Floyd v. City of New York

Filing 118

OPPOSITION TO MOTION for rehearing en banc [1088586-2], to file amicus curiae brief [1088212-2], on behalf of Movant Captains' Endowment Association of New York, Detectives Endowment Association, Police Department, City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc. and Patrolmen's Benevolent Association of the City of New York, Inc., FILED. Service date 11/13/2013 by CM/ECF. [1090944][118] [13-3088, 13-3461, 13-3524]

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
———————————————————
———————————————————
DAVID FLOYD, et al.,
————————————- - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs-Appellees,
-------

x
:
:
:
: Docket No. 13-3088
- against :
:
CITY OF NEW YORK, et al.,
:
:
Defendant-Appellant. :
——————————————————— :
x
——————————————————— :
————————————- - - - - - - - - - - - - - -BRIEF - - - THE PATROLMEN’S BENEVOLENT ASSOCIATION,
- - - - - OF - - - - - - - - - - THE DETECTIVES ENDOWMENT ASSOCIATION,
THE LIEUTENANTS BENEVOLENT ASSOCIATION, AND
THE CAPTAINS’ ENDOWMENT ASSOCIATION
IN OPPOSITION TO THE MOTIONS FOR REHEARING EN BANC AND
THE MOTION TO ADDRESS ORDER OF DISQUALIFICATION

DECHERT LLP
Steven A. Engel
Edward A. McDonald
James M. McGuire
Elisa T. Wiygul
1095 Avenue of the Americas
New York, New York 10036
T: [phone]
F: [phone]
[e-mail]

TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1
BACKGROUND ...................................................................................................... 3
1.

The District Judge Invites The Floyd Plaintiffs To File Suit.............. 4

2.

The District Judge Conducts Press Interviews During The Trial ....... 5

3.

Proceedings In This Court .................................................................. 7

ARGUMENT ............................................................................................................ 8
POINT I:
THERE IS NO BASIS FOR REHEARING EN BANC ..................................... 8
POINT II:
THE PANEL HAD THE DISCRETION TO ACT SUA SPONTE .................... 9
A.

The District Judge Had No Right To Be Heard Before
Reassignment ....................................................................................11

B.

Movants‟ Timeliness Objection Is Inapposite ..................................13

POINT III:
THE ORDER WAS WITHIN THE COURT‟S DISCRETION UNDER
THE CIRCUMSTANCES ................................................................................14
A.

The District Judge‟s Press Statements .............................................14

B.

The District Judge‟s Statements In Daniels ....................................18

CONCLUSION .......................................................................................................19

i

TABLE OF AUTHORITIES
CASES

Page(s)

Andrade v. Chojnacki,
338 F.3d 448 (5th Cir. 2003) .............................................................................. 16
Cullen v. United States,
194 F.3d 401 (2d Cir. 1999) ............................................................................... 10
Floyd v. City of New York,
--- F. Supp. 2d ----, No. 08 Civ. 1034,
2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013)...................................................... 5
In re Boston’s Children First,
244 F.3d 164 (1st Cir. 2001) .........................................................................14, 15
In re Drexel Burnham Lambert Inc.,
861 F.2d 1307 (2d Cir. 1988) ............................................................................. 14
In re IBM Corp.,
45 F.3d 641 (2d Cir. 1995) .......................................................................9, 13, 14
In re Marshall,
721 F.3d 1032 (9th Cir. 2013) ............................................................................ 16
Kensington Int’l Ltd. v. Republic of Congo,
461 F.3d 238 (2d Cir. 2006) ............................................................................... 12
Liteky v. United States,
510 U.S. 540 (1994) .............................................................................................. 9
United States v. Amico,
486 F.3d 764 (2d Cir. 2007) ............................................................................... 12
United States v. Campo,
140 F.3d 415 (2d Cir. 1998) ............................................................................... 10
United States v. Cooley,
1 F.3d 985 (10th Cir. 1993) ..........................................................................14, 15
United States v. Haldeman,
559 F.2d 31 (D.C. Cir. 1976) .............................................................................. 16
ii

Page(s)
United States v. Londono,
100 F.3d 236 (2d Cir. 1996) ............................................................................... 10
United States v. Microsoft,
253 F.3d 34 (D.C. Cir. 2001) .......................................................................passim
United States v. Suleiman,
208 F.3d 32 (2d Cir. 2000) ................................................................................. 10
White v. Nat’l Football League,
585 F.3d 1129 (8th Cir. 2009) ............................................................................ 15
STATUTES & RULES
28 U.S.C. § 455 ........................................................................................................ 16
28 U.S.C. § 2106 ........................................................................................................ 9
7th Cir. R. 36 ............................................................................................................ 10
Fed. R. App. P. 21 .................................................................................................... 12
Fed. R. App. P. 35 .................................................................................................. 2, 9
OTHER AUTHORITIES
Joseph Goldstein, Court Blocks Stop-and-Frisk Changes for New York
Police, N.Y. Times, Oct. 31, 2013........................................................................ 8
Mark Hamblett, Plaintiffs Say Stop-and-Frisk Panel Should Be Replaced,
N.Y. L.J., Nov. 13, 2013 .................................................................................... 13
Mark Hamblett, Stop-and-Frisk Judge Relishes Her Independence, N.Y.
L.J., May 20, 2013 ........................................................................................... 6, 7
Larry Neumeister, NY ‘Frisk’ Judge Calls Criticism ‘Below-The-Belt’,
Associated Press, May 19, 2013 ........................................................................... 6
Jeffrey Toobin, Rights and Wrongs: A judge takes on stop-and-frisk, New
Yorker, May 27, 2013 ........................................................................................... 6
Wright & Miller, Fed. Practice & Procedure § 3967.1 (4th ed. 2013) .................. 12

iii

Pursuant to Federal Rule of Appellate Procedure (“FRAP”) 27 and the
invitation of the Court, the Patrolmen‟s Benevolent Association of the City of New
York, Inc., the Detectives Endowment Association, Police Department, City of
New York, Inc., the Lieutenants Benevolent Association of the City of New York,
Inc., and the Captains‟ Endowment Association of New York, Inc. (collectively,
the “Police Intervenors”) respectfully submit this brief in opposition to the Request
for Leave to File Motion to Address Order of Disqualification of Hon. Shira
Scheindlin (“the District Judge”) (the “Motion to Address Disqualification”), Dkt.
Nos. 261 (Floyd), 188 (Ligon); the Ligon Plaintiffs‟ Motion to Reconsider by En
Banc Court, Dkt. No. 185; and the Floyd Plaintiffs‟ Motion for Reconsideration by
the En Banc Court, Dkt. No. 267.1
INTRODUCTION
On October 31, 2013, the Court granted the City‟s motion for a stay pending
appeal and, upon reviewing the record, concluded that these cases should be
reassigned to a new judge, because the District Judge‟s actions had compromised
“the appearance of impartiality surrounding the litigation.” Dkt. Nos. 247 (Floyd);
174 (Ligon) (“Order”). In so doing, the Court acted well within its broad

1

The Police Intervenors have previously filed amicus papers in support of the
City‟s motion for a stay pending appeal. On November 7, 2013, they moved to
intervene as appellants. See Dkt. Nos. 252 (Floyd), 178 (Ligon).
1

supervisory power. There is no basis for rehearing.
Plaintiffs and the Motion to Address Disqualification (collectively,
“Movants”) request that the Court rehear this matter en banc, yet they make no
effort to explain how the Order meets the high threshold for such review. Because
the Order creates no circuit conflict, rehearing en banc is not “necessary to secure
or maintain uniformity of the court‟s decisions.” Fed. R. App. P. 35(a). And
because it merely reassigns future proceedings to a new district judge, it can hardly
present a “question of exceptional importance.” Id. While the Court‟s decision
was correct on the law, Movants‟ arguments of simple error do not meet the
standards for en banc review.
Nor do Movants demonstrate any cognizable violation of any protectable
rights. Plaintiffs do not have any right to a hearing before a particular judge, and
the District Judge has neither a proprietary interest in the case nor a right to be
heard prior to reassignment. The fact that the Court ordered reassignment based on
its finding that the District Judge‟s actions had “r[u]n afoul” of the canons of
judicial conduct does not implicate any of her rights. See, e.g., United States v.
Microsoft, 253 F.3d 34, 107-16 (D.C. Cir. 2001) (disqualifying judge, without his
participation, based upon findings of “egregious and flagrant” judicial
misconduct). If the same matters were to give rise to a complaint for judicial
misconduct, then the District Judge plainly would have the right to mount a
2

defense. A district judge‟s right in that wholly different context, however, does not
diminish the Court‟s broad supervisory powers over the district court.
Moreover, the Order was within the Court‟s discretion. The District Judge
invited the plaintiffs to commence this action, informed them of her willingness to
accept it as related to a prior one, and advised them that she would grant them the
necessary discovery once they filed. What is more, in the middle of an
exceptionally important trial where the court purported to adjudicate claims against
the NYPD involving hundreds of thousands of alleged constitutional violations, the
District Judge elected to give at least three interviews in her chambers to reporters.
During those interviews, the Judge boasted about her own courage and fidelity to
the rule of law, and deprecated colleagues who, in her view, were afraid to rule
against the government. While no party moved to disqualify the judge, the Court
properly concluded that these reported statements—which the District Judge has
never disputed—irretrievably compromised the appearance of impartiality, “ran
afoul” of the Code of Conduct for United States Judges, and required reassignment
of the cases. The motions should be denied.
BACKGROUND
In the decisions below, the district court permitted 19 discrete challenges to
particular NYPD stops to morph into a class action placing more than 4.4 million
stops on trial. Though a misuse of the class action device and a misreading of
3

statistics, the district court found system-wide violations where there were none,
and issued a sweeping order that would subject the NYPD‟s policies, training,
discipline, and record-keeping to court supervision for the foreseeable future. The
impact of the Court‟s rulings on the 35,000 men and women of the NYPD, as well
as policing in the City of New York, can hardly be overstated. In a case that has
the potential to taint the integrity of these 35,000 individuals and ruin the
reputation of officers unfairly deemed to have violated the Constitution, it is within
the Court‟s supervisory powers to mandate that any appearance of impropriety be
immediately removed from these proceedings.
1.

The District Judge Invites The Floyd Plaintiffs To File Suit

The Floyd matter was assigned to the District Judge after she invited the
plaintiffs, shortly before the sunset of the consent decree in Daniels v. City of New
York, to commence a new action. Order at 2 n.1. In a hearing in Daniels, the
District Judge informed the plaintiffs that “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 on this case?” Daniels 12/21/07 Oral Argument
Transcript (“Daniels Tr.”), Motion to Address Disqualification, Ex. 4, at 10-11.
She also stated, “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.” Id. at 14; see also id. at 42 (“And
4

as I said before, I would accept it as a related case, which the plaintiff has the
power to designate.”).
Plaintiffs‟ counsel expressed concern that they could only bring the new
lawsuit by relying upon confidential NYPD data, which they would soon be
obliged to return at the sunset of the Daniels decree. Id. at 15. The District Judge
assuaged their concerns, adopting an advocate‟s role: “There is enough in the
public record to craft the suit. And then in the suit simply say, we want produced
all that was produced in the 1999 lawsuit. I don‟t know how you could lose getting
it.” Id. at 18.
Plaintiffs thereafter commenced the Floyd action on January 31, 2008, and
marked the matter as related to Daniels. The Ligon Plaintiffs commenced their
action on March 28, 2012. They marked it as related to another case, Davis, which
the District Judge had accepted as related to Floyd. See City Motion to Vacate
(Dkt. Nos. 265 (Floyd), 190 (Ligon)) at 8 n.4.
2.

The District Judge Conducts Press Interviews During The Trial

The Floyd trial began on March 18, 2013 and concluded on May 20, 2013.
The District Judge presided over the trial and sat as the finder of fact. See Floyd v.
City of New York, --- F. Supp. 2d ----, No. 08 Civ. 1034, 2013 WL 4046209, at *2
(S.D.N.Y. Aug. 12, 2013). Notwithstanding her role as both judge and jury in a
high-profile case, the District Judge chose to give at least three interviews to
5

reporters in her chambers even as she was conducting the trial.
The District Judge reportedly stated that she would not comment upon the
trial itself, but she avowed that she was “not afraid to rule against the government,”
that she “believe[d] in the Bill of Rights,” and asserted that “too many” of her
colleagues had become “government judges” who defer to the government because
they “are fearful or they want a promotion.” The District Judge spoke about her
“gutsy” past rulings against the government, and the “vindication” and satisfaction
she felt when, after this Court had reversed her in a terrorism case, the jury
acquitted the defendant on remand. For example:


“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.” Jeffrey Toobin, Rights and
Wrongs: A judge takes on stop-and-frisk, New Yorker, May 27, 2013, at 5.



“Too many judges, especially because so many of our judges come out of
[the U.S. Attorney‟s] office, become government judges . . . .” Id.



The judge described her exclusion of evidence in United States v.
Awadallah, a terrorism case, as “gutsy.” After this Court reversed, the jury
ultimately acquitted the defendant, a decision she stated was a “vindication”
of her past ruling and “an enormously satisfying experience.” Id. at 11.



Other judges “are fearful or they want a promotion or whatever it is, they
don‟t exercise the independence they should have. . . . [F]ederal 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.” Mark Hamblett, Stop-and-Frisk Judge Relishes Her Independence,
N.Y. L.J., May 20, 2013, at 2.
6



“I do think judges have a duty to protect individual rights because that‟s
what the Bill of Rights is all about…. It‟s the responsibility of the judiciary
to protect those rights granted by our Founders. Now, does that make me an
activist? No.” Id.



“I know I‟m not [the government‟s] favorite judge.” Larry Neumeister, NY
‘Frisk’ Judge Calls Criticism ‘Below-The-Belt’, Associated Press, May 19,
2013, at 2.



“I don‟t think [the government is] entitled to deference . . . . [S]ome 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.” Id.



After a newspaper reported that the Mayor‟s staff had prepared a report
showing that the District Judge‟s prior decisions demonstrated a tendency to
rule against law enforcement, she told the reporter that it was a “below-thebelt attack,” and “[i]f that‟s true, that‟s quite disgraceful. . . . It was very
discouraging and upsetting. I can‟t say it has no toll.” Id. at 3.



“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. . . .” Id. at 4.
3.

Proceedings In This Court

After the District Court issued its decisions below, the City of New York
commenced this appeal and moved for a stay pending appeal. The Police
Intervenors and others filed amicus briefs in support of that motion. This Court
(Cabranes, Walker, Parker, JJ.) heard nearly three hours of oral argument, and on
October 31, 2013, granted the City‟s motion. See Order.
In addition, the Court ordered that the case be reassigned to a different
district judge “in the interest, and appearance, of fair and impartial administration
7

of justice.” Id. at 3. The Court concluded that the District Judge had “r[u]n afoul”
of the Code of Conduct for United States Judges, and “the appearance of
impartiality . . . was compromised by the District Judge‟s improper application” of
the “related case rule” and “by a series of media interviews and public statements
purporting to respond publicly to criticism of the District Court.” Id. at 2-3.
After this Court issued its mandate, the District Judge issued a press release
expressing her disagreement with the Court‟s order. See, e.g., Joseph Goldstein,
Court Blocks Stop-and-Frisk Changes for New York Police, N.Y. Times, Oct. 31,
2013. Several days later, through counsel, the District Judge filed a motion
requesting leave to seek reconsideration or rehearing en banc. Dkt. Nos. 261
(Floyd); 188 (Ligon). On November 9, 2013, the District Judge filed a letter
“urg[ing] the panel to withdraw, without prejudice” the Order‟s reassignment so as
to end an “unseemly dispute among judges.” Dkt. Nos. 266 (Floyd), 191 (Ligon).
On November 8 and 11, 2013, respectively, the Ligon and Floyd Plaintiffs
moved for rehearing en banc. Dkt. Nos. 185 (Ligon), 267 (Floyd).
ARGUMENT
POINT I
THERE IS NO BASIS FOR REHEARING EN BANC
All Movants request that the Court reconsider en banc the Panel‟s finding
that the District Judge ran afoul of the Judicial Code of Conduct. Not a single
8

motion addresses the legal standard for en banc reconsideration. This Court will
only grant rehearing en banc if “necessary to secure or maintain uniformity of the
court‟s decisions” or if the “proceeding involves a question of exceptional
importance.” Fed. R. App. P. 35(b)(A), (B). Movants challenge a single sentence
of the Order, which quotes the Code of Conduct for U.S. Judges and identifies the
conduct at issue. Order at 2-3. The Order is not a published decision of the Court,
and there is no genuine argument that it creates any kind of intra-circuit conflict.
The factbound questions as to whether a judge violated the Code of Conduct and
whether a new district judge will receive these cases on remand are not questions
of “exceptional importance” warranting further review by the full Court.
POINT II
THE PANEL HAD THE DISCRETION TO ACT SUA SPONTE
This Court has the discretion to exercise its supervisory powers for the
purpose of reassigning a matter to a new district judge. See In re IBM Corp., 45
F.3d 641, 645 (2d Cir. 1995); 28 U.S.C. § 2106. The “appellate court‟s authority
to order reassignment of a case to a different judge does not rest on the recusal
statutes alone but also on the statutory power to „require such further proceedings
to be had as may be just under the circumstances.‟” IBM, 45 F.3d at 645; see also
Liteky v. United States, 510 U.S. 540, 554 (1994). While reassignment was the
only reasonable course given the Court‟s well-founded concern with the District
9

Judge‟s conduct below, the fact of reassignment itself does not require notice to the
district judge. See, e.g., Microsoft, 253 F.3d at 107-16.
As this Court has recognized, “[t]o reassign a case on remand” the Court
“need only find that the facts might reasonably cause an objective observer to
question [the judge‟s] impartiality, or . . . that reassignment is advisable to preserve
the appearance of justice.” United States v. Londono, 100 F.3d 236, 242 (2d Cir.
1996) (internal citations omitted), abrogation on other grounds recognized by
United States v. Suleiman, 208 F.3d 32, 37 n.1 (2d Cir. 2000).
The District Judge plainly has no proprietary interest in retaining a case.
This Court regularly remands cases to a different district judge without granting
notice. See, e.g., Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)
(vacating judgment of district court and remanding to a different district
judge); United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998) (same). While
this Court does not reassign as a matter of course, the Seventh Circuit does,
making clear that there is nothing unusual about doing so. See 7th Cir. R. 36 (all
cases remanded for new trial will be reassigned unless the remand order specifies
to the contrary or the parties request the original district judge).

10

A.

The District Judge Had No Right To Be Heard Before
Reassignment

The Movants contend that because the Court reassigned the matter based
upon misconduct findings, the District Judge had a right to notice and the
opportunity to be heard. That is not the law. The Court‟s order reassigning the
District Judge does not constitute a sanction against her, and it does not trigger any
right to her personal intervention in the appellate process.
In Microsoft, 253 F.3d at 107-16, for instance, the D.C. Circuit granted a
motion to disqualify the trial judge based upon numerous press interviews given
during a high-profile bench trial. The court‟s opinion discussed the district judge‟s
conduct at length, and found that his ethical violations were “deliberate, repeated,
egregious, and flagrant.” Id. at 107. The court, however, did not invite the district
judge‟s participation in the matter, and expressly declined to remand for an
evidentiary hearing, given that the press articles essentially spoke for themselves,
and their accuracy was not challenged by any party. See id. at 108-09.
In this case, the Movants contend that FRAP 21 should have given the
District Judge a right to be heard. By its terms, however, FRAP 21 sets the
procedures only for writs of mandamus and other extraordinary writs, and this is
not a mandamus proceeding. Even if FRAP 21 set the governing standard, that
rule would preclude any right to participation by the trial judge. FRAP 21 provides
11

the Court with discretion to provide notice; it does not require it. See Fed. R. App.
P. 21(b)(4) (“The court of appeals may invite or order the trial-court judge to
address the petition or may invite an amicus curiae to do so.”). While the trial
judge may “request permission” to respond, id., the rule affirmatively prohibits the
judge from submitting a response “unless invited or ordered to do so.” Id.2
Indeed, the case law in mandamus proceedings confirms that the trial judge
ordinarily should not participate, and a judge who files papers without invitation
risks disqualification, precisely because such a filing conflicts with the judge‟s role
as disinterested arbiter. Thus, in United States v. Amico, 486 F.3d 764, 776 (2d
Cir. 2007), this Court cited the district judge‟s decision to respond to a mandamus
petition, without having been invited to do so, as a factor in support of
disqualification. Id.; see also Wright & Miller, Fed. Practice & Procedure
§ 3967.1 (4th ed. 2013) (“[I]f the trial-court judge makes an uninvited response to
a petition without obtaining the court of appeals‟ permission, that in itself may

2

In Kensington Int’l Ltd. v. Republic of Congo, 461 F.3d 238, 242 (2d Cir. 2006),
the Court cited FRAP 21(b), in dicta, for the proposition that in a mandamus
proceeding, “we generally must give the district judge notice and an opportunity to
respond.” Id. While the Court‟s observation may understate its discretion under
FRAP 21(b), this is not a mandamus proceeding.
12

sometimes be a factor that contributes to a conclusion that the trial-court judge‟s
impartiality could reasonably be questioned.”).3
In this case, the District Judge‟s affirmative steps, since the Court‟s Order,
serve only to validate the Order. The judge‟s press release criticizing this Court‟s
Order, the uninvited brief seeking rehearing en banc, and the November 9 Letter
characterizing the Order as an “unseemly dispute among judges” confirm that
reassignment was within the Court‟s discretion.4
B.

Movants’ Timeliness Objection Is Inapposite

The Floyd Plaintiffs argue that this Court could not grant reassignment sua
sponte where, as here, the City did not timely request it. See Floyd Motion at 9-10.
In so doing, they rely upon cases barring litigants from misusing a recusal motion
by “holding back a recusal application as a fall-back position in the event of
adverse rulings on pending matters.” IBM, 45 F.3d at 643. Where, as here, the
Court acts sua sponte, the specter of gamesmanship cannot arise. This Court was
3

The Motion to Address Disqualification cites two mandamus cases where the
Court exercised its discretion to appoint counsel to represent the trial judge, see
Motion at 7-8, but in both cases, the parties were aligned against the district judge.
Absent the appointment of counsel, no party would have opposed the petition.
4

The District Judge, through counsel, continues to speak with the press, criticizing
the Court‟s Order as a “personal attack,” and indicating that she will file an
uninvited opposition to the City‟s motion to vacate. See Mark Hamblett, Plaintiffs
Say Stop-and-Frisk Panel Should Be Replaced, N.Y. L.J., Nov. 13, 2013. The
District Judge has become, essentially, a vested party to this proceeding, validating
the Court‟s earlier Order.
13

well aware that the City had not sought reassignment. Nonetheless, the Court
correctly concluded that “the interest, and appearance, of fair and impartial
administration of justice,” warranted reassignment on remand. Order at 3.
POINT III
THE ORDER WAS WITHIN THE COURT’S DISCRETION
UNDER THE CIRCUMSTANCES
As this Court has explained, “[a] judge is required to recuse in any
proceeding in which his impartiality might reasonably be questioned, and the test
to be applied is an objective one which assumes that a reasonable person knows
and understands all the relevant facts.” IBM Corp., 45 F.3d at 643 (citation
omitted) (quoting 28 U.S.C. § 455(a)). In buttressing the recusal statute in the
1970s, “Congress aimed to promote public confidence in the judiciary.” In re
Drexel Burnham Lambert Inc., 861 F.2d 1307, 1313 (2d Cir. 1988).
A.

The District Judge’s Press Statements
The Courts of Appeals, including this Court, have recognized that trial

judges tread a perilous line when they elect to give press interviews in connection
with high-profile cases. See Microsoft, 253 F.3d at 112; In re Boston’s Children
First, 244 F.3d 164 (1st Cir. 2001); IBM, 45 F.3d 641; United States v. Cooley, 1
F.3d 985 (10th Cir. 1993). In making out-of-court statements to the press, the trial
judge creates the appearance of a personal interest in the case, and invites
14

reasonable observers to question whether the judge is a participant in the
controversy, rather than the neutral arbiter of it.
In Boston’s Children First, for instance, the First Circuit ordered the trial
judge disqualified after she had sent a letter to the editor and granted a press
interview to respond to alleged misrepresentations by plaintiffs‟ counsel in a highprofile class action. 244 F.3d at 165. Even though the judge sought only to correct
the record, her comments compromised her appearance of impartiality:
[I]n newsworthy cases where tensions may be high, judges should be
particularly cautious about commenting on pending litigation.
Interested members of public might well consider [such] actions as
expressing an undue degree of interest in the case . . . . In fact, 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.
Id. at 169-170. The Tenth Circuit reached the same conclusion in Cooley,
reasoning that the judge‟s press interviews created the perception that the district
judge had “an uncommon interest and degree of personal involvement in the
subject matter.” Cooley, 1 F.3d at 995. Given that it is “unusual” for judges to
make statements to the press, the judge‟s statements “unavoidably created the
appearance that the judge had become an active participant . . . rather than
remaining as a detached adjudicator.” Cooley, 1 F.3d at 995; see also White v.
Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir. 2009) (“Judges should not
create the impression that they covet publicity. „[I]n order to be and remain
15

impartial, and to be “perceived” as impartial, the judge must be above the fray, not
become an advocate in it.‟”).
Finally, in Microsoft, the D.C. Circuit faulted the trial judge for giving a
series of press interviews describing the matters at issue in the case:
Rather than manifesting neutrality and impartiality, the reports of the
interviews with the District Judge convey the impression of a judge
posturing for posterity, trying to please the reporters with colorful
analogies and observations bound to wind up in the stories they write.
Members of the public may reasonably question whether the District
Judge‟s desire for press coverage influenced his judgments, indeed
whether a publicity-seeking judge might consciously or
subconsciously seek the publicity-maximizing outcome.
Microsoft, 253 F.3d at 115.5
In this case, a reasonable observer could only conclude that whatever her
subjective beliefs, the District Judge‟s comments to three different reporters
created the impression that she took pride in ruling against the government, she
viewed herself as “an active participant” in the matter, and she had “become an

5

Ignoring this body of law, the Floyd Plaintiffs cite three cases, see Floyd Motion
at 14, that are readily distinguishable. See In re Marshall, 721 F.3d 1032, 1044
(9th Cir. 2013) (finding the judge‟s press conference in open court “highly unusual
and of some concern,” but not warranting disqualification because it mostly
concerned “courtroom procedures and policies”); Andrade v. Chojnacki, 338 F.3d
448, 459-60 (5th Cir. 2003) (finding that the judge‟s comments would warrant
disqualification if true, but declining to disqualify judge in the absence of “context
and without verification of [their] accuracy”); United States v. Haldeman, 559 F.2d
31, 130-38 & n.275 (D.C. Cir. 1976) (en banc) (per curiam) (applying the pre-1974
version of 28 U.S.C. § 455, which set a higher standard for disqualification).
16

advocate” who “consciously or subconsciously [sought] the publicity-maximizing
outcome.” As summarized above, see supra at 5-7, in several interviews, the
District Judge freely discussed her attitude toward the government; the personal
satisfaction and “vindication” she took over the results in particular cases; her
distaste for the City‟s apparent dissemination of statistics concerning her past
Fourth Amendment rulings; and her conviction that she was more independent and
believed more strongly in the Bill of Rights than colleagues of hers who also have
sworn to uphold the Constitution.
That the District Judge made these statements at the very same time that she
was serving as both judge and jury in “one of the most significant civil rights cases
in a generation,” Floyd Motion at 1, compromises, as the Court put it, “the
appearance of impartiality surrounding this litigation.” Order at 2. A reasonable
observer could only conclude that a judge who prides herself on being “gutsy” and
not being a “government judge,” for having a strong “belie[f] in the Bill of
Rights,” and for seeking to “live for” the day when she could have “a national
impact” could reasonably be viewed as someone partial to declaring that the
NYPD had committed at least 200,000 constitutional violations, and thus should be
placed under the indefinite supervision of the District Judge.
In fact, a reasonable observer could conclude based on these comments that
the appearance of impropriety may have infected the substance of her rulings as
17

well, including the certification of a class comprised of millions of individuals who
were stopped over an eight-year period, by different officers, under disparate
circumstances, as well as her novel evidentiary rulings that allowed such a
challenge to proceed based upon police paperwork, the UF-250 forms, that have
never been used as the sole evidence to justify a single stop, much less 4.4 million.
B.

The District Judge’s Statements In Daniels
The Court also found that the District Judge had acted improperly by

inviting Plaintiffs to file suit and misapplying the related case rule. The District
Judge not only advised Plaintiffs‟ counsel that if they were to file suit, she would
accept the matter as related to Daniels, but she advised counsel how they could
circumvent their obligation in Daniels to return the confidential NYPD data upon
which they wished to rely. See Daniels Tr. at 18 (“There is enough in the public
record to craft the suit. And then in the suit simply say, we want produced all that
was produced in the 1999 lawsuit. I don‟t know how you could lose getting it.”).
For these reasons, and the reasons stated in the City‟s August 12, 2013 Motion to
Vacate, the Court correctly found that the District Judge‟s actions compromised
the appearance of impartiality. See Dkt. Nos. 265 (Floyd), 190 (Ligon) at 4 n.1, 711 & nn.4-6. The District Judge‟s marking and accepting a number of cases
alleging individual unlawful stop and frisks, id. at 8 n.4, only lends further support

18

to the reasonable perception that she had a personal interest in this controversy and
that she had facilitated Plaintiffs‟ efforts to “judge shop” in these matters.
CONCLUSION
For the above reasons, the Police Intervenors respectfully request that the
Court deny the pending motions to vacate or reconsider en banc the Court‟s
October 31, 2013 Order.
Dated:

November 13, 2013
New York, New York
Respectfully submitted,
/s/ Steven A. Engel
Steven A. Engel
Edward A. McDonald
James M. McGuire
Elisa T. Wiygul
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036
T: [phone]
F: [phone]
[e-mail]
Attorneys for the Patrolmen’s
Benevolent Association of the City of
New York, Inc., the Detectives
Endowment Association, Inc., the
Lieutenants Benevolent Association of
the City of New York, Inc., and the
Captains’ Endowment Association of
New York, Inc.

19