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.

Lengthy traffic stop is not actionable under Fourth Amendment

The Fourth Amendment requires that the police keep traffic stops as brief as necessary to effectuate the purpose of the stop. In this case, the plaintiffs argued the traffic stop was too long, in violation of the Fourth Amendment. The Court of Appeals does not see it that way.

The case is Harwe v. Floyd, a summary order decided on October 17. The stop lasted a half hour. Floyd stopped Levy's car because she swerved without signaling. She admitted drinking alcohol at dinner. The Second Circuit (Raggi, Droney and Keenan [D.J.]) says that Floyd reasonably continued the stop "beyond the time necessary to issue a traffic violation in order to assuage reasonable suspicions as to driver sobriety." He necessarily questioned Levy and Harwe separately because Levy failed two sobriety tests, further lengthening the stop.

The case seems simple enough, but nothing under the Fourth Amendment is simple. Levy says the officer should have instead investigated her claim that she failed the sobriety tests because she was a stroke victim. But the Court says that Floyd's interview at the time was reasonable. The plaintiffs also argue that Floyd wasted time talking with other officers "who purported laughed and pointed at Levy." But even if this conversation was unrelated to the stop, it was relatively brief in comparison to the necessarily more time-consuming sobriety tests, preliminary questioning, the placement of Levy in the police car and filling out the citation, among other things.

You probably didn't know that a long traffic stop can violate the Fourth Amendment. This case does not quite tell us how long is too long. One case says that 17 minutes spent on unrelated inquiries is not too long. Another says that 30 minutes was reasonable based on reasonable suspicion. Add this case to the list. Under the circumstances, 30 minutes is not worth suing for.

Citizens United comes to New York

Is there a more hated Supreme Court ruling in recent years than Citizens United, which struck down on First Amendment grounds certain restrictions on corporate campaign contributions? Love it or hate it, Citizens United is here to stay, and it just knocked down a campaign finance law in New York.

The case is New York Progress and Protection PAC v. Walsh, decided on October 24. This case was argued on October 18, so the urgency is clear, as irreparable harm is inherent in First Amendment violations, and the plaintiff supports the New York City mayoral campaign of Joseph Lhota, who needs the money in time for the election in November.

The law in New York imposed a $150,000 aggregate annual limit on certain political contributions by any person in New York State. So the plaintiff -- which makes independent expenditures without prearrangement or coordination with a candidate -- cannot receive more than that amount from any individual contributor in any calendar year. NYPPP alleges that "the cap violates its core First Amendment right to advocate in favor of Joseph Lhota in the upcoming mayoral election."

Post-Watergate, Congress took a hard look at campaign finance laws. When the money people challenged these restrictions under the First Amendment (on the theory that campaign contributions and spending constitutes political speech), the Supreme Court in Buckley v. Valeo (1976) said the Constitution allows for some of these campaign finance restrictions in the interest of combating corruption. When Congress enacted the McCain-Feingold campaign finance restrictions in 2002, a new Supreme Court began chipping away at it, and the Citizens United ruling said that the government has no anti-corruption interest in limiting independent expenditures.

I am sure the lawyers representing the State of New York worked valiantly in defending the law that the Second Circuit took up in this case. But Citizens United makes this result a foregone conclusion. Under Citizens United, "it follows that a donor to an independent expenditure committee such as NYPPP is even further removed from political candidates and may not be limited in his ability to contribute to such committees. All federal circuit courts that have addressed this issue have so held."

Qualified immunity for Connecticut child protective workers who took the kids away

In this Section 1983 action against Connecticut child protection officials, a female "Jane Doe" argues that the defendants illegally took away her children after she was caught hanging around with a man who had previously physically assaulted her in front of her children. The Court of Appeals rules for the State, finding that the defendants have qualified immunity.

The case is Doe v. Whelan, decided on October 17. After John Doe assaulted a pregnant Jane Doe (he was the father of her children, who were home when the assault took place), the Department of Children and Families got Jane to agree to stay away from John, who could not have any contact with her children. The authorities later found John running around with his shirt off near Jane's home, with John's car in her driveway (she said he was tucking in the children for bed). The Court of Appeals (Cabranes, Hall and Chin) notes dryly that John "likely ... jumped out of a second-story window." The kids were temporarily taken from Jane under a Connecticut law that authorizes the seizure upon probable cause that the children face immediate risk of physical harm from their surroundings. The kids were later returned to Doe under protective supervision.

In cases like this, "qualified immunity shields from liability state officials tasked with choosing between interrupting parental custody or risking injury to the child provided there is an objectively reasonable basis for their decision, whichever way they make it." This is unlike the "reasonable man" test in common-law torts, which allows liability of the defendant makes a mistake. Under qualified immunity, if the defendant acted objectively reasonably but made a mistake along the way, he cannot be sued.

The contentious history between John and Jane, including the multiple physical assaults and the order prohibiting John from entering Jane's home led authorities to fairly believe that the children were in imminent danger when they saw John's car in the driveway at night. As state court judges agreed at the time that the children were in immediate physical danger and thus removed them from their home, the DCF workers were all the more reasonable in taking the children away from Jane.

Big win for ADA plaintiffs who sue non-compliant public establishments

A disabled resident of New York City sued a diner because it was not accessible to people with disabilities. However, she never entered the building. Is she able to bring the lawsuit? Yes.

The case is Kreisler v. Second Avenue Diner Corp., decided on September 25. The plaintiff cannot walk and travels around in a motorized wheelchair. He lives near a diner that he cannot enter because the front entrance has a step that is seven or eight inches high. The diner put in a ramp without hand-rails, and the ramp doesn't always seem to help; the sign that tells patrons to ring the bell for help is not always posted. The bathroom is also not accessible to people in wheelchairs. The district court said that the restaurant was in violation of the Americans with Disabilities Act. On appeal, the Court of Appeals (Winter, Walker and Wesley) focuses on a procedural issue (standing to sue) and not the substance of the case (whether the diner is violating the ADA).

Since plaintiff did not enter the diner, defendants argue that he does not have standing to sue because was never harmed by the ADA violations. The Court of Appeals disagrees. "Kreisler never attempted to enter the Diner; he did, however, testify that (1) the seven to eight‐inch step deterred him from attempting to enter, (2) he frequents diners in his neighborhood often, (3) he lives within several blocks of the Diner, and (4) he would like to frequent the Diner if he were able to access it. ... [T]hese are sufficient facts to show a plausible intention to return to the Diner." Which means he has standing to sue the diner.

These cases do not reach the Court of Appeals often, so the Circuit relies on cases from around the country to bolster its holding. The Second Circuit holds for the first time that "deterrence constitutes an injury under the ADA." Borrowing from the Ninth Circuit, the law in our jurisdiction is now that "[i]n the context of the ADA, the fact that the wheelchair‐inaccessible entrance deterred Kreisler from accessing the Diner established a concrete and particularized injury; Kreisler need not attempt to overcome an obvious barrier."

What about the inaccessibility of the diner's interior, like the bathroom? Plaintiff never entered the diner. Can he challenge those violations? Yes. Borrowing from the Eighth and Ninth Circuits, the Second Circuit says that "once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff’s particular disability."

Newsday wins (in part) challenge in closed courtroom fight

This case arises from an allegation that the Nassau County police had negligently contributed to a stabbing death after the victim's mother had obtained orders of protection on her child's behalf. The killer stalked and menaced the victim. Plaintiff claimed the police department's lax supervision led to her daughter's death. The case settled for more than $7 million, and the dispute then centered on the newspaper's efforts to gain access to certain files, which brought this case to the Court of Appeals.

The case is Newsday v. County of Nassau, decided on September 23. While the case was in litigation, the plaintiff wanted an internal affairs report, totaling 712 pages, into the episode. Newsday joined in the effort to obtain the report. The magistrate judge said the report could not be released to the public. During the settlement process, the Chairman of the County Legislature, Schmitt, spoke publicly about the report and "appeared to reveal information contained in the Report." The district court then took up contempt proceedings against Schmitt. The trial court held that hearing in a closed courtroom, but the courtroom reopened after Schmitt testified. The courtroom closed again when someone else testified about the contents of the report.

The First Amendment values open courtrooms. The Court of Appeals (Lynch, Lohier and Carney) says for the first time that civil contempt proceedings implicate First Amendment values. The courtroom should have been opened for lack of any sufficient justification to close it. "No portion of the hearing transcript reveals information that is sufficiently confidential that its disclosure would impair in any material way the performance of Article III [judicial] functions. The portions of the transcript that remain redacted after Judge Spatt's order reveal only information about the date of the Report, the number of police officers mentioned in it, and how many of those officers were female. None of these bits of information raises significant confidentiality concerns that would in themselves warrant sealing the courtroom or the transcript."
The full hearing transcript must be released.

But what about the report? Newsday wants it. We resolve that on a case-by-case basis. Newsday doesn't get the report. The substance of the report was not significantly relied upon during the contempt hearing, and it was not entered into evidence. It was only used during the hearing to refresh a witness's recollection. So it was not the kind of judicial document that needs to be made public.The report remains under wraps.

Restrictions on artist speech in NYC do not violate First Amendment

Everyone loves First Amendment cases ... but they are so hard to win! The government has much leeway in regulating speech in the public square, so long as the regulation is not directed at the speaker's message. This case drives that point home, and it throws in an important ruling on the deposability of high-ranking government officials.

The case is Lederman v. New York Parks and Recreation, decided on September 25. The plaintiffs are visual artists who challenged the City's rules governing the sale of artwork in public. In 2010, the City said artists may sell without a permit so long as they follow certain rules "relating to their activities, such as restrictions on the size and placement of their vending tables." In Union Square Park, portions of Central Park and elsewhere, "expressive-matter vendors" may only vend in limited designated spots on a first-come-first-serve basis. These rules are legal.

Under the "time, place and manner" doctrine, the government may regulate the time, place and manner of speech in public if the rules are content-neutral, are narrowly-tailored to serve a significant government interest and leave ample alternatives for the speech. The time, place and manner rule is quite friendly to the government, and it dooms the plaintiffs' case because they apply to all artist-vendors and alleviate congestion and preserve the aesthetics of the parks. The more restrictive regulations enacted in 2010 focus on the most heavily-used areas in the City. Government officials have no discretion in enforcing the rules so there is no fear or favor in issuing permits.

The plaintiffs wanted to take depositions of the Mayor and his deputy. The Supreme Court 72 years ago said that high-ranking governmental officials may avoid depositions in certain instances. Other Circuits have fleshed out this rule. Believe it or not, the Second Circuit has never addressed this. It does so now, holding:

to depose a high-ranking government official, a party must demonstrate exceptional circumstances justifying the deposition -- for example, that the official has unique first-hand knowledge related to the litigated claims or that the necessary information cannot be obtained through other, less burdensome or intrusive means. High-ranking government officials are generally shielded from depositions because they have "greater duties and time constraints than other witnesses." If courts did not limit these depositions, such officials would spend "an inordinate amount of time tending to pending litigation.

Plaintiffs made no showing of any great need to depose the Mayor and his deputy. So the district court got it right in rejecting that effort.