Plaintiffs Say Stop-and-Frisk Panel Should Be Replaced

, New York Law Journal


The attorneys who represent plaintiffs in Floyd v. City of New York are calling for the three Second Circuit judges who removed Southern District Judge Shira Scheindlin (See Profile) from the stop-and-frisk litigation to be replaced by another panel.

In filings asking for en banc review of the Oct. 31 decision by Second Circuit Judges Jose Cabranes (See Profile), Barrington Parker Jr. (See Profile) and John Walker Jr. (See Profile) to remove Scheindlin because of comments and interviews she gave and her alleged abuse of the related-case rule, plaintiffs' lawyers say the three judges undermined the appearance of justice themselves by removing Scheindlin and by keeping the case before them in the interests of judicial economy.

"Contrary to this Court's customary practices, the Panel assigned itself to hear the merits of the appeal," wrote attorneys with Beldock Levine & Hoffman, Center for Constitutional Rights and Covington & Burling. "Yet the Panel rushed to judgment about the district court's purported partiality and took apparently unprecedented action in removing her without basic process and without regard to potential prejudice to Plaintiffs."

The attorneys called the circuit's decision a "perfect storm of procedural irregularity" and said Scheindlin's removal was "gratuitous and deeply flawed."

They are asking for en banc review of the circuit's decision and the "random" reassignment of the case to another panel.

In Floyd v. City of New York, 13-3088-cv, Scheindlin on Aug. 12 found the New York City Police Department liable for widespread violations of the Fourth Amendment for stopping and frisking people without reasonable suspicion—and violations of the Fourteenth Amendment for stopping black and Hispanic men disproportionately (NYLJ, Aug. 13).

In January 2013, Scheindlin had issued, and then stayed temporarily, a preliminary injunction in Ligon v. City of New York, 13-3123-cv, blocking police from stopping for trespass without reasonable suspicion people entering and leaving private buildings in the Bronx whose owners allow police patrols.

On Aug. 12, Scheindlin issued a remedies order for both Floyd and Ligon that included the appointment of a monitor for the police department. The remedies order set up the city's appeal, the circuit's decision to stay Scheindlin's rulings and the circuit's surprise removal of the judge from the cases for violating rules on judicial ethics by both public statements she made and for telling plaintiffs' counsel in a prior stop-and-frisk case, Daniels v. City of New York, 99 Civ. 1695, that she would accept a new lawsuit under the related-case doctrine.

Last week, filing as amicus on behalf of Scheindlin, Burt Neuborne of New York University School of Law claimed the panel was wrong on the facts and failed to give the judge her day in court on issues never raised by the Law Department. Neuborne and his team have asked the circuit to let the judge defend her conduct and have also asked for rehearing en banc.

Joining Neuborne are Norman Dorsen and Arthur Miller of NYU, Judith Resnik of Yale Law School and Frederick A.O. Schwarz Jr. of the Brennan Center.

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