The Second Circuit Panel Got it Wrong

November 2013
New York Law Journal


Judges are human and sometimes getting caught up in the emotions of high profile cases causes them to make serious errors. A three-judge panel of the U.S. Court of Appeals for the Second Circuit did exactly that in removing federal Southern District Judge Shira Scheindlin from continuing to handle the lawsuit against the racial profiling by the New York Police Department.
Scheindlin had issued a 195-page opinion about stop-and-frisk in New York City in Floyd v. City of New York, 13-3088. In meticulous detail, she documented how the NYPD violated the constitutional rights of minorities by routinely stopping "blacks and Hispanics who would not have been stopped if they were white." Scheindlin spoke of the "human toll of unconstitutional stops" and how stops are inevitably "a demeaning and humiliating experience." She declared, "No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life."
Scheindlin did not put an end to stops and frisks, but she appointed an independent monitor, ordered an experiment with police wearing body cameras, and mandated a series of community meetings. It was telling that Mayor Michael Bloomberg's response to Scheindlin's opinion was to denounce it and pledge to appeal, rather than to condemn race-based policing.
The city, of course, had the legal right to appeal and it is customary to ask a court of appeals to stay, that is to put a temporary halt to a trial court's order while the matter is on appeal. I question whether the legal requirements for a stay were met here, but the Second Circuit panel, comprised of Judges Jose Cabranes, Barrington Parker and John Walker, certainly had the authority to do this.
What is wrong is that the Second Circuit, on its own and without any request from the parties, removed Scheindlin from involvement in the case and said that she acted improperly. The panel gave two reasons. First, it said that Scheindlin encouraged the plaintiffs to bring this case and then improperly took the case by finding it was related to an earlier matter before her.
Scheindlin had handled Daniels v. City of New York and the plaintiffs there asked her to hold the defendants in contempt. The city opposed this and Scheindlin ruled in its favor, but said that if the plaintiffs had a separate constitutional claim they could bring it in a new action. It was entirely appropriate for Scheindlin to hear this new suit as a "related case" because it included consideration of whether the city had violated her order in Daniels.
The second ground given for disqualifying Scheindlin was even more spurious. The circuit said she gave a series of media interviews and made public statements. But a careful reading of those interviews shows that in none of them did she ever talk about the pending case. In fact, Scheindlin has stated that she was clear that she would not discuss it and did not do so. In their stories, the reporters interspersed some quotes from her published judicial opinions. But she did absolutely nothing wrong.
It is serious to charge anyone, including a federal judge, with improprieties. Unfortunately, since the circuit did this on its own there never was the opportunity for any briefs or arguments about it. The result is that the circuit just got it wrong.
Ironically, after criticizing Scheindlin for improperly taking the case, the Second Circuit panel did the same thing. The circuit concluded its order by declaring, "In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course." In other words, the three judge panel appointed itself to ultimately hear the appeal. But that is wrong under the rules that require that the panel of judges to hear the merits be randomly selected.
There is no doubt that there are deep emotions on both sides of this litigation. For the plaintiffs and for racial minorities, Scheindlin's ruling is a long overdue attempt to deal with the problem of the police using their authority to stop and frisk in a discriminatory manner. For Bloomberg and city officials, Scheindlin imposed undesirable limits on policing in New York City.
It is a shame, though, that the three judges of the Second Circuit got caught up in all of this and decided to quickly take sides. Sheindlin handled this tremendously complicated matter with enormous care and scrupulously followed the law. She deserves better, as do the people of New York.
Erwin Chemerinsky
is dean and distinguished professor of law,
University of California, Irvine School of Law.

Last modified 

December 9, 2013