Second Circuit Removes Highly Respected Judge Without Prompting From High Visibility Stop and Frisk Case

Paula Lopez, November 24, 2013.

The Second Circuit has unexpectedly removed Shira Scheindlin, a highly respected district court judge of over 20 years and avid proponent of civil liberties, as presiding judge on Floyd v. City of New York, the highly controversial case challenging NYPD’s stop, question and frisk policy. No party in the case requested Judge Scheindlin’s removal.

NYPD’s stop and frisk policy permits police officers to stop a person in a public space if they have reasonable suspicion to believe that the person is engaged in criminal activity.  In Floyd, Judge Scheindlin ruled that the policy violated the plaintiffs’ Fourth amendment rights to be free of unreasonable searches and seizures and Fourteenth amendment rights because she found the practices were racially discriminatory. Judge Scheindlin ruling was based on evidence showing that the majority of people stopped under the policy were either Black or Latino and few summonses or arrests resulted from those stops.

In removing Judge Scheindlin and reassigning Floyd to another district judge, the 2d Cir. Panel found that she had engaged in conduct that runs afoul of the federal judicial code of conduct.  The Second Circuit’s removal of Judge Scheindlin from Floyd adds to the controversy surrounding the case and also impacts her earlier ruling in Lignon v City of New York, granting plaintiffs’ motion for a preliminary injunction on their claims against the NYPD for unconstitutional trespass stops outside buildings enrolled in Operation Clean Halls, a program by which private property owners authorize the NYPD to enter their property and enforce against suspected criminal activity.  Operation Clean Halls is an off-shoot of NYPD’s stop and frisk policy.  In both Floyd and Lignon the plaintiffs challenge NYPD’s stop and frisk policy on the grounds that there is a systematic violation of citizens’ constitutional rights by targeting minorities.

The Second Circuit’s decision to remove Judge Scheindlin was made at the time the City moved to stay her January 8, 2013 decision in Lignon and August 12, 2013 decisions in Floyd finding the policy unconstitutional and directing the city to implement certain remedial processes subject to the court’s review and approval and appointing an independent monitor.  However, the City’s motion to the Second Circuit merely asked for a stay of enforcement of the decisions pending appeal and never sought Judge Scheindlin’s removal.

At the heart of the Second Circuit’s, sua sponte, decision to reassign Floyd to another judge are certain statements made by Judge Scheindlin during a conference held in 2007 in the case Daniels v. City of New York and the publication of certain media interviews given by her while Floyd was pending.  Daniels was the first lawsuit filed against the City challenging its stop and frisk policy which settled in 2004 when the City agreed to implement a written policy governing its stop and frisk practices and to improve officer training.  During a 2007 conference in Daniels Judge Scheindlin denied the plaintiff’s motion to extend the settlement terms and generally discussed the plaintiffs’ options of filing a new lawsuit against the City if they believed it was violating its stop and frisk written policy and that such newly filed case could be marked as related to Daniels and that she would accept its assignment.  In the media reports cited by the Second Circuit as a basis for the removal, Judge Scheindlin never commented on the merits of Floyd but merely addressed public attacks made against her by proponents of the City’s stop and frisk policies.

Notably, the City never asserted any misconduct by Judge Scheindlin or claimed that her actions gave rise to an appearance of partiality at anytime throughout the 5 years that Floyd was being litigated, or in the notices of appeal or motion for a stay it had filed.  In fact, the City never sought Judge Scheindlin’s removal during the last 14 years that she has presided over cases involving the constitutionality of the City’s policies.  Further, the City never objected in 2010 to Judge Scheindlin accepting the case Davis v. City of New York as a related case to Floyd, or in 2012 when she accepted Lignon as a related case to Davis.  Despite the City’s silence, a three judge panel took it upon itself to order Judge Scheindlin’s removal.

The Plaintiffs in Floyd have made a motion requesting that the full panel of active Second Circuit judges (en banc) review and reconsider the three judge panel’s decision. In their motion for en banc reconsideration, Plaintiffs’ argue, among other things, that the City waived the right to seek Judge Scheindlin’s disqualification and, even though the Second Circuit panel issued the order sua sponte, the City is no longer entitled to such relief. Plaintiff’s motion is supported by an Amicus Curiae brief of six retired district court judges and thirteen legal ethics professors.  This motion is still pending.

However, the City has not wasted any time in trying to take advantage of the removal decision—it has already sought to outright vacate Judge Scheindlin rulings in Floyd and Lignon. Although the panel denied the City’s motion to vacate, the decision affords the City the right to argue on appeal that Judge Scheindlin’s decisions should be reversed because of alleged judicial misconduct and/or bias despite never having raised such issues during the 5 years the Floyd case was being litigated or the 14 years of litigating cases in her courtroom.  It should be noted that the Second Circuit panel issued an order clarifying its reasons for removing Judge Scheindlin in which they stated that there was no finding of judicial misconduct.

While, it is within the Second Circuit’s power to reassign a case to another judge, in the normal course such reassignment is strictly procedural and unlikely to impact the merits of a case.  However, the Second Circuit panel’s removal decision in Floyd is striking because not only could it form the basis for invalidating two crucial decisions that directly affect the constitutional rights of minorities in New York City but could also have the unintended effect of putting district court judges on the defensive and curbing their judicial independence.