Brutal Bench Slap: 2nd Circuit Stays Stop-And-Frisk Case and Removes Judge Shira Scheindlin

October 31st, 2013

Wow! Not only did the 2nd Circuit stay Judge Scheindlin’s stop-and-frisk ruling, but they removed her from the case due to a violation of the Code of Conduct. Why?  Her application of the “related case rule” and her “public statements purporting to respond publicly to criticism of the District Court.” Look at this opinion:

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 partiality 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 interviews and public statements purporting to respond publicly to criticism of the District Court.2

What is the “related case rule”? Rule 13(a) provides:

(a) Subject to the limitations set forth below, a civil case, bankruptcy appeal or motion to withdraw the bankruptcy reference will be deemed related to one or more other civil cases, appeals or motions, and will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served. In determining relatedness, a judge will consider whether

(i) a substantial saving of judicial resources would result; or

(ii) the just efficient and economical conduct of the litigations would be advanced; or

(iii) the convenience of the parties or witnesses would be served.

Without intending to limit the criteria considered in determining relatedness, a congruence of parties or witnesses or the likelihood of a consolidated or joint trial or joint pre-trial discovery may be deemed relevant.

A footnote explains what happens:

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 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.

In other words, she basically begged them to bring a racial profiling case. Yikes!

And she also responded to criticisms of her in the popular press.

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.

Would this apply to Judge Posner?

Somewhere Michael Bloomberg just lit up a cigar and popped open a can of red bull.