Appeals judges explain removal of long-standing stop-and-frisk judge

stop and frisk court of appeals order
The judges said they found no wrong-doing by Judge Shira Scheindlin, but maintained their decision to remove the cases from her docket and refused to allow her to come before them and argue to get them back.
Credit: Thinkstock

The panel of Second Circuit Court of Appeals judges who removed Judge Shira Scheindlin from two stop-and-frisk cases issued an opinion explaining why they ordered the cases be reassigned to a different judge at random.

Scheindlin was the presiding judge over two high-profile stop-and-frisk lawsuits against the city, Floyd v. City of New York and Ligon v. City of New York. In both cases, she ruled against the city. The city asked her to stay both rulings while they appeal them; she denied that request. The appeals court has since granted the city its stay requests, and agreed to hear their motion to appeal.

They also, in an unusual move, took the cases away from Scheindlin. In another unusual move, they decided to hear the motion to appeal themselves, rather than having it go to a new panel of appeals court judges.

They emphasized repeatedly in their new opinion that they had found no evidence of actual judicial misconduct by Scheindlin: rather, the issue was one of appearances.

Citing comments made by the judge in court, as well as “statements to the media,” and in particular the fact that those statements were published before she had issued her decision and “while public interest in the outcome of the litigation was high,” the judges maintained that a “reasonable observer” could have had questions about Scheindlin’s impartiality.

The judges noted that interview subjects “cannot predict with certainty what the writer will say,” but maintained that agreeing to do interviews opens the subject up to vulnerability to things like a statement in the New Yorker piece from a former law clerk alleging that the judge “thinks cops lie.”

Pointing to interviews the judge gave to the New Yorker, the Associated Press, and the New York Law Journal, the judges said that Scheindlin’s general claims of being “skeptical of law enforcement, in contrast to certain of her colleagues” were especially notable given that such public statements by judges are rare. Given that, “and the ease with which [such statements] may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.”

In a separate opinion, the judges denied Scheindlin’s motion to appear before them and persuade them to reconsider their decision to remove her from the cases, calling it “unprecedented.”

Specifically, they argue that the judge has no claim to legal injury, and therefore no legal standing. Moreover, they maintain, they never accused her of wrongdoing, so she has no need to come before them to defend herself.

As to her lawyer’s claim that the decision to remove her is being viewed by the public “in the context of an unseemly dispute by judges,” echoing the judges’ own insistence on the importance of the appearance of impartiality in their decision to remove Scheindlin, the judges dismissed all such allegations.

“Reassignment is an ordinary tool used by our judicial system to maintain and promote the appearance of impartiality across the federal courts,” the judges wrote. “We recognize that it is frustrating to work extensively on a case that is later reassigned, and that reassignment, even if only based on an appearance of partiality, is a displeasing occurrence for any district judge, particularly for a long- serving and distinguished one such as Judge Scheindlin, but we are confident that these matters will be ably handled, without any arguable appearance of partiality, by another of her capable colleagues.”

Follow Danielle Tcholakian on Twitter @danielleiat



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