It is not an easy job to police a city of over 8 million. Police officers take on the noble task of keeping us safe every day — they are hard working and honest people. A judge’s acknowledgment of the rigors of police work should not suggest bias. Neither, by extension, should a judge’s recognition of the shortcomings in governmental actions. When systemic policing methods are inconsistent with our constitutional principles, we have a duty to correct them. Unfortunately, the Second Circuit’s unfounded stay of Judge Scheindlin’s rulings in the Floyd and Ligon cases only serves to delay necessary reforms. Moreover, her removal from the cases is particularly troublesome considering the litigants did not request (or brief) it.
The decisions in Floyd and Ligon are well reasoned, substantially documented, and cite to numerous authorities. While some (or most) in federal practice view the Monell standard (the Section 1983 Supreme Court case that recognizes municipalities can be liable for civil rights violations) as almost impossible to meet, Monell and its progeny still represent good law. These laws foster public confidence in a system that ensures checks and balances on governmental action. The fact that Judge Scheindlin found the New York Police Department to be in rare breach of Monell does not mean she was biased. To lawyers familiar with New York’s criminal justice system, her decisions have the uncommon ring of truth and clarity. The Second Circuit, on the other hand, stayed the orders without addressing the merits (“we intimate no view on the substance or merits of the pending appeals”) and, sua sponte, removed Judge Scheindlin from the cases.
Judge Scheindlin recounts in vivid detail the numerous credible witnesses who testified with respect to illegal, and often humiliating, police stops. That she sometimes chose to credit the testimony of the victims of unconstitutional actions over the often inconsistent testimony from the City, does not mean she was predisposed to do so (notwithstanding a system that overwhelmingly credits the testimony of officials). She also considers expert testimony in assessing the mounds of data. The facts and law cited in her decisions do not hint at bias.
Although the Second Circuit does not explain their decision to stay the orders, it cites three of Judge Scheindlin’s press interviews as sources of her impropriety. However, these references raise more questions regarding the judge’s removal, than they answer. In the news articles, Judge Scheindlin does not discuss the pending cases; rather she discusses her judicial philosophy as one that does not automatically bow to governmental actors. It is precisely Judge Scheindlin’s thorough and critical view of the evidence that lend her decisions objectivity, rather than render them pre-judged.
If the Second Circuit has a different view of the cases, they can clarify the law on appeal. What, then, was the purpose of removing Judge Scheindlin and admonishing her for her thoughtful work? Why is there no analysis of the relevant issues in their two-page decision? The Second Circuit’s catch-all citation, “appearance of impropriety,” in support of her removal, lacks both specificity and guidance.
The PRBA, along with other bar associations, will sponsor an ethics CLE this winter where a panel of experts will critically examine the circumstances of Judge Scheindlin’s removal. We extend an invitation to all New York bar associations to participate, particularly those with ethics committees organized for that purpose. We encourage all to attend.