Ligon v. City of New York
Filing
NON-DISPOSITIVE PER CURIAM OPINION, FILED.[1091502] [13-3123, 13-3442]
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13-3123; 13-3088
In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of November, two thousand thirteen.
Present:
John M. Walker, Jr.,
José A. Cabranes,
Barrington D. Parker,
Circuit Judges.
_____________________________________
In re Reassignment of Cases
_____________________________________
Jaenean Ligon, et al.,
Plaintiffs-Appellees,
v.
13-3123
City of New York, et al.,
Defendants-Appellants.
_____________________________________
David Floyd, et al.,
Plaintiffs-Appellees,
v.
13-3088
City of New York, et al.,
Defendants-Appellants.
____________________________________
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PER CURIAM
These cases, motions of which were argued in tandem, deal with an issue of great
significance: the constitutional boundaries of practices by the New York City Police Department
(“NYPD”) that subject citizens to being stopped and frisked. On August 12, 2013, Judge Shira
A. Scheindlin, a long-serving and distinguished jurist of the United States District Court for the
Southern District of New York, held that the City of New York (“the City”) had violated the
plaintiffs’ Fourth and Fourteenth Amendment rights, and ordered the City to engage in a variety
of remedial measures and activities.
On August 27, 2013, the City moved in the district court to stay those remedies, pending
an appeal on the merits of the district court’s decision. Judge Scheindlin denied the motions. On
September 23, 2013, the City moved in this Court to stay the imposition of the district court’s
remedies. By order dated October 31, 2013, we both granted that stay and, because the
appearance of impartiality had been compromised by certain statements made by Judge
Scheindlin during proceedings in the district court and in media interviews, we reassigned the
cases to a different district judge, to be chosen randomly.1 We now explain the basis for that
order, which is superseded by this opinion.2
BACKGROUND
We emphasize that the merits of this litigation are not before us and are not at issue here.
Accordingly, we neither express nor intimate any views on the merits of the underlying actions.
1
See Appendix A.
2
On November 8, 2013, Judge Scheindlin moved in this court through counsel for “leave in the nature of
an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings
providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing
counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion
Panel’s sua sponte order of removal.” We address this motion by the district judge to appear in support of retaining
authority over these cases in a separate opinion published contemporaneously with this one.
2
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This opinion deals only with our procedural decision to direct the reassignment of the cases and
turns on how the cases came before Judge Scheindlin and the media interviews she gave during
the pendency of these lawsuits.
For the sake of clarity, we recite the procedural history that has led us to this point.
In January 2008, the plaintiffs in Floyd filed a class action alleging that the NYPD violated the
Fourth and Fourteenth Amendments through a pattern and practice of stopping and frisking
without reasonable suspicion. In March 2012, the plaintiffs in Ligon filed a class action alleging
that the NYPD violated the Fourth Amendment by engaging in a practice of unlawfully stopping,
frisking, and arresting persons for trespass because of their presence in or near buildings enrolled
by their landlords in an NYPD crime prevention program known as the Trespass Affidavit
Program (“TAP”).
When filing, the plaintiffs in Floyd marked the case on the appropriate form as related to
Daniels v. City of New York, No. 99-cv-1695, an earlier case over which Judge Scheindlin
presided. Likewise, the plaintiffs in Ligon marked that case as related to Davis v. City of New
York, No. 10-cv-699, over which Judge Scheindlin was also presiding.3 Because Daniels,
although terminated a month earlier, and Davis had been assigned to Judge Scheindlin, Floyd
and Ligon were forwarded to her, pursuant to Rule 13 of the Local Rules for the Division of
Business Among District Judges,4 and she accepted them both as related cases.
3
Prior to Ligon being filed, Judge Scheindlin had accepted Davis as related to Floyd, so in that sense,
Ligon also descends directly from Daniels via Floyd and Davis.
4
In relevant part, Rule 13 provides:
(c) Assignment of cases and proceedings that are designated as related.
(i) Disclosure of contention of relatedness.
3
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In a decision dated January 8, 2013, and amended on February 14, 2013, Judge
Scheindlin granted the Ligon plaintiffs’ motion for a preliminary injunction, holding that they
had “shown a clear likelihood of proving that defendants have displayed deliberate indifference
toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP
buildings in the Bronx.”5 In a separate opinion, Judge Scheindlin granted the defendants’ motion
to stay any remedies until after the “issuance of a final decision regarding the appropriate scope
of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any)
in Floyd.”6
On August 12, 2013, following a nine-week trial in Floyd, Judge Scheindlin held that the
City of New York violated the plaintiffs’ rights under the Fourth Amendment and the Equal
Protection Clause of the Fourteenth Amendment.7 The same day, Judge Scheindlin issued an
opinion setting forth remedial measures in both Floyd and Ligon8 intended to bring the NYPD’s
use of stop-and-frisk into compliance with the Fourth and Fourteenth Amendments.9
When a civil case is filed or removed or a bankruptcy appeal or motion to
withdraw the reference of an adversary proceeding from the bankruptcy court is filed,
the person filing or removing shall disclose on form JSC44C any contention of
relatedness. A copy of that form shall be served with the complaint, notice of removal,
appeal or motion.
(ii) Civil cases that are designated as related.
A case designated as related shall be forwarded to the judge before whom the
earlier-filed case is then pending who has the sole discretion to accept or reject the case.
Cases rejected by the judge as not related shall be assigned by random selection.
5
Ligon et al. v. City of New York et al., 925 F. Supp. 2d 478, 485 (S.D.N.Y. 2013).
6
Ligon et al. v. City of New York et al., Nos. 12-cv-2274, 08-cv-1034, 2013 WL 227654, at *4 (S.D.N.Y.
Jan. 22, 2013).
7
See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7
(S.D.N.Y. Aug. 12, 2013).
8
See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL
4046217 (S.D.N.Y. Aug. 12, 2013).
9
Id. at *13.
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On August 16, 2013, the defendants in both cases filed notices of appeal in this court. On
August 27, 2013, the City of New York moved in the district court to stay the remedies in Floyd
and Ligon, pending the outcome of the appeals process. On September 17, 2013, Judge
Scheindlin denied the City’s stay motions. On September 23, 2013, the City moved in this court
to stay the district court’s August 12, 2013 remedies order.
Following oral argument, this panel, on October 31, 2013, stayed, “the District Court’s
January 8, 2013 ‘Opinion and Order,’ as well as the August 12, 2013 ‘Liability Opinion’ and
‘Remedies Opinion,’ each of which may or will have the effect of causing actions to be taken by
defendants or designees of the District Court, or causing restraints against actions that otherwise
would be taken by defendants.” This panel also concluded “that, in the interest, and appearance,
of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to
a different District Judge, chosen randomly under the established practices of the District Court
for the Southern District of New York. This newly-designated District Judge shall implement
this Court’s mandate staying all proceedings and otherwise await further action by the Court of
Appeals on the merits of the ongoing appeals.”10 We now explain in greater detail the basis for
our decision to reassign the cases.
DISCUSSION
Title 28, United States Code, section 455(a) provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” This statute embodies the principle that “to
perform its high function in the best way justice must satisfy the appearance of justice.”11
10
See Appendix A, at 3.
11
In re Murchison, 349 U.S. 133, 136 (1955) (internal quotation marks omitted).
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The goal of section 455(a) is to avoid not only partiality but also the appearance of
partiality.12 The section does so by establishing an “objective standard ‘designed to promote
public confidence in the impartiality of the judicial process.’”13 The rule functions as a critical
internal check to ensure the just operation of the judiciary. Our Court, sitting en banc, has stated
that there exists “unusual circumstances where both for the judge’s sake and the appearance of
justice, an assignment to a different judge is salutary and in the public interest, especially as it
minimizes even a suspicion of partiality.”14 And as other circuits have correctly noted, “‘if the
question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of
recusal.’”15
We emphasize at the outset that we make no findings of misconduct, actual bias, or actual
partiality on the part of Judge Scheindlin. Following our review of the record, however, we
conclude that her conduct while on the bench, which appears to have resulted in these lawsuits
being filed and directed to her, in conjunction with her statements to the media and the resulting
stories published while a decision on the merits was pending and while public interest in the
outcome of the litigation was high, might cause a reasonable observer to question her
impartiality. For this reason, her disqualification is required by section 455(a).
12
See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988).
13
SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861 F.2d 1307, 1313 (2d
Cir. 1988) (quoting H.R. Rep. No. 1453, reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55).
14
United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc) (internal quotation marks and citations
omitted).
15
In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001) (quoting Nichols v. Alley, 71 F.3d 347,
352 (10th Cir. 1995)); see also United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993).
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A.
The appearance of partiality stems in the first instance from comments made by Judge
Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a
case that had yet to be filed, and as seeking to have that case filed and to preside over it after it
was filed. These comments were made in the earlier case of Daniels v. City of New York, No.
99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to
establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s
supervisory authority under the settlement agreement was set to expire, she heard argument on a
motion brought by the Daniels plaintiffs to extend the settlement period.16 The transcript of the
hearing indicates that the City had substantially complied with the relief required by the
settlement and that the plaintiffs were seeking information from the City beyond that required to
be furnished by the settlement agreement.
Observing that the settlement agreement did not entitle the plaintiffs to the relief they
sought, Judge Scheindlin counseled:
THE COURT: [. . .] why don’t you file a lawsuit
Mr. COSTELLO: We did, we are here.
THE COURT: No, you are struggling with the December 31, 2007 deadline in a
1999 case. And if you got proof of inappropriate racial profiling in a good
constitutional case, why don’t you bring a lawsuit? You can certainly mark it as
related.
How could it not be related to this whole long seven or eight years we have lived
together in this case? Because you are trying to put a square peg in a round hole.
And trying to force yourselves to argue what the settlement means, that it doesn’t
mean if you have a timely lawsuit -- you seem to have compiled interesting
arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she
did, that’s why we didn’t do something, because we didn’t want them to write this
16
See Appendix B (transcript of hearing).
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letter, she -- let’s just say she hasn’t substantially responded to your letter. If one
had only your letter, it would look like you have a lawsuit. So instead of
struggling to telling [sic] me about a stipulation of settlement, why don’t you craft
a lawsuit?
(TR 10-11) (emphasis added). She returned to the idea of bringing a suit alleging that the City
had violated their racial profiling policies and suggested a basis for the suit:
THE COURT: what I am trying to say - - I am sure I am going to get in trouble
for saying it, for $65 you can bring that lawsuit. You can simply - MR. MOORE: $350
THE COURT: I knew I had it wrong. The [C]ity violates its own written policy,
the City has a policy that violates -- they have violated their policy, here is the
proof of it, please give us the remedy. Injunction or damages, or whatever
lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is
timely.
(TR 14, 15) (emphasis added). And again:
THE COURT: I don’t understand why we have to potentially have, you know,
months of briefing when it does fit under this stipulation or it doesn’t, that Raffo
applies or it doesn’t that the court has the power to extend the supervision, that we
want our immediate appeal to the circuit. Why do you need that if you have a
lawsuit? Bring it. They have a written policy, right?
MR. GROSSMAN: Yes, your Honor.
THE COURT: If you think they are violating their written policy, sue them.
(TR 15) (emphasis added).
Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would
successfully obtain relevant documents produced by the government:
THE COURT: . . . There is enough in the public record to craft the suit.
And then in that suit simply say, we want produced all that was produced in the
1999 lawsuit. I don't know how you could lose getting it. It may be a question of
whether it is still going to be under protective order or not. But I can hardly
imagine not getting it. You know what I am saying? It is so obvious to me that
any Judge would require them to reproduce it to you in the same format that you
have it, that you will have it again. Whether or not it remains confidential.
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(TR 18) (emphasis added). After the plaintiffs indicated their willingness to bring the new suit,
she repeated her earlier suggestion that the cases were related and indicated her willingness to
keep the newly filed case:
MR. MOORE: To the extent that some of the materials have already been made
public.
THE COURT: what’s public is public, -- If you cite to the Rand study, publicly,
nobody can criticize you for that. If they do, they weren’t acting in good faith. If
I can get the Rand study on the internet, it is public -MR. MOORE: you can go to the NYPD website, your Honor.
THE COURT: There you go, that’s public. You can use that. And as I said
before, I would accept it as a related case, which the plaintiff has the power to
designate.
I think this current motion is withdrawn. Thank you.
(TR 42) (emphasis added).
We believe that a reasonable observer viewing this colloquy would conclude that the
appearance of impartiality had been compromised. We do not mean to suggest that a district
judge can never engage in a colloquy with a party during which the judge advises the party of its
legal or procedural options. However, we think, particularly in combination with the public
statements described below, that a reasonable observer could question the impartiality of the
judge where the judge described a certain claim that differed from the one at issue in the case
before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim
could be viable and would likely entitle the plaintiffs to documents they sought, and advised the
party to designate it as a related case so that the case would be assigned to her.17
17
The designation by parties, and acceptance by district judges, of cases as related to other pending matters
pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges, is a routine practice that
promotes judicial efficiency and economy. Our decision in this opinion should not be construed as casting doubt on
the proper designation and acceptance of cases as “related” in the normal course—that is, when a district judge does
not invite the filing of a suit and encourage its direction to their Court. We also note that, for civil matters, the Rule
explicitly anticipates cases being marked as related to “earlier-filed case[s] . . . then pending,” see Rule 13(c), which
is “designed to reduce litigants’ costs by informally consolidating proceedings in related cases,” Chase Manhattan
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B.
This appearance of partiality by Judge Scheindlin at the Daniels hearing was exacerbated
as a result of interviews she gave to the news media during the course of the Floyd litigation.
Cases involving public comment by a presiding judge, other than statements in open court, are
infrequent. As the First Circuit has remarked, “[j]udges are generally loath to discuss pending
proceedings with the media.”18 Of course, not every media comment made by a judge is
necessarily grounds for recusal.19 We note that Judge Scheindlin did not specifically mention the
Floyd or Ligon cases in her media interviews. However, a judge’s statements to the media may
nevertheless undermine the judge’s appearance of impartiality with respect to a pending
proceeding, even if the judge refrains from specifically identifying that proceeding in his remarks
to the media. Because context is always critical, the relevant question at all times remains
whether, under the circumstances taken as a whole, a judge’s impartiality may reasonably be
called into question.20 Because there is no scienter requirement in section 455,21 the test is not
Bank, N.A. v. Celotex Corp., 56 F.3d 343, 347 (2d Cir. 1995). Here, at the time Floyd was filed in January 2008,
Daniels, to which it was accepted as “related,” was closed.
Judge Scheindlin’s motion, the subject of the separate opinion we file today, contends that the “District
Court’s recognition that judicial economy would be served by the invocation of the related case doctrine codified in
Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the
appeal herein in the name of judicial economy.” To be sure, both Local Rule 13 dealing with related cases in the
district court, and the practice in this court by which a motion panel may choose to hear the appeal on the merits, are
designed to conserve judicial resources. However, in the court of appeals, because the case is the same case and not
just a related case, and no litigant is involved with the decision, there can be no forum-shopping.
In any event, the gravamen of why reassignment of this case is necessary is not simply the use of Local
Rule 13. It is the appearance of partiality that was created by Judge Scheindlin’s conduct throughout the December
21, 2007 hearing in suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view
of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that
she would take it as a related case, as well as the media interviews she gave during the Floyd proceedings.
18
In re Boston’s Children First, 244 F.3d at 169.
19
See, e.g., United States v. Fortier, 242 F.3d 1224, 1229-30 (10th Cir. 2001) (superseded by statute on
other grounds); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991).
20
See United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).
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how a judge intended his remarks to be understood, but whether, as a result of the interviews or
other extra-judicial statements, the appearance of impartiality might reasonably be questioned.
In late May 2013, at the conclusion of the evidence in Floyd, when public interest from
reporting on that trial was high, and months before she had produced a decision, Judge
Scheindlin made herself available for interviews by the Associated Press, The New Yorker, and
the New York Law Journal.22 The “lede” of the AP article dated May 18, 2013, read “[t]he
federal judge presiding over civil rights challenges to the stop-and-frisk practices of the New
York Police Department has no doubt where she stands with the government. ‘I know I’m not
their favorite judge,’ U.S. District Judge Shira A. Scheindlin said during an Associated Press
interview Friday.” The lengthy profile of Judge Scheindlin in The New Yorker, for which she
agreed to be interviewed, was titled, “Rights and Wrongs: A Judge Takes on Stop-and-Frisk.”
The writer, implying that Judge Scheindlin was aligned with the plaintiffs, wrote,
[t]he primary outlet for Scheindlin’s judicial creativity has been an enduring battle
she has fought with the N.Y.P.D. A federal judge since 1994, she has been
hearing lawsuits against the police for more than a decade. In decision after
decision, she has found that cops have lied, discriminated against people of color,
and violated the rights of citizens. Now, in the midst of a mayoral race, with the
Democratic candidates united in their opposition to the stop-and-frisk policies of
the Bloomberg administration, the Floyd case represents Scheindlin’s greatest
chance yet to rewrite the rules of engagement between the city’s police and its
people.
While nothing prohibits a judge from giving an interview to the media, and while one
who gives an interview cannot predict with certainty what the writer will say, judges who
affiliate themselves with news stories by participating in interviews run the risk that the resulting
21
See Liljeberg, 486 U.S. at 859.
22
Jeffrey Toobin, Rights and Wrongs: A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013
(attached hereto as Appendix C); Larry Neumeister, NY “Frisk” Judge Calles Criticism “Below-the-Belt”, The
Associated Press, May 19, 2013 (attached hereto as Appendix D); Mark Hamblett, Stop-and-Frisk Judge Relishes
her Independence, N.Y. Law Journal, May 20, 2013 (attached hereto as Appendix E).
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stories may contribute to the appearance of partiality. It is perhaps illustrative of how such
situations can get out of the control of the judge that, later in The New Yorker piece, the article
quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What
you have to remember about the judge is that she thinks cops lie.’”
Further, in those two articles, as well as the New York Law Journal article, Judge
Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain
of her colleagues, whom she characterizes as inclined to favor the government. Given the
heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge
draws such distinctions between herself and her colleagues might lead a reasonable observer to
question the judge’s impartiality. As the First Circuit put it, “the very rarity of such public
statements, and the ease with which they may be avoided, make it more likely that a reasonable
person will interpret such statements as evidence of bias.”23
C.
In our previous order, we referenced the Code of Conduct for United States Judges. We
now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged
in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and
Disability Act, 28 U.S.C. §§ 372, et seq. No such finding is required under section 455,24 and we
do not find that there was any judicial misconduct or violation of any ethical duty.
“To reassign a case on remand, we need only find that the facts might reasonably cause
an objective observer to question the judge’s impartiality, or absent proof of personal bias
23
In re Boston’s Children First, 244 F.3d at 170; see also United States v. Microsoft Corp., 253 F.3d 34,
115 (D.C. Cir. 2001) (“Judges who covet publicity, or convey the appearance that they do, lead any objective
observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the
media.”).
24
See In re Boston’s Children First, 244 F.3d at 168.
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requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.”25
Even where there is reason to believe that a district judge would fairly conduct further
proceedings on remand, “in determining whether to reassign a case we consider not only whether
a judge could be expected to have difficulty putting aside his previously expressed views, but
also whether reassignment is advisable to preserve the appearance of justice.”26 Such a decision
“does not imply any personal criticism of the trial judge,”27 and none is intended here. Indeed,
for example, in United States v. Quattrone, we ordered reassignment because “portions of the
transcript raise[d] the concern that certain comments could be viewed as rising beyond mere
impatience or annoyance” even though there was no “evidence that the trial judge made any
inappropriate statements leading us to seriously doubt his impartiality.”28
Reassigning a case to a different district judge, while not an everyday occurrence, is not
unusual in this Circuit.29 Nor is reassigning a case to a different district judge an unusual
occurrence in our sister Circuits.30 Indeed, as noted in our accompanying opinion, reassignment
25
United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (internal quotation marks and citations
omitted) (abrogated on other grounds).
26
United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998) (internal quotation marks omitted).
27
United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006) (internal quotation marks omitted).
28
Id.
29
See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604
F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v.
DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v.
Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d
Cir. 2003); Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146 (2d Cir. 2000); United States v. Padilla, 186 F.3d 136,
143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the
appearance of justice would best be preserved by reassignment.”). Additionally, it bears noting that in none of these
cases was the affected district judge afforded “an opportunity to be heard” prior to the disqualification action of the
Court of Appeals, much less did the affected district judge ever seek to participate in the appellate proceedings
involving the district judge’s decisions.
30
See, e.g., United States v. Clawson, 650 F.3d 530, 539 (4th Cir. 2011); John v. Goetz, 626 F.3d 356, 36365 (6th Cir. 2010); In re United States, 614 F.3d 661, 666 (7th Cir. 2010) (“No reasonable person would fail to
perceive a significant risk that the judge’s rulings in the case might be influenced by his unreasonable fury toward
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is simply a mechanism that allows the courts to ensure that cases are decided by judges without
even an appearance of partiality.
Although the possible recusal of Judge Scheindlin was not raised either by the parties or
the judge herself in the district court or this court, there is no barrier to our reassigning the cases
nostra sponte. Indeed, in numerous cases in recent years, we have found it appropriate to
reassign a case without the issue having been raised or briefed by the parties or considered by the
district judge.31 To be sure, in the usual case, “a federal appellate court does not consider an
issue not passed upon below.”32 But as Justice Black, writing for the unanimous Supreme Court,
recognized more than seventy years ago, “[t]here may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate court, where injustice might otherwise
result, to consider questions of law which were neither pressed nor passed upon by the court . . .
below.”33 More recently, Justice Souter, writing for the Court, reaffirmed that when an appellate
court may consider a legal issue not raised below is a “matter ‘left primarily to the discretion of
the courts of appeals, to be exercised on the facts of individual cases,’”34 and we recently
the prosecutors.”); Microsoft Corp., 253 F.3d at 107-117; In re Boston’s Children First, 244 F.3d at 164; United
States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) (stating that courts of appeals in the first instance are
empowered to reassign cases where, under 28 U.S.C. § 455(a), the district judge’s “impartiality might reasonable be
questioned”); United States v. Cooley, 1 F.3d 985, 992-96 (10th Cir. 1993); In re School Asbestos Litig., 977 F.2d
764, 798 (3d Cir. 1992); United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (“We have the authority
to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district
courts in this Circuit.”); Brown v. Baden, 815 F.2d 575, 575 (9th Cir. 1987); Potashnick v. Port City Const. Co., 609
F.2d 1101, 1120 (5th Cir. 1980).
31
See, e.g., Steppello, 664 F.3d at 367; Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999); Londono,
100 F.3d at 242 (abrogated by statute on other grounds); Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir. 1988); see
also United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006) (noting that in some reassignment cases, the
reassignment has been “initiated sua sponte by the court on the defendants behalf”).
32
Singleton v. Wulff, 428 U.S. 106, 121 (1976).
33
Hormel v. Helvering, 312 U.S. 552, 557 (1941).
34
Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (quoting Singleton, 428 U.S. at 121).
14
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reaffirmed the same principle.35 Given the importance of maintaining the judiciary’s appearance
of impartiality, we think that it is well within our discretion to order reassignment in these cases.
CONCLUSION
This opinion explains the basis for our order of October 31, 2013, directing the
reassignment of these cases to a randomly selected district judge and supersedes that order. To
reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct.
We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the
interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may
reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is
advisable to preserve the appearance of justice.”36
35
See United States v. Sum of $185,336.07 United States Currency Seized From Citizen’s Bank Account
L7N01967, 731 F.3d 189, 195 n.6 (2d Cir. 2013).
36
Londono, 100 F.3d at 242.
15
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13-3123; 13-3088
Ligon, et al. v. City of New York, et al.; Floyd, et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
31st day of October, two thousand thirteen.
Present:
John M. Walker, Jr.,
José A. Cabranes,
Barrington D. Parker,
Circuit Judges.
_____________________________________
Jaenean Ligon, et al.,
Plaintiffs-Appellees.
v.
City of New York, et al.,
13-3123
(Corrected)
Defendants-Appellants,
_____________________________________
_____________________________________
David Floyd, et al.,
Plaintiffs-Appellees.
v.
City of New York, et al.,
13-3088
Defendants-Appellants,
_____________________________________
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Pending before the Court is a motion filed by Appellants City of New York et al. seeking
a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction
(“Remedies Opinion”).
It is hereby ORDERED that the District Court’s January 8, 2013 “Opinion and Order,” as
well as the August 12, 2013 “Liability Opinion” and “Remedies Opinion,” each of which may or
will have the effect of causing actions to be taken by defendants or designees of the District
Court, or causing restraints against actions that otherwise would be taken by defendants, are
STAYED pending the disposition of these appeals.
The appeal by defendants in both (consolidated) actions shall continue in the normal
course, under the following schedule:
Defendants shall perfect their appeals by January 24, 2014.
Plaintiffs shall file by February 28, 2014.
Defendants shall reply by March 14, 2014.
Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due
course.
The cause is REMANDED to the District Court for the sole purpose of implementation of
this Order, and the mandate shall otherwise remain with this Court until the completion of the
appeals process.
Upon review of the record in these cases, we conclude that the District Judge ran afoul of
the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and
the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall
disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably
be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was
compromised by the District Judge’s improper application of the Court’s “related case rule,” see
Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media
1
In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ.
1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in
a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated,
“[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.”
She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the
plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case
2
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interviews and public statements purporting to respond publicly to criticism of the District
Court.2
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial
administration of justice, UPON REMAND, these cases shall be assigned to a different District
Judge, chosen randomly under the established practices of the District Court for the Southern
District of New York. This newly-designated District Judge shall implement this Court’s
mandate staying all proceedings and otherwise await further action by the Court of Appeals on
the merits of the ongoing appeals.
In taking these actions, we intimate no view on the substance or merits of the pending
appeals, which have yet to be fully briefed and argued.
The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this
Order and shall otherwise remain in this Court.
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.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See
generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
2
See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5,
2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013;
Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.
3
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APPENDIX B
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1
1
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1091502
87
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16
17
18
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2
IPd
1
2
3
4
5
6
7
(In open
urt)
MS.
MAN-
ur
ur
nor, m
I ju
ntion?
h you.
THE COURT: Not until I
rnoon, Mr. Moo
ood
MR.M
RE:
ood
rn
n, Ms
110.
rn
MS.
9
10
11
12
n, Judge.
rn
THE
8
THE
n,
ur Honor.
URT: Mr. Franklin.
And who is
n all
n in
e
nor, this is
S.
g
nd g
rn
n,
15
IS I
16
MAN: The
MS.
17
nfidential m
18
bring
19
m
me
ri
during our
urt's
pi
n
while we h
lieve the
ntion! in th
bri
THE
n.
I think we a
23
he
U
I
e
who
on the criminal
We
UTHERN DISTRI
e issues
m.
her
22
moment.
th
rai
un
me
nce
d Iju
urtroom might h
25
d Ms.
ssm
s.
nah
14
24
, he
uate from our offi
is a
13
20
21
bring one issue
j
th
are
e. Who are the other
with the
r for
,P. .
n
tutional
12)
5 0300
r
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3
Pdan
1
2
3
4
5
6
7
8
9
Rights.
THE
U
h
u
val E: I am an
rn
rn
I am a paralegal.
THE
-
URT: Th
I can, I'd be h
n
m.
u
g
ur point.
the criminal case out
the
n
me g
The
I understand
on this m
r
Daniels versus
ity of New York.
Ih
10
aI
m
r 14,
11
2
12
on the m
13
o
14
months, for the sole purpose of letting them fully bri
15
reque
nd th
7.
s
imm
er
king anum
16
th
urt su
in this I
s
rvision
r. So the
18
month adjournment minimally, ju
19
issues ful
20
I the
21
22
23
u
s
ju
in
SOUTH
na
the
is no rush.
a
eve
r-th
can
Ie. And if the
these
urt denies
rk it out in eight or nine
g
ng JU
n't go i
mo
h
nsion or som
24
25
se
Ii
But rather th
d
no less
nsent
and on the
t I sup
have no rush and
the d
bri
s.
king some kind of an
ng, the
r is
17
thi
iate basis th
nding the
for reli
r
rms
N
ISTRI
me kind
mg.
the re
the
zing the I
Ii
rs, b
th
seek,
the large
1
5 0300
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4
IPdan
1
overall summary is th
ous
2
3
4
the
naI
h
spe fic performan
5
6
7
should
9
d
e
lement order,
rtain
the stipulation of
settlement.
8
pul
of
mpliance in
leme.
th the stipul
urt should modify the
k of
the
k
And then th
I
is
ink
u
,whe
s
rm
the
12
the motion. But, s
13
disci
14
al
design
ed
much discuss
if it h
will have
do with
s
and
ng some of it h
her
ndant in
!
use some
rmine wh
on
ndly, they a
n publicly disci
Then I
19 b
ived a I
Ily
d it is
the
u should withd
n
ed.
r in
sponse d
in cham
m
m
a rei
19
I
21
the
23
I
If
es
't
single s
24
And
pi
a chan
II h
long, I guess,
the
es,
p
SOUTHERN OISTRI
is a
them.
e quick summ
ntiffs want
on t
But I did have the
opportunity
22
nit h
r
r 20,
d
e long and short of it, I h
20
25
some of
n
16
17
18
ive order
a modifi
ne
11
e
th
nfidential.
10
15
r the third point
n
nd that the s
I
P.
ement
12)
5-0300
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5
IPdan
1
things it d
2
I,
3
4
5
6
7
8
9
snit
b
the all
d
h.
a number
plainti
may h
eme
in
ons.
r,
if th
nse
s
d
didn't g
mplain about it now.
nd so the d
ndant opposes all the reque
ifi
10
on
11
the stipul
an
the
13
nda
times in the I
nit. And the
th
12
ed
wanted the stipulation of settlement
these things, but it d
dis
nit breaches
h
ui
op
I
for
on, op
s
ses
p
line, and opposes the modifi
id, it would nonetheless
the
urt and all the parties, in the nine d
remaining
n now and the 31
16
17
o
erly
hion
19
will
20
th
21
th
- deny this in an
is
for the ne
show
s
nd
ur
nine d
hri
S,
u.
h
n
r,
ndant refuses
bri
22
23
m
nding the d
If the d
18
the
helpful to
14
15
on
9
enough
24
do
25
Who is
SOUTHERN
the
much
ume
r
a
I through
figu
hri
I
but I
it out. And if
u
mas and N
ng the I
ISTRI
1 2) 805 0300
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6
IPdan
MR.M
1
E
2
3
4
5
ught
m
to an
i
her
discrimin
11
u noti
u kn
kp
or isn't in the
12
h
in the
closely
ipul
ng, no m
on.
u
rights
u have or don't
on.
th
is a
ntract
s not part
Butth
uit
brin
some interesting allian
18
iation
19
denying any further
The
ty
rk, whe
Ii
d th
ent
P
m
on the
New
r them.
th
d it did
r them.
22
urt -- n
23
gu
24
th
25
th
r how bad things may
other I
20
21
is
k
t
ui
16
17
II me
try not to
the
ipulation. Wh
d I unde
this
ent
r all the points
ion, or whether
t
14
u
rossman made in her very thorough submission point
whether or not,
13
uh
ument the
from the merits, so to speak. And th
10
15
110 I think
r. I think you n
i nt.
8
9
the burden
Ms.
th
110.
II, Ms.
ply I
a
6
7
. Ms.
es
there is no
lement d
ume
nvincing demon
nt discrimination
SOUTHERN DI
uld not m
CT REPORTERS, P. .
n th
,
ion
the d
nd
12) 805 0300
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7
Pd
violating the provisions of the settlement
1
2
rt
is
Iy the situ
on I m
rt of sing problems th
3
4
5
6
7
think you n
8
th
sting but not part of this
MS.
ne
there
to g
me a
a
th
ry
ement
ply bri
ment.
if you wish, orally.
s, your Honor. I
i
ment.
in,
the c
no in substantial
s
try my be
ju
m
the
ies in the
nsent
9 dec
10
THE
the
nsent d ree, I think
U
11 some
h
hibit
12
MS. ROSSMAN:
s, your Honor.
THE
13
going
h
show e, do
14
ree, sh
II
me the langu e.
15
: In s
ion l! your Honor, in s
on
16
1.
17
me ju back up one s
ur Honor. I think
nd,
18 the
and this is
of what we would Ii
19 bri
urt, there are two
th the
u
uld
20
n nt dec
and also grant our
21
Ion.
ne is within the
u
Ie
22
d
under R
ifi
on.
!
23
24
25
which
r
ing, the nonmpt p i n g th
UTHERN DISTRI
REPORTE
d s
would
,P..
suit, flow
rman
m th
1 2) 805 0300
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8
IPdan
solution mechanism in the
1
2
da
3
4
5
6
7
s into
8
9
10
11
THE
th
it
the modifi
on would
Putting that
pul
e
n
and the
all.
Ruffo, I donlt think
in R
d
think
appropri
ide for the moment,
the
king
ree, s
the
on
a
arding racial or ethnic or nation
mplies with the Uni
13
re
doesn't address th
: Under the
the langu
flexible
rly quickly.
MS.
th
unt the public i
URT: No, th
did. I
, a much mo
s. The ci
change in circum
12
origin profiling, th
n
5
n
tution and the New
n itution.
14
And I think th
15
16
under
ment itself, if
of
the
dence
is
al profiling going on.
THE
17
we have shown th
18
profiling, th
19
URT:
n
the 15
raph d snit h
den
of
th
20
It
that the NYPD shall h
21
complies
22
N
h the
25
th
01
a wri
it
n
I
Ii
I the time.
SOUTHERN DISTRI
do with
a written poli
nstitution of both the Un
th
23
24
anything
ial
s wh
th
u
mplies
wouldn't h
th
sand
h
example, I
hit,
d th
th
12)
5 0300
viol
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9
IPd
1
paragraph 1. Paragraph 1
2
Ii
th
3
complies
MS.
the
: -- if you
4
5
6
training on the offi
7
out
nn
s
ind
with the
10
11
impl
rly
ining on the poli
p and frisk procedu
this
lement
mmun
th
If th
lieve th
can file a
m
mplaint
ns there was an
ua
king me to rewri
ment. This is
record. I am saying hypoth
16
policy th
17
and
18
pro fil i n g! t h
complies with the
h
,
ically if th
It IS
your
n
a
ing the
a written
h
s
nstitution of the United
rk
New
h
Ii
15
ial and
s
hnic origin
ph
1.
th
th
01
UI
s them
h
propri
the
ole
19
ng
their
21
Num
22
23
n
24
rds which go
I don't want anybody to be confused by
14
20
for palm
in
S,
mplaint Revi
THE COURT: -s
s
1 in
raph
pped and frisked th
ivilian
on
pa
is a provision in the
think that all
12
13
in
duals in the
n impro
8
9
ion with, which requi
on E the
to have a written
you h
Ii
That
ms
IS
the
ment.
g
25
SOUTHERN
I
th
REPO
,P . .
n
on th
in the
it will n
5 0300
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10
IPd
1
2
3
4
5
6
7
racial profiling. The
inappropri
the
It is
me thing
Judge
MS. COSTELLO: If you I
pi
t
k
on
2, which s
- let me
URT:
It s
th
The
8
m
al
r the
1.
profiling poli
9
ng
alter the policy
that the NYPD m
THE
is no guarantee in he
That ju
isn't in
m
10
mpli
!
11
mplian
is in
,I don't
12
that the NYPD
endment rights
nt of this
re
u e
20
URT:
m
that meant nothing
d viol
nth
pi ntiffs. I think th
THE
19
go out
d Fou
s
rei
And I think th
uld ju
e
ut.
ment was not to bargain for a poli
17
18
talking
u
I think num
ring the poli
15
16
m
MS.
al
r 2p
e th
gu
13
14
and th
pi
end me
urth
rig
with no
would--
it is an
don't
u file a
uit?
21
MS.
22
THE COU
23
31! 2007 d
24
in
25
why don't
p
ri
here.
We did,
No,
u
line in a 1999
ruggling with the
. And if
al profiling in a g
u bring a I
UTHERN DISTRI
u
, P.
ug
n
mber
p
itution
rtainly mark it
12) 805 03
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11
IPdan
1
lated.
2
H
3
or eight
4
you
5
6
7
to force you
8
maybe she did, th
uld it n
is
trying to put a squ
compi!
Ives
a timely I
ing a
use
peg in a round hole. And trying
argue what the
if you h
in
ume
lement m
5
uit -
you
55
th
why we didn't do
it
h
5
b
mething,
use
s
s JU
r.
one h
Ion
MS. COSTELLO: We could, but the only other issue
14
is -THE
16
talk
MR. M
18
would I Ii
URT: That's wh
17
ut the non
Judge,
19
20
21
5,
h
Ms.
them
9 didn't
r, she - I
10 she h n't su
s
1 1 only your I
r, it would look Ii
12 in
ling
lIing me
a
13
ement, why don't
u craft a I
uit?
15
n
ether on this
h
doesn't m
Ie long s
turn
mpli
uld I ju
a
ut the notion that wh
simply a pi
sub
r th
things,
we
h
no
it.
22
23
didn't h
the wo
24
the
no gu
25
in his
THE
we
SOUTH
URT: I didn't
gua
no sub
ceo
. Didn't she
r
And Judge
ement. I didn't h
N DI
it
REPO
time
re
sion, I
5 0300
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12
1
2
3
4
5
6
7
two I r s .
only read the
m
me time
mes a Judge h
I didn't h
ti
the
e, es
came in
: To the e
nt th given my involvement
with the
in the beginning, I can sh
any light on th ,
on wh our unde
ding
, about wh we
ning
r.
g ing a
licy th the
Ii
n why we
9 c would put into
That
, it is
Ms.
110
d, the
lOb ught the I
uit. And
- th
didn't ju
change e
n
11
n
do s
ral things.
12
r
d
t
h
fi n d the m ch
13
14
ument
I'd like
rrupt
u JU
1 5 for a minute, and
this criminal
e.
We
8
16
17
THE
18
MR. M
19
ut my unde
20
21
22
23
URT:: I think
s
u
king, Mr. Moo
ne
Ih
ding in the
I0
rvation
ng this
u
d
I find it hard
Ii
th
s
a
U
U
25
II,
or
Ilow it.
but
24
!
d -UTH ERN
ISTR!
5
REPO
h
12)
5 0300
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13
an
MR. MOORE: -- I think th
1
2
3
4
5
6
th
in their I
Ii
es ntially do wh
n change the
n poli
wri
I ju
think th
if that's, in
r,
long
a
we h
r we want.
wh
the
position of the city of New York is, it is a significant
di
ren
m wh
unde
we
ing, which
a
7
th
had some substan
Ii
9
10
11
It h
long
sl
It s
the Thi
Sl
lishing sl
on
nth Amendment
h
But in practi
ms
amendment th
we still h
me it is a
Ii
rp
wh
r
m
we beli
udy th
with
18
ex
ntly, h
th
add
not gone
And
mmission
e
PS, but
s their own
s
IS
a
disparity, th
imony, their own ex
I ju
ss
n their
th
n the
port.
find the notion th
e in a law
th
nt
en
fris
19
on
rious issue with respect to racial
profiling which, appa
17
u
sl
of the words in the d
16
20
21
22
23
24
25
Ii
a
r.
8
12
13
14
15
it. Not ju
tying to
hool exe
i
g
ing a
Ii
h
THE
II
M M
ntrary
my unde
ding and
ntrary -SOUTHERN DISTRI
REPORTERS, p,
12)
5 0300
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14
IPdan
1
2
THE
the fi
ing) In
would c
8
n
th
the
would
M
M
no racial profiling. The city
rm
r
ns he
RE: I don't know, there is no citation
is no
it is
in a
th
th
to the city, and you
ing to
it
12
ing sile
goi
ally implement the
14
I don't think
15
adopt a poli
16
a written poli
17
When, in
18
nd
oti
10th
13
for a provision which
for an obligation on the part of the d
such a
9
11
nclusion, it is important
that plaintiffs vigorously bargain
gu
r,
the I
from page 4
h
full
3
4
5
6
7
I will qu
RT: -
E
uldn't s
u,
mply with th
Ii
n, a municipality that
should be then saying, now th
don't h
ion sent out th
h
adopted
implement it in practi
making -- th
, th
inform
19
Im
it
I
the
you kn
the
ial
U
I am su
20
am going
uble
21
that I
r $65
simply --
uit.
M
23
THE COURT: I kn
24
The c
a
Ii
th
UTHERN DI
R
Ih
it
n bring
ng.
Ii
01
u
$350.
22
25
M
ng i
rs
sICT
h
the ci
their
h
Ii
1 2)
300
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15
IPdan
1
2
3
4
5
6
7
timely.
8
th
9
want an imm
is the proof of it, pi
d
!
rl
or
for $350
k
ipu
on or it d
h
the
urt h
snit, th
uit
u
it is
to potentially have,
s fit under this
it d
snit
the circuit. Why do
peal
aI
mplian
pli
u n
the power to
nd the su
Bring it. Th
th
Ii
han
rig
MS. GROSSMAN:
13
THE
s, your Honor.
URT: If
written poli
15
u think t
a
01
ng
eir
sue them.
MS. COSTELLO: Your Honor, just two quick
16
is about the point
17
I
ur Honor's raising
ut ju
ints. One
filing a n
uit.
The one issue for us in th
18
19
20
21
22
23
24
25
r in
u know, months of briefing when it d
12
14
medy. Injunction or
u can bring th
I don't understand why
lOu h
11
give us the
the p
er is
0
ends, we h
modify the p
would n
nefit of that d
e and eng
th
p
ill in
back all of the d
urt is p
same inform
order
SOUTHERN DI
nario is
particular
this
unless the
order and lift i
until
filed a new
and battles with the ci
on
n, and then an
er
g
Ie
ra
ain.
CT REPO
12)
5
300
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16
IPd
1
2
3
4
5
6
7
we see it in the inte
the
urt
under the I
city
nomy, if
uld lift the p
order in this
guage
on
information is
THE
of judici
herwi
the stipul
made publicly
and
e, sin
pointed, if the
lable.
URT: That's something I do want to
Ik
the
ut.
If it is publicly
Ie, then I don't unde
nd
u
't u publicly-available information in drafting
8 why
ur suit, or for wh
her purpose. If mething is
9
10 publi
I Ie
it and
who is in the
1 1 public lib
g it, or using the In
g it, if
12 anybody calls the city's 9
n book offi
it, then it
1 3 is public.
Can you do this from public inform ion or n
14
MS. COSTELLO: It is not th publicly
lable.
15
16
THE
URT: You can't h
it both
If it is
1 7 public
u can u it
d I don't think the ci
r
ue
18th you
't.
19
n
u bac
it is
Iy n public,
k
20 then you
ument.
aking their
21
: It is public. The only problem is th
MS.
22
Ms.
the c
h put out, ju
23
sm
use it h
r
24 we would Ii
rm
out
the
25 Rand
rpo
lon,
a
udy, is th the
UTHERN DISTRI
R,P.
12)
5 0300
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17
IPd
1
Rand
2
3
4
5
6
7
8
9
rporation and the NYPD's spin using magic wands about
the d
ex
m
sh
us
s, our
it is publicly available in the sen
Rand publi
the d
Is in the Daily Nand
e th
rm
lable. But in the
h
nu
on
that's our
our imp
our inform
me
But th
h
5
and
rent than what the
e
me
the
me
nclusions about the
also ignored some of the
on, particularly
17
ci
rns 5
ion is d
hed
inform
dour
which is the
Rand
nse
m
the
16
lal disparities
and the
ns
her
d the frisks
th
think
indi
M
19
rms how the d
ur Honor, in
II
it th
the d
ier
is
m the city, which ma
on dis
mp
is information is public, but it is public in hard
22
23
th
5
has,
plain
that the NYPD and the
put out, is not publicly
d
21
hods to
written d
th
15
20
nd information h
ion h
erwise m
14
18
on
benchmark and other statistical m
12
13
d
us different things, that the
10
11
is
pies.
d so it is public n
24
but al
25
city coun
th
ugh the
udy th
on
th
th
I
d
the city,
I. But th
UTHERN
ugh the
the d
,P. .
the
is he
1 2)
5-0300
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18
IPdan
1
2
3
4
5
6
7
8
produ
rms of
but it is in a form
m
ng
I
ich
I
uld
us months to
THE
spond
with how difficult it would
n, The
suit si
ply
in the 1999 I
lOa que
rd
n
uld I
you
0
12
ing it. It m
II going
wh
11
h
g
1m
ng it,
me th
p
Id
th
you h i t , th
15
it
u
anyJudge
u in the
u will h
14
be
under p
know what I am
er or n
13
I th
u
p
we
uit.
I don't know h
9
rial
to
is enough in the public
d
110
ier, Ms.
URT:
e
n. Whether or not
mains confidential.
MR. FRANKLIN: We'll h
16
17
th
ugh the same p
ain, but we h
h
ss
go
gone through. We
turn
18
19
20
21
22
23
24
25
everything
order.
the city under this p
g
ain
h
cui
the same
h
goth
Why
ugh
culatin
uld th
MR. FRANK N:
g
THE
them
under the p
k th
URT: Not ju
UTHERN DISTRI
o er
information.
wh
they g
REPORTERS, P. .
1 2) 805 0300
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19
IPdan
1
2
MR. FRANKLIN: If my
th
us
thou
7
derived.
8
with coding, would h
9
MS.
11
rything de
e.
it is the
s
n th
THE
done
k to the city. We
rn
work produ
and publish
go
me. I don't know why it
nfidentiality.
rms
n't be
is is
practical.
MS. COSTELLO: Your Honor, if I
one minute and look
16
uld, I am ju
the p
order
gOing
m
su
MR. FRANKLIN: Unless the ci
18
E
19
20
21
ur
ms odd
15
17
h
would h
under the
we
information.
m
13
our
to be given
URT::
12
14
th
IS
ns -- hundreds of
well as any information th
any
50
that the d
thousands and --
entries,
uldn't
from the U
al physical dis
ned on, which
10
, it's what
d
3
4
5
6
d
ing is
We
disputes th
n't g
.
r off the
sub
: Judge, the p
22
23
THE
24
THE
er -
0
th
MR.M
a
I
Ms.
py.
sma
Is th
25
UTHERN DI
,P. .
1 2)
5
300
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20
IPdan
1
MS.
2
MR. M
3
THE
4
5
6
RE:
MR.M
th
THE
8
rmin
!
12
!
s
this january.
it.
ion of this
Within 30 d
e, including any ap
ning or
pies, n
in
who
sess such
14
15
attorn
16
order may
nt, destroyed. And all pe
destruction byaffid
rials sh
I
rify their
rn or
: (Reading) The
modified by further order
obviously 30 d
rmin
January 30, 2008, right? If the
MAN.
, thin
rms of this
the
on
IS
rmin
mber 31
ur Honor, the
d
in
rmination
the
ment.
22
uldn't
23
this stuff
24
MS.
25
ons
to the producing
. And pa
d
s and other
u ng
or upon their con
19
s, the
rm
shall
13
17
in
rials, including all
rials con
11
21
- I'm sorry
raph 7, I think, is the provision
RE:
nfidential m
20
judge.
it will be eight
!
U
r the
10m
18
u up a
is at issue he
7
9
hand
URT:: This is june 31 ,2000
31, 2000.
Janu
your Honor
MAN:
th
u
MAN: Th
se
uld
o.
did.
urn when the
ERN DI
th
REPORTERS, P. .
all docume
ment was
1 2)
5
300
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er
d
21
IPdan
1
and when it was finali
2
the
3
4
5
me
Iy s
th
in
s
the plaintiffs n
documents, maintain the
the
ment sun
ep
0
to return the
nfidentiality, and
. Th
r
s ex
ment
rmin
6
The p
7
the pi
er
0
the p
8
9
by the Court.
order,
subj
nfidential ity,
m
but -THE
10
II
URT:
u
all.
14
I II
now still retain until Janu
30, 2008, thirty d
rmi
on
this
e.
I am still supervising this
, that's why
15
worried about my
16
supervision runs out on
11
12
13
17
e.
18
this
19
the
nding it
my
I still h
!
this
rmination
ut the
ry
rial th
h
21
22
material
THE
u didn't
25
becau
mber 31 '07.
king a
M
24
u
rei it is not 30 d
Th
20
23
none d
rthe
bvious
URT:
ntly
urn it 30 d
it is n
II I am
due
SOUTH
r the
N DISTRI
the ve
r
k till Janua
ng is, by then if
nding and n
u
ber.
em
2
30 or 31
u h
rial,
RTERS, P. .
aI
8.
uit
I
the
1 2)
5
300
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22
IPdan
1
2
3
4
5
6
7
8
authority to modify the
urt, which the
the
uh
the m
nfidential,
to u
it in
01 ion
ur n
otherwise, and u
games he
pi
un
is a
Ii
th
n
,.
s wh
RT:
it is called.
ge. Kind
a --
nonraci
12
THE
isa
14
15
it
, if the
ling
11
13
II
lawsuit.
MR. MOORE: Th
10
II, and I
rial, hold on to it, rem ns
the c
it is call
9
, then I
mebody
I don't want
wh
rms of this order by a further order
is a violation of it, the
01
sal
It still
squa
rikes me
uit,
th
making it mo
in a round hole, to fo
u didn't g
18
ions about
u fought
19th
it
20
But okay, this is only the
21
whole I
r and
difficult, a
it into this stipul
settlement, and got into all these que
g a gu
16
17
s
re going
u
23
MR. M
24
THE
25
(Discussion
RE: Ju
URT:
SOUTHERN DISTRI
-- we
one
I
I
go through their
pond to all their poin
22
u tri
r it, but
u.
inning. We
ion
. We didn't g
with
1.
nd, Judge.
s.
the record)
REPO
!
P.
1 2)
5 0300
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23
IPdan
MS. GROSSMAN: Your Honor, if I m
1
2
3
4
5
6
issue
the
nfide
THE
URT:
s.
ipul
THE COURT: Wh
k
paragraph 4 --
8
THE
9
s
ion
lement,
4.
MS.
MS.
s,
0
r with me, your Honor.
MAN: If you would
If I
u through the fi
12
nfidential d
13
THE
pi n wh
and
h4
11
14
ss the
rry, H4.
I'm
7
10
d
ial
MAN: If you were to I
MS. G
just
it
ell it
umentsURT:
a min
!
e 11 -- oh,
on
I
H,o
15
MS.
16
m
produ
pi nti
, shall
18
19
offi
20
nfidential documents
the January 31 , 2000 protective order, and
subj
17
ROSSMAN: (Reading) All
d
rn
d
upon the
d
uments i
22
23
,the
mi
Unless prior to th
the
Now, I
ume
ipul
ab
24
all the d
25
plaintiffs complied with th
UTHERN DISTRI
the
p
d
REPO
the
I
d
ntion
in writing by plaintiffs until,
rmination
prior
rpo
slyauthori
21
nd
pies
s
ific
the
on.
. Th
during the litig
provision in the
, P.
rm
Ion
on. The
ment and
1 2) 805 300
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24
IPd
1
2
3
returned all the documents to the city with the ex
put in
all
main
4
Now we m
5
in any form by d
ng, a
th
ption of a
we
n.
on to all d
ndan
uments provid
under the
to plaintiffs
rms and during the
cou
this
6
7
pi
8
such d
9
10
11
12
13
14
15
16
17
"18
19
20
21
22
23
24
25
pul
on sh I
d
m
nti
In
nfidenti ,a
Ion
uments,
on of this
offi
pies m
all
upon the
on.
e
d
of the
ment, the plaintiffs, under the rms of this
ement, which th
r,
ich
to
returned to the city.
THE
URT: Well, that's good, but I don't think it is
good enough. Becau
I think the
urt's order is ambiguous or
ntradi
th
ng th it
nds
30 d
r the rmination
e.
N
rp
the ph
e rmination of
is
e di
ntly an I do. I don't h
it in front
Actually it is
h to this in the
me, I will find
p
the p
0
er
M
KLlN:
it's the I
ment.
THE
URT: I h
it d
Jan
31 2000. Is th
of the ipul ion
settlement it mu
hibit
the ipulation of
ement.
d the exhibit
SOUTHERN DISTRICT REPORTERS, P..
12)
5 0300
!
I
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25
7c1Pdan
1
2
3
If s
of the termination of this
the same
Ih
pul
e.
ion of
. And-
ement th
4
5
6
ry d
a
-- essentially wh
MR. MOO
Iking about
is 30 d
THE COURT: Oh, I unde
7
h
8
it al
9
nd. But the
Ie
these
d
this
d
mpl
the
s
me. It is in your I
sn
ms childish
Ih
10
two
11
nfH
ng clauses in
e
12
ROSSMAN: I
MS.
13
k
h 4,
Ii
Ie
MS.
16
THE COURT:
17
MS.
18
THE COURT:: I kn
nt
,.
u
to
ing --
THE COURT: -
15
e
, your Honor, if
e plain m
14
r, it is all
19
th
ROSSMAN: -- the same
MAN: H4.
lis me th
21
this
22
m
wi
23
M
24
in 30 d
2
THE
m
h
is open until the
r 31
M
RE:
SOUTHERN
urt's su
.
ue
hibit
the
e,
rvision ends on
7
Judge th
REPO
I have the
r
time.
order
ISTRI
hibit
rmination
and it
ify t
d, I don't even a
H4
it is wrong, but it
20
25
H4.
I
P. .
12)
5
300
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26
IPdan
In
1
2
3
4
5
6
this
- by further order of the
nly h
the
order until
p
And
r
modi
urt.
th
mber 31 of '07.
to that e
nt, I surely would modify it
own reading of it, which is 30 d
r the
e
ur I
r if
my
rmin
s,
which is January 30, '08.
I am h
7
8
rms
to go through ch
ping with
rand
, and try to
u
II m
ur
r, try to
nvin
me. I don't like the
9 points in ur I
having
rk on it in the n
10 id
eight d
under th
1 1 gun. B th
it is
ming
It d s n s m
me
1 2 th would
MS.
ur Honor, putti
ide the issue
13
14 the modifi
on
it
s
the racial profiling issues.
15
THE COURT:
s turn to something else then.
16
MS. COSTELLO: The specific
rform
issues other
17
th which would include the training.
18
THE
URT::
talk about it. The city
19
ut that
. I don't
a subh
ing
ually
20 training.
21
Ms.
sman
II me whe in this I
r it i
22
MR. M
on
23
THE
ion . The it is,
ning,
24
25
o
MS.
SOUTHERN DI
Iy under the
R
RTERS,
on,
12)
5-0300
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IPdan
1
2
3
4
5
6
7
and I will point the
the c
th
8
has n
r
9
s
e
ipul
THE
urt to
of
onURT: -- E is the one th
r
MS. COSTELLO' Yes.
THE COURT: Training.
MS.
s position is,
THE
di
I unde
s
15
but we wi II read
lement
i ng to have to
much
1: The NYPD has
17
ing the
20
21
22
23
e of the
men
16
training
th
uld di
I don't know how much
19
ified in
is th
k at the plain langu
13
14
NYPD
there
urred.
d
18
th
the training s
rifi
n
12
nversations with
ut the
The
11
ral
had
ion E h
10
to.
ndu
in service training
ial profiling poli
mmands. The NYPD sh
ardi
the
which h
I provide
n p
nu
nted
in-servi
ial profiling poli
2. The NYPD shall maintain that portion of the poli
emy curriculum th
ns
training
arding the
ial profiling poli
n poli
3: The NYPD sh
24
25
on
5, and actually
ut the I
d
umenting
al
d
p,qu
SOUTHERN DISTRI
r
on and frisk
ndu
ivity.
offi
d
ntinue to
1 2)
5 0300
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IPdan
1
2
3
4
5
6
7
8
9
10
implement the poli
cer
ru
ndu
the I
ng and d
al
d
umenting
r
p, que
ion and frisk activity.
And continue to provide training for police
emy
instructors,
MR. M R
E
U
Judge -
4
I
inue
Num
and then all I can s
r use in t
14
15
p
ragraph
nl
Ii
r 6 s
16
8
II
ntinue
brought to i
al inciden
ntion
review.
17
emy
ning.
and is part
18
7s
r
the NYPD
consider informally,
13
es
the NYPD shall
I
sh
d
ut the I
a
conducting for and -
11
12
emy curriculum for training police
p
ng the
the p
mmissioner will conduct a
rg
p
d lie
9: The municipal d
10
ruit curriculum
, the NYPD will
m
19
20
, the NYPD is
nan
nd
: The NYPD shall
de full
ning,
provid
h
ntinue to docume
d
training
provid
21
pulation in the
22
ng p
23
Now, I h
24
25
will turn anything
un
e manner and
d p u s empl
it all. Nowhe
r
cI
s
un
d
nsi
nt with
the NYPD.
th
cI
s
I.
SOUTHERN DISTRICT REPORTERS, P.
1 2)
5
300
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7clPdan
1
MR. MOORE: To
rify, the word
rifi
on d
s not
2
THE
r
U
3
4
5
6
7
ment.
8
arding the
port or turn over -
MR. M
THE
URT:
,mon
arding the
13
th
In order
THE
s an
U
n
rs
rm
duty on the NYPD.
se, mon
rand t
n
ial profiling.
d
rmine wh
whether th
THE
rand t
erth
a
Ifi II i ng
rms
up to the
h
should
this
II us what th
are doing.
17
5.
forth below.
me nt, we would argue that th
16
the
true.
su
15
5
on
al profiling policy
MR, MOO
their du
subs
me now turn
e NYPD shall su
9
10
11
12
14
- if you look
R
eme
18
19
20
21
Why didn't
mmg m
IS
u
other than
d
24
we
do
into the
u
u
on a qua
rly
rials for
no obligations
There
There is nothing in the
22
23
25
URT: Why didn't
u know th
But not
ugh
umentation.
MR. M
n kn
R
if th
if th
a
n
doing it, the on
doing it is by
king them if th
doing it.
UTHERN DISTRI
,P . .
1 2) 805
300
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IPdan
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
THE
URT: I understand.
. It
M
ms
me
th
s an inhe
obligation on the part of the city.
THE
URT: But this thing
I mean, th
almost four
a demand'
nin
pi
Ii
u
doing training, we
9,2004.
ago. Did you
r and
r
signed Jan
them
e document th
doing
- or
worried
Ii
ut that, pi
ua
n
nd us
copies--
MS.
THE
of '0
: -- we did doing this on
m
r 21
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IPdan
1
2
3
Part of this! your Honor, is that we
MS.
th the eMs.
0
ss
and
I, in
4
5
6
to bri
7
p
8
9
and their bri
10
it
mpting
THE
Ih
URT:
r you. But the position
me kind of
me in is to h
bri
motion, you would like
bri
the
e
ur bri
0
: Th
months
Ruffo and i
due on 10m. on the 2
lOon the 28th, and the
MS.
u put
s wh
ply on the 31
proposed, there
six
nsion.
11
on
12
MS. COSTELLO:
13
th
14
I
your Honor.
II
uld
cited
uitable power of the
th
me of the
the
urt
15
THE COURT:: Didn't I do it and undo it?
16
MS.
17
THE
18
MS.
19
h
20
You did undo it.
an opinion
Part of that
the dispute
ur Hono
th
we
d we
solution in the dec
h
not
21
THE
22
th
23
olution
24
MS.
25
URT:
th
wrote you didn't. Didn't
ssman, th
didn't
II
u
the dispu
al
MAN- Th
MS.
UTHERN DISTRI
s right.
di
REPORTERS, P.
1 2)
5-0300
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IPd
THE
"I
2
3
4
5
6
URT: But I am not being g
ng
unde
disp
u didn't,
. in wh
something
s
way didn't th
ng
file a
lution
MAN:
MS.
th
we
d
suppos
to wait until 30
urt.
E
7
u
MS.
8
,g
MAN: From the d
required to
9 notification to us. The notifi
10 g
is by
and hand
rvi
11
THE
U
d th
12
MS.
13
THE
14
MS.
15
And th
16
h
17
no
URT:
nmg.
mber wh
ROSSMAN: N
did not del
noti.
r.
uaI
MAN: Frid
mber 30, Frid
rad
evening, 7:03 p.m.
ument by hand Frid
nd it wasn't until Monday,
hand del
ry
rms of the
18
19
n much time to
all.
th
ment in
then would bring us
h
for us to
mber 3, there
nit
mpH
th the
rms of giving p
mber 31 suns
nd the
provision
in
20
rms of when th
21
22
The fi
p
ling
would be
time th
on N
Ie
k
the issue
m
Ii
from the
urt.
ut the
r 30.
23
MR. MOORE: Judge--
24
MS.
25
ut another i
MAN:
m
the first time th
n
rning joint
SOUTHERN DISTRICT REPORTERS, P.
rais
mmunity
an issue
rums
12)
on
5-0300
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IPdanC
1
November 30.
2
3
4
important was because, th
5
the offi
6
7
8
N
u
Mond
THE
U
Which
ng out
the
hnicali
is s
the
on th
night and didn't
ng it didn't h
mber 30, but on
it is
s important because
7:03 on a Frid
The
9
lis within the 30 d
it until
al n
on
r 3.
m
MR. MOORE: We we
u weren't in
before you in April, and
10
raisi
the issues
11
12
13
d
e.
14
bit. And I think, though, th
15
d
M
th
we didn't g
MOORE:
THE
17
n
18
which
th
t
h
nit produ
the
r.
th
that
us a little
had the
didn't
to things like
proof of communi
going on. There
u
uld h
ions or n
I might have
sid
now th
nmg,
u didn't think
rulings on viol
21
22
rt
URT:: -- but th
having proof
mplai
19
ill
rai
rum,
re other
in time
g
some
.
d
the end of the d
with
ining, th
23
u,
24
25
u
t
THE COURT: I know -
16
20
d,
ut the
uld
ue
k on
we suppos
g
di
UTHERN
ry. But dis
ISTRI
judge
ry is diffe
REPORTERS,
ion
mplian
It
nt than a
po ing
1 2) 805-0300
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IPdan
1
requi
ment.
M
2
MOO
3
which if, in
4
5
6
7
h
' I guess it brings me
,the
this
wh
r two months, th
th
all th
and th
h
a written
harm is there to the city in agreeing
s
8
mething on
9
THE
10
ty is of the opinion th
to do is have a written poli
poli
other
months, wh
I th
a
it
per th
r it m
uires them
won't eng
URT: --
u don't know if th
nd
, if in
do is h
e
h
a written
Ii
M
11
I do
th
-- I h
nit I
impleme
a
n
ked at it in the I
12
poli
13
Ii
required
My point is that if, in fact, all th
lement ag
ment is to have a written poli
do under this
nding this ag
ment for a uple of
wh harm is the in
the
iss sand d de, r
months, r us
in
,d
want
just put this thing
bed
other
If th s
and, you kn
do.
ial profiling
If
Ii
th that
ut tryi ng
put a
a ry
ng
is there,
might
. But my
und hole, wh
u
uld there
I guess the answer is,
poi
ument. It is n a I
rly
ument.
it's ammon
n
REPO
,P. .
1 2) 805 300
SOUTHERN DISTRI
14
15
16
17
18
19
20
21
22
23
24
25
There
. But I do
Ii
there is a
n
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IPd
1
Th
s the problem.
2
THE
U
Unfo
3
4
5
6
profession, and
me d
h
The Sup
the
me
tim e
8
9
judgement,
10
we
k you
th
elves why.
hnicalities.
that
the Supreme
fi Ie
ap
lling your attorn
u should have Ii
The
this
me opinion I
urt issued
u h
enough.
all cho
the right to stand on
eral judge
7
n
nsenting ju
d,
urt s d you
nd
r
you want an appeal is n
ned to th
Federal judge.
a
i
, but the
u
11
hit.
12
it on the
13
14
15
16
17
time.
kn
r pri ner should h
u
than a federal judge. The I
is full of technicalities.
18
speaking, he's right, why don't
19
this and d
20
d
21
22
ht it
er ju
a fine
The District judge told the pri
I
Why d
ner
r
nd it? Because th
don't want to. And if th
Wh
ing
,th
don't want
am I going
ide thi
Iy
Th
ug
uld
us all time to bri
th
ry ni
line.
u
nd this
23
MS.
it on the -- would
th
g
u
a bri
ng
hedule.
24
g
me
25
MAN:
ur Honor, I
n
ori
th
UTHERN DISTRI
I
P.
1 2)
5
300
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IPdan
1
2
3
4
5
hibit l o u r I
one point on the training issue,
uI
k
THE
the third page
URT:
I got a problem, the N
MS.
del
red to the
urt I
r
THE COURT:: Oh,
MS.
E
t
m
U
14
MS. COSTELLO: The
MS. COSTELLO:
U
r 30 I
it is
r.
ur Honor.
r.
hibit 2 is the
amber 4 I
should
r,
your Honor.
16
THE COURT: Th
17
MS. COSTELLO:
th
19
hibit 3. Page 2 at the bottom.
n the n
ui
ments, ju
with the auditing
THE
22
23
plain
in
think th
21
as
is
the training
ui
mpli
ments.
u didn't bring it
ntion,
urse, now wh
u did
ng
lution m
r41
u
the disp
SOUTH ERN DISTRI
the
in
URT: But
c
with the training
is all I am trying
25
r 30
Frid
THE
24
m
the I
no, I'm
11
12
13
20
the
r
10
18
I
r th
bottom -
9
15
r4 I
m
r, the
ssman. If
Ms.
6
7
8
: Ih
MS.
ism. Is th
r
u did, in
uirement?
REPO
, P.
1 2)
5
300
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1
MR. MOORE:
2
3
4
MS.
5
6
7
8
9
10
11
12
13
in which
22
23
24
25
were
me d
urred.
sing the issue on
ptember
nin
URT: In writing.
MS.
MAN: The one pi
But when I mention
fi
the training had
MAN: On the t
THE
us
rossman, did the plaintiff sati
lution by
MS.
ions
if the city would g
umentation showing th
the disp
and I h
ross
mpting to s
THE COURT: Ms.
th
s.
on the training,
the issue
ut the
ial p
ling
-- fi
got I
THE COURT: -- but
with t
of issues.
sd
ning.
14
15
16
17
18
19
20
21
Ms.
th
satisfied the dispute
MS. GROSSMAN:
THE
U
the disp
Wh
flows from the fact that th
solution m
u rai
hanism on the t
some kind of d
MS.
n
ning
d
int?
.
MAN: I'm sorry,
ur Honor,
re
u
d
,wh
the disp
MS,
th
the
m the
lution m
MAN: Our
misi
fl
rp
th
hanism.
nse
ur Honor,
t
ment, th
the
th
th
rewriting
nt,
SOUTHERN DISTRI
I
P. .
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IPdan
1
THE
2
3
4
5
6
7
the disp
8
viol
9
and/or
URT: Meaning procedurally, if th
14
15
16
17
18
19
20
21
22
h
25
ng
me to
u 30 d
, wh
urt,
s.
THE
one
th
use th
alluded to
me
-
the disp
court on th
and th
want
the
in their
ing
nd su
m
ur Honor, the
s
s
fic
ur Honor, th
en
rvision,
rforman
ific
MS.
th
rman
ment is ve
d then I would
have to provide sufficient noti
Ie
I
d
9
nd
. And to 9
noti
h
believe is contemplated by the
ment.
THE COURT: Well, I don't know. Th
the
lution m hanism,
all
on this
disp
then th
h
the right
me
urt.
issue, and th
d th
h
me to
urt.
I can
on their
mpl nt
arding
ining, I n
full bri ngs in 0 er
9
the
urt an app pri
amount of time
d ide whether the
I
I
23
24
9
hanism
allowed to
fl
10
11
12
13
solution m
sfi
n a viol
m
on. I h
nd the d
line
d
de the
ion properly.
MS. G
MAN: We would submit,
SOUTHERN DISTRI
REPO
I
P. .
ur Honor, th
1 2) 805
300
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IPdan
1
2
3
4
5
th
s not the dispute
me
that is not a
.
URT: The
THE
m
bring a dispute to court
MS.
6
7
8
9
on th
the expi
10
own d
11
you
to is, th
r giving you 30 d
ROSSMAN: But the
THE
lable under
medy
noti
is no --
- inherent power. I can't decide a
URT:
bri
n
ion of this ag
I canlt d
Is the
ide a m
mmg on
sin
that
15
it
ment, th
b
ught
satisfied the dispu
the power to operate its
on, an Impo
any other exhau
13
one, th
k,
issue,
Should
r
ntinue
u -- what's the n
MS. GROSSMAN: Your Honor, I would ju
16
training pi
17
JU
,the
walked th
18
is no good-faith bell
ugh of the
rifi
ion th
add on the
given. What
the
e --
en
19
THE
20
point. The
21
the
22
. It is time
lution mechanism, the Court h
12
14
bri
- but Mr. Moore ma
do
is no point in the city
a right without a
23
Th
ingless
me
24
uh
m
mething,
mply. Otherwi
is no way to find out whether th
u h
s some practi
25
will provide t
SOUTHERN DI
n
the i
nt
ining but ha, h
the
if we don
I
P. .
u
find
12)
5-0300
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IPdan
lout and
2
unit
't
m
sense.
3
MS. G
4
THE
5
patien
6
MAN:
URT:
to the n
7
8
us to go task for it. That
ur Honor --
but I am going to run out of time and
shortly. I would like to move right
the training
haustive claim. Is there another
MS.
MAN:
m
I ju
h
on
on the
trainin
9
THE
URT: No.
10
MS.
MAN:
11
due
THE COURT:
13
MS.
rej
16
MS.
17
THE COURT:
ROSSMAN:
training. I want
the pi
me
and we
ntiffs
no, I don't want
h
anymo
other issues th
ut
for the
urt.
Wh
21
MS. COSTELLO: We
other issues h
issues, they
minor.
23
THE
24
d on the
25
the
no --
20
22
d
k
itTHE COURT:
19
ions on the
- no.
MAN:
15
18
n
ing
12
14
talk -- we h
profiling
you
going
think the
URT: -- the ci
Ii
hni
s
ity on the
you didn't g
SOUTHERN DISTRI
n
her
ning is the --
th
I
e the
have a right
ion
them the n
REPORTERS, P. .
the
ial
till
12)
m
r
5-0300
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IPdan
1
2
3
4
5
6
7
8
9
10
11
12
you can't bring that one to
3,
pu
on
is the
e ent
n
pi
the on
one
s
mmg.
If that's all
m
urt in time for the
we can bri
h
to do between now and the 31
,
it and decide it. It is one issue not five,
four, not six.
a u
I II
p
in a und hole a
all you h
to do is bring a I
uit, my interpretation
that protect
order is th you have the documents till the
end
Jan
M FRANKLIN:
ur onor, can
mm
THE
URT: PI
e.
13
(
14
THE COURT: Mr. Moo
15
MR. MOORE: Judge, after consulting with my
if
17 h
-- if the
u is willing to
rmit us
hold the d
18th
h
until the end of Janu
30 d
r the
19 expi ion of this
ment,
withd
20 this motion
this point. And eng e in this p
ss of
21
bringing another I
uit or not.
22
THE
U
I think I
d it many times on this
23
th
on
this
me
nd
24 th is the
s wh it s d, 30 d
r
25 the rmin ion of this
which to me it finally
UTHERN ISTRI
REPORTERS, P.
12)
5 300
16
II
ues, I think we h
come to a
I
I
ition th
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ANNALS OF LAW
RIGHTS AND WRONGS
A judge takes on stop-and-frisk.
by Jeffrey Toobin
MAY 27, 2013
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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success
stories? Photograph by Antonio Bolfo.
“I
don’t love trials,” Judge Shira Scheindlin said
recently. “They are not a good way to tell a story. They are not efficient. And they are often
so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the
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Daniel Patrick Moynihan building, off Foley Square, in lower Manhattan, after a long day of
presiding in Floyd v. City of New York, which is the latest legal challenge to the stop-and-frisk
practices of the New York Police Department. “What I really like to do is write opinions,” the
Judge said. “There you get to do what you think is right, what you believe in. You’re pushing the
margins of the envelope, being willing to be creative.”
It was after seven o’clock in the evening, and the courthouse was nearly empty. At sixty-six,
Scheindlin is renowned for her work ethic and her demands on her staff. Her clerks work from 9
A.M. until 8 P.M. every weekday. They can get lunch at the courthouse cafeteria but must eat it in
chambers. They are also expected to work six hours over the weekend. (They can choose which
day.)
In her office, Scheindlin was relaxed and expansive, especially when she talked about her two
children, a son who is a violist with the Metropolitan Opera orchestra and a daughter who is a
political consultant and pollster in Israel. (Her husband, Dr. Stanley Friedman, is an associate dean
at SUNY-Downstate Medical Center.) On the bench, though, she is unflaggingly rigorous. She listens
to testimony, reads the transcript on her computer in real time, e-mails her clerks, and sips endless
cups of Diet Coke. Lawyers who appear before her often describe her as opinionated and brusque.
(“I’ve heard enough.” “Move along.” “I’ve ruled, counsel.”)
The primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought
with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for
more than a decade. In decision after decision, she has found that cops have lied, discriminated
against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with
the Democratic candidates united in their opposition to the stop-and-frisk policies of the
Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite
the rules of engagement between the city’s police and its people. David Floyd, the lead plaintiff, is
an African-American medical student who had been stopped and searched twice. The core allegation
in the case is that the N.Y.P.D. is systematically violating the rights of its citizens with unlawful
stop-and-frisks, particularly by targeting minorities. The questions before Scheindlin are profound.
Crime has declined in New York in recent years, as it has in other cities around the country. But
why? And at what cost to the civil liberties of its people? Has New York City conducted a longterm, racially motivated campaign to deprive thousands of its citizens of their constitutional rights?
Or, as Mayor Bloomberg and others maintain, has the city created one of the great law-enforcement
success stories in recent American history?
T
he concept behind stop-and-frisk, which is sometimes also called “stop, question, and frisk,” is
a simple and venerable one. Police officers may arrest a suspect only if they have probable
cause to believe that he committed a crime. What can they do if they suspect that someone is
involved in criminal activity but lack sufficient grounds to make an arrest? The Supreme Court
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addressed the subject in Terry v. Ohio, in 1968. According to Chief Justice Earl Warren’s opinion,
a stop is permissible only when “a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity may be afoot.” In other
words, the level of certainty needed for an officer to make such a stop is less than probable cause;
the standard is often described as “reasonable suspicion.” According to the Terry decision, the
judgment by the officer must be made on the basis of “specific reasonable inferences” from the
evidence, not “inarticulate hunches.” By and large, this remains the law today. Stop-and-frisk
encounters are also known as “Terry stops.”
“Stop, question, and frisk has been around forever,” William Bratton, a former police
commissioner in Boston, New York, and Los Angeles, told me. “It’s a basic tool. It’s the most
fundamental practice in American policing. It is done every day, probably by every city force in
America. If the police are not doing it, they are probably not doing their job.” Bratton served as
Mayor Rudolph Giuliani’s first commissioner of the N.Y.P.D., from 1994 to 1996, and is widely
credited with changing the orientation of the police from responding to crime to preventing it.
Through much of the second half of the twentieth century, crime and disorder, in forms ranging
from graffiti to murder to a crack epidemic, plagued New York. The police appeared powerless to
address these scourges. “Around 1960, New York City basically stopped policing,” Bratton told me.
“The police were no longer engaged in controlling behavior in the streets. We changed that. If
people are drinking cans of beer on the corner, you stop that behavior. If somebody is urinating
against a building, or if you suspect somebody is casing a building for a burglary, you stop them. Of
course police should be doing that. You make the streets safe, and, besides, a lot of these people
committing these minor crimes turn out to have warrants out against them for more serious things.”
The approach is known as Broken Windows, after a 1982 article in the Atlantic by James Q. Wilson
and George L. Kelling. Bratton’s interpretation of the Broken Windows approach called for
vigorous police enforcement of minor crimes like fare-beating and intrusive panhandling as a tool
to preserve public order and, at the same time, to catch criminals. In addition, the N.Y.P.D. under
Bratton began to make extensive use of data to identify crime-prone areas and focus resources on
them—an approach sometimes called “hot-spot policing.” Along the way, especially in high-crime
neighborhoods, cops stopped people not just in the act of committing minor crimes but also for
suspicious behavior.
Stop-and-frisk—indeed, aggressive policing generally—presents significant challenges for
judges. Months, or even years, after a confrontation between a cop and a suspect, the judge must
determine if the stop was legal and thus whether the evidence gathered can be used in court or
should be suppressed. “Most judges are reluctant to grant suppression motions,” Erin Murphy, a
professor at the New York University School of Law, said. “It’s hard for judges to look a police
officer in the eye and say he didn’t follow the law. And of course it’s only defendants who look
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guilty who file suppression motions. It’s every judge’s worst nightmare that a released defendant
will show up in the newspaper the next day for committing some horrible crime. If you suppress
evidence, you are making it hard or impossible to prosecute a guilty person. That’s a really difficult
emotional and political decision for a judge to make.”
The matter of Antonio Fernandez presented such a dilemma for Judge Scheindlin. On May 12,
1995, police received a 911 call reporting a gang meeting in progress at a small park in the Bronx.
The caller said that one member, a Hispanic man wearing a white-and-black jacket, had a gun. The
officers who responded found about fifty or sixty men, all Hispanic, milling around. The police
frisked one man, who had no contraband. Then they followed a group of three or four men who had
been standing to the side of the main group. One of them was Fernandez, who was stopped, frisked,
and found to have a small amount of marijuana. At the station house, he was frisked again, and
police said that he had a fully loaded .38-calibre revolver hidden in his crotch.
Fernandez was charged with illegal possession of a handgun, and the case was assigned to
Scheindlin, who was in her early days on the federal bench. Fernandez argued that the Terry stop was
illegal, and that the gun should be suppressed as illegally obtained evidence. Scheindlin agreed,
writing in an opinion that, “based on the facts presented here, the police did not have reasonable
suspicion to stop Defendant and his companions.” In part, Scheindlin said, the stop-and-frisk was
illegitimate, because the anonymous tip was too vague to lead to Fernandez, but her opinion
reflected a disbelief in the officers’ testimony. According to the officers, Fernandez’s first frisk
produced a small amount of marijuana, but the second yielded a large handgun. As Scheindlin wrote,
“It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber
revolver hidden in Defendant’s pants.”
The case might have passed without notice, but Antonio Fernandez was not an ordinary
defendant. He was better known as King Tone, the leader of the Latin Kings, one of the most
notorious drug gangs in the United States, and he was being charged as part of a huge crackdown on
the group by the United States Attorney’s office for the Southern District of New York. “Scheindlin
is one of the very few judges who would have had the guts to toss out a case like that one,” a former
prosecutor familiar with the case said. (Three years later, Fernandez was prosecuted for heroin and
cocaine trafficking and sentenced, by a different judge, to twelve years.) Scheindlin’s ruling in the
Fernandez case set a template for her handling of criminal cases. As one of her former law clerks
put it, “What you have to remember about the Judge is that she thinks cops lie.”
According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the
basis of illegal police searches far more than any of her colleagues—twice as often as the secondplace judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased
against cops. (Scheindlin has said that the study is misleading, because it reflects only her written
opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.)
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Still, she embraces her maverick status. Many judges in the Southern District previously worked as
prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges,
especially because so many of our judges come out of that office, become government judges,”
Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern
District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights.
These issues come up, and I take them quite seriously. I’m not afraid to rule against the
government.”
S
cheindlin grew up in Detroit. Her mother was a schoolteacher, and her father, who emigrated
from the Soviet Union, ran a Jewish civic organization. “We were a political family,” she told
me. “My father was the official Jew for many committees in the state.” For a time, the family lived
in a house once owned by a brother of Walter Reuther, the United Auto Workers labor leader. “The
house had a bullet hole, from where someone had taken a shot at him,” she said. “It was a tough
town.”
At the University of Michigan, Scheindlin majored in Chinese history, then continued her
studies for seven years at Columbia. She never received her doctorate. “The language defeated me,”
she said. “The prospect of reading original documents in Chinese was just too difficult.” Scheindlin
drifted into law school, graduating from Cornell in 1975. She spent her final year of law school at
Columbia, where she took a class with Ruth Bader Ginsburg, who became a mentor. Ginsburg
introduced her to the legal side of the women’s-rights movement, and, while still a student,
Scheindlin played a role in a case that brought equal pay to female academics at the City University
of New York.
For the next two decades, Scheindlin did a little bit of everything in the law. She was in private
practice, a federal prosecutor in Brooklyn, general counsel to the New York City Department of
Investigation, and a magistrate (a lower-level federal judge), also in Brooklyn. In 1994, at the
recommendation of Senator Daniel Patrick Moynihan, who had been encouraged by Ginsburg,
President Clinton nominated Scheindlin to the federal bench in Manhattan. Her professional roots
in Brooklyn, which is known as the Eastern District of New York, separated her from the start from
the clubby world of the Southern District.
A defining event of Scheindlin’s tenure as a federal judge took place on February 4, 1999. On
that day, four plainclothes officers shot and killed Amadou Diallo, an unarmed African immigrant,
who was in the vestibule of his apartment building, in the Soundview section of the Bronx. (The
officers, who thought Diallo was reaching for a gun, were charged with manslaughter. They were
acquitted by a jury in Albany, where the case had been moved because of pretrial publicity in the
Bronx.) The Diallo case suggested a dark side of Giuliani-era policing. The same aggressiveness
that led New York cops to arrest minor offenders could turn, in certain circumstances, into a
predatory approach to non-offenders, especially racial minorities. Crime rates (for whatever
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reason) had fallen dramatically during the Giuliani administration, but the Diallo case raised
concerns about the N.Y.P.D.’s new tactics. “The idea behind proactive policing was to get guns off
the street, which was fine as far as it went, but what it meant on the street was the cops tossed every
young black man that they saw,” Jonathan Moore, a veteran civil-rights lawyer, said. “That’s what led
to Diallo.”
In response to Diallo’s death, Moore and the Center for Constitutional Rights, a legal-advocacy
group, filed the first class-action lawsuit challenging the city’s stop-and-frisk policies. The case,
Daniels v. City of New York (Kelvin Daniels was the lead plaintiff), was randomly assigned to
Judge Scheindlin, and years of legal skirmishing followed. The parties settled in 2004. The city
agreed to establish a written policy governing its stop-and-frisk practices and to improve the
training of officers in conducting legal Terry stops.
In retrospect, though, the most important part of the Daniels settlement may have involved
record-keeping. The city agreed to create a kind of checklist, which police officers would complete
each time they conducted a stop-and-frisk. During the next decade, the police filled out more than
four million of these forms, which served as indispensable evidence for the Center for
Constitutional Rights and others in lawsuits against the city.
S
cheindlin has a bright and airy courtroom, one floor below her chambers, and the Floyd trial,
now in its third month, has settled into a routine. In jury trials, judges avoid signalling their
views, so as not to influence the jurors; but in bench trials there’s less reason for judges to be
reticent. By this point, Judge Scheindlin’s views seem etched on the faces of the lawyers before
her. Moore and his colleagues bound in and greet the Judge with confident half-smiles; the team
from the city’s law department already look like disaster survivors, just trying to hang on. Moore
and his team linger after court, chatting with spectators; the city’s lawyers, led by Brenda Cooke,
scurry for the door, avoiding eye contact. (Closing statements are expected this week; Scheindlin
will probably render her decision within sixty days.)
The plaintiffs’ key witness was Jeffrey Fagan, a criminologist and statistician, and a professor
of law at Columbia, who has spent much of the past decade scrutinizing the city’s vast database of
stop-and-frisk reports. The stop-and-frisk form, known as the UF-250, contains boxes for police
officers to check to explain why a suspect was stopped. Some of the boxes refer to specific
behavior: a suspicious bulge in clothing, or a refusal to comply with an officer’s directions. More
than half of the four million UF-250 forms included checks in the box labelled “Furtive
movements.” In his report, Fagan concluded that the furtive-movement box, without more evidence,
suggested an unconstitutional Terry stop—that is, one not supported by reasonable suspicion of a
crime. According to an algorithm that Fagan devised, eighty-two per cent of the stops were
justifiable, twelve per cent were ambiguous, and six per cent appeared to be unjustified. Projecting
that ratio over a decade, Fagan concluded that the N.Y.P.D. had made more than two hundred and
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sixty thousand illegal stop-and-frisks.
The plaintiffs have emphasized that only six per cent of stops led to arrests, just two per cent
yielded seizures of contraband, and only a tenth of one per cent led to seizures of guns. According
to Moore, “What this means is that the stops are unjustified more than ninety per cent of the time.”
Moreover, the plaintiffs used Fagan’s findings to support a claim that the police engaged in racial
discrimination. According to Fagan’s analysis, N.Y.P.D. stop-and-frisks are significantly more
frequent for black and Hispanic residents—constituting eighty-four per cent of the stops—than
they are for white residents, even after adjusting for local crime rates, the racial composition of the
local population, and other social and economic factors. “Statistics is a big part of how we are
proving racial discrimination by the police,” Darius Charney, who is a co-lead counsel, with Moore,
in the Floyd case, said. “We don’t need to find blatant racial animus. It doesn’t have to be motivated
by hatred of black or Hispanic people. We are looking at evidence of stereotypical thinking. We’re
looking for cops using race as a factor to make these decisions in a law-enforcement context. It’s
using race as a proxy for crime.”
In public, police officials have a clear answer to these accusations. “We have had tremendous
success,” Raymond Kelly, the police commissioner since 2002, told me. “Crime is down, and stopand-frisk is an important reason why.” Civil libertarians say that other factors (such as changing
inner-city demographics and the end of the crack epidemic) are involved, and dispute any clear
correlation between more aggressive police behavior and the falloff in crime. What is indisputable
is that since Bloomberg took office, in 2002, murders have dropped twenty-eight per cent, to four
hundred and nineteen in 2012, the lowest number since the city began keeping records, in 1963.
Even compared with other cities where crime has also declined, New York has experienced
dramatic changes. Since 2002, major crimes across the country have declined fourteen per cent; in
New York, they have declined thirty-four per cent. The contrast is even more striking between New
York and other big cities. If New York had Detroit’s murder rate last year, there would have been
forty-five hundred murders in the city—more than ten times the actual number.
Lawyers for the city tried to make the argument before Scheindlin about the effectiveness of
stop-and-frisk, but she shut them down before they had the chance. In order to rebut Fagan’s
analysis of the UF-250 forms, they sought the testimony of Dennis Smith, a professor of public
policy at New York University who is an expert on police management. In particular, the city
lawyers wanted Smith to testify about his view that the stop-and-frisk policy was an important factor
in what they termed “the historic crime decline achieved by New York City.”
In a pretrial ruling, Scheindlin excluded much of Smith’s proposed testimony. She said that
“permitting the parties to delve into the question of whether the stop-and-frisk program actually
reduces crime would risk turning the trial into a policy debate over the wisdom of the program
rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.” Still, as the trial has
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unfolded, city lawyers have continued to argue that stop-and-frisk has been a success—to
Scheindlin’s mounting irritation. When Brenda Cooke, the city’s lead attorney, who was crossexamining Fagan, tried to make that point, Scheindlin cut her off.
“I got to put a stop to this,” the Judge said. “It is not a good use of my time. For one thing, I’ve
said repeatedly that one issue that is not present here is the effectiveness of this policy, because
that’s not for this court. This court is only here to judge the constitutionality. . . . We could stop
giving Miranda warnings. That would probably be exciting for reducing crimes. But we don’t allow
that. So there are a number of things that might reduce crime, but they’re unconstitutional. This
court is only concerned with the Constitution, not with the effectiveness of the policy. I’ve tried
and tried to explain that. This is my third or fourth try.”
Even then, the city’s witnesses persisted in defending stop-and-frisk as a sure means to reduce
crime. In a way, the entire conflict in the case came down to a single exchange between Moore and
Joseph J. Esposito, who had just stepped down, after thirteen years, as the chief of department in
the N.Y.P.D., the highest-ranked uniformed officer in the force. Chief Espo, as he is known, was a
renowned figure in the N.Y.P.D., and his demeanor on the stand suggested that he was more
accustomed to giving orders than to answering questions. Esposito poorly concealed his contempt
as Moore, shambling but relentless, pursued him about the propriety of stop-and-frisk. Moore
noted that the number of stop-and-frisks had increased from approximately ninety-seven thousand,
in 2002, to almost six hundred and eighty-five thousand, in 2011.
“So that increase is all on your watch, correct?” Moore asked.
“Yes, it is,” Esposito said, plainly seething. After a slight pause, he volunteered, eyes flashing,
“As is the forty-per-cent decrease in crime during my time—as is the eighty-per-cent decrease in
the last twenty years.”
I
n the Southern District, plaintiffs in civil cases can designate new cases as related to old ones
and thus guarantee that the same judge presides. Ever since the Daniels case, civil-rights and
civil-liberties groups have continued to challenge the stop-and-frisk policies of the N.Y.P.D. Each
time, the plaintiffs have made sure that the cases went before Judge Scheindlin, who currently has
three such class actions on her docket. The Floyd case challenges the practice citywide; Davis v.
City of New York, which will go to trial later this year, involves stops at city-owned housing
projects; and Ligon v. City of New York, which is farthest along in the process, concerns searches
at privately owned properties around the city.
The Ligon case was initiated by the Bronx Defenders, a nonprofit organization that represents
indigent defendants in the borough. The lawsuit was based on the experience of, among others,
Charles Bradley, a fifty-year-old security guard from the South Bronx who went to visit his fiancée
at her apartment building, in the Parkchester neighborhood, on May 3, 2011. When he went
upstairs, she didn’t answer her doorbell at first—she is deaf in one ear—so Bradley went
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downstairs to wait. “An officer got out of an unmarked van and came up to me,” Bradley recalled. “I
just accommodated the officer to the best of my ability, and, in turn, what happened was, he went
into my pockets. . . . There was nothing in my pockets except my house keys, my cell phone, my
wallet. The thing about it that was so appalling was that I had spent my last dollar to see my loved
one. And then he said, ‘Fuck that, you’re going in.’ ” Bradley was arrested for trespassing, a
misdemeanor, and strip-searched.
At the local precinct, Bradley was given a Desk Appearance Ticket, a common first step in the
legal process for minor offenses in New York City. He was instructed to appear in criminal court
on July 19th, but he faced a more immediate problem. “There was a domino effect from being
arrested,” Bradley said. The arrest would be reported to a New York State licensing agency for
security guards, and that might mean the loss of Bradley’s job. “I need a license to be a security
guard, and I would have lost it if they pressed charges,” he said. “If I lose my license, I lose my
income. I could have been put into homelessness for all this.”
Bradley took the ticket to the offices of the Defenders, who have pioneered what they call
“holistic defense,” a method based on recognizing that, for criminal defendants like Bradley,
deportation, eviction, or the loss of parental rights may be more ruinous than conviction or jail.
Bradley met with two lawyers—an employment specialist and a criminal-defense attorney. “Charles
was freaking out,” Molly Kovel, the employment lawyer, said. “We had seen it before. Many of our
clients are security guards or cabdrivers, and both are licensed by the government. For a lot of
minor crimes, the bigger threat to their lives is losing their jobs, rather than getting convicted.”
Kovel kept the licensing authorities at bay while a colleague, Cara Suvall, dealt with the criminal
case. “I had the problem of how to prove his innocence,” Suvall said. “So we went and got a
notarized letter from his fiancée saying that he really was visiting her. I took it to the district
attorney, and they agreed to drop the charges.”
Still, the experience of Bradley and others prompted the Bronx Defenders to file a class-action
suit against the city. The case focussed on the N.Y.P.D.’s Operation Clean Halls program, through
which private landlords give the police advance permission to patrol their property. This led to
Ligon v. City of New York, in which the Defenders were joined by the New York Civil Liberties
Union, the public-interest group Latino Justice, and the law firm of Shearman & Sterling. (Jaenon
Ligon, the lead plaintiff in that class action, had also claimed to be the victim of an unlawful stopand-frisk.) They charged that the police were using Operation Clean Halls to conduct
unconstitutional stop-and-frisk searches of innocent citizens like Bradley.
At a hearing in October, 2012, Scheindlin listened to testimony from both Bradley and Miguel
Santiago, the officer who placed the cuffs on him. Santiago testified that Bradley was in a “drugprone location” in a high-crime neighborhood and was “suspiciously walking back and forth”
outside the building. Santiago said that he approached Bradley by saying, “Excuse me, sir, could you
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come over here?” and that Bradley could not tell him his girlfriend’s name or produce any
identification. But Judge Scheindlin noted that Santiago’s paperwork contradicted his account in
several ways—he had written, for example, that he approached Bradley inside the building.
In a hundred-and-fifty-seven-page opinion, handed down on January 8th this year, Scheindlin
gave the Defenders a resounding victory. “Officer Santiago claimed that he was able to see
Bradley’s suspicious behavior even though he was inside a police van parked across the street,
twenty or thirty feet from the door, separated from Bradley not only by the street but by the
windows of the front door, a vestibule, the windows of an inner door, and the hallway,” Judge
Scheindlin observed. “I find Bradley’s account credible.” She was especially moved by Bradley’s
story. “If an unjustified stop happens to lead to an unjustified arrest for trespassing, as it did in
Charles Bradley’s case, not every overburdened public defender will have the wherewithal to obtain
a notarized letter from the defendant’s host explaining that the defendant was invited, as Bronx
Defender Cara Suvall did on behalf of Bradley,” she wrote. “When considering the relative
hardships faced by the parties, it is important to consider the potentially dire and long-lasting
consequences that can follow from unconstitutional stops.” Scheindlin concluded that a “very large
number of constitutional violations took place” as a result of Operation Clean Halls.
Scheindlin had found the city liable in the Ligon case, but what was the remedy? Here the Judge
sprang a surprise. She wrote that she was going to decide the city’s punishment in the Ligon case
(which the city had already lost) at the end of the Floyd trial (which had not even taken place). In
other words, it looked as though Scheindlin were scheduling her remedies hearing as if she had
already ruled against the city in Floyd. In a footnote, Scheindlin added, “I emphasize that this ruling
should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in
Floyd.” But the city lawyers in the Floyd case are skeptical that the Judge’s mind is open. “It’s like
she has scheduled our sentencing before she’s even found us guilty,” one said.
P
olitically, the verdict on stop-and-frisk seems already clear. The Democratic mayoral
candidates running to succeed Michael Bloomberg all criticize stop-and-frisk, differing only in
the intensity of their complaints. Christine Quinn, the City Council speaker, said recently, at
Barnard College, “I want to leave it as a tool in police officers’ toolboxes,” but she noted, “We need
to put an infrastructure of reform around stop-and-frisk.” Bill de Blasio, the public advocate, said at
a mayoral forum, “We need to send a message to every young man of color that they are beloved,
they are valuable, they are our future. You can’t do that if you’re constantly treating people as
suspects.” John Liu, the comptroller, has gone even further. “Stop-and-frisk doesn’t have to be
amended, it has to be ended,” he said at the forum.
In response, Bloomberg took the unusual step last month of giving a speech to the leadership of
the N.Y.P.D. in which he both celebrated his record in reducing crime and addressed the allegations
in the Floyd case. “As the ongoing federal court case is now demonstrating for any objective
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observer to see,” the Mayor said, “the N.Y.P.D. conducts stops based on seeing something
suspicious, or witnesses’ descriptions of suspects, not on any preconceived notions, or on
demographic data that would have you stopping old women as often as you stop young men.”
Commissioner Kelly, for his part, is dismissive of the mayoral candidates’ criticism. “This is just
pandering. This is what goes on in New York politics,” he told me. “They try and get as far left as
they can for the primary, where it’s just a tiny number of people who are voting. Then the challenge
is to get to the center for the general election. That’s all that’s going on here.”
In the courtroom, before Judge Scheindlin, the city is attempting to put on a defense. The
lawyers are pushing back on the plaintiffs’ most incendiary claim—that the stop-and-frisk policy
has been applied in a racially discriminatory manner. “It’s close to a perfect correlation between
who is committing crime and who is being stopped,” Celeste Koeleveld, the deputy Corporation
Counsel who is supervising the defense, said. “That’s true in minority neighborhoods, and also in
predominantly white areas, like Staten Island.” She noted that more than half of the N.Y.P.D.
consists of racial minorities. Kelly goes further, asserting that stop-and-frisk protects, rather than
oppresses, the African-American community. In a speech last month before Al Sharpton’s National
Action Network, Kelly said, “African-Americans, who represent twenty-three per cent of the city’s
population, made up sixty-four per cent of the murder victims and seventy-one per cent of the
shooting victims in this city last year.” He added, “African-American men between the ages of
sixteen and thirty-seven, who are just four per cent of the city’s population, comprise forty per cent
of those murdered citywide; eighty-two per cent of these young men were killed with a firearm. As
a city, as a society, we cannot stand idly by in the face of these facts.” He said, “I believe that this
tactic is lifesaving,” and, referring to Terry v. Ohio, he added, “It is also lawful and constitutional as
upheld by the U.S. Supreme Court in 1968.”
Nevertheless, it appears that public criticism—and Scheindlin’s rulings—has already changed
the behavior of the police. In March, just as the Floyd trial was beginning, the N.Y.P.D. revised its
instructions to officers in filling out the stop-and-frisk reports, demanding that they provide
narrative details on their reasons for the confrontations. More significant, perhaps, in the first
quarter of this year the number of police stops dropped by fifty-one per cent.
I
n both the Floyd and the Ligon cases, the plaintiffs are asking for Scheindlin to appoint an
independent monitor, to make sure that the police comply with the Constitution. They want the
Judge to impose a sort of receivership on the police, creating a dual internal authority as a check on
the existing leadership. As a model, the plaintiffs’ lawyers cite a case in Cincinnati a decade ago, in
which the city agreed to fund an independent monitor who filed regular reports on the local cops’
compliance with the law. (Bloomberg called this notion a recipe for chaos.) The idea of the
independent monitor, like the lawsuits themselves, is rooted in the hope that a single judge can
diagnose a complex problem and reform a huge organization like the New York Police Department
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based on the imperfect medium of trial testimony. Scheindlin’s dedication to protecting citizens’
rights is beyond question; it is less clear that she has the wisdom, or even the ability, to impose her
vision in the real world of New York.
Scheindlin’s confidence in her understanding of the Constitution remains unshaken. Back in her
chambers, after a long day of testimony from a plaintiff’s expert on police procedures, Scheindlin
talked about another celebrated case of hers. Shortly after the terrorist attacks of September 11,
2001, investigators found the name and phone number of Osama Awadallah on a scrap of paper in a
car rented by one of the hijackers. On September 21, 2001, F.B.I. agents in California arrested
Awadallah. He was not charged with any crime but was held as a material witness. On October 10th,
he testified before a grand jury in New York that he was acquainted with one of the hijackers but
denied knowing another who lived in the San Diego area. He was indicted for perjury, but on April
20, 2002, before the trial had even begun, Scheindlin threw out the case against him.
In a pair of lengthy opinions, Scheindlin said that the government had violated the materialwitness law, by holding Awadallah too long and under unduly harsh conditions. She quoted the
famous Supreme Court case of Ex Parte Milligan, in 1866: “The Constitution of the United States
is a law for rulers and people, equally in war and in peace, and covers with the shield of its
protection all classes of men, at all times, and under all circumstances.” The Court of Appeals
reversed Scheindlin’s ruling and ordered her to bring Awadallah to trial. The trial ended in a hung
jury; in a second trial, he was acquitted.
“That case was just an enormously satisfying experience,” Scheindlin told me. “What I did was
gutsy, because it was so close to 9/11. For me to suppress that evidence stunned people, because
there was no question that he did know the hijackers. You saw the world changing in how each jury
saw the case. The first jury was eleven-to-one to convict. But by the time of the second trial the
Bush policies were unpopular, and he was acquitted. That was a vindication.”
Each day, before Scheindlin goes to court, the last thing she sees in her chambers is a framed
copy of an article she co-wrote with Brian Lehman, a former law clerk, in the New York Law
Journal. Headlined “ONE DAY IN SEPTEMBER,” and published in September of 2006, it was, like
many stories published around that time, a commemoration of an anniversary. “It was a day in
September that changed America forever,” she wrote. But her story wasn’t about September 11,
2001. It was about September 25, 1789, the day that Congress passed the Bill of Rights. Thanks to
that document, the authors wrote, “If a judge decides that a defendant’s rights have been violated and
the case is dismissed, a remarkable thing happens: the government bows to the rule of law.” ♦
PHOTOGRAPH: REPORTAGE BY GETTY IMAGES
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NY 'frisk' judge calls criticism 'below-thebelt'
By LARRY NEUMEISTER May 19, 2013 2:44 PM
NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-andfrisk practices of the New York Police Department has no doubt where she stands with the
government.
"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an
Associated Press interview Friday. It was another moment of candor for a judge known for
her call-it-as-she-sees-it manner and willingness to confront government lawyers in a
courthouse where many judges — former federal prosecutors themselves — seem less
inclined.
"I do think that I treat the government as only one more litigant," she said during the
interview that proceeded with a single rule: no questions about the trial over police tactics
that reaches closing arguments Monday.
The trial has put the NYPD and City Hall on the defensive as they justify a long-running
policy of stopping, questioning and frisking some residents to deter crime. Critics say it
discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic,
since it has been found to be legal, but she does have the power to order reforms in how it
is implemented.
During the trial, she's shown an impatience with lawyers on both sides when they stray from
the topic at hand, and a willingness to directly question witnesses — including police
supervisors — about the nuts and bolts of trying to keep streets safe.
"I don't think they're entitled to deference," she said of government attorneys. "I think some
of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ...
They have to prove their case like anybody else. I don't give them special respect. Maybe
some judges do because they came from the office, they know the people there, whatever. I
try not to do that."
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Scheindlin, 66, appointed by President Bill Clinton, has had plenty of high-profile cases in
19 years in federal court, including three trials of John "Junior" Gotti, the son of the late
legendary mob boss John Gotti, two trials of a California student who knew two of the Sept.
11 hijackers and the trial of international arms dealer Viktor Bout.
The AP interview came after a New York Daily News article revealed that the staff of Mayor
Michael Bloomberg had reviewed her record to show that 60 percent of her 15 written
"search-and-seizure" rulings since she took the bench in 1994 had gone against law
enforcement.
The judge called it a "below-the-belt attack" on judicial independence. She said it was rare
when any judge grants a request to suppress evidence in a law enforcement case and that
inclusion of the numerous times when she rejected the requests with oral rulings from the
bench would likely reduce the total to less than 5 percent.
She said reports that the mayor's office was behind the study made it worse.
"If that's true, that's quite disgraceful," Scheindlin said. "It was very discouraging and
upsetting. I can't say it has no toll."
Of such criticism, she said: "It's very painful. Judges can't really easily defend themselves.
... To attack the judge personally is completely inappropriate and intimidates judges or it is
intended to intimidate judges or it has an effect on other judges and that worries me."
A Bloomberg spokesman said Saturday, "We did a simple search of publicly available
written decisions, as the media is also free to do."
The New York County Lawyers' Association called the report meaningless because it
sampled so few Scheindlin rulings.
Scheindlin has faced heat before, most notably a decade ago when she presided over the
trials of Osama Awadallah and one newspaper labeled her "Osama's best friend," a
reference that some could misinterpret to refer to Osama bin Laden.
"You could be in danger, physically," she said.
The Awadallah case is memorable to Scheindlin for how it reflected the mood of the attitude
across the country after the Sept. 11 attacks. Awadallah, born in Venezuela and raised in
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Jordan, was a young immigrant in San Diego who was picked up as a material witness after
his telephone number was found in a car that one of the hijackers drove to the airport on
Sept. 11. Prosecutors agreed he was no terrorist but claimed he intentionally misled grand
jurors about how well he knew one of the terrorists. Defense attorneys said he was left
confused after 20 days in detention.
She said she learned in talking to jurors after Awadallah's first trial that they came within
one vote of convicting him of false statements. At the next trial, he was exonerated.
"Same evidence. Same prosecutor. Same defense lawyers. Jury goes from 11-to-1 to 12zip," she recalled. "So I asked what happened. The answer is the country had turned in a
new direction."
She said immediately after Sept. 11, "people were so worried and so terrified that the next
attack was around the corner that they were willing to cede many of their civil liberties."
She added: "The second half of the (President George W.) Bush term, Bush policies were
not popular any longer. People were much more distant from the event of 9/11. Now they
were more concerned with civil liberties and less concerned with the security threat. ... I
thought it was dramatically shown by what happened in that case."
In choosing law clerks, Scheindlin looks for varied experience like her own. She has been a
prosecutor and a defense lawyer and was once politically active.
"I don't want a kid who's just done seven straight years of A's at Harvard," she said. "I want
to know that they've done something, worked somewhere. Some experience. Some work.
Some life. That makes for a rounded person."
And should they someday become a judge, it makes them well prepared for the rare case of
impact.
"That's the day you live for, to do something that you believe is right and that is upheld as
right and has a national impact, that's great," Scheindlin said. "That's why people want to be
judges, I think, so they can make a difference."
___
Associated Press writers Tom Hays and Colleen Long contributed to this report.
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ALM Properties, Inc.
Page printed from: New York Law Journal
Back to Article
Stop-and-Frisk Judge Relishes Her Independence
Mark Hamblett
New York Law Journal
2013-05-20 00:00:00.0
The judge presiding over one of the most politically charged cases in recent New York City history says her 20 years on the
bench have taught her to "appreciate more than ever the words 'judicial independence.'"
Shira Scheindlin, in a recent interview during the nine-week bench trial over the constitutionality of the New York City Police
Department's anti-crime stop, question and frisk policies, said there are too many judges who don't want to take chances
and deliver controversial rulings.
"They are fearful or they want a promotion or whatever it is, they don't exercise the independence they should have. State
court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don't
appreciate how much independence they have—many of them are a little cautious, more cautious than they should be."
Few court observers would describe Scheindlin as cautious and the judge spoke freely when she sat down recently with the
Law Journal to discuss some of her prior decisions and her views on being a federal judge. The only subject off the table
was the ongoing trial, expected to wrap up on May 20 with closing arguments.
The judge, who already has made some rulings critical of the city for stop-and-frisk, has not been reluctant to make
controversial decisions in the realm of civil liberties and constitutional law that have drawn the ire of police and prosecutors.
"I do think judges have a duty to protect individual rights because that's what the Bill of Rights is all about," she said. "It's the
responsibility of the judiciary to protect those rights granted by our Founders. Now, does that make me an activist? No. Some
people have said I'm conservative because I go back to what the Founders wrote and what they meant. I see it as abiding by
my constitutional duty and our oath."
Among her other matters, Scheindlin (See Profile) has issued a series of groundbreaking opinions on e-discovery in
Zub ulake v. UBS Warb urg, which she regards as her most significant case. (See, for example, NYLJ, May 13, 2003, and July
25, 2003).
She has presided over multi-district litigation on conflicts of interest at investment banks in initial public offerings, and has
presided over the trials of mobster John Gotti Jr. and Police Officer Francis Livoti in the use of a deadly chokehold on Anthony
Baez.
Scheindlin has held parts of New York's anti-harassment statute unconstitutional; found police in contempt for continuing to
enforce a law against loitering for the purposes of begging for money or cruising for sex that had long been ruled
unconstitutional; held the National Football League was violating the antitrust laws by preventing underclassman Maurice
Clarett from participating in the league draft (later reversed); and compelled the Metropolitan Transportation Authority to
reinstate subway advertising that mocked Mayor Rudolph Giuliani.
"What I've learned is do what you think is right, follow the law, do what you think you can do," she said. "Sometimes there is
no precedent that constrains you and you can really strike out and write what you think is the right answer."
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Scheindlin, 66, has earned a reputation as a hard-working judge and has kept up a full docket since taking senior status last
year. She takes an average of 15 new cases a month and has a pending caseload of 132, not including related cases in
multidistrict litigation. Her workload is in the upper half of senior judges in the district.
She sets a quick pace in her courtroom, with little tolerance for lawyers who obfuscate or belabor a point. She often asks
questions herself when things slow down, although she said, "I don't think I've committed the sin of taking over trials."
"She is a judge who runs a very, very strong courtroom and has a clear idea of how she wants to do it," said one veteran
Southern District practitioner.
"I think sometimes people can be critical of her because she can sometimes be sharp to litigants, put people down and be
critical. But from my experience, when she comes on the bench, she's prepared, she has strong views and she has the
courage of her convictions," he added. "Her ideas can sometimes be idiosyncratic. She's not afraid to think independently."
Scheindlin "runs a very orderly courtroom, dignified, and as a jurist she's not only smart but she's creative," said Robert Swift
of Kohn Swift & Graf in Philadelphia, who has appeared before her. "She asks good questions and is polite to counsel, but,
by the same token, she doesn't let counsel argue silly motions or make silly requests—she's well in control of her
courtroom. She's certainly been reversed, but that's also indicative of a judge being certain of what the law should be—not
just what it is."
Like other judges, Scheindlin said she expects lawyers who appear before her to be well prepared.
"They need to be familiar with the facts and the law on the spot and not say, 'Oh sorry, I have to go look that up, or 'I'm sorry, I
have to ask a colleague,'" she said.
Unusual Path to the Law
Scheindlin was born in Washington, D.C., raised in Detroit, and educated at the University of Michigan, Columbia University
and Cornell Law School.
She was working at Columbia as a graduate student in Far Eastern studies, but she said the language requirements were
so rigorous—years of Chinese and Japanese included—"that I knew I would never finish my dissertation. So I said, 'What's
next?'
"I really didn't know much about the law but I knew it offered a broad education that gives you lots of possibilities of what you
might do with it afterward," she said.
"I think at that point I thought I was going to be doing divorces and house closings and DWIs," she said. "I thought I'd be a
local town lawyer married to a professor on the campus."
After graduating from Cornell in 1975, she spent a year at Stroock & Stroock & Lavan, then clerked for Southern District
Judge Charles Brieant and was hired by David Trager, who was then the U.S. attorney in the Eastern District. She rose from
general prosecutions to handling political corruption cases before being named deputy chief of the Economic Crimes Unit
while working as Trager's administrative assistant U.S. attorney.
Scheindlin counts Trager, along with Brieant and Eastern District Judge Jack Weinstein, as mentors.
Trager, she said, "was funny, he would speak in the imperative—'you will get a clerkship, you will apply to be a magistrate."
She spent a year as general counsel at the New York City Department of Education and then returned to the Eastern District
as a magistrate judge from 1982 to 1986, where she was also appointed as special master by Weinstein in the Agent
Orange cases and litigation over asbestos.
Scheindlin returned to private practice in 1986 as a partner with Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and
then Herzfeld & Rubin, where she worked as a commercial litigator until she was named a federal judge by President Bill
Clinton in 1994, part of a wave of new judges who sometimes refer to themselves as the "Class of '94."
It is rare for magistrates to be promoted to Article III judgeships, and Scheindlin said her experience as a special master and
magistrate —the first woman magistrate judge or district judge in the Eastern District—helped her hit the ground running
when she took the bench in Manhattan.
"I just took that bench and I knew what I was doing," she said. "And I got feedback right away like, 'Boy you look like you've
been doing this forever' and I would make a joke, 'Well, that's because I have.'"
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She added,"I was incredibly fortunate—it is not easy for those who have not had any judicial experience."
Scheindlin said she never had any interest in moving to the U.S. Court of Appeals for the Second Circuit because cases are
built at the district court level.
District judges "have a much more exciting job than the Court of Appeals, because we shape the case in the first instance.
We shape the issue—the case comes in the door and we are the first judge on the line, with the first crack at giving an
answer and shaping a ruling, shaping the whole future of that case, right?
"The Court of Appeals has to use what we've done—we have the tough job—all they can do is review it and say 'You got it
right or you got it wrong.'"
Scheindlin said the problem with the appellate court is that "there you've got to negotiate and get votes and there's three of
you and you can end up in dissent when you really don't want to. To me, this is the best of all worlds."
One case where the circuit said Scheindlin "got it wrong" was an opinion she remains proud of—her ruling that the
government had abused the material witness statute by detaining Osama Awadallah in the 9/11 investigation and then
prosecuting him for perjury. Awadallah had known two of the 9/11 hijackers in California (NYLJ, April 30, 2002).
Scheindlin dismissed the charges, calling it a "perjury trap" and holding the material witness statute was intended to be
used only for trial witnesses, not people being interviewed in connection with an investigation.
The Second Circuit reversed and sent it back for trial (NYLJ, Nov. 10, 2003). The first jury hung 11 to 1 for conviction. The
second, the judge recalled, "was 12-zip for acquittal."
"What happened in between?" Scheindlin asked. "It was exactly the same evidence, the same lawyers, and it was word for
word the same trial record. What happened is that, it was later in the Bush administration and his policies were no longer as
popular and people had pulled back…and were now looking at some of the consequences of the event that they didn't really
like."
But the judge also said that the jury in the second trial was subjected to a "much stronger voir dire."
"The second questionnaire worked much harder to probe bias—'did you know anybody even indirectly, who was injured that
day?'"
"We know that the first jury was in tears, people were crying, telling about their neighbor who had lost a son, which was not at
all the point of the prosecution."
'Judges Are Hum an Beings'
Scheindlin's ruling in the Awadallah case drew criticism that she said found hard to take.
"Judges are human beings and it always hurts to be attacked when you can't defend yourself—that's a very painful thing,"
she said. "Over the years I have read editorials such as the famous 'Osama's Best Friend' after the Awadallah decision, it
was hurtful.
"I would have liked to have been able to explain the decision so that the public understood it so I was not wrongly attacked
but a judge doesn't have that ability," she said. "In recent years the bar associations have really stepped up to the plate and
tried to defend judges, not on the merits of their decisions but by explaining their job, that the judge is a neutral and does the
best they can. To attack them personally when it's not a matter of dishonesty, just disagreement, is a terrible thing."
With her involvement in the stop-and-frisk litigation Scheindlin has had to cope with sharp criticism from city officials like
Police Commissioner Raymond Kelly, who has accused her of being in the thrall of a few civil rights lawyers.
The New York County Lawyers' Association wrote to the New York Daily News on May 15 to protest an article reporting that
an "internal report" by the mayor's office purporting to show that Scheindlin is biased against law enforcement because she
has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994.
In its letter, NYCLA argued that the report was misleading because it did not consider her suppression decisions from the
bench. Moreover, NYCLA wrote, "Judges are not supposed to grade on the curve. They are supposed to decide cases on
their merits," and the report didn't consider the merits of Scheindlin's rulings.
"I think it's inappropriate to label any judge as liberal or conservative," Scheindlin said in the interview. "I like to think of myself
as a fair-minded neutral who calls the case outcomes the way that the law and justice require."
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Im proved Atm osphere
Scheindlin said she thinks Americans' attitude toward civil liberties has changed since the Sept. 11, 2001, terrorist attacks.
"I think it's better—I think the worst time was around 9/11. People just didn't want to hear about the rights of anybody when
they felt their security was threatened—so I think, actually its been slowly better for the last decade as 9/11 has receded,"
she said. "One worries again, though, with the Boston Marathon bombers and whether public opinion shifts back, but I don't
think anybody was particularly outraged [the surviving suspect] wasn't read Miranda rights.
"It's events like this that test people's commitments to civil liberties…I think the atmosphere has been much better because
more of the population has been critical of what I might call the Bush-era policies—the torture memo, the Guantanamo
issue, the military courts, the detention without charges."
She said she thinks that President Barack Obama would like to close the detention center at Guantanamo but cannot get
Congress to go along.
"It's deeply troubling to hold people in perpetuity without charging them," Scheindlin said. "We like to think we don't do that."
Scheindlin said that politics influences the selection of federal judges, but that is mainly on the appellate court level.
"Let's be realistic, these are political appointments and the makeup of the circuit judges in this circuit is slowly changing now
that President Obama has been here five years," she said.
But she said that the Southern District had been "extraordinarily lucky" in avoiding political polarization.
"I'm saying that it's not partisan, she said. "All through the Bush years, all through the Obama years we have had really high
quality people. We are so lucky here we don't have political hacks. We have well-qualified judges virtually across the board."
Scheindlin said that she was disappointed in the U.S. Supreme Court's ruling last month on the Alien Tort Claims Act,
Kiob el v. Royal Dutch Petroleum, 569 U.S. — (2013), determining that there was no extraterritorial application of the law.
In 2009, Scheindlin had recognized aiding and abetting liability for corporations on human rights violations in South Africa,
the case along with Awadallah that has given her the greatest pride (NYLJ, April 9, 2009). But her ruling was put on hold
while the Supreme Court considered the issue.
Scheindlin said Justice Samuel Alito "reached out" and skirted the aiding and abetting question just to strike down the law
on extraterritoriality grounds, and "that was sad."
Scheindlin observed that new technologies had changed the law since she joined the bench, as evidenced by her own ediscovery rulings in Zub ulake and other cases.
"This is what lawyers really talk about—social media, GPS, cell sites, data collection, technology-assisted review," she said.
"The biggest change in the law is that all these issues that have arisen out of the new world we live in.
"Now, the civil side is very advanced, the criminal side is just beginning to catch up, but all data is electronic data, all
discovery is e-discovery," she said.
And, like many judges, she worries about the impact of social media on juries.
In the case of arms trafficker Viktor Bout, she made the jury sign a "pledge" not to go on Facebook, Twitter, LinkedIn or other
outlets and promise they would not communicate that way, and if they did, "they understood they would be subjected to
prosecution which was supposed to be an in terrorem effect," she said.
They signed, but one juror in the whole selection process said, "'I can't sign that' and I said ' Well, thank you for telling me,
you're off," Scheindlin said. "It really is threatening to the jury system—the ease of obtaining evidence outside the courtroom.
This has happened again and again."
Scheindlin has been married for almost 30 years to Stanley Friedman, the associate dean of education at SUNY Downstate
Medical Center. She has two grown children.
She admits to having virtually no outside interests.
"I love to work," she said. "The only other way I know how to enjoy myself is exercise. Otherwise, I'm a great reader. I love
audio books."
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Document: Journal: Stop and Frisk Judge Relishes Her Independence
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She said she's at the courthouse most days from 10 a.m to 8 p.m., "really living here." She also works all weekend and
requires her clerks to work one weekend day.
"This is sort of my home away from home," she said.
@|Mark Hamb lett can b e contacted at mhamb lett@alm.com.
Copyright 2013. ALM Media Properties, LLC. All rights reserved.
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