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November 1, 2013

Second Circuit panel halts NYC stop-and-frisk remedies and removes district judge from case

As reported via this New York Law Journal article, headlined "Circuit Rebuffs Scheindlin on Stop/Frisk," yesterday brought an eventful order from a panel of Second Circuit judges in a high-profile lawsuit about police practices in New York City. Though not involving a sentencing issue, I suspect reader of this blog might have thoughts they wish to share on this notable criminal justice development. Here are the basics from the start of the NYLJ report:

Southern District Judge Shira Scheindlin has been ordered off the stop-and-frisk cases by the U.S. Court of Appeals for the Second Circuit.

The circuit said the judge had given the "appearance of partiality" in her handling of Floyd v. City of New York, 13-3088, and it stayed pending appeal Scheindlin's appointment of a monitor to reform New York City Police Department stop-and-frisk policies and practices she had held unconstitutional.

Two days after oral argument on whether to stay Scheindlin's appointment of monitor Peter Zimroth, a partner at Arnold & Porter, to help remedy police violations of the Fourth and Fourteenth Amendments, the Second Circuit said Scheindlin presented the appearance of partiality both in how she came to preside over the Floyd case in the first place and in interviews she gave to reporters.

Judges Jose Cabranes, Barrington Parker and John Walker, in a three-page order, stayed Scheindlin's Aug. 12 liability opinion in Floyd, where she found a top-down police department practice of making hundreds of thousands of stops without reasonable suspicion of criminal activity, and that blacks and Hispanics were targets of those stops.

The circuit also stayed Scheindlin's opinion and order issued on Jan. 8, 2013 in the related case of Ligon v. City of New York, 13-3123, where she issued a preliminary injunction ordering police to cease making stops for trespass without reasonable suspicion outside of privately-owned buildings in the Bronx.

Finally, the circuit stayed the remedies opinion she issued on Aug. 12 that applied to both Floyd and Ligon.  In addition to the appointment of a monitor, Scheindlin directed several other measures be taken, including a one-year pilot program in which police in one precinct in each of the city's five boroughs wear body cameras to record stop encounters for one year.

November 1, 2013 at 07:30 AM | Permalink


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They removed the judge sua sponte for conduct that doesn't sound that outrageous to me -- in the articles that the opinion cites, she never gives her thoughts or opinions about the cases themselves. I'm blown away and confused by this opinion.

Posted by: julie | Nov 1, 2013 8:27:13 AM

The order tossing Scheindlin should be viewed against the backdrop of the same Court's the order reversing Jack Weinstein's flagrantly biased opinion in the C.R. child porn case, but, conspicuously, NOT removing him from the case on remand.

I don't know the full extent of what Scheindlin did, but I know from 18 years arguing before the federal courts of appeals in more than 100 cases that district judges don't get the boot except with extremely good reason.

Posted by: Bill Otis | Nov 1, 2013 10:24:13 AM

note also the hilarity of the motions panel criticizing scheindlin for her use of the related case rule, while simultaneously retaining jurisdiction over the merits appeal instead of kickign it back into the hopper.

Posted by: HGD | Nov 1, 2013 12:14:43 PM

Well. julie, "not all that bad" is not really all that acceptable when a policy that is part and parcel of a strategy that has saved thousands of lives from being ruined.

Amazing what liberals will defend.

And this from a crowd that frothed at the mouth over "killer Keller", who, it must be remembered (a) didn't give a litigant ex parte advice on how to perfect an appeal and (b) followed state law.

Posted by: federalist | Nov 1, 2013 1:19:52 PM

Bill Otis wrote: "I know from 18 years arguing before the federal courts of appeals in more than 100 cases that district judges don't get the boot except with extremely good reason."

Turns out that is not always true. In some circuits the practice seems rather random, and in others the default is reassignment in. A circuit rule for the 7th Circuit actually requires reassignment unless the remand specifies otherwise. This is not the 2nd Cir standard, but there is a misconception that all circuit courts use reassignment as a last resort. Not true.

Posted by: J. Marceau | Nov 1, 2013 2:40:10 PM

J. Marceau --

I speak from many years of personal experience, but I am happy to learn from the personal experience of others. Let me ask you, then, in how many of your cases did the court of appeals, on remand, order assignment to a different district judge?

Posted by: Bill Otis | Nov 1, 2013 2:59:03 PM

Bill, my experience is not really different. No reassignments for me. My point, however, is that it does happen. It is not the norm, but it is less unusual than we think. I reviewed an essay studying this for a remand symposium and was startled by the lack of uniformity across circuits. And as I said, there is a written circuit rule in the 7th that makes reassignment the norm rather than the exception.

Posted by: J. Marceau | Nov 1, 2013 3:39:30 PM

J. Marceau --

Thank you for your response. Let me ask the defense lawyers on the board: Did it ever happen in a case you handled?

I worked primarily in the Fourth Circuit, where (1) politeness counts and (2) it would have been considered impolite to ask for remand to a different judge.

The other reason I never asked and it never happened was that I wanted to let the district judges know it wasn't personal. I was in charge of appeals, and I did all the USAO's topside cases. So I was not always the most welcome sight sitting in the audience in district court wearing a stone face. While I was not shy -- at all -- about going after what I viewed as erroneous rulings, I wanted the district judges to know it was just business.

(I also wanted them, if they had to get steamed, to get steamed at me rather than my colleagues).

Posted by: Bill Otis | Nov 1, 2013 4:00:53 PM

All judges get their paycheck from the government. So the overwhelming majority of their decisions favor the government. As a result of government's doing nothing well (save collect the rent), most of their decisions are misguided or even wrongful. No other profession would tolerate the rate of mistakes of lawyer-judges.

That is the reason, judging should become a separate profession excluding all lawyers as ineligible. Judge schools should enrol mature people who have experienced the consequences of their decision making. Judicial temperament is a positive. Attend judge school for 2 years to learn to apply the law, and not to make the law. Third Year, J3, should be spent on 6 different benches under the supervision of experienced judges, including an appellate bench. Then, take a licensing exam.

Only licensed judges should qualify for appointment or election. A funding stream for salaries and support should come from the tax payer, but not from government.

All judges should carry liability insurance, and be subject to tort claims when they deviate from professional standards and a party is damaged. If someone becomes uninsurable due to excessive liability, he should be fired.

The Supreme Court is unbearable and needs basic improvements. Move it to Kansas, away from the homosexual, Democratic Party dominated, rent seeking, sybaritic, drug addled culture of Washington DC. Increase the number of Justices to a legislature size, such as 500. Include a majority of non-lawyers. The profession is entirely unfit to make decisions about technical fields. Any decision with a readability level above the 6th grade should be void for criminality (rent seeking, requiring a lawyer to translate).

Posted by: Supremacy Claus | Nov 7, 2013 7:12:17 AM

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