Judge in Stop and Frisk Case Responds to Appeals Court

I noted the other day that the 2nd Circuit Court of Appeals had put a stay on an injunction ordered by District Court Judge Shira Scheindlin reining in the NYPD’s Stop and Frisk program. It was a very odd ruling, removing Scheindlin from handling the case even though neither side had requested such action. That just doesn’t happen. Now Judge Scheindlin has responded to the allegations made against her by the appeals court and makes a compelling case.

But the court of appeals then went further, entirely on its own initiative, and ordered Judge Scheindlin’s removal from the case. The city had not even requested that remedy. This is unheard of. The court criticized Judge Scheindlin for violating norms of impartiality in two ways—by deciding to take on the case as a “related case” at its outset, and by making some statements to the media while the case was ongoing. Because the city had not even raised this issue, the court ruled without affording the parties themselves an opportunity to argue whether such an extraordinary remedy is called for.

Judge Scheindlin issued a brief, dignified statement in her own defense. She explained that she took the case as a related case because plaintiffs alleged that the city had violated an order that she herself had issued in a prior case challenging the city’s stop-and-frisk practices. That is an entirely reasonable basis for identifying a case as related. The “related case” rule permits district court judges to take cases that are related to cases they have previously decided, in order to encourage efficient resolution of disputes. Judge Scheindlin was well within her authority in taking the case.

Apparently lacking irony or shame, the court of appeals panel hearing the motion in Floyd departed from the usual practice of allowing the full appeal to be assigned to a random panel and instead ordered that it would hear the full appeal itself. Nor did it offer any explanation for why it was departing from the usual course of business. Evidently when it comes to related cases, what’s sauce for the district court is not sauce for the court of appeals.

The fact that the appeals court took an action that neither the plaintiffs or defendants wanted and gave them no opportunity to argue the case, or for Scheindlin to defend herself or explain her actions, is really quite outrageous. As for the allegation that she had spoken to the media, Scheindlin said this:

Regarding the judge’s allegedly problematic statements to the media, the judge is her own best defender. Here’s what she said in her statement after the court of appeals rebuked her:

All of the interviews identified by the Second Circuit were conducted under the express condition that I would not comment on the Floyd case. And I did not. Some of the reporters used quotes from written opinions in Floyd that gave the appearance that I had commented on the case. However, a careful reading of each interview will reveal that no such comments were made.

The court of appeals panel didn’t feel the need to do “a careful reading.” They didn’t even feel the need to hear from the parties themselves before deciding an issue that neither party had raised or briefed.

Unfortunately, Scheindlin has no recourse here unless the plaintiffs appeal the order that she be recused (and I’m not even sure they can do that). This whole thing stinks to high heaven.

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  • David C Brayton

    Finally, a case where the term “activist judge” might actually mean something.

  • magistramarla

    Was this a last ditch effort to save “stop and frisk” since the handwriting on the wall was plain to see that de Blasio was going to be elected? Will he be able to do something about this law now?

  • throwaway, never proofreads, every post a gamble

    Finally, a case where the term “activist judge” might actually mean something.

    I think you mean “activist judges”? There were three of them: John M. Walker, Jr., José A. Cabranes, and Barrington D. Parker.

    I will be curious to see what happens.

  • throwaway, never proofreads, every post a gamble

    Was this a last ditch effort to save “stop and frisk” since the handwriting on the wall was plain to see that de Blasio was going to be elected? Will he be able to do something about this law now?

    DeBlasio can drop the appeal on behalf of the city, but Scheindlin will be off the case, which means the possibility of intervention by other interested parties.

  • Quantum Mechanic

    On a mostly unrelated note, there’s an ongoing case that I’d love to hear Ed’s thoughts on:

    4 On Your Side investigates traffic stop nightmare

    A New Mexico man who was pulled over for not coming to a full stop at a stop sign was forced to undergo more than 8 illegal searches of his large intestines. While the police didn’t find any illegal substances and the medical procedures (including a procedure using general anesthesia), the victim’s being forced to pay the medical bills. The case’s got a completely innocent victim, falsely alerting drug dogs used to gain probable cause, and dodgy search warrants (for body cavities) which are then flat-up invalidated on account of both jurisdiction and time… not to mention police officers responsible for what is effectively who won’t ever be prosecuted. It’s fractally wrong, like a Frankenstein’s monster of all the things Ed blogs about!

  • John Pieret

    One local reporter specializing in court cases said on the local PBS radio station that thought that the whole thing happened because there is an “Old Boy Network” in the local Federal courts and Scheindlin is not, obviously, a boy and, even worse, is fiercely intelligent and not afraid to mix it up.

    The 2nd Circuit really made itself look bad in this one and the local bar knows it.

  • Ichthyic

    falsely alerting (and UNCERTIFIED) drug dogs


    these cops were using a dog that hadn’t been certified for such use in over two years, and have used it with more than one of these kinds of cases there.

    …just to add to the fractal wrongness, and again wonder why Ed hasn’t jumped on this one? there is NO argument… corruption here from the judge, to the cops, to the medicos.

    come on Ed!

  • Actually, Scheindlin does have recourse. Scott Greenfield over at Simple Justice talks about Judge Scheindlin Fights Back and includes a link to the motion that her attorney filed in the case. The motion is well worth reading all the way through.