Procedure Takes Center Stage in Stop-and-Frisk Litigation

By Katherine A. Macfarlane '06, Guest Alumni Blogger

Teaching Fellow and Assistant Professor of Professional Practice, LSU Law Center

On October 31, 2013, the Second Circuit took the unusual step of removing Southern District of New York Judge Shira Scheindlin from two high-profile stop-and-frisk cases: Ligon v. City of New York and Floyd v. City of New York. Ligon is a Section 1983 class action challenging the NYPD's trespass arrest policy, or "Operation Clean Halls," a program through which NYPD officers patrol private apartment buildings across New York City. Judge Scheindlin oversaw Ligon since its filing in March 2012. Floyd, also a Section 1983 class action, challenged the NYPD's street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Floyd was filed in January 2008, and immediately assigned to Judge Scheindlin.

The Floyd trial began in March and lasted nine weeks. Thirteen days before the Floyd trial began, the Floyd plaintiffs withdrew all claims for damages, and as a result, Floyd was tried to Judge Scheindlin, not to a jury. Floyd was decided in an August 12, 2013 order spanning 193 pages. Therein, the judge granted a sweeping injunction against the NYPD that ordered changes to NYPD policies and activities, appointed a monitor to oversee stop-and-frisk practices, required a "community-based joint remedial process to be conducted by a court-appointed facilitator," and ordered that one precinct in each of New York City's boroughs place body-worn cameras on their police officers. On the same date, Judge Scheindlin entered a similar decision in Ligon, ordering changes to the NYPD's trespass arrest policies, oversight by the same monitor appointed in Floyd, and revision of NYPD training materials and programs. In its October 31 order, in addition to removing Judge Scheindlin from Floyd and Ligon, the Second Circuit stayed the orders in Floyd and Ligon pending appeal.

But why was Judge Scheindlin removed? In its October 31 order, the Second Circuit found that Judge Scheindlin violated the Code of Conduct for United States Judges due to the appearance of partiality created by her "improper application" of the Southern District's "related cases rule," as well as "by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court."

In the weeks that followed, Floyd and Ligon continued to take unusual turns. On November 8, Judge Scheindlin moved for permission to have counsel appear on her behalf to seek reconsideration of her removal. Her attorneys, purportedly writing as "amici curiae on behalf of the District Judge," urged the Second Circuit to withdraw its October 31 order and "permit the parties to raise the issues at an appropriate point in the proceedings without being forced to address them in the context of an unseemly dispute among judges." Judge Scheindlin's motion was denied in a November 13 order, which concluded that a district judge has no standing to protest a case's reassignment. "[R]eassignment," the court explained, "is not a legal injury to the district judge."

In a separate order also entered on November 13, which now supersedes its October 31 order, the Second Circuit took a second stab at explaining its reasons for removing Judge Scheindlin fromFloyd and Ligon. It emphasized that it had made no findings of "misconduct, actual bias, or actual partiality on the part of Judge Scheindlin," but that her disqualification was still warranted given her appearance of partiality. The focus of the appellate court's attention was "not simply [on] the use of Local Rule 13" but mainly on the appearance of partiality created by Judge Scheindlin's conduct during a December 21, 2007 hearing in another stop-and-frisk case, Daniels v. City of New York. The Court also reviewed and criticized Judge Scheindlin's media interviews and public statements. However, it clarified that though it had referenced the Code of Conduct for United States Judges in its October 31 order, it did not mean to imply that Judge Scheindlin engaged in misconduct under the Code of Conduct or the Judicial Conduct and Disability Act.

Much attention has been devoted to the fact that Judge Scheindlin's media interviews steered clear of the cases on her docket. Rather, legal pundits have argued, they provided a much-needed window into the workings of the federal judiciary. The Second Circuit's focus on Judge Scheindlin's interviews has been pounced upon, described as having a potentially "chilling effect" on judicial speech.

Little notice has been paid to the "related cases rule," the procedural mechanism that appears to have triggered, at least in part, Judge Scheindlin's removal. Though referred to by the Second Circuit as a local rule applicable to both the Southern and Eastern Districts of New York, the rule binds only Southern District courts, and is a rule governing "the Division of Business Among District Judges." The rule provides that a newly-filed civil case "will be deemed related to one or more other civil cases . . . and will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served." In determining whether a later-filed case is related to an earlier-filed case, a judge considers 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.

Once a case is designated as related, it is forwarded to the judge before whom the earlier-filed case is pending.

Though judges are advised to consider the above three factors, they are in actuality quite unconstrained if they wish to transfer cases onto their dockets under the guise of relatedness. The judge to whom the case is forwarded under Rule 13 "has the sole discretion to accept or reject the case." In addition to Rule 13, Rule 14 of the Division of Business Among District Judges Rules permits "[a]ny judge, upon written advice to the assignment committee, [to] transfer directly any case or any part of any case on that judge's docket to any consenting judge except where Rule 16 applies." Rule 16 only limits transfer in cases where a potential transferee judge was previously disqualified from or presided at a mistrial or former trial of the newly-filed case. Rule 13 is clear that it should not be interpreted to limit Rule 14's transfer provisions ("[N]othing contained in this rule limits the use of Rule 14 for reassignment of all or part of any case from the docket of one judge to that of another by agreement of the respective judges.").

Both Floyd and Ligon ended up on Judge Scheindlin's docket because they were deemed related to earlier-filed cases Judge Scheindlin had presided over or was presiding over. The story of these cases begins in 1999, when Judge Scheindlin was randomly assigned Daniels v. City of New York, a Section 1983 action challenging the NYPD's stop-and-frisk practices which also sought to disband the NYPD's Street Crime Unit ("SCU"). Daniels was spurred in part by the February 1999 death of unarmed Amadou Diallo, who was shot by four SCU officers, as well as by the release of statistics which, according to Daniels, demonstrated that the NYPD's stop-and-frisk encounters disproportionately targeted Black and Latino men.

The path from Daniels to Ligon is not entirely clear. Floyd, a case about street-level stops, was deemed related to Daniels and assigned to Judge Scheindlin in 2008. Next, Davis v. City of New York, a Section 1983 case challenging the NYPD's "vertical patrols" in public housing, was deemed related to Floyd and assigned to Judge Scheindlin in 2010. Ligon was deemed related to Davis and wound up on Scheindlin's docket in 2012. Though superficially similar in that they challenge the NYPD's stop-and-frisk practices and allege racial profiling, Daniels and Floyd involved different plaintiffs and different defendants, sharing only one common defendant, the City of New York, an institutional defendant sued multiple times every day.The differences between Daniels and Ligonand Davis are starker. Ligon and Davis involve policing in housing, not on the streets. None of the factors a judge is instructed to consider in determining relatedness--saving judicial resources, efficiency, and convenience to parties and witnesses--seem to apply to the decisions to deem Floyd related to Daniels, Davis related to Floyd, and Ligon related to Davis.

Still, the unrelated-ness of these cases is irrelevant. That is, though termed a rule about "relatedness," Rule 13 is really a broad rule permitting transfer for any reason whatsoever. Because Rule 13 gives the judge to whom a potentially related case is forwarded "sole discretion" to accept or reject it, it is difficult to imagine how a judge imbued with absolute authority to determine what relatedness means could run afoul of the rule. The cases Judge Scheindlin rounded up on her docket also might have been pulled pursuant to Rule 14's courtroom-to-courtroom transfer provisions. How she violated these rules remains unclear.

Though difficult to violate, the related cases rule is problematic. A judge can make a preliminary finding about two cases' facts, and, before the later-filed case has even begun, make conclusions based on the later-filed complaint's unproven factual allegations. The result is that random assignment of federal civil cases in the Southern District, though widely assumed and heralded, is easily overcome. Indeed, the Southern District's case assignment is overseen by committee--there is no "wheel" in Foley Square.

Moreover, an increasing number of cases can be assigned or avoided by virtue of their subject matter. A Patent Pilot Program, in place in the Southern District since 2011, allows judges who are randomly assigned patent cases to, thirty days after filing, decline the cases and have them assigned by lot to one of ten district judges who themselves asked to be designated "pilot" patent judges. In addition, visiting and senior judges can specify the subject matter of the cases they wish to oversee.

Litigants who want to challenge Rule 13, and other instances of nonrandom case assignment, have few options. Random assignment is not an enforceable right, even in criminal cases. The only relevant case assignment statute provides district courts with the power to write their own case assignment rules, described as "the business of a court." The district court's chief judge is responsible for ensuring that such rules are observed. But because the district court is making and applying its own rules, which may include rules that expressly permit nonrandom case assignment, parties have no way to require that the district court assign cases randomly. Parties also cannot avoid the transfer of cases whose subject matter is known. The Southern District's rules invite case assignment manipulation, and are in need of reform. But removing a judge from two cases she has presided over since their inception does nothing to fix the problems the Division of Business rules have created.

Katherine Macfarlane, a 2006 Loyola Law School alumna, is a teaching fellow and assistant professor of Professional Practice at LSU Law Center in Baton Rouge, La. Her article "The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule has Shaped the Evolution of Stop-and-Frisk Law" is forthcoming in Volume 19.2 of the Michigan Journal of Race and Law. The article was quoted in the Wall Street Journal Law Blog on November 4, and is available on SSRN.