Second Circuit’s Order on Stop-and-Frisk

by Ed Whelan

In a brief but momentous order yesterday in two cases consolidated on appeal, a Second Circuit panel blocked, pending appeal, implementation of the rulings of federal district judge Shira Scheindlin that would have restricted and modified the New York Police Department’s stop-and-frisk policies, and the panel removed Scheindlin from any further role in the cases on the ground that her actions and statements had violated the Code of Conduct for United States Judges.

The panel, I’ll note, consisted of Judge John M. Walker, Jr. (a Bush 41 appointee), Judge José Cabranes (a Clinton appointee), and Judge Barrington D. Parker (whom President Clinton appointed to the district court and whom President George W. Bush, in an unrequited gesture of good will to Senate Democrats, elevated to the Second Circuit).  

In a blog post yesterday, the New Yorker’s Jeffrey Toobin condemns the Second Circuit’s removal of Scheindlin as “preposterous.” But his assessment, I think, simply fails to grasp the panel’s basis for its action.

The panel’s explanation of its removal decision comes in one long sentence, supported by two footnotes. The panel determines in particular that “the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s ‘related case rule’ and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.” (Citation omitted.)

The related-case rule (available on the page numbered 109 here) provides that a civil case will be deemed related to another civil case “when the interests of justice and efficiency will be served,” and it sets forth several factors for the judge to consider. Rather than apply these factors to a case that had been proposed for treatment as a related case, Scheindlin affirmatively advised plaintiffs’ lawyers in one case to file another case and told them in advance that she “would accept it as a related case.” As the article the panel cites in footnote 1 makes clear, this was part of a general practice by Scheindlin by which she managed to decide all or nearly all stop-and-frisk lawsuits.

Further, the three articles cited in footnote 2 readily invite the inference that Scheindlin grabbed control of these cases because she feared that other judges on her court are, in her words, “a little more timid to maybe disagree with the U.S. attorney’s office,” “more cautious than they should be.” “Maybe,” she maintains, “some judges [give government attorneys special respect] because they [the judges] came from the [U.S. attorney’s] office, they know the people there, whatever.” Or, as she puts it less tentatively to Toobin, “Too many judges, especially because so many of our judges come out of [the U.S. attorney’s office], become government judges.”

In sum, Scheindlin advised plaintiffs’ lawyers how to get stop-and-frisk cases in her court, and her public statements strongly indicate that she aggressively employed the related-case rule in order to keep such cases from going to other judges who might not rule as she would like. Those facts would certainly seem to provide an ample basis for questioning her impartiality in such cases.

Toobin also contends that, by acting on its own (rather than on a government motion), the Second Circuit panel was somehow obligated to find that Scheindlin’s violations of the ethical rules were especially egregious. I see no basis for that contention. The rules impose a duty on Scheindlin, and her duty to comply with those rules does not depend on whether any party moves for her recusal. (In some circumstances in which a disqualification issue has been raised, the parties  may “agree in writing or on the record that the judge should not be disqualified,” but that’s a different matter.)