The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Shaped Stop-and-Frisk Rulings

Katherine A. Macfarlane January, 2014

The Southern District of New York’s local rules are clear: “[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time.” Yet for the past fourteen years, Southern District Judge Shira Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the New York Police Department’s (NYPD) stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York , the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s “related cases” local rule, which allows judges to “accept” a new case related to an earlierfiled case already on their docket. ¹ Unlike past stop-and-frisk scholarship, this Article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence. The Article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The Article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The Article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry , focusing on the Giuliani-era theory of “hot-spot policing.” The Article turns to the stop-and-frisk litigation previously and currrently assigned to Judge Scheindlin and uses it to examine the serious—and substantive—consequences of nonrandom case assignment in an adversary system. Non-random assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence, for example, elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. This Article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, advocates for the publication of assignment decisions, and suggests appropriate motion practice for challenging the assignments. Finally, the Article evaluates the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Because her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment, they may be subject to reversal, consequently narrowing the rights at stake. On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, and cited in an article that appeared in November in the Wall Street Journal, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword.

Introduction

On August 12, 2013, in a 198-page order that followed a three-month bench trial, Southern District of New York Judge Scheindlin rendered a verdict on the New York Police Department’s (NYPD) stop-andfrisk policies. The controversial practices required NYPD officers to detain individuals suspected of criminal activity and pat them down if the officers believed them to be armed. Opponents argued that the practices were, in actuality, thinly-disguised techniques to target and profile members of racial minorities, who have been subject to far more stops-and-frisks than white residents of New York City. Judge Scheindlin agreed and granted a sweeping injunction against the NYPD, ordering changes to NYPD policies and activities, appointing a monitor to oversee stop-and-frisk practices, requiring a “community-based joint remedial process to be conducted by a court-appointed facilitator,” and, most remarkably, requiring the NYPD to place body-worn cameras on its police officers.² The verdict received worldwide attention.³ It was both lauded and scrutinized. When the Second Circuit heard argument on whether the verdict should be stayed, it took the unprecedented action of examining the manner in which the case had been assigned to Judge Scheindlin and sua sponte removed her from the case.⁴

But this was not Judge Scheindlin’s first stab at a wide-sweeping, high-impact stop-and-frisk decision. Despite the mountain of attention paid to New York City’s stop-and-frisk practices and the litigation before Judge Scheindlin, it has gone remarkably unnoticed that the same judge has held court over a stream of similar cases for the past fourteen years. How can this be? After all, the Southern District of New York’s local rules are clear: “all active judges, except the chief judge, shall be assigned substantially an equal share of the categories of cases of the court over a period of time.”⁵ Yet time and time again, cases involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies have been assigned to Judge Scheindlin.⁶

In 1999, she was randomly assigned Daniels v. City of New York ,⁷ the first in a series of high-profile and high-impact stop-and-frisk cases.⁸ In the fourteen years that followed Daniels ’s filing, Judge Scheindlin has overseen an uninterrupted stream of additional and equally landmark stop-and-frisk cases, but not through random case assignment procedures. Instead, cases have been directed to her through the Southern District’s “related cases” rule.⁹ The rule allows judges to “accept” later-filed cases if they are related to an earlier-filed case already on their docket.¹⁰ Before it was recently amended, and at all times relevant to the stop-and-frisk cases described in this Article, the rule left the decision to accept or reject the newly-filed case within the “sole discretion” of the judge who received the earlierfiled case.¹¹

While such “discretion” may sound innocuous enough, it can create serious structural problems in application. One judge will make the relatedness decision based on an understanding of the facts alleged in the later-filed case, as well as by evaluating its subject matter. This injects the judge into the cases as something other than a neutral arbiter. The procedure allows litigation to be steered to a jurist with an interest in the case’s outcome.

This Article contends that case assignment procedures should not permit any district judge to handpick high-impact litigation. It begins in Part I by examining the commonly-held assumption that federal cases are assigned to district judges at random after they are filed. It surveys the rare documented instances in which nonrandom assignment has been challenged, concluding that though random assignment is heralded, parties have no right to demand it. Instead, district courts retain broad discretion to direct the manner in which cases are assigned to their judges. In this context, the Article looks to the Southern District of New York’s Local Rules and critiques the numerous ways cases are assigned pursuant to their subject matter, through a system hidden from the parties and devoid of oversight.

In Part II, the Article then traces stop-and-frisk litigation from Terry v. Ohio to the politically-charged, complex, and protracted stop-and-frisk litigation fought in federal courts around the country today. It also explains how police have utilized stop-and-frisk practices before and after Terry , focusing in particular on the Giuliani-era theory of “hot-spot policing.” With these procedural and substantive backgrounds in mind, Part III next turns to Section 1983 stop-and-frisk litigation in the Southern District of New York, and documents how, over the course of fourteen years, landmark stop-and-frisk cases have been repeatedly assigned to the same judge.

Part IV then examines the grave consequences nonrandom case assignment has had and may continue to have in the Southern District’s stop-and-frisk litigation. First, it contends that the related cases rule, before it was recently amended, threatened the adversary system, allowing an interested judge to inject herself into the litigation as a player with a stake in the outcome. That stake may have been intellectual—a judge may have preferred one substantive outcome over another and pulled a case onto his or her docket to ensure the preferred outcome. The stake may also have been personal—a judge who presides over important and heavily-reported litigation becomes more visible nationally and even internationally, setting up a promotion to a higher level of the federal court hierarchy, or advancement in private practice or academia. Second, it asserts that the appearance of impartiality created by nonrandom case assignment is reason alone to halt the practice. Third, it argues that giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates that judge’s decisions to a quasi-appellate level of significance within the Southern District itself, violating the principle that a district court opinion is not binding.¹² Part V proposes amendments to the Southern District’s local rules which would make random case assignment the default procedure and prohibit subject matter-specific manipulation of judges’ dockets. It also advocates for making all assignment decisions public and subject to challenge by the parties involved.

Finally, the Article concludes with a warning: delegating Fourth Amendment litigation to one jurist with an arguable interest in the plain-tiffs’ position may lead to a plaintiff-friendly rule at the District Court level, but it may also increase the chances for appeal and eventual reversal at the United States Supreme Court, thus unintentionally broadening the very police practice the plaintiffs before Judge Scheindlin seek to narrow.

On December 23, 2013, some but not all of the changes to the Southern District of New York’s local rules suggested by this Article, which was available in draft form on the Social Science Research Network, were implemented. The changes, and their shortcomings, are described in the Article’s Afterword. The Afterword also summarizes the procedural twists and turns the stop-and-frisk cases have taken in the last few months, including the Second Circuit’s decision to remove Judge Scheindlin from Floyd and Ligon based on her use of the related cases rule.

A. Random Assignment: An Honored Practice Assumed to Be the Norm

That fourteen years worth of significant stop-and-frisk cases have been assigned to Judge Scheindlin suggests that all federal cases are not assigned at random. Yet the notion that a case filed in a federal district court is assigned at random to a district judge is pervasive. Treatises and legal scholarship assume random assignment.¹³ There is even a stock description of how the process occurs: after a case is filed, literal wooden wheels, filled with index cards upon which the names of each district judge is printed, spin around and around, until the court clerk approaches the wheel and randomly draws a card, thus selecting the judge who will preside over the just-filed case.¹⁴

Not only is random assignment assumed to be the status quo, it is also a popular, venerated practice. Southern District of New York Judge Cote describes it as “a beautiful thing” that makes her docket “rich and varied.”¹⁵ The Judicial Conference, a committee comprised of the chief judge of each circuit and a district judge from each circuit,¹⁶ has a “long-standing position” favoring the random assignment of federal cases.¹⁷

Random assignment is widely assumed to be standard practice because it is sensible. In theory, it serves several important goals. First—and most practically—it divvies up a district’s docket, assigning an equal number of cases to each judge.¹⁸ Second, it prevents any party from favorably shopping for one judge over another.¹⁹ Third, it prohibits any judge from lobbying for a particular case²⁰—a good idea, as a judge who lobbies for a particular case may have an interest in a particular outcome.²¹ Fourth, random assignment is also favored by judges who want to remain generalists, rather than be forced to specialize in, for example, patent litigation. A diverse docket permits the cross-fertilization of ideas: a judge may “look[] at cases from one field and realize[] how an earlier decision in which [she] participated from a different field may suggest a creative answer to the problem.”²² A judge who hears a class action sexual harassment case may later apply her class action knowledge to a securities matter. If she always chose sexual harassment cases over securities matters, the securities cases would not benefit from her procedural insight.

Legal and lay respect for random assignment is further confirmed by the rare instances when the practice was not honored—indeed, deviation from random assignment in high-profile cases can result in public outrage and congressional scrutiny. For example, in 1999, Judge Holloway John-son, Chief Judge of the United States District Court for the District of Columbia, chose to assign criminal cases against so-called “presidential friends” Webster Hubbell and Charlie Trie to judges appointed by then- President Clinton, who, presumably, would be more sympathetic to these defendants, as opposed to having their cases randomly assigned.²³ Though local court rules permitted Judge Johnson to assign protracted cases like the Hubbell and Trie matters to specific judges she believed had enough bandwidth to handle them, Judge Johnson was aggressively criticized for her supposed partial administration of justice.²⁴ Orrin Hatch, then acting Senate Judiciary Chairman, asked Chief Justice Rehnquist to consider investigating why cases involving President Clinton’s “friends” were assigned to Clinton-appointed judges.²⁵ Hatch also expressed concern that the incident would affect “the public’s confidence in the impartial administration of justice by the federal courts.”²⁶

The District of Columbia Circuit’s Judicial Council asked a committee of trial and appellate judges to investigate Judge Johnson’s actions; the committee hired a Republican former U.S. Attorney to conduct inter-views and issue a report.²⁷ His report concluded that there was no evidence of a partisan plot.²⁸ Nevertheless, following the investigation, the District of Columbia rescinded the rule that permitted nonrandom case assignment in protracted litigation and ordered that random assignment be followed.²⁹ Though no bias or wrongdoing was found, the mere appearance of impropriety and the potential for bias was enough to discard the rule.

Even after the rule change, the scrutiny of Judge Johnson’s actions persisted. Judicial Watch, a conservative watchdog group particularly interested in the Clinton Administration, brought a complaint of judicial misconduct against Judge Johnson pursuant to the Judicial Council Reform and Judicial Conduct and Disability Act of 1980,³⁰ a statute designed to ensure that federal judges “will not ‘engage[ ] in conduct prejudicial to the effective and expeditious administration of the business of the courts.’”³¹ The complaint alleged that Judge Johnson had departed from random assignment in criminal cases brought against “friends of the president,” steering them to judges appointed by Clinton so as to “tilt the cases in the administration’s favor.”³²

The Chief Judge of the District of Columbia Circuit, to whom the complaint was assigned, swiftly dismissed the allegation, explaining that local rules permitted nonrandom assignment of protracted cases in order to efficiently dispose of the court’s business.³³ However, the Chief Judge did note that the local rule allowing nonrandom assignment, and “the absence of ‘objective standards to govern the rule’s use,’” made “‘both actual and perceived abuses’ possible.”³⁴ If random assignment had been the default procedure at the moment both the Trie and Hubbell cases were assigned, the protracted inquiry into Judge Johnson’s actions, and any related delay and cost, might have been avoided. Placing case assignment into any judge’s hands—even the chief judge’s—will always raise a question of partiality, even if partiality is not ultimately proven.

B. There Is No Right to Random Assignment

Even though random assignment of newly-filed federal cases pur-portedly inspires public confidence in the judiciary and deviation inspires public outrage, random assignment is not an enforceable right, even in the criminal context.³⁵ Case assignment rules are dismissively referred to as “housekeeping” measures that do not vest litigants with any rights.³⁶ The only relevant case assignment statute empowers district courts to write their own case assignment rules, which are categorized as “the business of a court.”³⁷ The district court’s chief judge is responsible for ensuring that such rules are observed,³⁸ but because the district court is tasked with both making and applying its own rules, parties have no mechanism to require the district court to assign cases randomly.

There is, however, a limited and illustrative exception: in the rare event that district judges cannot agree upon the adoption of case-assignment rules, the governing circuit court intervenes and implements its own case assignment rules.³⁹ Under these circumstances, the district court is subject to the supervening circuit court’s rules, so that a litigant will have a mechanism to demand random case assignment only if those rules require random assignment. This was the case in Utah-Idaho Sugar Company v. Ritter , in which a plaintiff succeeded in challenging the chief judge of the District of Utah’s decision to assign the plaintiff’s case to himself, instead of at random.⁴⁰

In 1972, when Utah-Idaho Sugar reached the Tenth Circuit, the Utah District’s “business of the court” had been supervised by the Circuit for nearly fifteen years; during that stretch of time, the judges sitting within the District of Utah could not agree upon case assignment rules.⁴¹ The rules put in place by the Circuit “requir[ed] an equal and random division of civil cases” which “balanced and apportioned the criminal, bankruptcy, immigration, and naturalization cases.”⁴² In 1971, the chief judge of the District of Utah empowered himself to overrule the Circuit’s assignment procedures, giving himself the power to distribute cases as he saw fit.⁴³ In so doing, he kept certain cases and assigned others.⁴⁴ The plaintiff’s case was one he kept.

Although the judge’s methods did not comply with the Circuit’s rule of random assignment, this alone did not invalidate his actions. Because the District of Utah had only two judges, the chief judge and a non-chief district judge, and these judges did not agree on the chief judge’s procedures, the Circuit’s rules controlled.⁴⁵ The Circuit’s rules happened, by chance, to provide for random-case assignment. If the two District of Utah judges had agreed that the chief judge had discretion to hold on to certain cases and assign out others, that rule would have controlled.

As Utah-Idaho Sugar demonstrates, any perceived right to random assignment is illusory. District courts have broad discretion to assign cases as they see fit, and there is no mechanism for parties to challenge those decisions. Moreover, as described below, not only is any “right” in the Southern District of New York illusory, the many exceptions to random assignment permit judges to avoid entire categories of cases they do not wish to hear and to actively seek out the ones they want.

C. The Southern District of New York’s Case Assignment Rules Permit Judges to Choose Cases Based on the Cases’ Subject Matter

The Southern District of New York’s Rules for the Division of Business Among District Judges—which govern how cases are assigned after they are filed—appear to mandate random assignment, stating that “[e]ach civil and criminal action and proceeding, except as otherwise provided, shall be assigned by lot to one judge for all purposes.”⁴⁶ By lot assignment implies that each judge will receive an equal share of cases. It automatically considers all judges who might be eligible to receive the case and then randomly assigns it. The rules further provide that “all active judges, except the chief judge, shall be assigned substantially an equal share of the categories of cases of the court over a period of time.”⁴⁷ This is the default rule in district courts across the country, from the Eastern District of New York⁴⁸ to the Central District of California.⁴⁹ Yet a close examination of the Southern District of New York’s rules reveals that random assignment, though presumed to be the status quo, is often the exception rather than the rule.

There are valid reasons to have certain cases assigned deliberately. As the original related cases rule highlighted, assigning truly related cases to the same judge might render litigation more efficient and economical for parties and judges alike. As one district judge has explained,

The reason we have relatedness rules in the district courts is to avoid treating similar cases dissimilarly and because it wastes judicial resources by duplicating effort when two judges deal with similar issues. The failure to enforce relatedness rules can cause a huge problem for the lawyers, the trial judge and the appeals court.⁵⁰

Yet the related cases rule was not really a rule about relatedness—even absent any factor proving relatedness, a district judge could still deem a case “related” in order to pull it on to his or her docket. What this amounts to, and what this Article is concerned with, is using rules which are nominally about efficiency and convenience to disguise subject matter-based case selection. The Southern District of New York rules described below present just this kind of risk.

1. Case Assignment in the Southern District Is Overseen by a Committee and Makes No Use of a “Wheel”

Though each Southern District case is purportedly assigned “by lot,” the “by lot” system is administered by an assignment committee, consisting of the district’s chief judge and two other district judges.⁵¹ The assignment committee rules upon “all issues relating to assignments.”⁵² The assignment committee’s membership and decision-making processes are not made public. When a case is assigned to a district judge by the assignment committee, even the district judge to whom the case is assigned remains in the dark as to why he or she received the case.⁵³

The assignment committee also assigns cases by nonrandom procedures in circumstances not contemplated by the local rules. For example, the rules are silent as to how assignment of cases transferred from other districts into the Southern District should be handled. In 2010, Southern District of New York Chief Judge Preska selected the judge to whom fifteen shareholder actions against Bank of America should be reassigned after Southern District Judge Chin, who was presiding over the cases, was appointed to the Second Circuit.⁵⁴ Bank of America was before Southern District Judge Rakoff on another matter (brought by the SEC) and wrote Judge Chin, on the record, asking that the cases on his docket be reas-signed by lot rather than to Judge Rakoff.⁵⁵

Following submission of that letter, Judge Preska assigned the cases to another judge in the District, Judge Castel. Preska insisted that Bank of America’s letter to Judge Chin had no influence over her decision, but rather that the cases were assigned to the judge of her choosing because they were originally transferred into the Southern District from other districts.⁵⁶ Whether individual judges oversee case assignment via an assignment committee or the actions of the Chief Judge circumvent random assignment in cases selected for this kind of treatment, case assignment in the Southern District could not be more different than the sort of assignment that would follow the spinning of a wheel. Case assignment in the Southern District of New York is a deliberate process.

2. Certain Cases Are Expressly Exempt From Random Assignment

Certain categories of civil actions and proceedings are exempt from random assignment. Applications for leave to proceed in forma pauperis (IFP) are expressly exempt from assignment by lot,⁵⁷ though no corresponding rule addresses the manner in which the applications are actually assigned.⁵⁸ Similarly, the assignment committee may certify a case as one requiring “extraordinary priority or a prompt trial or other disposition” and allow the initially-assigned judge to decline the case.⁵⁹ These categories of cases are removed from the “by lot” system and systematically and deliberately sent to a particular courtroom, further undermining the notion that assignment in the Southern District is a random process.

3. Senior Judges and Visiting Judges Can Avoid Entire Categories

of Cases Certain judges are permitted to select the number and category of

cases they are willing to take. Perhaps the most important of these are the senior judges, who handle 15 percent of all cases in the federal courts.⁶⁰ Senior judges may request that they only receive new cases in limited subject matters and may directly select the subject matter of the cases they are willing to accept on transfer from other districts.⁶¹ Senior judges also have considerable discretion over their existing dockets and may furnish the assignment committee with a list of cases they want transferred out of their respective courtrooms.⁶²

Another significant category of exceptions to the random assignment rule is visiting judges. A visiting judge assigned to the Southern District must advise the assignment committee of the number and categories of pending cases he or she wishes to accept.⁶³ This is a somewhat puzzling rule, since, by statute, visiting judges may only be assigned to service in a district court in another circuit “upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises.”⁶⁴ One might expect that a district’s certified necessity would arise with respect to specific cases and that the visiting judge would be expected to help relieve that burden, rather than dictate what types and number of cases he or she is willing to hear.

4. Patent Cases Can Be Rejected Following Initial Random Assignment and Then Assigned to Specific Judges Willing to

Preside Over Patent Cases

Perhaps the best-known exception to random assignment is patent cases. A Patent Pilot Program inaugurated in November 2011 allows certain judges in the Southern District (and thirteen other “pilot” courts) who are randomly assigned patent cases to, thirty days after filing, decline the case and have it assigned by lot to one of ten district judges participating in the program.⁶⁵ Cases are then re-assigned to judges who requested to be designated as pilot patent judges.⁶⁶

Patent cases are often treated differently than other civil matters based on the assumption that they are more difficult or time-consuming. However, the same could be said of habeas corpus petitions, or immigration appeals, yet those cases are not subject to any special kind of assignment procedure through which self-selected experts preside over them. The special treatment patent litigation has received may be a result of patent litigators’ political capital, as opposed to any substantive challenge unique to patent litigation.

5. Judges Can Handpick Cases for Their Docket After the Cases Are Filed

The most permissive rules governing nonrandom assignment allow “any judge, upon written advice to the assignment committee” to transfer any case, or any part of a case, “to any consenting judge” unless the transfer is due to disqualification or the fact that a judge “has presided over a mistrial or former trial of the same case,” in which case assignment by lot controls.⁶⁷ This rule permits the consenting judge to agree to take a specific case onto his docket. Indeed, it permits the consenting judge to seek out such cases by asking a judge whether he is willing to give away the case in question.

Before Rule 13 was amended, the rules regarding transfer of related cases also allowed a judge to preselect a case. An attorney filing a case that may be related to a previously-filed case must designate that case as related on a form that is served with the complaint.⁶⁸ A case that is so designated was then “forwarded to the judge before whom the earlier-filed case is then pending.”⁶⁹ In determining relatedness, a judge could consider whether:

(1) A substantial saving of judicial resources would result; or (2) The just efficient and economical conduct of the litigations

would be advanced; or (3) The convenience of the parties or witnesses would be

served.⁷⁰

A judge could also take into account “a congruence of parties or witnesses or the likelihood of a consolidated or joint trial or joint pre-trial discovery.”⁷¹

Despite the criteria governing relatedness, the judge to whom the potentially related case was forwarded “ha[d] the sole discretion to accept or reject the case.”⁷² Indeed, Rule 13, the “Transfer of Related Cases” rule, cross-referenced Rule 14, which permits transfer of cases by consent and stated that that “[n]othing in [Rule 13] 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.⁷³ Combined, these two rules permitted judges to transfer cases to each other, whether the case being transferred was related to one already existing on the transferee judge’s docket, or not.⁷⁴

The remainder of this Article addresses the practical application and substantive consequences of the last of these categories—the “related-cases” rule—on the so-called “stop-and-frisk” litigation in the Southern District of New York.

II. The Evolution of Stop-and-Frisk Litigation: From Terry

v. Ohio to Modern Challenges to New York City Policing

A. Terry v. Ohio Holds that Stop-and-Frisk Policing Practices Are Constitutional Even in the Absence of Probable Cause

Over thirty years before Daniels v. City of New York was filed in the Southern District of New York, the Supreme Court addressed whether the Fourth Amendment requires that police officers possess probable cause to stop, question, and frisk people they encounter on the street.⁷⁵ Terry is often viewed as having legitimized and opened the door to more intrusive police practices—though, of course, Terry addressed police practices that were already in force. In the decades preceding Terry v. Ohio , police officers across the country routinely stopped, questioned, and frisked individuals without probable cause or arrest warrants.⁷⁶ The practice was commonplace before Terry was brought before the Supreme Court, and Terry is better understood as having legitimized the status quo.⁷⁷

In Terry , the Court assessed the validity of the observations reportedly made by Detective Martin McFadden as he patrolled the streets of downtown Cleveland. McFadden noticed Richard Chilton and John Terry behaving “suspiciously” and believed that they were casing out a business to later rob it; these observations led him to stop and search the two men. McFadden found a gun on both and arrested them.⁷⁸ In a pretrial motion, Terry and Chilton argued that the frisk performed by McFadden was an arrest without probable cause, and, therefore, the evidence recovered should be suppressed.⁷⁹ The motion was denied, and both were convicted.⁸⁰

The Terry Court acknowledged that it faced “serious questions concerning the role of the Fourth Amendment in the confrontation on the street between the citizen and the policeman investigating suspicious circumstances.”⁸¹ It also noted that it was scrutinizing a “sensitive area” of police conduct and carefully weighed the dueling interests: the “dangerous situations on city streets” versus the “intrusion[s] upon protected personal security.”⁸² The Court foreshadowed the nature of future litigation, acknowledging the argument that stop-and-frisk tactics “exacerbate police-community tensions in the crowded centers of our Nation’s cities.”⁸³ In the end, the balance tipped in favor of perceived policing needs. Following the ruling in Terry , an individual suspected of criminal activity may be briefly detained based on “reasonable suspicion,” that is, less than probable cause.⁸⁴

B. The Aftermath of Terry’s Conspicuous Silence Regarding Race-Based

Motives for Police Stops Terry and Chilton were African American and Detective McFadden

was White. These facts were explicit during the Terry oral argument, but absent from the Court’s opinion,⁸⁵ which is conspicuously silent on the question of whether McFadden had race-based reasons for his suspicions.⁸⁶ Terry did pause to acknowledge that “certain elements of the police community” had engaged in “[t]he wholesale harassment” of minority groups.⁸⁷ Still, according to the Court, the harassment “[would] not be stopped by the exclusion of any evidence from any criminal trial.”⁸⁸

Terry ’s critics argue that requiring probable cause to stop and frisk might have halted the police practice of using race-specific reasons to choose whom to stop and frisk.⁸⁹ Indeed, Terry ’s silence as to race-based suspicion arguably opened the door to future Fourth Amendment jurisprudence permitting the consideration of race in Terry stops, as well as in more intrusive seizures.⁹⁰ There remains no Fourth Amendment exclusion remedy for searches and seizures based solely on race.⁹¹ Moreover, the police’s perceived authority to rely on “race-dependent criteria” has only served to increase feelings of “racial grievance” against law enforcement.⁹²

C. Policing Post-Terry: New York City’s Targeting of Crime “Hot Spots” and the Perception That Stop-and-Frisk Is Racial Profiling

According to New York City Police Commissioner William Bratton, “[s]top, question and frisk” is a practice that has been around “forever.”⁹³ It is “a basic tool” and is considered “the most fundamental practice in American policing.”⁹⁴

Bratton served as NYPD commissioner from 1994 through 1996, reporting to New York Mayor Rudy Giuliani. Under Bratton, the NYPD “began to make extensive use of data to identify crime-prone areas and focus resources on them.”⁹⁵ Bratton led the development of CompStat, a computerized crime-mapping system.⁹⁶ According to its fans, “CompStat revolutionized policing, enabling officers to focus their efforts in problem areas, armed with real-time information, accurate intelligence, rapid deployment of resources, individual accountability, and relentless followup.”⁹⁷

Bratton’s “hot-spot policing” targeted low-level crimes, such as non-violent property offenses, which were “more prevalent in urban neighbor-hoods with elevated rates of poverty and social fragmentation.”⁹⁸ This practice also identified and targeted areas inhabited overwhelmingly by people of color, and, as one critic has suggested, “serve[d] to justify indiscriminate policing of th[e] targeted population.”⁹⁹ Because minority neighborhoods were disproportionately targeted under hot-spot policing, also termed “order-maintenance policing,” such policies have become synonymous with “racial policing” or “racial profiling.”¹⁰⁰

Yet pursuant to Terry , a stop-and-frisk is not per se unconstitutional. Still, New York City’s own comptroller has referred to the NYPD’s use of the practice as “the biggest form of systemic racial profiling we have anywhere in the United States of America.”¹⁰¹ The practice of “stopping- and-frisking” is frequently deemed “constitutionally offensive.”¹⁰²

According to former NYPD Commissioner Ray Kelly, stop-andfrisk is a “critical—and constitutional” part of the transformation of New York City over the past two decades, during which “the annual number of murders has fallen more than 80%.”¹⁰³ In implementing stop-and-frisk, the NYPD places its officers “right in the middle of where the problems are,” which Kelly describes as “mostly minority areas.”¹⁰⁴ Kelly fears that eliminating stop-and-frisk would embolden criminals, who would no longer fear being stopped and would also start carrying and using guns more frequently.¹⁰⁵ However noble its intended purposes were, the NYPD’s stop-and-frisk practices have resulted in stops-and-frisks that disproportionately impact communities of color. Though such practices could still be justified as an unintended consequence of hot-stop policing, at a minimum, they increased tension between the NYPD and the residents of New York City and certainly laid the groundwork for decades of litigation challenging the practices’ constitutionality.

III. How Landmark Section 1983 Stop-and-Frisk Ligitation

Found its Way to Judge Scheindlin and Never Left

A. Judge Scheindlin Is Randomly Assigned the Landmark Daniels v. City of New York Class Action

In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York , a case filed by the non-profit Center for Constitutional Rights.¹⁰⁶ The civil suit, brought pursuant to 42 U.S.C. § 1983 (Section 1983),¹⁰⁷ alleged that the NYPD’s stop-and-frisk practices violated the Fourth Amendment¹⁰⁸ and also sought to disband the NYPD’s Street Crime Unit (SCU).¹⁰⁹ The Daniels complaint alleged that “in high crime areas, SCU officers have been repeatedly conducting stops and frisks of individuals without the reasonable articulable suspicion required by the Fourth Amendment.”¹¹⁰ The case was spurred in part by the February 1999 death of unarmed Amadou Diallo, who was shot by four SCU officers,¹¹¹ 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.¹¹²

The filing of Daniels also coincided with widespread public frustration with law enforcement. Police departments across the country were accused of engaging in rampant racial profiling and of detaining individuals with much less than “reasonable suspicion,” the standard required to initiate a Terry stop.¹¹³ In addition to Daniels , lawsuits alleging racial profiling were brought in Los Angeles, New Jersey, Philadelphia, and Hobbs, New Mexico,¹¹⁴ by both the Department of Justice and by independent civil rights groups.¹¹⁵

Daniels was the first lawsuit to bring the NYPD’s stop-and-frisk practices “under fire.”¹¹⁶ The plaintiffs were successful in winning class certification¹¹⁷ and in negotiating a sweeping settlement, which required the NYPD to create a written policy regarding racial profiling compliant with the United States and New York Constitutions, to train officers regarding the same, and to ensure compliance with the policy.¹¹⁸ The named plaintiffs were awarded damages totaling $167,500¹¹⁹ and their counsel received over $3.5 million in costs and fees.¹²⁰

Unusually—and crucially for future litigation—the settlement also required police to complete a written form each time they conducted a stop-and-frisk (known as “UF-250 Reports”)¹²¹ and to provide plaintiffs’ counsel with quarterly data regarding these reports “from the last quarter of 2003 through the first quarter of 2007.”¹²² Judge Scheindlin retained jurisdiction over the case and oversaw implementation of the settlement.

The Daniels parties returned to Judge Scheindlin’s courtroom in 2007. The plaintiffs accused the NYPD of a “surge” in the very kind of illegal stops at issue in their original complaint.¹²³ Instead of reopening Daniels , Judge Scheindlin suggested another approach.¹²⁴ “If you got [sic] proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?” the judge asked.¹²⁵ “You can certainly mark it as related,” she added.¹²⁶

If Daniels had never included a settlement term that mandated the creation of documents (UF-250s) requiring police officers to document what exactly their reasons for conducting a stop-and-frisk were and then hand those documents over to counsel attuned to finding constitutional violations in those very documents, future stop-and-frisk litigation might never have been filed. Not only did Daniels signal that Judge Scheindlin was a plaintiff-friendly stop-and-frisk judge, it also created a document that itself might supplant an officer’s own testimony to fill in (or highlight the absence of) reasonable suspicion.

Daniels changed the lay of the land with respect to the standard of proof required to prove an unreasonable stop under the Fourth Amendment by supplanting Terry ’s “reasonable suspicion” standard with completion of forms the NYPD had to turn over to interested counsel. The UF- 250s are the hallmark of recent stop-and-frisk litigation, yet they have never been endorsed by any court other than the Southern District of New York. This is significant. Police department policies with which police employees must conform do not “set[] the boundaries for reasonableness under the Fourth Amendment.”¹²⁷

B. Subsequent Landmark Stop-and-Frisk Cases Are Assigned to

Judge Scheindlin On January 31, 2008, the Center for Constitutional Rights and an

attorney named Jonathan Moore, both of whom served as plaintiffs’ counsel in Daniels , brought Floyd v. City of New York . Like Daniels , Floyd was brought pursuant to Section 1983 and alleged that the NYPD engaged in stop-and-frisk practices that violated the Fourth Amendment.¹²⁸ Like Daniels , Floyd is a landmark case.¹²⁹ Judge Scheindlin described it as one of “great public concern,” so grave that “twenty-seven of the fifty-one mem-bers of the New York City Council” filed an amicus brief arguing that the practices create “‘a growing distrust of the NYPD on the part of Black and Latino residents.’”¹³⁰

The Floyd plaintiffs also won class certification. The class was broadly-defined, consisting of:

All persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion . . . . persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.¹³¹

Its forward-looking definition of the class members as including all persons who “in the future will be[] subjected to the [NYPD]’s policies . . . of . . . stopping and frisking[] persons” without reasonable suspicion is so broad that it potentially includes any resident of New York City.

The Floyd lawsuit benefitted from the terms of the Daniels settlement, and in particular its requirements that the police complete a written form each time they conducted a stop-and-frisk and that the City of New York provide data regarding the forms to plaintiffs’ counsel.¹³² The data was “indispensable” evidence for the Floyd plaintiffs’ counsel. In fact, Floyd ’s filing was prompted by an analysis of the data, which allegedly revealed that “the NYPD has continued to engage in suspicion-less and racially pretextual stop-and-frisks.”¹³³

On the same date Floyd was filed, a docket entry unattributed to either plaintiffs or defendants noted that Floyd had been referred to Judge Scheindlin as “possibly related” to Daniels .¹³⁴ On February 15, 2008, a “Notice of Assignment” officially sent Floyd to Judge Scheindlin.¹³⁵ The Notice stated that the case was assigned pursuant to “the memorandum of the Case Processing Assistant,”¹³⁶ which was not attached and is not available on the docket.

The Southern District’s rules regarding related cases do not contemplate any role for a case processing assistant. Rather, any civil action, once filed in the Southern District, is to be “assigned by lot . . . to a district judge for all purposes.”¹³⁷ That is, it is not automatically referred to the judge who may have a related case. According to the local rules, after being randomly assigned, a related case may then be transferred to the judge presiding over an earlier-filed related case after a party designates it as potentially related to another matter.¹³⁸ The judge with the earlier-filed case then decides whether to accept or reject the transferred case.¹³⁹

Though the Floyd complaint referenced Daniels several times,¹⁴⁰ it did not designate Floyd as related to Daniels , even though the Southern District’s local rules impose a duty on “each attorney appearing in any civil or criminal case to bring promptly to the attention of the Court all facts which said attorney believes are relevant to a determination that said case and one or more pending civil or criminal cases should be heard by the same Judge.”¹⁴¹ Though Judge Scheindlin accepted Floyd as a case related to Daniels , she did so according to a procedure not contemplated by the local rules.

On January 28, 2010, Davis v. City of New York ,¹⁴² a case challenging the NYPD’s “vertical patrols”¹⁴³ in New York public housing on the grounds that certain detentions made during those patrols lacked reasonable suspicion,¹⁴⁴ was also referred to Judge Scheindlin on the date it was filed. It was accepted as related to Floyd several days later.¹⁴⁵

Like Daniels and Floyd , Davis is also an important case. According to Judge Scheindlin, it implicates “[t]he long line of cases concerning the power of the police to stop and frisk,” and “illustrates the tensions between liberty and security in particularly stark form, because it deals with police practices in and around the home, where the interests in both liberty and security are especially strong.”¹⁴⁶ In denying the City of New York’s partial motion for summary judgment as to the plaintiffs’ Fourth Amendment claims, Scheindlin cited the testimony of the president of a New York City public housing resident group, who compared New York Public housing to a “penal colony” supervised by the NYPD.¹⁴⁷

In 2012, yet another landmark class action stop-and-frisk case came before Judge Scheindlin. On March 28, 2012, Ligon v. City of New York , a class action case challenging the NYPD’s trespass arrest policy, or “Operation Clean Halls,”¹⁴⁸ through which NYPD officers patrol private housing across New York City,¹⁴⁹ was referred to Scheindlin as potentially related to Davis , and it was soon after accepted as a related case.¹⁵⁰

In January 2013, Judge Scheindlin granted the Ligon plaintiffs a preliminary injunction, finding sufficient evidence that certain trespass arrests violated the Fourth Amendment.¹⁵¹ Ligon , like Daniels , Davis and Floyd , also raised significant legal issues, including the scope of the Terry ruling as applied to trespass arrests in private residences and accusations of racial pro-filing in arguably the nation’s most progressive city. In her injunction ruling, Scheindlin waxed philosophical:

For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented . . . however, I am compelled to conclude that this is the case.¹⁵²

Scheindlin postponed imposing any remedy in Ligon , instead choosing to consolidate the remedies hearing in Ligon with the remedies hearing in Floyd .¹⁵³ At the time, the liability portion of the Floyd trial—in fact any portion of the Floyd trial—had yet to commence. Even though Floyd had nothing to do with stops in private residences, Judge Scheindlin’s prior conclusions that Floyd and Ligon were related resulted in linking the cases’ liability findings by giving a preview of what would result in Floyd once Ligon was decided and tying two factually-dissimilar cases’ remedies to one another. Moreover, the related cases rule permitted Judge Scheindlin to make a preliminary finding about Floyd ’s and Ligon ’s facts, and, before Ligon had even begun, make conclusions based on its later-filed complaint’s unproven factual allegations. This effectively allowed a plaintiff to plead his way to a particular judge, regardless of the actual facts. By the time Ligon was filed, the Davis litigation had been through several rounds of heated discovery motions, and the parties’ substantial differences were well-known.

On August 12, 2013, following a three-month bench trial in Floyd , Judge Scheindlin entered a 198-page “Opinion and Order.” She granted a sweeping injunction against the NYPD: (a) ordering changes to NYPD policies and activities, (b) appointing a monitor to oversee stop-and-frisk practices, (c) requiring a “community-based joint remedial process to be conducted by a court-appointed facilitator,” and, most remarkably, (d) ordering that one precinct in each of New York City’s boroughs place body-worn cameras on their police officers.¹⁵⁴ The ruling received widespread national, and even international, press coverage.¹⁵⁵

C. Judge Scheindlin’s Control Over Stop-and-Frisk Litigation Garners Press

Attention and Disparate Reactions From Those Involved in the Litigation

The New York Times noticed the case assignment pattern described above and reported that, ever since Daniels was filed, “new stop-and-frisk lawsuits are routed directly to Judge Scheindlin” because “civil rights groups, sometimes at the judge’s suggestion, have designated the subsequent cases as ‘related’ to similar cases.”¹⁵⁶ The paper noted that Judge Scheindlin has effectively acquired “near exclusive jurisdiction” over stop- and-frisk practices.¹⁵⁷ According to The New Yorker , ever since Daniels , when civil rights groups challenged the stop-and-frisk policies of the NYPD, they “have made sure that the cases went before Judge Scheindlin.”¹⁵⁸

Christopher Dunn, attorney for the Ligon plaintiffs, told the New York Times , “It would make no sense to have different judges handle the three stop-and-frisk cases.”¹⁵⁹ “These are precisely the types of cases to have before a single judge,” he added.¹⁶⁰ Jonathan Moore, co-counsel for the plaintiffs in Daniels , in which his firm won approximately $925,000 in costs and fees,¹⁶¹ also serves as plaintiffs’ counsel in Floyd . During the Floyd trial, “Moore and his colleagues bound[ed] in and greet[ed] the Judge with confident half-smiles.”¹⁶² Why wouldn’t they be smiling? In Daniels , not only had the same team of lawyers negotiated a settlement in front of Judge Scheindlin that appointed them semi-public monitors of the stop- and-frisk forms NYPD officers were forced to complete for purposes of determining a stop’s constitutionality, but Daniels , and Scheindlin’s supervision of Daniels , was a financially lucrative endeavor.¹⁶³

Notably, the City of New York tried to convince Judge Scheindlin to send stop-and-frisk cases back to the clerk for random assignment.¹⁶⁴ NYPD Commissioner Ray Kelly believes that the judge “is very much in [the plaintiffs’] corner and has been all along throughout her career.”¹⁶⁵

Judge Scheindlin has acknowledged that “‘some judges are less inclined to accept a case as related, [and] some judges are more inclined to accept it as related,’”¹⁶⁶ but declined to characterize herself as a judge more inclined to accept related cases. Nevertheless, the facts remain what they are—following random assignment of Daniels , Judge Scheindlin has presided over every single significant stop-and-frisk case in the Southern District. Some of this has been by operation of the “related cases” rule, and some apparently outside of it, but all of it has been expressly encouraged by the Judge herself and by a group of plaintiffs’ counsel, some of whom have made millions of dollars on these cases.

IV. Nonrandom case Assignment Fundamentally Alters the

Role of a District Court Judge

There are reasons why the parties winning stop-and-frisk cases in front of Judge Scheindlin prefer nonrandom case assignment. Arguably, as discussed below, it enables judges to shop for cases they like and then effect outcomes they like, or, at a minimum, think are just. The plaintiffs in the stop-and-frisk cases seemed to have taken note of a judge’s predisposition to rule in their favor.

Even if a motive to choose or influence a case can never be proven, the suggestion that a case has been steered to a particular judge’s docket for reasons having nothing to do with efficiency or practicality undermines confidence in the judiciary’s procedures, which must be neutral at every stage, even at assignment. This effect—undermining confidence in what should be a neutral system, especially with respect to who hears what case—is reason enough to do away with nonrandom case assignment.

A. Judicial Integrity Requires Neutral Case-Assignment Rules With No Role

for Judicial Self-Selection of Cases “[J]udges are human and bring a basket of biases to the bench.”¹⁶⁷

As a result, “the particular judge assigned to a case . . . can be outcome determinative.”¹⁶⁸ When judges can pick cases, as they are permitted to do as a result of Southern District of New York’s transfer and related cases rules, they may gain access to cases and affect the cases’ outcomes for any number of reasons.¹⁶⁹ “Some may do so for jurisprudential reasons or out of perceived expertise,” while others may believe that the law has been misapplied and wish to correct a mistake.¹⁷⁰ “They may seek [a case assignment] to promote a judicial philosophy or set of moral principles,” or for very human reasons, such as a desire for notoriety.¹⁷¹ To protect against the influence of a judge’s bias, a judge must play no role in the case-assignment process.¹⁷² Maintaining judicial integrity requires neutral assignment of cases.¹⁷³ Drawing an unfavorable judge is fair when it is a matter of luck, and nothing more.¹⁷⁴

When neutrality is abandoned, the possibility that assignments were made in an effort to influence a case’s outcome becomes very real.¹⁷⁵ Indeed, there is at least one instance of documented, deliberate, results-oriented case assignment in the federal court system. In the 1960s, panels in the Fifth Circuit Court of Appeals hearing civil rights cases were purposefully stacked with pro-civil rights majorities to ensure pro-civil rights out-comes.¹⁷⁶ In the fall of 1963, the Fifth Circuit was divided, with four members consistently voting in favor of civil rights plaintiffs and desegregation, and other members stubbornly refusing to extend the Fourteenth Amendment in civil rights cases.¹⁷⁷ The Circuit’s assigning judge steered certain cases he euphemistically deemed “touchy” to weeks in which certain judges––in particular, those who did not favor civil rights extensions––would be unable to participate.¹⁷⁸

The judge who steered civil rights cases to panels more likely to enforce desegregation had an honorable, and morally just, end goal. Yet the method of directing these cases to known civil rights sympathizers was unjustifiable in that it delegitimized the procedure underlying the ultimately righteous outcome. This was especially risky given the controversial nature of the subject matter. Judges who side with the rights of minorities, but do so by skirting the system, risk jeopardizing any advances they make for the groups they seek to protect by introducing bias into the judicial system.

In the Fifth Circuit cases, questionable means were put to unquestionably just ends, but if court packing can happen in a case that results in a morally acceptable outcome (desegregation), the opposite is also true. If the Fifth Circuit’s assigning judge had been a segregationist, he just as easily could have shifted these “touchy” cases toward the segregationist mem-bers of the court, rather than away from them. Nonrandom assignment of cases could permit a wrong-minded judge to affect a case’s outcome.

Nonrandom assignment also has implications for the adversary system. Although party representation is “basic to our system of adjudication,”¹⁷⁹ when a judge chooses a case based on its subject matter, the judge steps out of his classic role as neutral adjudicator of the issues. This, like a judge who raises a point sua sponte when it is not argued by the parties, risks converting the federal system, one whose hallmark is its adversary nature, into one that looks more like an inquisitorial one.¹⁸⁰ When a judge picks a case for his own reasons, he starts to look less like a judge and more like someone with a stake in the litigation.

The Southern District’s permissive related cases rule permits a judge to 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. This effectively allows a plaintiff to plead his way to a particular judge, regardless of the actual facts. For example, Ligon v. City of New York , filed on March 28, 2012, addressed the NYPD’s trespass arrest policy, through which NYPD officers patrol private housing across New York City. On April 3, 2012, Judge Scheindlin accepted Ligon on the grounds that it was related to Davis v. City of New York , filed in 2010.¹⁸¹ By the time Ligon was filed, the Davis litigation had been through several rounds of heated discovery motions, and the parties’ substantial differences were well-known.

None of this was true in Ligon . The plaintiffs were different, the individual defendants were different—indeed, the only common defendant was the City of New York, an institutional defendant sued virtually every day—and the policies were different—police searches in public versus private housing. There was no real basis to deem these cases related. The thread connecting Ligon to Daniels was even thinner: Daniels has nothing to do with housing, either public or private.

In a pure adversarial system “[t]he trier of fact . . . does not independently investigate the facts, but instead remains neutral so as to avoid reaching a premature decision. Judges rely on the parties to frame the dispute and to present evidence as they see fit.”¹⁸² When a judge plays a role in the case assignment process to determine relatedness by comparing the facts alleged in a later-filed case to those established in an earlier-filed, and more developed, matter, the judge is acting less like a neutral arbiter and more like an interested investigator, in the civil law mode.

B. Judge Scheindlin’s Appearance of Bias Is Reason Alone to Randomly Assign Stop-and-Frisk Cases

1. Judge Scheindlin Has Evidenced an Appearance of Anti-Police Bias

Judge Scheindlin’s involvement in high-profile stop-and-frisk decisions, and her history of ruling against the NYPD, can be traced back to a case that appeared on her docket during the Giuliani era, which coincided with William Bratton’s tenure as NYPD Commissioner. In 1995, Antonio Fernandez, known as “King Tone,” leader of the Latin Kings, a notorious drug gang targeted by the United States Attorney for the Southern District of New York, was arrested by an NYPD officer following a stop-and-frisk that revealed a small amount of marijuana on his person.¹⁸³ According to the arresting officer, as he approached Fernandez, “he smelled marijuana.”¹⁸⁴ He then frisked Fernandez along his waistband, the outside of his jacket, and down his pants leg; when he passed over the pants pocket, the officer heard a crinkling sound. He then recovered a small amount of marijuana from Fernandez’s pocket.¹⁸⁵ Fernandez was taken to a police precinct and frisked again, at which point a loaded .38 caliber revolver was found in his pants.¹⁸⁶

Officers arrived on the scene of Fernandez’s arrest after receiving a radio run directing them to investigate a 911 call reporting a Latin Kings meeting in a Bronx park. “An anonymous caller had reported that at least one of the gang members was armed with a gun”; the armed individual was described as “a male Hispanic wearing a white jacket with black stripes.”¹⁸⁷ Fernandez was wearing a jacket “similar” to the one described in the 911 call.¹⁸⁸

The case was randomly assigned to Judge Scheindlin, who found that the officers lacked reasonable suspicion to stop Fernandez, due in part to the paucity of details provided by the anonymous caller and the fact that Fernandez’s jacket did not exactly match the description provided by the caller.¹⁸⁹ As a result, Fernandez’s initial detention was held unconstitutional and all evidence obtained pursuant to the stop was suppressed.¹⁹⁰

Scheindlin also criticized the manner in which the revolver was discovered, stating that “[i]t is extremely difficult to believe that the [officer who located the marijuana in Fernandez’s pant pocket] could have missed a bulky .38 caliber revolver hidden in Defendant’s pants.”¹⁹¹ No reason was provided for the judge’s belief that the officer’s testimony was “extremely difficult” to believe. Indeed, that a gun may be found during a stationhouse frisk, but not at the scene of an arrest, is imminently plausible. An initial stop-and-frisk, made hastily and in public, where police are vulnerable to attacks from those who resent their mere presence, let alone their decision to make an arrest, is likely swift and not as thorough a search that occurs in the controlled environment of a precinct. Moreover, it may not be too surprising if the leader of a notorious gang were skilled in hiding weapons. To jump to the conclusion that the officer’s testimony was difficult to believe requires an underlying suspicion about officers’ testimony in general. Arguably, the testimony cuts both ways, if not in the officer’s favor, given the defendant’s known criminal association.

The ruling in the Fernandez case “set a template for [Judge Scheindlin’s] handling of criminal cases,” in which she would go on to rule against the City when stop-and-frisk was in play.¹⁹² A 2013 report commissioned by New York City Mayor Bloomberg’s office concluded that Judge Scheindlin is “biased against law enforcement” because “she issues an unusually high number of written opinions finding that the NYPD and other law enforcement agencies make illegal searches and seizures.”¹⁹³ “Scheindlin came down against law enforcement in 60% of her written ‘search-and-seizure’ opinions dating to when she started on the bench in 1994 . . . the highest rate of any of the 16 current and former Manhattan federal judges the study looked at since 1990.”¹⁹⁴

One of Judge Scheindlin’s law clerks told The New Yorker reporter Jeffrey Toobin that Judge Scheindlin “thinks cops lie.”¹⁹⁵ Given the secrecy surrounding anything that happens during a clerk’s time in cham-bers, this quote is telling. Moreover, “[i]n decision after decision, [Scheindlin] has found that cops have lied, discriminated against people of color, and violated the rights of citizens.”¹⁹⁶

In Judge Scheindlin’s own words, she believes that “judges have a duty to protect individual rights because that’s what the Bill of Rights is all about.”¹⁹⁷ “Sometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer.”¹⁹⁸ The Floyd trial was her “greatest chance yet to rewrite the rules of engagement between the city’s police and its people.”¹⁹⁹

The evidence that Judge Scheindlin believes that NYPD officers lie, coupled with her handpicking of a stream of high-profile Section 1983 stop-and-frisk cases and plaintiff-friendly outcomes in every single one of those cases ( Daniels , Floyd , Davis , and Ligon ), suggests at least an appearance of bias against the NYPD. This alone is reason enough to do away with the related cases rule, which, before it was modified, permitted an outcome-oriented judge to manipulate the case assignment system so that a particular type of case accumulated on her docket, and no one else’s.

2. An Appearance of Bias Is Itself Reason to Eliminate Procedural Rules

That Open the Door to Judicial Case-Shopping Even if Judge Scheindlin is not actually biased in the ways described

above, the appearance of bias that inevitably follows a judge who makes decisions to assign herself a string of cases, like the stop-and-frisk matters, is reason to eliminate or minimize nonrandom case assignment. Several courts have recognized that nonrandom case assignment procedures can lead to the appearance of bias, which on its own should be avoided. In Cruz v. Abbate , four defendants in criminal cases pending in Guam Superior Court each moved for random assignment of his case to one of the seven judges on the court.²⁰⁰ The practice of the Superior Court’s presiding judge was to assign each case to the judge of his choice, rather than to assign them randomly.²⁰¹ On appeal, Judge Kozinski, writing for the Ninth Circuit, noted that though “a defendant has no right to any particular procedure for the selection of the judge” before whom his criminal case is heard, he nevertheless “is entitled to have that decision made in a manner free from bias or the desire to influence the outcome.”²⁰²

Though the court ultimately deemed the allegations of arbitrariness and unfairness too vague to address, the question raised was troubling enough for the opinion to include the pronouncement that courts “must take great pains to avoid any inference that [case] assignments are being made for an improper purpose,” because “[t]he suggestion that the case assignment process is being manipulated for motives other than the efficient administration of justice casts a very long shadow.”²⁰³

A similar principle was also recognized in Yagman v. Baden , a case brought in the Central District of California, which was transferred shortly before trial when the presiding judge became ill. The case was reassigned to District Judge Real, not by random assignment, but through an order executed by both the original and transferee judge.²⁰⁴ The local rules expressly permitted voluntary transfer from one judge to another, so long as both consented.²⁰⁵ Though the Ninth Circuit again deemed the allegations that the transfer was “suspicious” too vague to address, it did note, “Courts must be meticulously careful, when invoking direct transfer provisions . . . to avoid any improper appearance.”²⁰⁶ The court invoked the principle that guided the Supreme Court in In re Murchison : “to perform its high function in the best way, justice must satisfy the appearance of justice.”²⁰⁷

In Murchison , the Court overturned a Michigan conviction involving a trial court judge who had also served as a one-man grand jury on the very charges tried before him.²⁰⁸ The Court noted that the judge was likely unable to “free himself from the influence of what took place in his ‘grand-jury’ secret session,” and that “[h]is recollection of that is likely to weigh far more heavily with him than any testimony given in the open hearings.”²⁰⁹ Also, “the judge was doubtless more familiar with the facts and circumstances in which the charges were rooted than was any other witness.”²¹⁰

The procedure allowed by the Michigan court was itself unconstitutional, even in the absence of proof of actual prejudice, because it raised a probability of unfairness.²¹¹ In the criminal context, fairness requires both the absence of “actual bias” and also the absence of “the probability of unfairness.”²¹² At the extreme of this principle is the established notion that “no man can be a judge in his own case,” but the far subtler question is whether a judge can try cases in which he “has an interest in the outcome.”²¹³

What counts “an interest in the outcome” is a slippery question. Traditional notions of familial or financial interest of course would apply, but a judge may also be “interested” in an outcome for personal reasons, intellectual interest, political agendas, or even by the chance of case-related notoriety (good or bad). But precisely because “an interest” cannot be defined, the safer course, at least in the criminal context, is to avoid procedures which offer even a temptation “not to hold the balance nice, clear, and true between the State and the accused,” as such procedures, on their own, violate due process.²¹⁴ This is true even though such a rule “may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.”²¹⁵ In essence, “‘justice must satisfy the appearance of justice.’”²¹⁶

The related case rule raises the same concern: in Murchison , the judge may not have been able to “free himself from the influence of what took place in his ‘grand-jury’ secret session.”²¹⁷ In making the related cases decision, the judge deciding whether to accept a later-filed case may be unable to free herself from the influence of what occurred in the allegedly-related first-filed matter, over which the judge also presided.

Though they do not implicate an individual’s personal liberty, the stakes in civil rights litigation are also high. The stop-and-frisk litigation before Judge Scheindlin has already cost the City of New York millions of dollars in fees, costs, and damage awards. The August 12, 2013 decision will also deplete city coffers. As former NYPD first deputy commissioner John Timoney has explained:

The training regimen laid out by Judge Scheindlin will require transferring dozens of officers from precincts and permanently reassigning them to the police academy as trainers. Because minimum staffing levels are required by the department, much of the new training will have to be done on overtime, unless the city spends money to expand the number of officers. Front-line ranking officers (sergeants and lieutenants) will likely require one week of training, while patrol officers and detectives will require at least two days. My estimate is that this remedial process will cost tens of millions of dollars and last at least 10 years. This does not include the incalculable but sizable costs of taking an officer off patrol for training. Nor does it include the cost of the monitor, staff, expert advisers or the yet- to-be-named facilitator and his or her staff.²¹⁸

The public interest at stake in stop-and-frisk litigation is twofold: not only do residents of the City of New York have a right to their personal liberties, the same group of people also have a right to, for example, public housing, trash collection, and safe streets, amenities whose budgets are all affected by costly litigation, especially that which requires the purchase of bodyworn cameras and training officers on overtime pay.

C. The Related Cases Rule Converts District Judges Who Hoard One Category of Cases Into Quasi-Appellate Judges

The decisions of a single judge in one district are not binding on other judges in that same district.²¹⁹ This principle respects the hierarchal structure of the federal court system. Yet allowing one judge to collect a stream of factually distinct cases in order to affect a distinct area of the law elevates that judge over other judges in her district. Because no other judge has the opportunity to hear landmark stop-and-frisk cases, the judge who does hear the cases has the opportunity to shape the law in a similar manner an appellate court would.

Also, once an issue as important as the NYPD’s stop-and-frisk procedures reaches the appellate level of review, it will only have been vetted by one jurist. A difference in opinion may have guided the Second Circuit’s, and ultimately the Supreme Court’s, analysis of a complicated area of the law. Yet when these cases are appealed, the higher courts will only have one voice to consider: that of Judge Scheindlin. This is, of course, her point.

V. The Southern District’s Local Rules Should Be Amended

to Avoid Manipulation of Case Assignment Procedures

As this Article highlights, it has been far too simple to use the Southern District of New York’s case assignment rules to manipulate case assign-ments. The case assignment rules have created an appearance of bias and have facilitated case-shopping by district judges interested in a given case’s subject matter and outcome. The below-proposed amendments to the Southern District’s rules would reinstate random case assignment as the default procedure.²²⁰

A. All Rules Permitting Subject-Matter-Specific Case Selection Should

Be Eliminated There is no reason to permit senior judges or visiting judges to preselect the “category” of cases he is willing to undertake. First, with respect to senior judges, their caseloads can be lessened by permitting them to advise the district as to the number of cases they are willing to take—a consideration already in place in the Southern District. There is no reason to also allow them to craft a specialized docket, as this sort of subjectmatter-specific case selection could result in assignment of an entire category of cases (Section 1983, habeas, securities) to one judge alone. Senior or otherwise, district judges are appointed to the federal bench to hear all cases. And there are opportunities within the federal courts for judges who want to hear only a limited category of cases, such as bankruptcy court and the United States Court of Appeals for the Federal Circuit. The Southern District of New York, however, is not a specialized court, and any judge appointed to the Southern District should not become a specialized judge.

Second, there is also no reason to allow visiting judges to pre-select the category of case he is willing to accept. Again, the workload given to visiting judges can be lessened by limiting the number of cases a visiting judge takes on—a safeguard already in place in the Southern District’s rules. Moreover, visiting judges are only permitted to visit a court other than the one to which they were appointed when the need for such a visit arises in the court they visit. Allowing visiting judges to pre-select a category of cases permits them to pre-select the kind of cases they wish to hear, which risks assigning an entire category of cases disproportionately to one judge. In addition, this practice undermines the purpose of allowing judges to visit other courts; the practice is intended to service the courts’ certified needs, not the judge’s jurisprudential interests.

The prior version of the transfer of related cases rule, which gave the judge to whom a case was referred as potentially related the “sole discretion” to accept or reject a later-filed case, sidestepped any examination of actual relatedness and facilitated the hoarding of cases based on subject matter.

Similarly, the “transfer of cases by consent” rule, which remains unchanged, allows any judge to “transfer directly any case or any part of any case . . . to any consenting judge” in the Southern District, endorses a secret conversation between judges about which kind of cases they want on their dockets, and then permits transfer of cases for reasons both proper and improper. This practice eviscerates random case assignment and endorses case transfer for any reason the transferor or transferee judge has in mind. Perhaps worst of all, the reason is never made public and is not subject to challenge by the affected parties.

B. All Assignment Committee Decisions Should Be Made Public Given the complicated nature of federal litigation, there is obviously

a need for district-wide committees that oversee and manage certain aspects of case assignment. But there is no reason to keep such decisions hidden from the public. Moreover, the members of the assignment committee should be made known. The Southern District of New York’s assignment committee “rule[s] upon all issues relating to assignments,” but what exact “issues related to assignments” are is not explained. Without full disclosure of case assignment decisions, the Southern District risks an appearance of bias and impropriety in its case-assignment methods. If the system is fair, there is no reason to hide it from the public and the parties subject to the committee’s decisions.

C. The Related Cases Determination Should Be Subject to Motion Practice

The prior version of the related cases rule left the decision to accept a later-filed case as related to an earlier-filed matter within the sole discretion of the judge to whom the potentially related case is referred. As explained above, this created the appearance of bias and incentivized judicial case-shopping. But even if the rule is rewritten to take the decision out of the hands of the judge to whom the case is referred, the related cases rule remains problematic.

A party who advocates for the related case designation likely wants to appear in front of the judge who handled the earlier case—as has clearly happened in stop-and-frisk litigation. Given the potential granting of the assignment, that party should be required to move for the related case designation, and the other party allowed to oppose. Moreover, that motion should not be heard by the judge to whom the case is originally assigned, as that judge may have self-interested reasons to avoid a case’s subject matter, nor should be it heard by the judge presiding over the earlier-filed case, who may have reasons to take on the case’s subject matter. Rather, this is precisely the kind of motion appropriately heard by the assignment committee.

CONCLUSION That the NYPD stop-and-frisk litigation is venued in the Southern

District of New York is significant. The Southern District is one of the most influential federal courts.²²¹ An appointment to the Southern District of New York is prestigious, and may lead, as in the case of Justice Sonia Sotomayor, to the Supreme Court.²²² The Southern District is also “an ‘important venue for corporate and white-collar prosecutions, and its pronouncements are highly influential.’”²²³ Judge Scheindlin herself is an oft-cited jurist, whose opinion in Zubulake v. UBS Warburg LLC ²²⁴ is regarded as one of the most important decisions regarding e-discovery;²²⁵ her decisions are “must-reads.”²²⁶ She has also issued important orders in the context of the federal material witness statute.²²⁷ Judge Scheindlin is often at the forefront of important constitutional issues in one of the most respected, and oft-cited, districts.

Additional reasons suggest that the Fourth Amendment litigation pending before Judge Scheindlin will have far-reaching impact. Daniels , Davis , Floyd , and Ligon have each already garnered attention in academic scholarship.²²⁸ The Floyd trial was the subject of multiple New York Times op-ed pieces, all highly critical of the NYPD’s stop-and-frisk practices.²²⁹ At least one scholar has argued that the burdens Terry -stops inflict “are most visible in New York.”²³⁰ A June 2012 protest against the NYPD’s stop-and-frisk practices was covered extensively not only by New York media outlets, but also by the Guardian and Al Jazeera .²³¹

Further, “[n]ational experts have publicly debated the role of the stop-and-frisk program in either producing or threatening New York City’s vaunted crime drop of the past two decades.”²³² The survival or demise of New York City’s stop-and-frisk regime may impact the decision to pursue similar police tactics in other large metropolitan areas, such as Philadelphia and San Francisco.²³³ Philadelphia and Los Angeles compile data, as New York did, on “stops and frisks,”²³⁴ and a ruling in the Scheindlin cases may encourage costly litigation in those cities.

The NYPD’s current stop-and-frisk practices are arguably a reflection of the Supreme Court’s extension of police authority post- Terry .²³⁵ If any of Judge Scheindlin’s decisions are appealed to the Supreme Court, they may have the opposite outcome of the one Judge Scheindlin intended. The current Court has not hesitated to expand police authority. If given the chance to review Judge Scheindlin’s broad expansion of Fourth Amendment rights, the Court may reverse her decisions and contract the rights at issue.²³⁶

Like the Fifth Circuit judge who packed civil rights cases with desegregationist judges, Judge Scheindlin’s positions may be guided by the right moral compass and ultimately vindicated, if not by the Supreme Court, then by history. But the manner in which the Southern District of New York’s local rules have allowed one judge to select certain cases, and use them to shape the development of important Constitutional law, gives off such an appearance of impropriety that the procedures which allow for such practices must be eliminated. Ultimately, “[T]o perform its high function in the best way, justice must satisfy the appearance of justice.”²³⁷

AFTERWORD Much has happened since this Article was posted on the Social Science Research Network (SSRN) and submitted to law reviews and journals for publication consideration on August 22, 2013. A brief summary of the manner in which the Article came into being, and how it appears to have perhaps influenced the stop-and-frisk cases themselves, is included below. More importantly, this Afterword updates the current status of the Floyd and Ligon matters, which have taken unprecedented procedural twists on appeal.

The Article’s current form is relatively similar to the draft that was circulated back in August. Like the draft, it argues that nonrandom case assignment is problematic and that nonrandom case assignment affected the development of important stop-and-frisk precedent in the Southern District of New York. The August 22, 2013 draft included a section entitled “How Landmark Section 1983 Stop-and-Frisk Litigation Found Its Way to Judge Scheindlin, and Never Left.”²³⁸ It described, as the current Article still does, how Floyd was assigned to Judge Scheindlin following a hearing in Daniels , at which Judge Scheindlin asked the Daniels plaintiffs’ lawyers, “‘If you got [sic] proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?’”²³⁹ It also noted that Judge Scheindlin remarked to the same counsel that “You can certainly mark it as related.”²⁴⁰ These two quotes were attributed to Joseph Gold-stein’s May 6, 2013 New York Times article, A Court Rule Directs Cases Over Friskings To One Judge .²⁴¹ Citations to Mr. Goldstein’s excellent piece, which served as the intellectual inspiration for this Article, remain in the Article’s current form.

The August 22, 2013 draft further noted that “[o]n January 31, 2008, the Center for Constitutional Rights and an attorney named Jonathan Moore, both of whom served as plaintiffs’ counsel in Daniels , brought Floyd v. City of New York .”²⁴² This statement appeared under the heading “Subsequent Landmark Stop-And-Frisk Cases Are Assigned To Judge Scheindlin.”²⁴³ I included this statement following my own review of the Floyd and Daniels dockets. A later section in the August 22, 2013 draft, entitled “Judicial Integrity Requires Neutral Case-Assignment Rules With No Role For Judicial Self-Selection of Cases,”²⁴⁴ included the sub-headings “Judge Scheindlin’s Appearance of Bias Is Reason Alone To Randomly Assign Stop-And-Frisk Cases” and “Judge Scheindlin Has Evidenced An Appearance of Anti-Police Bias.”²⁴⁵ In the text following the latter heading, I made reference to “[a] 2013 report commissioned by New York City Mayor Bloomberg’s office” which concluded that Scheindlin is “biased against law enforcement” because “she issues an unusually high number of written opinions finding that the NYPD and other law enforcement agencies make illegal searches and seizures.”²⁴⁶ Judge Scheindlin responded to the Bloomberg report in a May 19, 2013 interview with Associated Press reporter Larry Neumeister, calling it “a ‘below-the-belt attack’ on judicial independence.”²⁴⁷ I did not cite this interview in my August 22, 2013 draft.

However, I cited to two additional sources in support of my argument that Judge Scheindlin had evidenced an appearance of anti-police bias. First, I cited Mark Hamblett’s May 5, 2013 New York Law Journal article, in which Judge Scheindlin expressed her position regarding constitutional cases, stating that “‘judges have a duty to protect individual rights because that’s what the Bill of Rights is all about.”²⁴⁸ In the same interview, she explained a district court judge’s role, stating that “[s]ometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer.”²⁴⁹ This statement in particular caught my attention as it suggested that the judge enjoyed opportunities to “strike out.”

My August 22, 2013 draft also made repeated references to Jeffrey Toobin’s May 27, 2013 New Yorker article in support of my contention that Judge Scheindlin held an anti-police bias. I recounted Toobin’s account of Judge Scheindlin’s handling of a motion to suppress in a criminal case involving Antonio Fernandez, aka “King Tone,” the leader of a drug gang.²⁵⁰ Unlike Toobin, I also cited to the order Judge Scheindlin wrote in the Fernandez case and summarized the order, noting that “Judge Scheindlin . . . found that the officers lacked reasonable suspicion to stop Fernandez, due in part to the paucity of details provided by the anonymous caller, and the fact that Fernandez’s jacket did not exactly match the description provided by the caller” and that “Fernandez’s initial detention was held unconstitutional, and all evidence [including a revolver in Fernandez’s pocket] obtained pursuant to the stop was suppressed.”²⁵¹ I went on to analyze Judge Scheindlin’s opinion, explaining that:

Scheindlin also criticized the manner in which the revolver was discovered, stating that “[i]t is extremely difficult to believe that the [officer who located the marijuana in Fernandez’s pant pocket] could have missed a bulky .38 caliber revolver hidden in Defendant’s pants.”²⁵² No reason was provided for the judge’s belief that the officer’s testimony was “extremely difficult” to believe. Indeed, that a gun may be found during a stationhouse frisk, but not at the scene of an arrest, is imminently plausible. An initial stop-and-frisk, made hastily and in public, where police are vulnerable to attacks from those who resent their mere presence, let alone their decision to make an arrest, is likely swift and not as thorough a search that occurs in the controlled environment of a precinct. Moreover, it may not be too surprising if the leader of a notorious gang were skilled in hiding weapons.²⁵³

This argument highlighted my contention that Judge Scheindlin went out of her way to discredit otherwise reasonable police testimony.

I next cited Toobin’s conclusion that “[t]he ruling in the Fernandez case ‘set a template for [Judge Scheindlin’s] handling of criminal cases,’”²⁵⁴ and his statement that one of her law clerks reported that Scheindlin “thinks cops lie.”²⁵⁵ I concluded that “[t]he evidence that Judge Scheindlin believes that NYPD officers lie, coupled with her hand-picking of a stream of high-profile Section 1983 stop-and-frisk cases, and plaintiff-friendly outcomes in every single one of those cases, suggests at least an appearance of bias against the NYPD.”²⁵⁶

However, I never stated that Judge Scheindlin should be removed from any stop-and-frisk case. Rather, I argued that the manner in which the stop-and-frisk cases had been assigned to Judge Scheindlin “is reason enough to do away with the related cases rule, which, as it stands, permits an outcome-oriented judge to manipulate the case assignment system so that a particular type of case accumulates on her docket alone.”²⁵⁷ I have elsewhere argued that Judge Scheindlin’s use of the related cases rule did not violate the rule itself, which, at the time Judge Scheindlin relied upon it, granted unfettered discretion to judges who wanted to pull certain cases onto their dockets.²⁵⁸ To be abundantly clear, I never advocated for Judge Scheindlin’s removal, though I stand behind my conclusion that there is too much potential for abuse when judges can play a role in which cases end up on their dockets.

To everyone’s surprise, on October 31, 2013, the Second Circuit removed Judge Scheindlin from the Floyd and Ligon matters. In a three-page order, it concluded that Judge Scheindlin “ran afoul of the Code of Conduct for United States Judges” due to “the appearance of impartiality surrounding [the Floyd and Ligon ] litigation [which] was compromised by the District Judge’s improper application of the Court’s ‘related cases rule.’”²⁵⁹ In support of this conclusion, the court referred to the hearing cited in my August 22, 2013 draft (at which Judge Scheindlin instructed the Daniels plaintiffs’ attorneys how to file a related case).²⁶⁰

It also noted that “[t]wo of the attorney groups working on behalf of plaintiffs in Daniels , a case challenging the New York Police Depart-ment’s stop-and-frisk practices, helped file Floyd the next month.”²⁶¹ In support of this statement, the court included a “see generally” citation to Joseph Goldstein’s May 5, 2013 article. But Goldstein did not write that “two of the attorney groups working on behalf of plaintiffs in Daniels . . . helped file Floyd.” Rather, he referred to “the lawyers” who brought Floyd . They are never identified by name in his article, nor are they identified as “[t]wo . . . attorney groups.” This characterization, does, however, appear in my August 22, 2013 draft, in which I noted that Jonathan Moore and the Center for Constitutional Rights were counsel for plaintiffs in both Daniels and Floyd . The only attorney cited in the Goldstein piece, Christopher Dunn, was not involved in Daniels , and is not involved in Floyd . Rather, he is counsel for plaintiffs in Ligon , a case that was not at issue in the December 2007 hearing in Daniels or the January 2008 filing of Floyd . The court also concluded that Judge Scheindlin improperly applied the related- cases rule by engaging in “a series of media interviews and public statements purporting to respond publicly to criticism of the District Court.”²⁶² Like my August 22, 2013 draft, the court cited to Mark Hamblett’s May 5, 2013 piece and Toobin’s May 27, 2013 article.²⁶³ It also cited to Larry Neumeister’s interview with Judge Scheindlin, in which she responded to the Bloomberg report I cited.²⁶⁴ To the extent the Second Circuit was influenced by my work, I am both flattered and excited—this may signal that law review articles are being read by judges, despite reports to the contrary. That said, I did not expect a citation, as my draft was, at the time, available only on SSRN, and the primary sources I relied upon were also available to the court and its clerks. Moreover, the conclusion the court reached (that Judge Scheindlin should be removed) was different than my own.

The Honorable Richard Kopf, District of Nebraska, kindly noted that the “the intellectual foundation for [the Second Circuit’s] removal decision came directly from [my August 22] article.”²⁶⁵ In a comment posted on November 5, he added that “[t]he only public and intellectually coherent analysis of (1) the ‘relatedness’ question in this precise matter and (2) an arguable lack of impartiality in this precise matter is found in Katherine McFarlane’s [sic] 45-page article that appeared shortly (2 months) before the Second Circuit issued the surprise ruling on Judge S.”²⁶⁶ I am grateful for this incredible show of support and encouragement, as well as the generous coverage my draft article received in the Wall Street Journal blog and academic blogs.²⁶⁷

The reaction to Judge Scheindlin’s removal was decidedly negative and overwhelmingly supported her right to speak publicly about the judicial process.²⁶⁸ Moreover, Judge Scheindlin herself, represented by New York University Professor Burt Neuborne, sought leave to file a motion regarding her disqualification in front of the Second Circuit.²⁶⁹ The City then sought modification of the Second Circuit’s order staying Judge Scheindlin’s Floyd and Ligon opinions (stayed in the same order that removed the judge), asking that the court instead vacate her orders in service of the “appearance[] of fair and impartial administration of justice.”²⁷⁰ The Second Circuit denied both requests. First, it found that it knew of “no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case.”²⁷¹ Second, it denied the City’s motion to vacate, albeit without prejudice.²⁷²

Bill de Blasio won the New York City mayoral election on November 23, 2013. During his campaign, de Blasio had promised to withdraw the City’s appeals of the Floyd and Ligon matters.²⁷³ This caused speculation that de Blasio’s win essentially ended the Floyd and Ligon appeals and that Judge Scheindlin’s orders would stand.²⁷⁴ In addition, the group comprised of various NYPD unions (“the Police Intervenors”), has moved to intervene as appellants in Floyd and Ligon . The Police Intervenors argue that if the City withdraws its appeals, they should be permitted to “vindicat[e] their own rights” and ensure that “the district court’s flawed injunction . . . will not saddle the NYPD and its members for years to come.” If the Police Intervenors are allowed into the Floyd and Ligon appeals, they may be able to raise substantive arguments to Judge Scheindlin’s orders and keep the appeals going.²⁷⁵

Though its opening briefs in Floyd and Ligon were not due until January, the City filed them in December,²⁷⁶ before de Blasio took office.²⁷⁷

This story took another strange turn on December 23, 2013, when the Southern District of New York amended its related cases rule.²⁷⁸ On the same date, Southern District of New York Chief Judge Preska was interviewed by the New York Times and noted that the changes were intended to “maximize the randomness of the assignment of cases – we wanted to regularize the process.”²⁷⁹ Chief Judge Preska also noted “we wanted to increase transparency” and that “randomness is so important . . . to try to avoid judge-shopping.”²⁸⁰ Finally, she noted that “[d]evelopment of the law is better served by having different judges’ thinking about the issue.”²⁸¹

The changes are good ones. Now, “the court’s three-judge assignment committee, including the chief judge, will review every case where a claim of relatedness has been made.”²⁸² Importantly, the new rule provides that “[c]ivil cases shall not be deemed related merely because they involve common legal issues or the same parties.”²⁸³ Gone is the provision leaving the relatedness decision to the sole discretion of the judge in the earlierfiled case, which permitted a case to be deemed “related” without any finding of actual factual or legal relatedness.

However, assignment by lot is still easily overcome in the Southern District of New York despite these recent changes. For example, senior and visiting judges may still select the type of cases they accept and reject. Patent cases are still being assigned to self-selected judges. And most importantly, no change was made to Division of Business Rule 14, which still 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.”²⁸⁴

This rule endorses the sort of subject matter-based case assignment that happened in the stop-and-frisk cases and may permit similar manipulation in the future. To effect meaningful changes to its case assignment procedures, the Southern District of New York should consider undertaking a review of all rules that inject judges into the case- assignment process. Moreover, time for public comment, even public hearings, on any pro-posed changes would allow litigants and counsel previously impacted by nonrandom assignment to be heard. There is great public interest in this issue, and the judiciary might benefit from seeking public feedback. There must be some sort of balance struck between efficiency, which may at times justify nonrandom assignment, and rules like Rule 14 that allow for case assignment manipulation and judicial case-shopping.