1250 Broadway, 27th Floor New York, NY 10001


Our colleague -- Professor Randolph McLaughlin -- is quoted in this Law360 "stop-and-frisk" piece:

2nd Circ. Stop-And-Frisk Rebuke A Warning To Chatty Judges

By Pete Brush

Law360, New York (November 01, 2013, 6:39 PM ET) -- The Second Circuit's removal of U.S. District Judge Shira A. Scheindlin from the hot-button stop-and-frisk litigation because of her public statements stunned New York court watchers, and while many experts on Friday called the move a draconian overreaction that would chill the judiciary, others said the time was right for a stern warning.

Their comments came after a Halloween evening bombshell from a three-judge appeals panel that took the extra step of booting Judge Scheindlin from the case after issuing a stay on her rulings that the New York Police Department tactic known as stop and frisk showed unconstitutional racial bias.

The panel stayed the rulings pending appeal and said Scheindlin "ran afoul" — both in a courtroom statement and in comments to the news media — of the requirement that judges "avoid impropriety and the appearance of impropriety" in their activities.

That triggered an immediate response from Scheindlin, who insisted she acted properly in guiding the plaintiffs toward filing a related case, something the Second Circuit took a dim view of, and in giving comments to reporters in the months before the cases culminated in favorable rulings for plaintiffs who believe New York City police illegally profile minorities in their street stops.

The Second Circuit's decision to remove Scheindlin, which arguably could be challenged in the form of an en banc petition, surprised even lawyers working the case, who noted that no one asked for such an unusual step.

"Lawyers on the defense side thought she had her thumb on the scale — but nobody asked for her to be removed," said one attorney familiar with the proceedings, who spoke on the condition of anonymity.

While it was impossible to gauge whether the ruling would bear on the outcome of the litigation — the Second Circuit made a point of saying, "We intimate no view on the substance or merits of the pending appeals" — some said the plaintiffs should at least try and get the full Second Circuit to look at the removal.

" They didn't need to go to this extent. Issuing the stay would have been enough," said Pace Law School professor Randolph M. McLaughlin, who also co-chairs Newman Ferrara LLP's civil rights practice. McLaughlin said the appellate court handed the judge an undue black mark on her long career.

Such a challenge could benefit future judges who may have to make tough rulings in cases where the city's establishment may be against them, McLaughlin said.

"This decision will have a chilling effect on lower court judges, who now will have to worry about everything they do and say," he said.

Many legal experts agreed, taking issue with the appellate panel's reasoning.

"The decision is shocking — and shockingly wrong," said Hofstra University School of Law professor Monroe H. Freedman, an expert in judicial ethics.

Freedman took issue especially with the Second Circuit's finding that Scheindlin had breached guidelines that set out how related cases should be added into litigation when she advised plaintiffs to file a second complaint — Floyd v. City of New York — that became instrumental in the proceedings.

"I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit," Scheindlin said in 2007, according to the appellate ruling.

"I have no idea why she said that," Freedman said. "But there is absolutely nothing wrong with a judge informing the parties, whether they have counsel or not, of appropriate court room procedures — or with suggesting how an issue could properly be raised in a new case."

Judges — including those on the U.S. Supreme Court — often guide litigants, Freedman said, pointing to Justice Samuel Alito's wording in a ruling this year upholding a federal surveillance law that said a future case in which a plaintiff alleged "specific facts, not the government's burden to disprove standing" might succeed in curtailing an expansion of Uncle Sam's eavesdropping powers.

Another sharp criticism of the Second Circuit came from a former New York federal judge, Richard Holwell, who now works in private practice, who called the removal "unfair and unwarranted."

"I read the articles that the appellate court cited. There is nothing in those articles, in the statements she made, that calls into question her integrity or independence," Holwell said. "They've acted very rashly here."

On the question of Judge Scheindlin's quotes in the news media, Freedman added that the judge "was responding to very harsh criticism that had been made of her, her integrity and her independence."

But others wondered why — even in the face of withering attacks from New York City Mayor Michael Bloomberg, Police Commissioner Ray Kelly and elsewhere — Scheindlin, whose job on the bench is permanent and not subject to any political whim, chose to speak out so often.

"It doesn't make any difference if the judge is biased or not if a reasonable person can question the impartiality," said Albany Law School professor Vincent M. Bonventre. "As far as the law goes, I think the Second Circuit got it right."

Bonventre, who noted that the appellate panel is comprised of "well-respected judges" not known for partisanship, said the decision likely was a warning — to Second Circuit jurists at least — that the circuit is "leery of trial judges becoming celebrities — and perhaps even enjoying their celebrity a bit too much."

"This ruling is not going to chill judges from giving educational talks about the law and the role of the judiciary," Bonventre said. "But it almost certainly will — and ought to — chill judges from acting like celebrities or taking a stand on a case that makes them look partial and biased. She may not be biased but it certainly came out looking that way."

--Editing by John Quinn and Katherine Rautenberg.