The attorneys who represent plaintiffs in Floyd v. City of New York are calling for the three Second Circuit judges who removed Southern District Judge Shira Scheindlin (See Profile) from the stop-and-frisk litigation to be replaced by another panel.
In filings asking for en banc review of the Oct. 31 decision by Second Circuit Judges Jose Cabranes (See Profile), Barrington Parker Jr. (See Profile) and John Walker Jr. (See Profile) to remove Scheindlin because of comments and interviews she gave and her alleged abuse of the related-case rule, plaintiffs’ lawyers say the three judges undermined the appearance of justice themselves by removing Scheindlin and by keeping the case before them in the interests of judicial economy.
“Contrary to this Court’s customary practices, the Panel assigned itself to hear the merits of the appeal,” wrote attorneys with Beldock Levine & Hoffman, Center for Constitutional Rights and Covington & Burling. “Yet the Panel rushed to judgment about the district court’s purported partiality and took apparently unprecedented action in removing her without basic process and without regard to potential prejudice to Plaintiffs.”
The attorneys called the circuit’s decision a “perfect storm of procedural irregularity” and said Scheindlin’s removal was “gratuitous and deeply flawed.”
They are asking for en banc review of the circuit’s decision and the “random” reassignment of the case to another panel.
In Floyd v. City of New York, 13-3088-cv, Scheindlin on Aug. 12 found the New York City Police Department liable for widespread violations of the Fourth Amendment for stopping and frisking people without reasonable suspicion—and violations of the Fourteenth Amendment for stopping black and Hispanic men disproportionately (NYLJ, Aug. 13).
In January 2013, Scheindlin had issued, and then stayed temporarily, a preliminary injunction in Ligon v. City of New York, 13-3123-cv, blocking police from stopping for trespass without reasonable suspicion people entering and leaving private buildings in the Bronx whose owners allow police patrols.
On Aug. 12, Scheindlin issued a remedies order for both Floyd and Ligon that included the appointment of a monitor for the police department. The remedies order set up the city’s appeal, the circuit’s decision to stay Scheindlin’s rulings and the circuit’s surprise removal of the judge from the cases for violating rules on judicial ethics by both public statements she made and for telling plaintiffs’ counsel in a prior stop-and-frisk case, Daniels v. City of New York, 99 Civ. 1695, that she would accept a new lawsuit under the related-case doctrine.
Last week, filing as amicus on behalf of Scheindlin, Burt Neuborne of New York University School of Law claimed the panel was wrong on the facts and failed to give the judge her day in court on issues never raised by the Law Department. Neuborne and his team have asked the circuit to let the judge defend her conduct and have also asked for rehearing en banc.
Joining Neuborne are Norman Dorsen and Arthur Miller of NYU, Judith Resnik of Yale Law School and Frederick A.O. Schwarz Jr. of the Brennan Center.
Meanwhile, the Law Department, as promised, on Nov. 9 ramped up its efforts at the Second Circuit, asking the panel for an accelerated briefing schedule and then to go beyond a stay and vacate Scheindlin’s orders in Floyd and Ligon outright.
Neuborne said in an interview Tuesday he plans to file papers by late Tuesday or Wednesday in response to the city’s request that the circuit vacate Scheindlin’s orders. He criticized the circuit panel for a “personal attack” on the judge that sets a dangerous precedent.
“If they are going to [treat] every major disagreement in a case as evidence of bias, then something very important in the judicial process would be lost,” Neuborne said. “Personalizing this and turning it into an attack without discussing the merits of whether she was right or wrong does a great disservice to both the Second Circuit and the interests of justice.”
Lead plaintiffs’ counsel in Ligon, Christopher Dunn of the New York Civil Liberties Union, has filed papers on behalf of his clients, saying “it was fundamentally unfair to Judge Scheindlin that this action be taken without any notice to her.”
“[A]llegations of unethical conduct by the District Court judge raise substantial factual and legal questions that must be the subject of a full and fair process, which simply did not happen here,” he said.
Dunn argues that the “process should be overseen by a new panel or by the full court.”
The three-judge panel’s decision to remove Scheindlin came just two days after the judges heard two hours and 40 minutes of arguments on the stay in Floyd and Ligon, but the issue of Scheindlin’s conduct was not briefed and Celeste Koeleveld of the Law Department answered in the negative when asked by the court if city lawyers had at any point objected to Scheindlin’s public comments or the use of the related-case rule.
Neuborne, and counsel for the plaintiffs in Floyd and Ligon, say it was therefore outrageous for the panel to sua sponte find Scheindlin “ran afoul” of the Code of Conduct for U.S. Judges, Canon 2: “A judge should avoid impropriety and the appearance of impropriety in all activities” and Canon 3C(1): “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”
The three judges said the “appearance of impartiality surrounding this litigation was compromised” by Scheindlin’s “improper application the Court’s related case rule…and by a series of media interviews and public statements to respond publicly to criticism of the District Court.”
In papers filed Saturday, Corporation Counsel Michael Cardozo said violations of the Code of Conduct “identified by the Court permeate, and indeed, predate, these proceedings.”
“Factual findings and evidentiary rulings have been made, and novel legal theories propounded by the Orders…by a District Judge whose public remarks may reasonably be interpreted as demonstrating partiality against the City,” Cardozo states.
Scheindlin’s orders in Floyd and Ligon “continue unfairly and improperly to cloud the public’s perception of the NYPD” and “lend credence to the notion that the NYP unfairly targets minorities for stops and frisks, undermining its ability to carry out its mission effectively,” he said.
Cardozo also urged the three-judge panel to stand firm, as its removal order will “send a clear message” to district judges to properly apply the related-case rule and, a “necessary message to the bar that ‘judge-shopping’ by exploiting the improper application of the related case rule will not be countenanced.”
But plaintiffs’ counsel in Floyd, in their papers asking for a new panel or rehearing en banc, said the “summary removal of the judge presiding over a highly publicized civil rights case damaged the appearance of justice.”
Counsel in Floyd are Jonathan Moore and Jenn Rolnick Borchetta of Beldock Levine, Darius Charney, Baher Azmy, Sunia Patel and Chauniqua Young of Center for Constitutional Rights and Eric Hellerman and Kasey Martini of Covington & Burling.
Tuesday, the attorneys criticized as unacceptable a Law Department proposal for an accelerated briefing schedule on the motion to vacate Scheindlin’s orders ahead of the inauguration of Bill de Blasio as New York City mayor, who opposes the city’s policy on stop and frisk.
Moore, in a letter to the circuit, said, “In an obvious attempt to seek resolution of the merits of this appeal before there is a change in administration in City government,” the city has proposed giving four days to respond.
The proposed schedule, which would give the plaintiffs only until Wednesday to respond to the motion to vacate, Moore said, should be “denied outright as without merit and a transparent attempt to circumvent the merits briefing schedule which has already been set by the panel and to draw this Court into the middle of an ongoing political debate between the outgoing and incoming administrations in the City.”
The city is expected to weigh in Wednesday on the motions for rehearing en banc.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.