736 F.3d 118 (2nd Cir. 2013), 13-3123, Ligon v. City of New York

Docket Nº:13-3123, 13-3088.
Citation:736 F.3d 118
Opinion Judge:PER CURIAM.
Party Name:Jaenean LIGON, individually and on behalf of her minor son, J.G., Jacqueline Yates, individually and on behalf of a class of all others similarly situated, et al., Plaintiffs-Appellees, v. CITY OF NEW YORK, et al., Defendants-Appellants, Captains' Endowment Association of New York, Detectives Endowment Association, Police Department, City of New Yo
Attorney:Alex B. Karteron, Christopher Thomas Dunn, Daniel Mullkoff, New York Civil Liberties Union, New York, NY; Juan Cartagena, Roberto Concepcion, Jr., Latino Justice, New York, NY; Michael Grunfeld, John A. Nathanson, Jeffrey J. Resetarits, Shearman & Sterling LLP, New York, NY; Mariana Louise Kovel,...
Judge Panel:Present: JOHN M. WALKER, JR., JOS
Case Date:November 13, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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736 F.3d 118 (2nd Cir. 2013)

Jaenean LIGON, individually and on behalf of her minor son, J.G., Jacqueline Yates, individually and on behalf of a class of all others similarly situated, et al., Plaintiffs-Appellees,

v.

CITY OF NEW YORK, et al., Defendants-Appellants,

Captains' Endowment Association of New York, Detectives Endowment Association, Police Department, City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., Proposed Intervenors-Appellants.

David Floyd, individually and on behalf of all others similarly situated, Plaintiffs-Appellees,

v.

City of New York, Defendant-Appellant,

Sergeants Benevolent Association, Proposed Intervenor-Appellant,

New York City Police Officer Rodriguez, et al., Defendants.

Nos. 13-3123, 13-3088.

United States Court of Appeals, Second Circuit

November 13, 2013

Page 119

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Alex B. Karteron, Christopher Thomas Dunn, Daniel Mullkoff, New York Civil Liberties Union, New York, NY; Juan Cartagena, Roberto Concepcion, Jr., Latino Justice, New York, NY; Michael Grunfeld, John A. Nathanson, Jeffrey J. Resetarits, Shearman & Sterling LLP, New York, NY; Mariana Louise Kovel, The Bronx Defenders, New York, NY; J. McGregor Smyth, New York Lawyers for the Public Interest, New York NY, for Jaenean Ligon, et al.

Darius Charney, Sunita Patel, Center for Constitutional Rights, New York, NY; Jennifer Rolnick Borchetta, Jonathan Clifford Moore, Beldock Levine & Hoffman LLP, New York, NY; Eric Hellerman, Kasey Lynn Martini, Covington & Burling LLP, New York, NY, for David Floyd, et al.

Celeste L. Koeleveld, Deborah A. Brenner, Kathy H. Chang, Heidi Grossman, Fay Sue Ng, New York City Law Department, Michael A. Cardozo, Corporation Counsel, New York, NY, for City of New York, et al.

Anthony P. Coles, Courtney Gilligan Saleski, DLA Piper, Philadelphia, PA, New York, NY, For Sergeants Benevolent Association.

Steven A. Engel, Dechert LLP, Washington D.C., Elisa Wiygul, Dechert LLP, Philadelphia, PA, for Captains' Endowment Association of New York, Detectives Endowment Association, Police Department, City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc., Patrolmen's Benevolent Association of the City of New York, Inc.

Burt Neuborne, for Movant Shira A. Scheindlin.

Present: JOHN M. WALKER, JR., JOSÉ A. CABRANES and BARRINGTON D. PARKER, Circuit Judges.

PER CURIAM.

These cases, motions of which were argued in tandem, deal with an issue of great significance: the constitutional boundaries of practices by the New York City Police Department (" NYPD" ) that subject citizens to being stopped and frisked. On August 12, 2013, Judge Shira A. Scheindlin, a long-serving and distinguished jurist of the United States District Court for the Southern District of New York, held that the City of New York (" the City" ) had violated the plaintiffs' Fourth and Fourteenth Amendment rights, and ordered the City to engage in a variety of remedial measures and activities.

On August 27, 2013, the City moved in the district court to stay those remedies, pending an appeal on the merits of the district court's decision. Judge Scheindlin denied the motions. On September 23, 2013, the City moved in this Court to stay the imposition of the district court's remedies. By order dated October 31, 2013, we both granted that stay and, because the appearance of impartiality had been compromised by certain statements made by Judge Scheindlin during proceedings in the district court and in media interviews, we reassigned the cases to a different district judge, to be chosen randomly. 1 We

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now explain the basis for that order, which is superseded by this opinion.2

BACKGROUND

We emphasize that the merits of this litigation are not before us and are not at issue here. Accordingly, we neither express nor intimate any views on the merits of the underlying actions. This opinion deals only with our procedural decision to direct the reassignment of the cases and turns on how the cases came before Judge Scheindlin and the media interviews she gave during the pendency of these lawsuits.

For the sake of clarity, we recite the procedural history that has led us to this point. In January 2008, the plaintiffs in Floyd filed a class action alleging that the NYPD violated the Fourth and Fourteenth Amendments through a pattern and practice of stopping and frisking without reasonable suspicion. In March 2012, the plaintiffs in Ligon filed a class action alleging that the NYPD violated the Fourth Amendment by engaging in a practice of unlawfully stopping, frisking, and arresting persons for trespass because of their presence in or near buildings enrolled by their landlords in an NYPD crime prevention program known as the Trespass Affidavit Program (" TAP" ).

When filing, the plaintiffs in Floyd marked the case on the appropriate form as related to Daniels v. City of New York, No. 99-cv-1695, an earlier case over which Judge Scheindlin presided. Likewise, the plaintiffs in Ligon marked that case as related to Davis v. City of New York, No. 10-cv-699, over which Judge Scheindlin was also presiding.3 Because Daniels, although terminated a month earlier, and Davis had been assigned to Judge Scheindlin, Floyd and Ligon were forwarded to her, pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges, 4 and she accepted them both as related cases.

In a decision dated January 8, 2013, and amended on February 14, 2013, Judge Scheindlin granted the Ligon plaintiffs' motion for a preliminary injunction, holding that they had " shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx." 5 In a separate opinion, Judge Scheindlin granted the defendants' motion to stay any remedies until after the " issuance of a final decision regarding the appropriate scope of preliminary injunctive relief, and the appropriate

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scope of permanent injunctive relief (if any) in Floyd. " 6

On August 12, 2013, following a nine-week trial in Floyd, Judge Scheindlin held that the City of New York violated the plaintiffs' rights under the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. 7 The same day, Judge Scheindlin issued an opinion setting forth remedial measures in both Floyd and Ligon 8 intended to bring the NYPD's use of stop-and-frisk into compliance with the Fourth and Fourteenth Amendments.9

On August 16, 2013, the defendants in both cases filed notices of appeal in this court. On August 27, 2013, the City of New York moved in the district court to stay the remedies in Floyd and Ligon, pending the outcome of the appeals process. On September 17, 2013, Judge Scheindlin denied the City's stay motions. On September 23, 2013, the City moved in this court to stay the district court's August 12, 2013 remedies order.

Following oral argument, this panel, on October 31, 2013, stayed, " the District Court's January 8, 2013 ‘ Opinion and Order,’ as well as the August 12, 2013 ‘ Liability Opinion’ and ‘ Remedies Opinion,’ each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants." This panel also concluded " that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals." 10 We now explain in greater detail the basis for our decision to reassign the cases.

DISCUSSION

Title 28, United States Code, section 455(a) provides that " [a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This statute embodies the principle that " to perform its high function in the best way justice must satisfy the appearance of justice." 11

The goal of section 455(a) is to avoid not only partiality but also the appearance of partiality.12 The section does so by establishing an " objective standard ‘ designed to promote public confidence in the impartiality of the judicial process.’ " 13 The rule functions as a critical internal check to ensure the just operation of the judiciary. Our Court, sitting en banc, has stated that there exists " unusual circumstances where both for the judge's sake and the appearance of justice, an assignment to a different judge is salutary and in

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the public interest, especially as it minimizes even a suspicion of partiality." 14 And as other circuits have correctly noted, " ‘ if the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal.’ " 15

We emphasize at the outset that we make no findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin. Following our review of the record, however, we conclude that her conduct while on the bench, which appears to have resulted in these lawsuits being filed and directed to her, in conjunction with her statements to the media and the resulting stories published while a decision...

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