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Media Alerts - In re Reassignment of Cases & In re Motion of District Judge: Ligon; Floyd et al. v. City of New York, et al. - Second C
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November 14, 2013
  In re Reassignment of Cases & In re Motion of District Judge: Ligon; Floyd et al. v. City of New York, et al. - Second C
Headline: Second Circuit Clarifies Basis for Order to Disqualify District Judge in "Stop-and-Frisk" Racial Profiling Cases Against NYPD, and Denies District Judge's Motion to Appear in Support of Retaining Cases

Area of Law: Criminal Procedure; Ethics

Issues Presented: Whether the appearance of impartiality should disqualify the District Judge from retaining related "stop-and-frisk" racial profiling cases? Whether the District Judge may be heard on the decision to reassign the "stop-and-frisk" racial profiling cases?

Brief Summary: On October 31, 2013, the Second Circuit issued a brief order that stayed the opinions rendered by District Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York in two lawsuits challenging the constitutionality of the New York Police Department's "stop-and-frisk" policy. In that brief order, the Second Circuit disqualified Judge Scheindlin based on her appearance of impartiality and ordered the cases reassigned to a new judge. In the first of two opinions, In re Reassignment of Cases, the Second Circuit superseded and clarified that order by explaining that, under 28 U.S.C. 455(a), despite there being no findings of misconduct, actual bias, or actual partiality on the part of District Judge Scheindlin, disqualification of Judge Scheindlin was the proper remedy because statements she made, which appeared to result in the cases being filed with her, along with statements made to the media, "might cause a reasonable observer to question her impartiality." In a second opinion, In re Motion of District Judge, the Second Circuit held that District Judge Scheindlin's motion had no procedural basis to allow her to come before the court and argue on her own behalf in light of these circumstances as "reassignment is not a legal injury to the district judge."

To read the full opinions, please visit: http://www.ca2.uscourts.gov/de...8_complete_amended.pdf and http://www.ca2.uscourts.gov/de...3-3088_motion_opn.pdf

Extended Summary:
The underlying class action lawsuits in this matter, Floyd v. City of New York and Ligon v. City of New York, were before United States District Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York as related cases to prior cases she presided over. These cases challenged the constitutionality of practices by the New York City Police Department ("NYPD") in relation to stop-and-frisks. In an amended opinion on February 14, 2013, District Judge Scheindlin granted the Ligon plaintiffs' motion for a preliminary injunction because the plaintiffs showed "a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops." In a separate opinion, District Judge Scheindlin also granted the defendants' motion to stay the remedies until a decision was reached on "the appropriate scope of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any) in Floyd." On August 12, 2013, following a nine-week trial in Floyd, District Judge Scheindlin held that the City of New York ("the City") violated the plaintiffs' Fourth and Fourteenth Amendment rights, and ordered the City to take remedial measures. On August 27, 2013, the City moved to stay the orders pending an appeal on the merits, which motion was denied by Judge Scheindlin. On September 23, 2013, the City made a motion before the Second Circuit to stay District Judge Scheindlin's order. On October 31, 2013, the Second Circuit granted the stay and ordered that the cases be reassigned to a randomly selected district judge because of District Judge Scheindlin's appearance of impartiality.

In a follow-up and superseding opinion in In re Reassignment of Cases, the Second Circuit gave further explanation for the basis of its October 31 order. It stated that 28 U.S.C. 455(a) has the goal of not only avoiding partiality, but the appearance of partiality. While making no explicit findings of "misconduct, actual bias, or actual partiality on the part of Judge Scheindlin," the Second Circuit found that her conduct on the bench, what may have resulted in Floyd and Ligon being filed and assigned to her, coupled with her statements made to the media, "might cause a reasonable observer to question her impartiality." As support for this conclusion, the Second Circuit referred specifically to several statements made by Judge Scheindlin in related cases and to the press. For example, the court cited an exchange during argument on a motion in Daniels v. City of New York, a related case, during which District Judge Scheindlin repeatedly suggested that if the plaintiffs wanted to seek information outside of the described parameters of a settlement agreement, they should file an additional lawsuit, which she would accept as a related case, and would likely allow the plaintiff to obtain the requested documents. Additionally, the court referred to comments District Judge Scheindlin made to the media after the trial in Floyd, but prior to the decision being issued including stating that she might not be the government's "favorite judge." Furthermore, the Second Circuit referred to a story published in The New Yorker suggesting that Judge Scheindlin would rule against the NYPD, which quoted one of her former law clerks as stating that "the judge . . . thinks cops lie" and which stated that Scheindlin described "herself as a jurist who is skeptical of law enforcement." Combining the comments made during the proceedings, and those made to the media, the Second Circuit held that there was an appearance of partiality. The Second Circuit continued by noting that reassignment "is not unusual in this Circuit" and within the discretion of the court.

In re Motion of District Judge addresses a motion filed by District Judge Scheindlin with the Second Circuit on November 8, 2013, through counsel, seeking an order granting appellate review of the judicial disqualification under 28 U.S.C. 455(a). The motion sought to authorize counsel to appear on District Judge Scheindlin's behalf to address the October 31, 2013 order reassigning the cases to a randomly selected district judge. On November 9, 2013, District Judge Scheindlin's counsel, "styling himself as amicus curiae," filed a letter arguing that the Second Circuit should vacate the reassignment order "to terminate a dispute that is distracting attention for the underlying merits." The motion argued for relief under Federal Rule of Appellate Procedure 21, which permits a trial court judge to request permission to address a petition for mandamus relief if invited or ordered by the court. The Second Circuit denied the motion, holding that the motion lacked a procedural basis because there was no judicial misconduct or ethical violations committed by District Judge Scheindlin, and under the circumstances, there was no procedural mechanism to allow her to argue on her behalf. The Second Circuit found that Rule 21 did not apply because there was no petition for a writ of mandamus or any other extraordinary writ pending. Additionally, there was no precedent which would ultimately allow District Judge Scheindlin to argue before the Second Circuit on the issue of reassignment. The Second Circuit further rejected District Judge Scheindlin's counsel's argument that this was "distracting." The court acknowledged that it may be frustrating to work on a case for a lengthy period of time only to have it reassigned, but found there no legal injury to District Judge Scheindlin.

To read the full opinions, please visit: http://www.ca2.uscourts.gov/de...8_complete_amended.pdf and http://www.ca2.uscourts.gov/de...3-3088_motion_opn.pdf

Panel: Circuit Judges Walker, Jr., Cabranes, Parker.

Date of Issued Opinions: 11/13/13

Docket Number: 13-3123; 13-3088

Decided: Cases are Reassigned; Denied District Judge's Motion to Appear in Support of Retaining Authority Over Cases

Case Alert Author: Jeffrey S. Peters

Counsel: Burt Neuborne, New York, NY, for Judge Shira A. Scheindlin.

Author of Opinion: Per Curiam.

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 11/14/2013 06:11 PM     2nd Circuit  

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