The United States Court of Appeals for the Second Circuit erred badly last week when it stayed the remedies ordered by Judge Shira Scheindlin of Federal District Court to correct the civil rights violations associated with New York City’s stop-and-frisk policy, including an independent monitor to review police practices. It also unjustly damaged Judge Scheindlin’s reputation when it removed her from the case.
A motion filed on Wednesday by Judge Scheindlin’s lawyers seeks to have her removal vacated. The motion offers a strong argument that the three-judge panel moved with unseemly haste, acted on a skewed reading of the evidence and violated a court rule that gives judges accused of misconduct the opportunity to defend themselves. The appeals panel said Judge Scheindlin violated a rule requiring judges to avoid the appearance of impropriety and improperly used the assignment process that led her to preside over three stop-and-frisk cases.
The panel seized on a statement that she made in court in 2007, while presiding over Daniels v. City of New York, in which plaintiffs charged the police with racial profiling. The plaintiffs in that case tried to introduce newly discovered evidence as the case was drawing to a close; Judge Scheindlin castigated them and said she would take a separate case if they filed it. The practice of placing similar, related cases before the same judge to conserve resources is standard.
The judge’s statement at the end of the Daniels case was somewhat offhanded, but it seems reasonable by a judge seeking to rein in last-minute claims by the plaintiffs. The subsequent case, filed in 2008, turned out to be Floyd v. City of New York, in which she ruled earlier this year that the stop-and-frisk tactics by city police violated the rights of minority citizens.
The appeals panel also took issue with three news interviews that the judge granted while the stop-and-frisk case was in her court. But this week’s motion shows that the judge “explicitly refused to comment on legal issues raised in the pending litigation, and confined her responses to general discussions of constitutional law and explanations of the judicial process.” She used one interview to respond to a personal attack from City Hall, which sought to portray her as unfair to the police. According to court documents, the city’s corporation counsel, Michael Cardozo, subsequently met with Judge Scheindlin to apologize and “disclaim responsibility” for the attack.
Except in egregious cases, judges are removed from cases only after a motion is made to dislodge them. The city could have filed such a motion at any point during the five-year litigation in the Floyd case, but did not. That the panel then removed Judge Scheindlin on its own seems particularly inappropriate.
The appeals court ignored a rule that requires judges accused of improper conduct to receive notice and an opportunity to respond. In this instance, a judge who has served with distinction for nearly 20 years was blindsided. Worse, the panel put on hold the corrective measures on stop-and-frisk that the public wants and needs.
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