether those statements directly pertained to the Floyd case. Still, the comments must be considered 'in the context in which they were issued.' It cannot be denied that, under a headline directing the public’s attention to the stop-and-frisk litigation, the District Judge characterized herself as unique among Southern District judges because she is 'not afraid to rule against the government.'” The motion adds that "the District Judge’s choice to grant such interviews during the trial would likely cause a reasonable person to question her impartiality. Such comments, during a highly publicized case involving a matter of great national concern, as well as recent public statements in response to the Corrected Mandate, are not so different from those which have resulted in the removal of judges in other cases of violations of 28 U.S.C §455(a)." (They cite the Microsoft case in support of this proposition, though that case involved only the removal of the judge, not vacatur of his ruling).

4. The City also argues that instant vacatur is warranted because Judge Scheindlin's rulings are just plain wrong. "The District Court certainly made unorthodox rulings against the City, which, fly in the face of established precedent and are now even more questionable when viewed in light of this Court’s findings." The City goes on to attack the merits of the stop and frisk ruling, giving the plaintiff's lawyers a preview of what to expect when the City files its merits briefs. I seriously doubt there is any precedent for immediate vacatur based on the alleged wrongness of the district court's rulings, but the City probably figures, "what the hell, we're filing this motion anyway, let's go all the way."

I try to keep my opinions away from this blog, but this motion will not be granted. The Court of Appeals will not throw out a lengthy and thorough district court ruling on an important constitutional issue without the benefit of full briefing and oral argument. The Supreme Court said a remedy like this should be applied in rare instances. Is this one of those rare instances? I doubt it. I also wonder what this is all going to lead to. The New York Times says this may all be moot in a few months. "Mayor-elect Bill de Blasio has promised that on Day 1 of his administration, he would withdraw New York City’s appeal of sweeping reforms ordered by a federal judge in the Police Department’s stop-and-frisk practices."

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