Stop & Frisk: Did The Circus Leave Town?

In a pair of rulings, the same 2d Circuit panel that announced that District Court Judge Shira Scheindlin “ran afoul of the Code of Conduct for United States Judges” announced, per curiam, they were only kidding.  The first opinion denied Judge Scheindlin’s application to appear, either by counsel or amicus curiae:

The motion, submitted substantially in the form of a brief in favor of reconsideration, presents the threshold question whether, in the circumstances presented, a district judge may participate as a party, as an intervenor, or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we DENY Judge Scheindlin’s motion to appear in this Court in support of retaining authority over these cases.

The same panel judges who unceremoniously tossed Judge Scheindlin off the case, while retaining the assignment of the underlying cases, Floyd and Ligon, for themselves lest any other panel judge waste precious time, explained that Judge Scheindlin’s motion “lacks a procedural basis.”

It’s a curious rationale in that Bert Neuborne’s papers never contended that the judge attacked had a statutory right to intervene, but rather did so as a customary courtesy among judges.  In other words, an appellate court would invite the judge with the target on her back to have an opportunity to explain or defend her position before pulling the plug.

As this panel’s actions were so irregular, including its ruling in the absence of any party moving for relief or any record upon which relief could be granted, and its failure to extend the customary courtesy to Judge Scheindlin, it created the awkward scenario that left Judge Scheindlin in the position of having to ask to appear rather than being offered the opportunity to do so.  And the panel, rationalizing backward, that there was no procedure that entitled her to do so, denied her application.

While it’s true that there is neither a right for the district judge to intervene nor a procedure established for her to seek the opportunity to be heard, the order ignores that the request wasn’t an assertion of right, but an awkward request for the panel to give her a chance to be heard. This is tricky stuff. It’s also troubling stuff.

In the second opinion, the panel “clarified” its original ruling:

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).

In other words, the panel no longer holds that Judge Scheindlin “ran afoul,” but rather that she only ran afoul-ish, or gave the appearance of running afoul.  It’s not “actual partiality,” but the appearance of partiality that compelled them to run headlong down this inexplicably bizarre road.

Because they are do deeply concerned about “the principle [ ] ‘to perform its high function in the best way justice must satisfy the appearance of justice,'” they had no choice but to remove Judge Scheindlin nostra sponte, lest a “reasonable observer” think the court was pulling shenanigans.  Of course, the City at no time sought or suggested to Judge Scheindlin that the appearance of partiality was afoot, suggesting that it must have been an unreasonable observer.  Thankfully for the government, the Circuit panel’s vision was far more reasonable.

The rationale for the panel’s ruling in the absence of any application for removal, factual hearing or legal briefing was finally explained:

To be sure, in the usual case, “a federal appellate court does not consider an issue not passed upon below.” 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.”

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.

This boils down to “because we can.”  And yet, the panel was not entirely ungracious toward Judge Scheindlin, calling her a “long-serving and distinguished jurist,” which makes everything happy and cordial again. Whether most Article III judges enjoy being damned by faint praise is a question I can’t answer, but the whiff of smoke blown in Judge Scheindlin’s general direction doesn’t strike me as sufficient to overcome the taint.

On the other hand, by denying her motion, the question of whether it was a sound tactical decision for Judge Scheindlin to appear comes to an end. Neuborne seized the opportunity to proclaim victory.

“I’m quite relieved and so is she,” said Burt Neuborne, Scheindlin’s lawyer, adding, “The city argued that she was biased. Now that the panel has made clear that they were in no sense intimating that, the city’s strategy is dead in the water.”

At Hercules and the Umpire, Judge Kopf was moved by these rulings to channel TS Eliot,

This is the way the world ends
Not with a bang but a whimper.

It’s unclear to me that this is the end at all. While that is likely true for Judge Scheindlin’s direct involvement, the parties have motions yet to be heard and decided, and I would be shocked, shocked, if there aren’t very substantial and tenacious challenges yet to be heard.  The Floyd and Ligon cases have gone too far to end with a whimper.

While much of the focus has been around the circus caused by the panel’s gratuitous spanking of Judge Scheindlin, there remain years of litigation, hundreds of witnesses, millions of New Yorkers, tossed off a cliff by what happened here.

While the City is rushing to try to get the entire decision thrown out before the new administration pulls the plug on the appeal, and many are only concerned with the outcome, that the new mayor will moot the case by ending the stop & frisk policy under a “no harm, no foul” theory of law, the implications for the panel’s rulings have only been a sideshow thus far, with the main event in the center ring yet to come.

Even if a regime change, and its ensuing policy change, are sufficient to pacify the public, both lawyers and judges will remember what happened here.  For this reason, my thoughts go less to TS Eliot and more to this:

6 thoughts on “Stop & Frisk: Did The Circus Leave Town?

  1. Richard G. Kopf


    I adore Judy Collins and particularly her haunting and soul-saddening rendition of “Send in the clowns” written by the incomparable Stephen Sondheim. How perfectly apropos.

    Isn’t it rich?
    Are we a pair?
    Me here at last on the ground,
    You in mid-air.
    Send in the clowns.

    Isn’t it bliss?
    Don’t you approve?
    One who keeps tearing around,
    One who can’t move.
    Where are the clowns?
    Send in the clowns.

    Just when I’d stopped opening doors,
    Finally knowing the one that I wanted was yours,
    Making my entrance again with my usual flair,
    Sure of my lines,
    No one is there.

    Don’t you love farce?
    My fault I fear.
    I thought that you’d want what I want.
    Sorry, my dear.
    But where are the clowns?
    Quick, send in the clowns.
    Don’t bother, they’re here.

    Isn’t it rich?
    Isn’t it queer,
    Losing my timing this late
    In my career?
    And where are the clowns?
    There ought to be clowns.
    Well, maybe next year.

    All the best


  2. Turk

    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.”

    It isn’t really a question of whether the issue was pressed in the court below, or whether it passed upon by the court. The issue is that it wasn’t even raised.

    I get the sense the 2nd Circ. is just making this stuff up as it goes along.

    1. SHG Post author

      When the best you can do is rely upon a 70 year old vagary that could apply to almost anything, you got nothing.

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