COMMENT: The Appearance of Impartiality in New York City’s Stop-and-Frisk Litigation

By Andrew Goddeeris, Associate Editor, Volume 19

 This past August, U.S. District Court Judge Shira Scheindlin issued a ruling in Floyd v. City of New York that challenged the New York City Police Department’s (“NYPD”) controversial use of stop-and-frisk practices in the last decade.^[1] From January 2004 to June 2012, the NYPD made 4.4 million stops on New York City streets, and over 80% of these stops were of Blacks or Hispanics.^[2] The Plaintiffs in the case argued that they were stopped without legal basis in violation of the Fourth Amendment and that they were targeted for stops because of their race in violation of the Fourteenth Amendment.^[3] The case was about whether the city had a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.^[4]

Judge Scheindlin found that indeed the NYPD had engaged in racial profiling in their application of stop-and-frisk tactics that violated the Fourth and Fourteenth Amendments.^[5] She found that the NYPD was targeting Black and Hispanic residents for stops based on “a lesser degree of objectively founded suspicion than whites.”^[6] Judge Scheindlin ordered remedies that included a revision of department policies and training procedures with community input, changing the written documentation police must produce after stops, and establishing a pilot program in which officers would wear cameras on their bodies while on the job.^[7] She also ordered that these revisions and policy changes be overseen by an independent monitor.^[8]

This October, however, the United States Court of Appeals for the Second Circuit issued an order staying Judge Scheindlin’s ordered remedies until that court hears the City’s appeal in spring 2014.^[9] Controversially, the Second Circuit also removed Judge Scheindlin from the case, saying that she acted in a manner that caused the court to question her impartiality.^[10] The Second Circuit said that Judge Scheindlin compromised the “appearance of partiality” when she encouraged plaintiffs to file a racial profiling case that she could accept as a related case under S.D.N.Y. Local Rule 13(a) in a 2007 proceeding involving the parties in Daniels v. City of New York, a landmark precursor to Floyd.^[11] S.D.N.Y.’s local rules call for random case assignments, but also allow judges to accept new cases related to an earlier-filed case already on their docket.^[12] Because of these rules, Judge Scheindlin, who was randomly assigned Daniels in 1999, has presided over an uninterrupted streak of stop-and-frisk cases in S.D.N.Y.^[13] The Second Circuit also rebuked Judge Scheindlin for public comments she made about her role in the litigation.^[14]

Curiously, it appears that the Second Circuit may have relied in part on an article authored by Professor Katherine A. Macfarlane that is forthcoming in the Michigan Journal of Race & Law Volume 19.2. Macfarlane’s 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, details how S.D.N.Y.’s local rules allow an interested judge to inject him or herself into litigation.^[15] Macfarlane cautions that the manner in which Judge Scheindlin was able to reserve authority over “an entire category of Fourth Amendment jurisprudence” presents problems of impartiality and gives too much authority to a single judge to shape significant Constitutional jurisprudence.^[16] She goes on to argue that Judge Scheindlin’s broad view of a plaintiff’s right to enforce the Fourth Amendment could leave her decisions open to attack on appeal, and could ultimately narrow the rights at issue.^[17] In her article, Macfarlane cites to an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal, all three of which are cited by the Second Circuit in footnotes.^[18] Furthermore, the idea of the “appearance of impartiality” figures prominently in both the article and in the Second Circuit’s order.

The decision to remove Judge Scheindlin from the case has drawn substantial criticism,^[19] and Professor Macfarlane herself said that the Second Circuit’s design to reassign the stop-and-frisk litigation “makes no sense to me, as Judge Scheindlin merely followed the local rules.”^[20] Whether those rules are problematic, however, is the topic of her forthcoming article. In addition to the importance of the City’s impending appeal of the finding of Constitutional violations, the issue of the NYPD’s use of stop-and-frisk will continue to develop in the wake of the election of Bill de Blasio, who has pledged to reform NYPD practices, to the mayor’s office.^[21] For her part, Judge Scheindlin is seeking a hearing before the Second Circuit panel that removed her from the case.^[22] Look for Professor Katherine Macfarlane’s article in Volume 19.2 of the Michigan Journal of Race & Law.