In re Reassignment of Cases: Ligon Floyd v. City of New York, et

13-3123; 13-3088 In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al.

United States Court of Appeals FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand thirteen.

Present: John M. Walker, Jr., José A. Cabranes, Barrington D. Parker, Circuit Judges. _____________________________________

In re Reassignment of Cases _____________________________________

Jaenean Ligon, et al., Plaintiffs-Appellees,

v. 13-3123

City of New York, et al., Defendants-Appellants.

_____________________________________

David Floyd, et al., Plaintiffs-Appellees,

v. 13-3088

City of New York, et al., Defendants-Appellants.

____________________________________ *2

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the cases to a different district judge, to be chosen randomly.1 We now explain the basis for that order, which is superseded by this opinion.2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.

1 See Appendix A. 2 On November 8, 2013, Judge Scheindlin moved in this court through counsel for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel’s sua sponte order of removal.” We address this motion by the district judge to appear in support of retaining authority over these cases in a separate opinion published contemporaneously with this one.

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.

3 Prior to Ligon being filed, Judge Scheindlin had accepted Davis as related to Floyd, so in that sense, Ligon also descends directly from Daniels via Floyd and Davis. 4 In relevant part, Rule 13 provides:

(c) Assignment of cases and proceedings that are designated as related.

(i) Disclosure of contention of relatedness.

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 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 Ligon8 intended to bring the NYPD’s use of stop-and-frisk into compliance with the Fourth and Fourteenth Amendments.9

When a civil case is filed or removed or a bankruptcy appeal or motion to withdraw the reference of an adversary proceeding from the bankruptcy court is filed, the person filing or removing shall disclose on form JSC44C any contention of relatedness. A copy of that form shall be served with the complaint, notice of removal, appeal or motion.

(ii) Civil cases that are designated as related.

A case designated as related shall be forwarded to the judge before whom the earlier-filed case is then pending who has the sole discretion to accept or reject the case. Cases rejected by the judge as not related shall be assigned by random selection. 5 Ligon et al. v. City of New York et al., 925 F. Supp. 2d 478, 485 (S.D.N.Y. 2013). 6 Ligon et al. v. City of New York et al., Nos. 12-cv-2274, 08-cv-1034, 2013 WL 227654, at *4 (S.D.N.Y. Jan. 22, 2013). 7 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013). 8 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013). 9 Id. at *13.

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

10 See Appendix A, at 3. 11 In re Murchison, 349 U.S. 133, 136 (1955) (internal quotation marks omitted).

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 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 on the merits was pending and while public interest in the outcome of the litigation was high, might cause a reasonable observer to question her impartiality. For this reason, her disqualification is required by section 455(a).

12 See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). 13 SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861 F.2d 1307, 1313 (2d Cir. 1988) (quoting H.R. Rep. No. 1453, reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55). 14 United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc) (internal quotation marks and citations omitted). 15 In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001) (quoting Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995)); see also United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993).

A.

The appearance of partiality stems in the first instance from comments made by Judge Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a case that had yet to be filed, and as seeking to have that case filed and to preside over it after it was filed. These comments were made in the earlier case of Daniels v. City of New York, No. 99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s supervisory authority under the settlement agreement was set to expire, she heard argument on a motion brought by the Daniels plaintiffs to extend the settlement period.16 The transcript of the hearing indicates that the City had substantially complied with the relief required by the settlement and that the plaintiffs were seeking information from the City beyond that required to be furnished by the settlement agreement.

Observing that the settlement agreement did not entitle the plaintiffs to the relief they sought, Judge Scheindlin counseled:

THE COURT: [. . .] why don’t you file a lawsuit

Mr. COSTELLO: We did, we are here.

THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.

How could it not be related to this whole long seven or eight years we have lived together in this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn’t mean if you have a timely lawsuit -- you seem to have compiled interesting arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she did, that’s why we didn’t do something, because we didn’t want them to write this

16 See Appendix B (transcript of hearing).

letter, she -- let’s just say she hasn’t substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling [sic] me about a stipulation of settlement, why don’t you craft a lawsuit?

(TR 10-11) (emphasis added). She returned to the idea of bringing a suit alleging that the City had violated their racial profiling policies and suggested a basis for the suit:

THE COURT: what I am trying to say - - I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply - - MR. MOORE: $350 THE COURT: I knew I had it wrong. The [C]ity violates its own written policy, the City has a policy that violates -- they have violated their policy, here is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely.

(TR 14, 15) (emphasis added). And again:

THE COURT: I don’t understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn’t, that Raffo applies or it doesn’t that the court has the power to extend the supervision, that we want our immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right? MR. GROSSMAN: Yes, your Honor. THE COURT: If you think they are violating their written policy, sue them.

(TR 15) (emphasis added).

Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would successfully obtain relevant documents produced by the government:

THE COURT: . . . There is enough in the public record to craft the suit.

And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential.

(TR 18) (emphasis added). After the plaintiffs indicated their willingness to bring the new suit, she repeated her earlier suggestion that the cases were related and indicated her willingness to keep the newly filed case:

MR. MOORE: To the extent that some of the materials have already been made public. THE COURT: what’s public is public, -- If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren’t acting in good faith. If I can get the Rand study on the internet, it is public -- MR. MOORE: you can go to the NYPD website, your Honor. THE COURT: There you go, that’s public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you.

(TR 42) (emphasis added).

We believe that a reasonable observer viewing this colloquy would conclude that the appearance of impartiality had been compromised. We do not mean to suggest that a district judge can never engage in a colloquy with a party during which the judge advises the party of its legal or procedural options. However, we think, particularly in combination with the public statements described below, that a reasonable observer could question the impartiality of the judge where the judge described a certain claim that differed from the one at issue in the case before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim could be viable and would likely entitle the plaintiffs to documents they sought, and advised the party to designate it as a related case so that the case would be assigned to her.17

17 The designation by parties, and acceptance by district judges, of cases as related to other pending matters pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges, is a routine practice that promotes judicial efficiency and economy. Our decision in this opinion should not be construed as casting doubt on the proper designation and acceptance of cases as “related” in the normal course—that is, when a district judge does not invite the filing of a suit and encourage its direction to their Court. We also note that, for civil matters, the Rule explicitly anticipates cases being marked as related to “earlier-filed case[s] . . . then pending,” see Rule 13(c), which is “designed to reduce litigants’ costs by informally consolidating proceedings in related cases,” Chase Manhattan

B.

This appearance of partiality by Judge Scheindlin at the Daniels hearing was exacerbated as a result of interviews she gave to the news media during the course of the Floyd litigation. Cases involving public comment by a presiding judge, other than statements in open court, are infrequent. As the First Circuit has remarked, “[j]udges are generally loath to discuss pending proceedings with the media.”18 Of course, not every media comment made by a judge is necessarily grounds for recusal.19 We note that Judge Scheindlin did not specifically mention the Floyd or Ligon cases in her media interviews. However, a judge’s statements to the media may nevertheless undermine the judge’s appearance of impartiality with respect to a pending proceeding, even if the judge refrains from specifically identifying that proceeding in his remarks to the media. Because context is always critical, the relevant question at all times remains whether, under the circumstances taken as a whole, a judge’s impartiality may reasonably be called into question.20 Because there is no scienter requirement in section 455,21 the test is not

Bank, N.A. v. Celotex Corp., 56 F.3d 343, 347 (2d Cir. 1995). Here, at the time Floyd was filed in January 2008, Daniels, to which it was accepted as “related,” was closed.

Judge Scheindlin’s motion, the subject of the separate opinion we file today, contends that the “District Court’s recognition that judicial economy would be served by the invocation of the related case doctrine codified in Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy.” To be sure, both Local Rule 13 dealing with related cases in the district court, and the practice in this court by which a motion panel may choose to hear the appeal on the merits, are designed to conserve judicial resources. However, in the court of appeals, because the case is the same case and not just a related case, and no litigant is involved with the decision, there can be no forum-shopping.

In any event, the gravamen of why reassignment of this case is necessary is not simply the use of Local Rule 13. It is the appearance of partiality that was created by Judge Scheindlin’s conduct throughout the December 21, 2007 hearing in suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case, as well as the media interviews she gave during the Floyd proceedings. 18 In re Boston’s Children First, 244 F.3d at 169. 19 See, e.g., United States v. Fortier, 242 F.3d 1224, 1229-30 (10th Cir. 2001) (superseded by statute on other grounds); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991). 20 See United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).

how a judge intended his remarks to be understood, but whether, as a result of the interviews or other extra-judicial statements, the appearance of impartiality might reasonably be questioned.

In late May 2013, at the conclusion of the evidence in Floyd, when public interest from reporting on that trial was high, and months before she had produced a decision, Judge Scheindlin made herself available for interviews by the Associated Press, The New Yorker, and the New York Law Journal.22 The “lede” of the AP article dated May 18, 2013, read “[t]he federal judge presiding over civil rights challenges to the stop-and-frisk practices of the New York Police Department has no doubt where she stands with the government. ‘I know I’m not their favorite judge,’ U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday.” The lengthy profile of Judge Scheindlin in The New Yorker, for which she agreed to be interviewed, was titled, “Rights and Wrongs: A Judge Takes on Stop-and-Frisk.” The writer, implying that Judge Scheindlin was aligned with the plaintiffs, wrote,

[t]he primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade. In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with the Democratic candidates united in their opposition to the stop-and-frisk policies of the Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite the rules of engagement between the city’s police and its people.

While nothing prohibits a judge from giving an interview to the media, and while one who gives an interview cannot predict with certainty what the writer will say, judges who affiliate themselves with news stories by participating in interviews run the risk that the resulting

21 See Liljeberg, 486 U.S. at 859. 22 Jeffrey Toobin, Rights and Wrongs: A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013 (attached hereto as Appendix C); Larry Neumeister, NY “Frisk” Judge Calles Criticism “Below-the-Belt”, The Associated Press, May 19, 2013 (attached hereto as Appendix D); Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 20, 2013 (attached hereto as Appendix E).

stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”

Further, in those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality. As the First Circuit put it, “the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.”23

C.

In our previous order, we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 372, et seq. No such finding is required under section 455,24 and we do not find that there was any judicial misconduct or violation of any ethical duty.

“To reassign a case on remand, we need only find that the facts might reasonably cause an objective observer to question the judge’s impartiality, or absent proof of personal bias

23 In re Boston’s Children First, 244 F.3d at 170; see also United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media.”). 24 See In re Boston’s Children First, 244 F.3d at 168.

requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.”25 Even where there is reason to believe that a district judge would fairly conduct further proceedings on remand, “in determining whether to reassign a case we consider not only whether a judge could be expected to have difficulty putting aside his previously expressed views, but also whether reassignment is advisable to preserve the appearance of justice.”26 Such a decision “does not imply any personal criticism of the trial judge,”27 and none is intended here. Indeed, for example, in United States v. Quattrone, we ordered reassignment because “portions of the transcript raise[d] the concern that certain comments could be viewed as rising beyond mere impatience or annoyance” even though there was no “evidence that the trial judge made any inappropriate statements leading us to seriously doubt his impartiality.”28

Reassigning a case to a different district judge, while not an everyday occurrence, is not unusual in this Circuit.29 Nor is reassigning a case to a different district judge an unusual occurrence in our sister Circuits.30 Indeed, as noted in our accompanying opinion, reassignment

25 United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (internal quotation marks and citations omitted) (abrogated on other grounds). 26 United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998) (internal quotation marks omitted). 27 United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006) (internal quotation marks omitted). 28 Id. 29 See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v. Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d Cir. 2003); Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146 (2d Cir. 2000); United States v. Padilla, 186 F.3d 136, 143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the appearance of justice would best be preserved by reassignment.”). Additionally, it bears noting that in none of these cases was the affected district judge afforded “an opportunity to be heard” prior to the disqualification action of the Court of Appeals, much less did the affected district judge ever seek to participate in the appellate proceedings involving the district judge’s decisions. 30 See, e.g., United States v. Clawson, 650 F.3d 530, 539 (4th Cir. 2011); John v. Goetz, 626 F.3d 356, 363- 65 (6th Cir. 2010); In re United States, 614 F.3d 661, 666 (7th Cir. 2010) (“No reasonable person would fail to perceive a significant risk that the judge’s rulings in the case might be influenced by his unreasonable fury toward

is simply a mechanism that allows the courts to ensure that cases are decided by judges without even an appearance of partiality.

Although the possible recusal of Judge Scheindlin was not raised either by the parties or the judge herself in the district court or this court, there is no barrier to our reassigning the cases nostra sponte. Indeed, in numerous cases in recent years, we have found it appropriate to reassign a case without the issue having been raised or briefed by the parties or considered by the district judge.31 To be sure, in the usual case, “a federal appellate court does not consider an issue not passed upon below.”32 But as Justice Black, writing for the unanimous Supreme Court, recognized more than seventy years ago, “[t]here may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court . . . below.”33 More recently, Justice Souter, writing for the Court, reaffirmed that when an appellate court may consider a legal issue not raised below is a “matter ‘left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases,’”34 and we recently

the prosecutors.”); Microsoft Corp., 253 F.3d at 107-117; In re Boston’s Children First, 244 F.3d at 164; United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) (stating that courts of appeals in the first instance are empowered to reassign cases where, under 28 U.S.C. § 455(a), the district judge’s “impartiality might reasonable be questioned”); United States v. Cooley, 1 F.3d 985, 992-96 (10th Cir. 1993); In re School Asbestos Litig., 977 F.2d 764, 798 (3d Cir. 1992); United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (“We have the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit.”); Brown v. Baden, 815 F.2d 575, 575 (9th Cir. 1987); Potashnick v. Port City Const. Co., 609 F.2d 1101, 1120 (5th Cir. 1980). 31 See, e.g., Steppello, 664 F.3d at 367; Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999); Londono, 100 F.3d at 242 (abrogated by statute on other grounds); Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir. 1988); see also United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006) (noting that in some reassignment cases, the reassignment has been “initiated sua sponte by the court on the defendants behalf”). 32 Singleton v. Wulff, 428 U.S. 106, 121 (1976). 33 Hormel v. Helvering, 312 U.S. 552, 557 (1941). 34 Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (quoting Singleton, 428 U.S. at 121).

reaffirmed the same principle.35 Given the importance of maintaining the judiciary’s appearance of impartiality, we think that it is well within our discretion to order reassignment in these cases.

CONCLUSION

This opinion explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”36

35 See United States v. Sum of $185,336.07 United States Currency Seized From Citizen’s Bank Account L7N01967, 731 F.3d 189, 195 n.6 (2d Cir. 2013). 36 Londono, 100 F.3d at 242.

APPENDIX A

13-3123; 13-3088 Ligon, et al. v. City of New York, et al.; Floyd, et al. v. City of New York, et al.

United States Court of Appeals FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand thirteen.

Present: John M. Walker, Jr., José A. Cabranes, Barrington D. Parker, Circuit Judges.

_____________________________________ Jaenean Ligon, et al., Plaintiffs-Appellees.

v. 13-3123 City of New York, et al., (Corrected) Defendants-Appellants,

_____________________________________ _____________________________________

David Floyd, et al., Plaintiffs-Appellees.

v. 13-3088 City of New York, et al., Defendants-Appellants,

_____________________________________

Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction (“Remedies Opinion”).

It is hereby ORDERED that 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, are STAYED pending the disposition of these appeals.

The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:

Defendants shall perfect their appeals by January 24, 2014. Plaintiffs shall file by February 28, 2014. Defendants shall reply by March 14, 2014.

Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course.

The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.

Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media

1 In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case

interviews and public statements purporting to respond publicly to criticism of the District Court.2

Accordingly, we conclude 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.

In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.

The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.

In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013. 2 See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.

APPENDIX B

1 UNITED COURT 1 UTHERN 2 --- --- -x 2 3 NI 3 4 PI nt 4 5 v. 5 6 E F 6 7 nd 7 8 ---- --- -- -x 8 N rk, N 9 m r21,2007 9 4:50 p.m. 10 10 11 11 . SHI HEIN UN, 12 12 Judge 13 13 14 15

16 17 18 19 20 21 22 23 24 25 UTH ISTRI ,P. . 1 2) 5 03

2 IPd 1 (In open urt) 2 MS. MAN- ur nor, m I ju bring one issue 3 ur ntion? 4 THE COURT: Not until I h you. 5 ood rnoon, Mr. Moo 6 MR.M RE: ood rn n, Judge. 7 THE rn n, Ms 110. 8 MS. rn n, ur Honor. 9 THE URT: Mr. Franklin. 10 And who is e n in n all 11 S. nor, this is g , he 12 is a uate from our offi 13 nd g rn n, s. ssm d Ms. 14 nah 15 IS I

16 MS. MAN: The m me nce me 17 nfidential m ri during our n d Iju 18 bring urt's ntion! in th lieve the 19 urtroom might h bri moment. r 20 pi un rai th e issues 21 while we h her m. 22 I think we a n. 23 THE U who e j th are 24 he on the criminal e. Who are the other 25 I We with the r for n tutional UTHERN DISTRI ,P. . 12) 5 0300

3 Pdan 1 Rights. 2 THE U u h rn 3 val E: I am an rn 4 I am a paralegal. 5 THE URT: Th - I understand ur point. 6 n I can, I'd be h g the criminal case out the 7 u m. n 8 me g on this m r Daniels versus 9 The ity of New York. 10 Ih aI m r 14, 11 2 7. nd th s king anum r thi s. t I sup se 12 on the m imm iate basis th king some kind of an 13 o er nding the urt su rvision no less na 14 months, for the sole purpose of letting them fully bri the 15 reque for reli in this I r. So the is no rush. 16 th s ng, the have no rush and 17 r is the d nsent a r-th 18 month adjournment minimally, ju eve can these 19 issues ful bri and on the Ie. And if the urt denies 20 I the Ii 21 But rather th h rk it out in eight or nine 22 d u s ng JU g me kind 23 ju nsion or som mg. 24 n't go i the re the Ii th seek, 25 mo in rms zing the I rs, b the large SOUTH N ISTRI 1 5 0300

4 IPdan 1 overall summary is th the h naI k of mpliance in 2 ous th the stipul leme. d e 3 urt should modify the pul lement order, 4 spe fic performan of rtain the stipulation of 5 settlement. 6 And then th k r the third point 7 is I ink u ,whe th e 8 should a modifi ive order some of 9 the nfidential. 10 ne s will have use some 11 the rm on rmine wh do with 12 the motion. But, s ndly, they a s ng some of it h n 13 disci ed ndant in her d it is 14 al much discuss ! and u should withd the design n 15 if it h n publicly disci ed. 16 Then I ived a I r in sponse d m r 17 19 b Ily in cham m r 20, 18 a rei d on t 19 e long and short of it, I h nit h a chan 20 I But I did have the 21 opportunity If long, I guess, 22 the es 't II h the is a 23 I single s es, them. 24 And e quick summ n 25 pi ntiffs want p nd that the s ement SOUTHERN OISTRI I P. 12) 5-0300

5 IPdan 1 things it d snit the all b h nit breaches 2 I, d ui ed nda 3 h. 4 a number times in the I r, 5 plainti may h wanted the stipulation of settlement s 6 these things, but it d nit. And the in nse d 7 dis eme ons. if th didn't g 8 th mplain about it now. 9 nd so the d ndant opposes all the reque for 10 ifi on the stipul on, op s 11 an I op ses 12 the line, and opposes the modifi on the 13 p 14 id, it would nonetheless helpful to 15 the urt and all the parties, in the nine d remaining 16 n now and the 31 m r, - deny this in an 17 o erly hion nding the d 18 If the d ndant refuses is 19 will bri for the ne nine d 20 th show s nd ur hri S, 21 th u. 22 h the r ume I but I 23 n 9 enough a figu it out. And if u 24 do much I through hri mas and N 25 Who is ng the I SOUTHERN ISTRI 1 2) 805 0300

6 IPdan 1 MR.M . Ms. 110. 2 E II, Ms. 110 I think uh 3 ught the burden m ument the u ent 4 a ply I r. I think you n to an r all the points 5 th Ms. rossman made in her very thorough submission point

6 i nt. her i u noti closely 7 from the merits, so to speak. And th try not to II me 8 whether or not, u kn the 9 discrimin ion, or whether on. 10 t kp u t k is 11 or isn't in the ipulation. Wh rights u have or don't 12 h in the ipul on. 13 d I unde th is a ntract th 14 ng, no m r how bad things may s not part 15 this ui 16 other I uit brin 17 Butth some interesting allian on the 18 iation The ty New rk, whe th 19 denying any further Ii d th 20 P ent r them. d it did 21 m r them. 22 urt -- n there is no 23 gu es lement d ume , 24 th nvincing demon ion 25 nt discrimination uld not m n th the d nd SOUTHERN DI CT REPORTERS, P. . 12) 805 0300

7 Pd 1 violating the provisions of the settlement ment. 2 rt is Iy the situ on I m in, 3 rt of sing problems th a ry 4 sting but not part of this ement ment. 5 think you n to g me a ply bri if you wish, orally. 6 MS. s, your Honor. I try my be 7 ne i th the c s ju the 8 th there no in substantial m ies in the nsent 9 dec 10 THE U the nsent d ree, I think 11 some h hibit 12 MS. ROSSMAN: s, your Honor. 13 THE going h show e, do 14 II ree, sh me the langu e. 15 : In s ion l! your Honor, in s on 16 1. 17 me ju back up one s nd, ur Honor. I think 18 the and this is of what we would Ii !

19 bri urt, there are two th the u uld 20 n nt dec and also grant our 21 Ion. ne is within the u Ie 22 d under R ifi on. 23 r 24 ing, the non- d s rman 25 mpt p i n g th would suit, flow m th which UTHERN DISTRI REPORTE ,P.. 1 2) 805 0300

8 IPdan 1 solution mechanism in the ment itself, if 2 da under , a much mo flexible 3 s into unt the public i re and the 4 change in circum s. The ci doesn't address th all. 5 THE URT: No, th n Ruffo, I donlt think 6 th did. I it rly quickly. 7 MS. : Under the d in R think 8 th the modifi on would appropri 9 Putting that ide for the moment, king 10 the langu e the ree, s the 11 pul on a n 12 arding racial or ethnic or nation origin profiling, th 13 mplies with the Uni 5 n tution and the New 14 n itution. 15 And I think th we have shown th the is dence 16 of al profiling going on. 17 THE URT: n the 15 den of ial 18 profiling, th raph d snit h anything do with 19 th 20 It that the NYPD shall h a written poli th 21 complies h the nstitution of both the Un sand 22 N th s wh th h 23 - I u example, I 24 th a wri n Ii mplies hit, d th th 25 01 it I the time. wouldn't h viol SOUTHERN DISTRI 12) 5 0300

9 IPd 1 paragraph 1. Paragraph 1 you h to have a written 2 Ii th complies the 3 MS. : -- if you pa raph 1 in 4 nn ion with, which requi s ining on the poli 5 training on the offi in p and frisk procedu S, in 6 s on E the is a provision in the for palm rds which go 7 out ind duals in the mmun If th lieve th h 8 n impro rly pped and frisked th can file a mplaint 9 with the ivilian mplaint Revi 10 think that all th m ns there was an 11 impl on this Ii 12 THE COURT: -- ua king me to rewri your 13 s lement ment. This is h , It IS n a 14 I don't want anybody to be confused by ing the 15 record. I am saying hypoth ically if th h a written 16 policy th complies with the nstitution of the United s 17 and New rk ial and hnic origin 18 pro fil i n g! t h s ph 1. 19 th th 01 ng 20 their 21 Num UI s them h propri 22 n Ii 23 That ms the ole IS n on th 24 the ment. in the 25 g th it will n SOUTHERN I REPO ,P . . 5 0300

10 IPd 1 inappropri racial profiling. The is no guarantee in he 2 It is the me thing Judge pi t ng 3 4 MS. COSTELLO: If you I k on 2, which s 5 that the NYPD m alter the policy 6 THE URT: - let me th 7 It s The m al r the 8 profiling poli 1. 9 That ju m isn't in 10 mpli ! and th is in 11 mplian ,I don't r 2p u e 12 gu e th m talking ut. 13 MS. I think num rei s 14 al ring the poli And I think th nt of this 15 ment was not to bargain for a poli that meant nothing 16 that the NYPD uld ju go out d viol pi urth 17 endment rights d Fou nth end me rig with no 18 re u e pi ntiffs. I think th would-- 19 THE URT: m it is an don't u file a 20 uit? 21 MS. We did, here. 22 THE COU No, u ruggling with the mber 23 31! 2007 d line in a 1999 . And if ug p 24 in p ri al profiling in a g n itution 25 why don't u bring a I u rtainly mark it UTHERN DISTRI , P. 12) 805 03

11 IPdan 1 lated. 2 H uld it n is Ie long s n 3 or eight h ether on this use 4 you trying to put a squ peg in a round hole. And trying 5 to force you Ives argue what the 5 lement m 5, th it 6 doesn't m if you h a timely I uit - you 5 h 7 compi! in ing a ume Ms. 55 h b

8 maybe she did, th why we didn't do mething, use 9 didn't them r, she - I s JU s 10 she h n't su s r. one h 1 1 only your I r, it would look Ii 12 in ling lIing me a Ion 13 ement, why don't u craft a I uit? 14 MS. COSTELLO: We could, but the only other issue 15 is -- 16 THE URT: That's wh would I Ii turn 17 talk ut the non mpli 18 MR. M Judge, uld I ju a things, 19 ut the notion that wh we 20 simply a pi r th h no 21 sub it. 22 THE URT: I didn't it no sub ceo 23 didn't h the wo gua . Didn't she r 24 the we no gu And Judge 25 in his ement. I didn't h time re sion, I SOUTH N DI REPO 5 0300

1 only read the two I r s . m mes a Judge h me time 2 I didn't h ti e, es the 3 came in 4 : To the e nt th given my involvement 5 with the in the beginning, I can sh any light on th , 6 on wh our unde ding , about wh we ning 7 r. 8 Ii We g ing a licy th the 9 c would put into That , it is n why we lOb ught the I uit. And Ms. 110 d, the 11 n - th didn't ju change e n 12 do s ral things. 13 t h fi n d the m ch r d 14 ument I'd like rrupt u JU 1 5 for a minute, and this criminal e. 16 17 THE URT:: I think u s king, Mr. Moo 18 MR. M Ih ne I0 rvation 19 ut my unde ding in the u ng this 20 d 21 I find it hard Ii th 22 s U ! or II, 23 a but Ilow it. 24 U 5 h 25 d -- UTH ERN ISTR! REPO 12) 5 0300

13 an 1 MR. MOORE: -- I think th th in their I r, 2 n change the Ii long we h a 3 wri n poli es ntially do wh r we want. 4 I ju think th if that's, in wh the 5 position of the city of New York is, it is a significant 6 di ren m wh unde we ing, which a 7 th had some substan it. Not ju a Ii on 8 r. 9 Ii Sl the Thi nth Amendment 10 lishing sl long h amendment th u 11 It h sl But in practi we still h sl 12 It s ms me it is a r Ii rp on 13 of the words in the d m nt add ss 14 wh we beli rious issue with respect to racial 15 profiling which, appa ntly, h not gone And n their 16 udy th th mmission e th 17 with s en PS, but n the 18 fris IS a disparity, th s their own 19 ex imony, their own ex port. 20 I ju find the notion th tying to 21 e in a law hool exe i g ing a Ii 22 th h 23 THE II 24 M M ntrary my unde ding and 25 ntrary -- SOUTHERN DISTRI REPORTERS, p, 12) 5 0300

14 IPdan 1 THE RT: - I will qu from page 4 the I r, 2 the fi full h 3 ing) In nclusion, it is important 4 that plaintiffs vigorously bargain for a provision which 5 would c for an obligation on the part of the d nd 6 gu th the would no racial profiling. The city 7 such a rm r ns he 8 n oti 9 M M RE: I don't know, there is no citation 10th is no it is in a it 11 it ing sile th th uldn't s u, 12 to the city, and you ing to mply with th 13 goi ally implement the Ii 14 I don't think Im n, a municipality that 15 adopt a poli should be then saying, now th h adopted 16 a written poli don't h implement it in practi 17 When, in , th making -- th I you kn the 18 inform ion sent out th the ial 19 E U I am su 20 am going uble rs ng i r $65 u n bring 21 that I uit. simply -- 22 M M R $350. 23 THE COURT: I kn Ih it ng. 24 The c Ii the ci h 25 a Ii th 01 s- h their Ii UTHERN DI ICT 1 2) 300

15 IPdan 1 is the proof of it, pi give us the medy. Injunction or 2 d ! or rl k r in mplian 3 for $350 u can bring th uit it is 4 timely. 5 I don't understand why h to potentially have, 6 u know, months of briefing when it d s fit under this 7 ipu on or it d snit, th pli it d snit 8 th the urt h the power to nd the su 9 want an imm peal the circuit. Why do u n th lOu h aI u Bring it. Th han Ii 11 rig 12 MS. GROSSMAN: s, your Honor. 13 THE URT: If u think t a 01 ng eir 14 written poli sue them. 15 MS. COSTELLO: Your Honor, just two quick ints. One 16 is about the point ur Honor's raising ut ju filing a n 17 I uit. 18 The one issue for us in th particular nario is 19 the p 0 er is ill in this 20 ends, we h back all of the d unless the 21 urt is p modify the p order and lift i 22 would n nefit of that d until filed a new 23 e and eng and battles with the ci g 24 th same inform on n, and then an er Ie ra 25 p order ain. SOUTHERN DI CT REPO 12) 5 300

16 IPd 1 we see it in the inte of judici nomy, if 2 the urt uld lift the p order in this e, sin 3 under the I guage the stipul on and pointed, if the 4 information is herwi made publicly lable. 5 THE URT: That's something I do want to Ik the 6 city ut. 7 If it is publicly Ie, then I don't unde nd 8 why u 't u publicly-available information in drafting 9 ur suit, or for wh her purpose. If mething is 10 publi I Ie it and who is in the 1 1 public lib g it, or using the In g it, if 12 anybody calls the city's 9 n book offi it, then it 1 3 is public. 14 Can you do this from public inform ion or n 15 MS. COSTELLO: It is not th publicly lable. 16 THE URT: You can't h it both If it is 1 7 public u can u it d I don't think the ci r ue 18th you 't. 19 n u bac k it is Iy n public, 20 then you aking their ument. 21 MS. : It is public. The only problem is th 22 the c h put out, ju Ms. 23 sm use it h r 24 we would Ii rm out the 25 Rand rpo lon, a udy, is th the UTHERN DISTRI R,P. 12) 5 0300

17 IPd 1 Rand rporation and the NYPD's spin using magic wands about 2 the d m s, our is d on 3 ex sh us different things, that the nd information h 4 us benchmark and other statistical m hods to plain 5 it is publicly available in the sen that the NYPD and the 6 Rand publi ion h written d Is in the Daily Nand 7 erwise m e th rm on lable. But in the nse 8 the d th h th m 9 put out, is not publicly that's our 10 5 our imp dour ci 5 and 11 nu the rns 5 12 our inform ion is d rent than what the 13 has, me which is the e 14 Rand hed me the me nclusions about the 15 d But th h also ignored some of the her 16 inform on, particularly lal disparities d the frisks 17 and the ns th think 18 indi 19 M ur Honor, in rms how the d is 20 II the d on dis m the city, which ma 21 it th ier mp 22 is information is public, but it is public in hard 23 pies. d so it is public n on th ugh the d 24 but al th ugh the udy th th the city, the 25 city coun I. But th the d is he UTHERN I ,P. . 1 2) 5-0300

18 IPdan 1 but it is in a form rms of 2 m ng I I ich uld 3 us months to 4 THE URT: ier, Ms. 110 5 spond with how difficult it would to rial 6 n, The is enough in the public rd 7 d suit si ply we p u I th 8 produ in the 1999 I uit. 9 I don't know h you uld I ing it. It m be lOa que n wh II going under p 11 0 er or n h 1m g ng it, u 12 know what I am me th anyJudge 13 Id p u in the e 14 th you h i t , th u will h n. Whether or not 15 it mains confidential. 16 MR. FRANKLIN: We'll h ain, but we h go 17 th ugh the same p ss h gone through. We turn 18 everything the city under this p order. 19 g h ain cui the same 20 h 21 goth ugh culatin 22 Why uld th 23 MR. FRANK N: under the p o er 24 g them k th information. 25 THE URT: Not ju wh they g UTHERN DISTRI REPORTERS, P. . 1 2) 805 0300

19 IPdan 1 MR. FRANKLIN: If my ing is , it's what 2 th us d 3 MS. rything de from the U 50 4 d e. it is the al physical dis that the d IS

5 ned on, which thousands and -- ns -- hundreds of 6 thou s entries, well as any information th we 7 derived. any th our h done 8 with coding, would h to be given k to the city. We 9 uldn't n th information. 10 THE URT:: ur rn work produ and publish 11 m would h go 12 ms odd me. I don't know why it n't be 13 under the rms nfidentiality. is is 14 practical. 15 MS. COSTELLO: Your Honor, if I uld, I am ju gOing 16 one minute and look the p order m 17 su 18 MR. FRANKLIN: Unless the ci disputes th . 19 E We n't g r off the 20 sub 21 : Judge, the p 0 er - 22 THE th 23 MR.M a py. 24 THE I Ms. sma Is th 25 UTHERN DI ,P. . 1 2) 5 300

20 IPdan 1 MS. MAN: your Honor 2 MR. M RE: hand u up a judge. 3 THE URT:: This is june 31 ,2000 - I'm sorry 4 Janu 31, 2000. ! it will be eight this january. 5 MR.M RE: raph 7, I think, is the provision 6 th is at issue he 7 THE U s it. in Within 30 d 8 r the rmin ion of this e, including any ap s, the 9 nfidential m rials, including all pies, n s and other 10m rials con ning or in rm 11 ! shall u ng 12 ! or upon their con nt, destroyed. And all pe ons 13 who sess such rials sh I rify their rn or 14 destruction byaffid to the producing 15 attorn . And pa : (Reading) The rms of this 16 order may modified by further order the 17 obviously 30 d rmin on IS

18 January 30, 2008, right? If the rmin mber 31 19 MAN. , thin ur Honor, the rmination 20 d in the 21 d ment. 22 uldn't se th uld 23 this stuff u o. 24 MS. MAN: Th did. all docume 25 th urn when the ment was ERN DI REPORTERS, P. . 1 2) 5 300

21 IPdan 1 and when it was finali by the Court. 2 the me in s ep 0 er d 3 Iy s th the plaintiffs n to return the 4 documents, maintain the nfidentiality, and r 5 the ment sun . Th s ex ment 6 rmin 7 The p 0 er the pi subj 8 the p order, m nfidential ity, 9 but -- 10 THE URT: II u all. 11 I II 12 now still retain until Janu 30, 2008, thirty d rthe 13 rmi on this e. 14 I am still supervising this , that's why u 15 worried about my nding it none d becau my 16 supervision runs out on mber 31 '07. ! I still h this 17 e. the rei it is not 30 d rmination 18 this Th king a ut the ry rial th 19 h 20 M material 21 THE URT: ntly ber. u 22 u didn't urn it 30 d r the r 23 bvious it is n due k till Janua 30 or 31 2 8. 24 II I am ng is, by then if u h aI uit 25 nding and n the ve em rial, I the SOUTH N DISTRI RTERS, P. . 1 2) 5 300

22 IPdan 1 authority to modify the rms of this order by a further order 2 the urt, which the , then I II, and I II 3 uh the m rial, hold on to it, rem ns 4 nfidential, mebody otherwise, and u it un 5 to u it in ur n lawsuit. 6 I don't want pi games he , if the is a 7 01 ion the c ling Ii th n 8 wh it is call ,. 9 MR. MOORE: Th s wh it is called. 10 RT: ge. Kind a -- 11 nonraci 12 THE is a violation of it, the 13 isa 01 sal uit, th s 14 It still rikes me making it mo difficult, a 15 squa in a round hole, to fo it into this stipul ion 16 settlement, and got into all these que ions about u tri 17 g a gu 18 u didn't g u fought r it, but 19th it u. I I 20 But okay, this is only the inning. We go through their 21 whole I r and pond to all their poin . We didn't g 22 u re going -- we with 1. 23 MR. M RE: Ju one nd, Judge. 24 THE URT: s. 25 (Discussion the record) SOUTHERN DISTRI REPO ! P. 1 2) 5 0300

23 IPdan 1 MS. GROSSMAN: Your Honor, if I m just d ss the 2 issue the nfide ial 3 THE URT: s. 4 MS. G MAN: If you were to I k paragraph 4 -- 5 I'm rry, H4. 6 THE COURT: Wh ipul ion s lement, 7 MS. 4. 8 THE s, 0

9 MS. MAN: If you would r with me, your Honor. 10 If I u through the fi and pi n wh it 11 h4 ell it 12 nfidential d uments- 13 THE URT: a min ! I on e 11 -- oh, 14 H,o 15 MS. ROSSMAN: (Reading) All nfidential documents 16 subj the January 31 , 2000 protective order, and pies 17 m produ pi nti d nd prior the 18 , shall rn rpo I 19 offi upon the d Unless prior to th d 20 d slyauthori the ntion s ific 21 uments i mi in writing by plaintiffs until, the 22 ,the rmination the ipul on. 23 Now, I ab . Th rm Ion 24 all the d ume p d during the litig on. The 25 plaintiffs complied with th provision in the ment and UTHERN DISTRI REPO , P. 1 2) 805 300

24 IPd 1 returned all the documents to the city with the ex ption of a 2 put in ng, a th we 3 all main n. 4 Now we m on to all d uments provid to plaintiffs 5 in any form by d ndan under the rms and during the cou 6 this pul on sh I d m nfidenti ,a 7 pi nti Ion offi all 8 such d uments, pies m upon the 9 In on of this on. 10 e d 11 of the ment, the plaintiffs, under the rms of this 12 ement, which th r, ich 13 to returned to the city. 14 THE URT: Well, that's good, but I don't think it is 15 good enough. Becau I think the urt's order is ambiguous or 16 ntradi th ng th it nds 30 d 17 r the rmination e. "18 N rp the ph e rmination of 19 is e di ntly an I do. I don't h it in front 20 me, I will find Actually it is h to this in the 21 p the p 0 er 22 M KLlN: it's the I ment. 23 THE URT: I h it d Jan 31 2000. Is th !

24 of the ipul ion settlement - it mu I

25 hibit the ipulation of ement. d the exhibit SOUTHERN DISTRICT REPORTERS, P.. 12) 5 0300

25 7c1Pdan 1 If s ry d of the termination of this e. 2 Ih the same pul ion of 3 ement th . And- 4 MR. MOO -- essentially wh a Iking about 5 is 30 d 6 THE COURT: Oh, I unde nd. But the d sn 7 h these Ie this mpl d 8 it al s ms childish me. It is in your I r, it is all 9 the 10 Ih two nfH ng clauses in nt 11 e Ie e ,. 12 MS. ROSSMAN: I Ii , your Honor, if u to 13 k h 4, e plain m ing -- 14 THE COURT: - 15 MS. ROSSMAN: -- the same 16 THE COURT: H4. 17 MS. MAN: H4. 18 THE COURT:: I kn H4 d, I don't even a ue 19 th it is wrong, but it h hibit . hibit 20 lis me th wi in 30 d rmination the e, 21 this is open until the urt's su rvision ends on 22 m r 31 2 7 23 M M RE: Judge - 24 THE and it th I have the r 25 m ify t order time. SOUTHERN ISTRI REPO I P. . 12) 5 300

26 IPdan 1 In rms this - by further order of the urt. 2 nly h the r modi th 3 p order until mber 31 of '07. 4 And to that e nt, I surely would modify it my 5 own reading of it, which is 30 d r the e rmin s, 6 which is January 30, '08. 7 I am h ping with ur I r if u 8 to go through ch rand , and try to II m ur 9 points in ur I r, try to nvin me. I don't like the 10 id having rk on it in the n eight d under th 1 1 gun. B th it is ming It d s n s m me 1 2 th would 13 MS. ur Honor, putti ide the issue 14 the modifi on it s the racial profiling issues. 15 THE COURT: s turn to something else then. 16 MS. COSTELLO: The specific rform issues other 17 th which would include the training. 18 THE URT:: talk about it. The city 19 ut that . I don't a subh ing ually 20 training. 21 Ms. sman II me whe in this I r it i 22 MR. M on 23 THE ion . The it is, ning, 24 o 25 MS. Iy under the on, SOUTHERN DI R RTERS, 12) 5-0300

27 IPdan 1 and I will point the urt to 5, and actually on of 2 e ipul on- 3 THE URT: -- E is the one th r 4 MS. COSTELLO' Yes. 5 THE COURT: Training. 6 MS. had ral nversations with 7 the c th ut the th there 8 has n r rifi the training s ified in 9 s ion E h urred. 10 The s position is, I unde di is th 11 n d uld di th 12 THE k at the plain langu e of the 13 s lement men 14 I don't know how much i ng to have to 15 but we wi II read much to. 16 1: The NYPD has ndu in service training 17 ing the ial profiling poli which h n p nted 18 NYPD mmands. The NYPD sh I provide nu in-servi 19 training ardi the ial profiling poli 20 2. The NYPD shall maintain that portion of the poli 21 emy curriculum th ns training arding the 22 ial profiling poli 23 3: The NYPD sh n poli offi 24 ut the I al d r ndu d 25 d umenting p,qu on and frisk ivity. ntinue to SOUTHERN DISTRI 1 2) 5 0300

28 IPdan 1 implement the poli emy curriculum for training police 2 cer ru the I al d r 3 ndu ng and d umenting p, que ion and frisk activity. 4 And continue to provide training for police emy 5 instructors, 6 MR. M R Judge - 7 E U a ut the I d es r 8 conducting for and - and then all I can s ragraph 9 4 I the NYPD shall the NYPD 10 sh I inue p nl 11 Num r 6 s Ii emy II ntinue 12 consider informally, al inciden brought to i ntion 13 r use in t ning. 14 7s , the NYPD is ng the ruit curriculum 15 and is part the p mmissioner will conduct a 16 review. 17 8 , the NYPD will p de full 18 p m rg d lie nan ning, 19 9: The municipal d nd h provid d 20 10 : The NYPD shall ntinue to docume training provid 21 pulation in the e manner and nsi nt with 22 ng p d p u s empl the NYPD. 23 Now, I h it all. Nowhe d th 24 will turn anything r cI s un cI s 25 un I. SOUTHERN DISTRICT REPORTERS, P. 1 2) 5 300

29 7clPdan 1 MR. MOORE: To rify, the word rifi on d s not 2 3 THE U r port or turn over - 4 MR. M R - if you look subs on 5 the 5 ment. 6 THE URT: me now turn 5. 7 e NYPD shall su ,mon rand t n rs 8 arding the al profiling policy forth below. 9 MR, MOO th s an rm duty on the NYPD. 10 THE U true. 11 su se, mon rand t n 12 arding the ial profiling. 13 In order d rmine wh erth a Ifi II i ng 14 their du whether th h up to the rms this 15 me nt, we would argue that th should II us what th 16 are doing. 17 THE URT: Why didn't u into the 18 eme Why didn't u u on a qua rly 19 IS mmg m rials for 20 There is nothing in the There no obligations 21 other than do But not u know th ugh 22 d umentation. 23 MR. M R if th a n doing it, the on 24 we n kn if th doing it is by king them if th 25 doing it. UTHERN DISTRI ,P . . 1 2) 805 300

30 IPdan 1 THE URT: I understand. 2 M . It ms me th s an inhe 3 obligation on the part of the city. 4 THE URT: But this thing signed Jan 9,2004. 5 I mean, th almost four ago. Did you them 6 a demand' r and pi e document th doing 7 nin r Ii u - or Ii ua n 8 doing training, we worried ut that, pi nd us 9 copies-- 10 MS. : -- we did - 11 THE doing this on m r 21 12 of '0 13 14 15 16 17 18 19 20 21 22 23 24 25

31 IPdan 1 MS. Part of this! your Honor, is that we 2 mpting it 0 th the eMs. ss and 3 I, in 4 THE URT: Ih r you. But the position u put 5 me in is to h me kind of bri motion, you would like 6 to bri the bri Ruffo and i 7 p e 0 ur bri due on 10m. on the 2 8 and their bri lOon the 28th, and the ply on the 31 9 MS. : Th s wh proposed, there six 10 months nsion. 11 on 12 MS. COSTELLO: I your Honor. me of the 13 th cited uld II th the 14 uitable power of the urt 15 THE COURT:: Didn't I do it and undo it? 16 MS. You did undo it. 17 THE an opinion 18 MS. Part of that ur Hono th we 19 h not the dispute solution in the dec d we 20 h 21 THE URT: th wrote you didn't. Didn't u 22 th ssman, th didn't II the dispu 23 olution al 24 MS. MAN- Th s right. 25 MS. di UTHERN DISTRI REPORTERS, P. 1 2) 5-0300

32 IPd "I THE URT: But I am not being g n much time to 2 unde ng u didn't, s ng 3 something . in wh way didn't th file a 4 disp lution 5 MS. MAN: th we suppos to wait until 30 6 d urt. 7 E u 8 MS. MAN: From the d ,g 9 notification to us. The notifi required to 10 g is by and hand rvi 11 THE U d th uaI r. 12 MS. MAN: Frid nmg. 13 THE URT: mber wh 14 MS. ROSSMAN: N mber 30, Frid evening, 7:03 p.m. 15 And th did not del rad ument by hand Frid for us to 16 h noti. nd it wasn't until Monday, mber 3, there 17 no hand del ry all. th h nit mpH th the 18 rms of the ment in rms of giving p 19 then would bring us nd the mber 31 suns provision in 20 rms of when th would be Ie k Ii from the urt. 21 The fi time th the issue ut the 22 p ling on N m r 30. 23 MR. MOORE: Judge-- 24 MS. MAN: the first time th rais an issue 25 ut another i m n rning joint mmunity rums on SOUTHERN DISTRICT REPORTERS, P. 12) 5-0300

33 IPdanC 1 November 30. 2 THE U Which lis within the 30 d u 3 ng out the hnicali the on th it is 4 important was because, th s important because u weren't in 5 the offi 7:03 on a Frid night and didn't it until 6 Mond 7 The is s ng it didn't h al n on 8 N mber 30, but on m r 3. 9 MR. MOORE: We we before you in April, and 10 raisi the issues ut the t th h nit produ the 11 d e. d, u we didn't g th r. 12 THE COURT: I know - 13 M MOORE: th rt sid us a little 14 bit. And I think, though, th now th had the 15 d 16 THE URT:: -- but th didn't to things like 17 n having proof t nmg, proof of communi rum, 18 which u didn't think going on. There re other 19 mplai that u uld h rai in time g some 20 rulings on viol ions or n . 21 I might have ill d the end of the d with 22 ining, th 23 u, uld ue k on ion 24 we suppos judge mplian It 25 g di ry. But dis ry is diffe nt than a po ing UTHERN ISTRI REPORTERS, 1 2) 805-0300

34 IPdan 1 requi ment. 2 M MOO ' I guess it brings me other 3 which if, in ,the ty is of the opinion th all th 4 h to do is have a written poli and th h a written 5 poli wh harm is there to the city in agreeing nd 6 this r two months, th months, wh r it m , if in 7 th s a I th it uires them do is h 8 mething on per th won't eng e 9 THE URT: -- u don't know if th h a written 10 Ii 11 M I do th impleme a n 12 poli There -- I h nit I ked at it in the I 13 . But I do Ii there is a Ii n 14 My point is that if, in fact, all th required 15 do under this lement ag ment is to have a written poli 16 wh harm is the in nding this ag ment for a uple of 17 months, r us the iss sand d de, r 18 in ,d want just put this thing bed 19 and, you kn other If th s 20 do. 21 If Ii th that ial profiling 22 is there, a ry ng ut tryi ng put a 23 u und hole, wh might . But my 24 poi uld there I guess the answer is, 25 it's ammon n ument. It is n a I rly ument. SOUTHERN DISTRI REPO ,P. . 1 2) 805 300

35 IPd 1 Th s the problem. 2 THE U Unfo n all cho this 3 profession, and me d we k you elves why. 4 h the right to stand on hnicalities. 5 The Sup me urt issued me opinion I that d, 6 the eral judge th the Supreme urt s d you 7 tim e u h fi Ie ap nd r 8 judgement, lling your attorn you want an appeal is n 9 enough. u should have Ii ned to th Federal judge. 10 The nsenting ju i a , but the u 11 hit. er ju ht it a fine ing 12 it on the I The District judge told the pri ner 13 u time. r pri ner should h kn r 14 than a federal judge. The I is full of technicalities. 15 Why d nd it? Because th 16 don't want to. And if th ,th don't want 17 Wh am I going Iy 18 speaking, he's right, why don't ug us all time to bri 19 this and d ide thi Th uld th ry ni 20 d line. 21 u me g it on the -- would u 22 nd this th g a bri ng 23 hedule. 24 MS. MAN: ur Honor, I n ori 25 th UTHERN DISTRI I P. 1 2) 5 300

36 IPdan 1 MS. : Ih one point on the training issue, 2 hibit l o u r I r, the m r4 I r th I 3 Ms. ssman. If uI k the third page the 4 bottom - 5 THE URT: I got a problem, the N m r 30 6 r 7 MS. no, I'm the I r 8 del red to the urt I Frid 9 THE COURT:: Oh, 10 MS. t 11 E U m r 30 I r. 12 MS. COSTELLO: it is ur Honor. 13 THE U hibit 2 is the r. 14 MS. COSTELLO: The should amber 4 I r, 15 your Honor. 16 THE COURT: Th hibit 3. Page 2 at the bottom. 17 MS. COSTELLO: n the n plain the c 18 th think th in with the training 19 ui ments, ju as in mpli 20 with the auditing the training ui ments. 21 THE URT: But u didn't bring it ntion, 22 is all I am trying urse, now wh ng 23 is u did lution m ism. Is th 24 u r41 r u did, in 25 the disp uirement? SOUTH ERN DISTRI REPO , P. 1 2) 5 300

37 7c1Pdan 1 MR. MOORE: 2 MS. Ms. ross and I h ions 3 in which were mpting to s if the city would g us 4 me d umentation showing th the training had urred. 5 THE COURT: Ms. rossman, did the plaintiff sati 6 the disp lution by sing the issue on ptember 7 MS. MAN: On the t nin 8 THE URT: In writing. 9 MS. MAN: The one pi on the training, s. 10 But when I mention th the issue ut the ial p ling 11 fi -- fi 12 THE COURT: -- but got I of issues. sd 13 with t ning. 14 th satisfied the dispute 15 MS. GROSSMAN: 16 THE U Wh flows from the fact that th d 17 the disp solution m hanism on the t ning int? 18 u rai some kind of d n . 19 MS. MAN: I'm sorry, ur Honor, re u 20 d 21 ,wh fl m the th th 22 the disp lution m hanism. 23 MS, MAN: Our nse t ur Honor, 24 th misi rp the ment, th th rewriting 25 the nt, SOUTHERN DISTRI I P. . 12) 805 0300

38 IPdan 1 THE URT: Meaning procedurally, if th sfi 2 the disp solution m hanism 9 ng u 30 d , wh 3 fl allowed to me to urt, 4 s. 5 THE th alluded to me court on th 6 one use th the disp - and th want 7 in their the ing 8 viol nd su rvision, 9 and/or m ific rforman 10 MS. ur Honor, the ment is ve 11 s s fic rman d then I would 12 ur Honor, th th have to provide sufficient noti 13 en I Ie d 9 14 nd . And to 9 noti h 15 believe is contemplated by the ment. 16 THE COURT: Well, I don't know. Th the 17 disp lution m hanism, all on this I

18 issue, and th then th I h the right me urt. 19 d th h me to urt. 20 I can on their mpl nt arding 21 ining, I n full bri ngs in 0 er 9 the 22 urt an app pri amount of time d ide whether the h 23 n a viol on. I h nd the d line d de the 24 m ion properly. 25 MS. G MAN: We would submit, ur Honor, th SOUTHERN DISTRI REPO I P. . 1 2) 805 300

39 IPdan 1 th s not the dispute that is not a medy lable under 2 me . 3 THE URT: The m you to is, th 4 bring a dispute to court r giving you 30 d noti 5 MS. ROSSMAN: But the is no -- 6 THE URT: - inherent power. I can't decide a 7 on th n bri . It is time it b ught 8 the expi ion of this ag ment, th satisfied the dispu 9 lution mechanism, the Court h the power to operate its 10 own d I canlt d ide a m on, an Impo one, th 11 bri 12 Is the any other exhau issue, k, 13 mmg on Should ntinue r 14 sin that u -- what's the n 15 MS. GROSSMAN: Your Honor, I would ju add on the 16 training pi ,the is no good-faith bell given. What 17 JU walked th ugh of the rifi ion th the 18 en e -- 19 THE - but Mr. Moore ma s some practi 20 point. The is no point in the city do mething, 21 the is no way to find out whether th mply. Otherwi 22 u h a right without a m uh ingless 23 me 24 Th n the i nt the 25 will provide t ining but ha, h if we don u find SOUTHERN DI I P. . 12) 5-0300

40 IPdan lout and unit us to go task for it. That 't m 2 sense. 3 MS. G MAN: ur Honor -- 4 THE URT: but I am going to run out of time and 5 patien shortly. I would like to move right the training 6 to the n haustive claim. Is there another 7 MS. MAN: m I ju h on on the 8 trainin 9 THE URT: No. 10 MS. MAN: talk -- we h n ions on the 11 due ing 12 THE COURT: - no. 13 MS. MAN: k d the me and we 14 rej it- 15 THE COURT: no -- 16 MS. ROSSMAN: the pi ntiffs 17 THE COURT: no, I don't want anymo ut 18 training. I want h other issues th for the 19 urt. 20 Wh other issues h you 21 MS. COSTELLO: We going n e the her 22 issues, they minor. think the ning is the -- 23 THE URT: -- the ci s th have a right 24 d on the hni ity on the I ion the ial 25 profiling Ii you didn't g them the n till m r SOUTHERN DISTRI REPORTERS, P. . 12) 5-0300

41 IPdan 1 3, you can't bring that one to urt in time for the 2 pu on e ent pi the on one s 3 is the mmg. 4 If that's all h to do between now and the 31 , 5 m we can bri it and decide it. It is one issue not five, 6 n four, not six. 7 I II p a u in a und hole a 8 all you h to do is bring a I uit, my interpretation 9 that protect order is th you have the documents till the 10 end Jan 11 M FRANKLIN: ur onor, can mm 12 THE URT: PI e. 13 ( 14 THE COURT: Mr. Moo 15 MR. MOORE: Judge, after consulting with my 16 II ues, I think we h come to a if ition th 17 h -- if the u is willing to rmit us hold the d 18th h until the end of Janu 30 d r the 19 expi ion of this ment, withd 20 this motion this point. And eng e in this p ss of 21 bringing another I uit or not. 22 THE U I think I d it many times on this 23 th I on this me nd 24 th is the s wh it s d, 30 d r 25 the rmin ion of this which to me it finally I

UTHERN ISTRI REPORTERS, P. 12) 5 300

42 7c1PdanC 1 rmi rmin on December 31, '07, th main 2 nfidential. But th d nit m n u It u them. 3 MR. MOOR nt th some of the m rials 4 h already been made public, 5 THE URT: - wh public is public. If you cite 6 to the Rand study, publicly, nobody can critici you for th 7 If th do, th nit ng in 9 faith. If I n9 8 the nd study on the Intern I it is public - 9 MR. M RE: u can the NYPD bs ur 10 Honor. 11 E U public. u 12 th And id I I would pt it a 13 e, which the pi ntjff h the r design 14 I think this current motion is withdrawn. Thank you. 15 ALL UNSEL: Thank u, your Honor. 16 17 18 19 20 21 22 23 24 25 SOUTHERN I 12) 5 0300

APPENDIX C

11/11/13 Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

ANNALS OF LAW

RIGHTS AND WRONGS A judge takes on stop-and-frisk. by Jeffrey Toobin

MAY 27, 2013

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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? Photograph by Antonio Bolfo.

“I don’t love trials,” Judge Shira Scheindlin said recently. “They are not a good way to tell a story. They are not efficient. And they are often so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the

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Daniel Patrick Moynihan building, off Foley Square, in lower Manhattan, after a long day of presiding in Floyd v. City of New York, which is the latest legal challenge to the stop-and-frisk practices of the New York Police Department. “What I really like to do is write opinions,” the Judge said. “There you get to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.” It was after seven o’clock in the evening, and the courthouse was nearly empty. At sixty-six, Scheindlin is renowned for her work ethic and her demands on her staff. Her clerks work from 9 A.M. until 8 P.M. every weekday. They can get lunch at the courthouse cafeteria but must eat it in chambers. They are also expected to work six hours over the weekend. (They can choose which day.) In her office, Scheindlin was relaxed and expansive, especially when she talked about her two children, a son who is a violist with the Metropolitan Opera orchestra and a daughter who is a political consultant and pollster in Israel. (Her husband, Dr. Stanley Friedman, is an associate dean at SUNY-Downstate Medical Center.) On the bench, though, she is unflaggingly rigorous. She listens to testimony, reads the transcript on her computer in real time, e-mails her clerks, and sips endless cups of Diet Coke. Lawyers who appear before her often describe her as opinionated and brusque. (“I’ve heard enough.” “Move along.” “I’ve ruled, counsel.”) The primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade. In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with the Democratic candidates united in their opposition to the stop-and-frisk policies of the Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite the rules of engagement between the city’s police and its people. David Floyd, the lead plaintiff, is an African-American medical student who had been stopped and searched twice. The core allegation in the case is that the N.Y.P.D. is systematically violating the rights of its citizens with unlawful stop-and-frisks, particularly by targeting minorities. The questions before Scheindlin are profound. Crime has declined in New York in recent years, as it has in other cities around the country. But why? And at what cost to the civil liberties of its people? Has New York City conducted a long- term, racially motivated campaign to deprive thousands of its citizens of their constitutional rights? Or, as Mayor Bloomberg and others maintain, has the city created one of the great law-enforcement success stories in recent American history?

T he concept behind stop-and-frisk, which is sometimes also called “stop, question, and frisk,” is a simple and venerable one. Police officers may arrest a suspect only if they have probable cause to believe that he committed a crime. What can they do if they suspect that someone is involved in criminal activity but lack sufficient grounds to make an arrest? The Supreme Court www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 2/13

11/11/13 Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

addressed the subject in Terry v. Ohio, in 1968. According to Chief Justice Earl Warren’s opinion, a stop is permissible only when “a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot.” In other words, the level of certainty needed for an officer to make such a stop is less than probable cause; the standard is often described as “reasonable suspicion.” According to the Terry decision, the judgment by the officer must be made on the basis of “specific reasonable inferences” from the evidence, not “inarticulate hunches.” By and large, this remains the law today. Stop-and-frisk encounters are also known as “Terry stops.” “Stop, question, and frisk has been around forever,” William Bratton, a former police commissioner in Boston, New York, and Los Angeles, told me. “It’s a basic tool. It’s the most fundamental practice in American policing. It is done every day, probably by every city force in America. If the police are not doing it, they are probably not doing their job.” Bratton served as Mayor Rudolph Giuliani’s first commissioner of the N.Y.P.D., from 1994 to 1996, and is widely credited with changing the orientation of the police from responding to crime to preventing it. Through much of the second half of the twentieth century, crime and disorder, in forms ranging from graffiti to murder to a crack epidemic, plagued New York. The police appeared powerless to address these scourges. “Around 1960, New York City basically stopped policing,” Bratton told me. “The police were no longer engaged in controlling behavior in the streets. We changed that. If people are drinking cans of beer on the corner, you stop that behavior. If somebody is urinating against a building, or if you suspect somebody is casing a building for a burglary, you stop them. Of course police should be doing that. You make the streets safe, and, besides, a lot of these people committing these minor crimes turn out to have warrants out against them for more serious things.” The approach is known as Broken Windows, after a 1982 article in the Atlantic by James Q. Wilson and George L. Kelling. Bratton’s interpretation of the Broken Windows approach called for vigorous police enforcement of minor crimes like fare-beating and intrusive panhandling as a tool to preserve public order and, at the same time, to catch criminals. In addition, the N.Y.P.D. under Bratton began to make extensive use of data to identify crime-prone areas and focus resources on them—an approach sometimes called “hot-spot policing.” Along the way, especially in high-crime neighborhoods, cops stopped people not just in the act of committing minor crimes but also for suspicious behavior. Stop-and-frisk—indeed, aggressive policing generally—presents significant challenges for judges. Months, or even years, after a confrontation between a cop and a suspect, the judge must determine if the stop was legal and thus whether the evidence gathered can be used in court or should be suppressed. “Most judges are reluctant to grant suppression motions,” Erin Murphy, a professor at the New York University School of Law, said. “It’s hard for judges to look a police officer in the eye and say he didn’t follow the law. And of course it’s only defendants who look

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guilty who file suppression motions. It’s every judge’s worst nightmare that a released defendant will show up in the newspaper the next day for committing some horrible crime. If you suppress evidence, you are making it hard or impossible to prosecute a guilty person. That’s a really difficult emotional and political decision for a judge to make.” The matter of Antonio Fernandez presented such a dilemma for Judge Scheindlin. On May 12, 1995, police received a 911 call reporting a gang meeting in progress at a small park in the Bronx. The caller said that one member, a Hispanic man wearing a white-and-black jacket, had a gun. The officers who responded found about fifty or sixty men, all Hispanic, milling around. The police frisked one man, who had no contraband. Then they followed a group of three or four men who had been standing to the side of the main group. One of them was Fernandez, who was stopped, frisked, and found to have a small amount of marijuana. At the station house, he was frisked again, and police said that he had a fully loaded .38-calibre revolver hidden in his crotch. Fernandez was charged with illegal possession of a handgun, and the case was assigned to Scheindlin, who was in her early days on the federal bench. Fernandez argued that the Terry stop was illegal, and that the gun should be suppressed as illegally obtained evidence. Scheindlin agreed, writing in an opinion that, “based on the facts presented here, the police did not have reasonable suspicion to stop Defendant and his companions.” In part, Scheindlin said, the stop-and-frisk was illegitimate, because the anonymous tip was too vague to lead to Fernandez, but her opinion reflected a disbelief in the officers’ testimony. According to the officers, Fernandez’s first frisk produced a small amount of marijuana, but the second yielded a large handgun. As Scheindlin wrote, “It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber revolver hidden in Defendant’s pants.” The case might have passed without notice, but Antonio Fernandez was not an ordinary defendant. He was better known as King Tone, the leader of the Latin Kings, one of the most notorious drug gangs in the United States, and he was being charged as part of a huge crackdown on the group by the United States Attorney’s office for the Southern District of New York. “Scheindlin is one of the very few judges who would have had the guts to toss out a case like that one,” a former prosecutor familiar with the case said. (Three years later, Fernandez was prosecuted for heroin and cocaine trafficking and sentenced, by a different judge, to twelve years.) Scheindlin’s ruling in the Fernandez case set a template for her handling of criminal cases. As one of her former law clerks put it, “What you have to remember about the Judge is that she thinks cops lie.” According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the basis of illegal police searches far more than any of her colleagues—twice as often as the second- place judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased against cops. (Scheindlin has said that the study is misleading, because it reflects only her written opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.)

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Still, she embraces her maverick status. Many judges in the Southern District previously worked as prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges, especially because so many of our judges come out of that office, become government judges,” Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights. These issues come up, and I take them quite seriously. I’m not afraid to rule against the government.”

S cheindlin grew up in Detroit. Her mother was a schoolteacher, and her father, who emigrated from the Soviet Union, ran a Jewish civic organization. “We were a political family,” she told me. “My father was the official Jew for many committees in the state.” For a time, the family lived in a house once owned by a brother of Walter Reuther, the United Auto Workers labor leader. “The house had a bullet hole, from where someone had taken a shot at him,” she said. “It was a tough town.” At the University of Michigan, Scheindlin majored in Chinese history, then continued her studies for seven years at Columbia. She never received her doctorate. “The language defeated me,” she said. “The prospect of reading original documents in Chinese was just too difficult.” Scheindlin drifted into law school, graduating from Cornell in 1975. She spent her final year of law school at Columbia, where she took a class with Ruth Bader Ginsburg, who became a mentor. Ginsburg introduced her to the legal side of the women’s-rights movement, and, while still a student, Scheindlin played a role in a case that brought equal pay to female academics at the City University of New York. For the next two decades, Scheindlin did a little bit of everything in the law. She was in private practice, a federal prosecutor in Brooklyn, general counsel to the New York City Department of Investigation, and a magistrate (a lower-level federal judge), also in Brooklyn. In 1994, at the recommendation of Senator Daniel Patrick Moynihan, who had been encouraged by Ginsburg, President Clinton nominated Scheindlin to the federal bench in Manhattan. Her professional roots in Brooklyn, which is known as the Eastern District of New York, separated her from the start from the clubby world of the Southern District. A defining event of Scheindlin’s tenure as a federal judge took place on February 4, 1999. On that day, four plainclothes officers shot and killed Amadou Diallo, an unarmed African immigrant, who was in the vestibule of his apartment building, in the Soundview section of the Bronx. (The officers, who thought Diallo was reaching for a gun, were charged with manslaughter. They were acquitted by a jury in Albany, where the case had been moved because of pretrial publicity in the Bronx.) The Diallo case suggested a dark side of Giuliani-era policing. The same aggressiveness that led New York cops to arrest minor offenders could turn, in certain circumstances, into a predatory approach to non-offenders, especially racial minorities. Crime rates (for whatever www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 5/13

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reason) had fallen dramatically during the Giuliani administration, but the Diallo case raised concerns about the N.Y.P.D.’s new tactics. “The idea behind proactive policing was to get guns off the street, which was fine as far as it went, but what it meant on the street was the cops tossed every young black man that they saw,” Jonathan Moore, a veteran civil-rights lawyer, said. “That’s what led to Diallo.” In response to Diallo’s death, Moore and the Center for Constitutional Rights, a legal-advocacy group, filed the first class-action lawsuit challenging the city’s stop-and-frisk policies. The case, Daniels v. City of New York (Kelvin Daniels was the lead plaintiff), was randomly assigned to Judge Scheindlin, and years of legal skirmishing followed. The parties settled in 2004. The city agreed to establish a written policy governing its stop-and-frisk practices and to improve the training of officers in conducting legal Terry stops. In retrospect, though, the most important part of the Daniels settlement may have involved record-keeping. The city agreed to create a kind of checklist, which police officers would complete each time they conducted a stop-and-frisk. During the next decade, the police filled out more than four million of these forms, which served as indispensable evidence for the Center for Constitutional Rights and others in lawsuits against the city.

S cheindlin has a bright and airy courtroom, one floor below her chambers, and the Floyd trial, now in its third month, has settled into a routine. In jury trials, judges avoid signalling their views, so as not to influence the jurors; but in bench trials there’s less reason for judges to be reticent. By this point, Judge Scheindlin’s views seem etched on the faces of the lawyers before her. Moore and his colleagues bound in and greet the Judge with confident half-smiles; the team from the city’s law department already look like disaster survivors, just trying to hang on. Moore and his team linger after court, chatting with spectators; the city’s lawyers, led by Brenda Cooke, scurry for the door, avoiding eye contact. (Closing statements are expected this week; Scheindlin will probably render her decision within sixty days.) The plaintiffs’ key witness was Jeffrey Fagan, a criminologist and statistician, and a professor of law at Columbia, who has spent much of the past decade scrutinizing the city’s vast database of stop-and-frisk reports. The stop-and-frisk form, known as the UF-250, contains boxes for police officers to check to explain why a suspect was stopped. Some of the boxes refer to specific behavior: a suspicious bulge in clothing, or a refusal to comply with an officer’s directions. More than half of the four million UF-250 forms included checks in the box labelled “Furtive movements.” In his report, Fagan concluded that the furtive-movement box, without more evidence, suggested an unconstitutional Terry stop—that is, one not supported by reasonable suspicion of a crime. According to an algorithm that Fagan devised, eighty-two per cent of the stops were justifiable, twelve per cent were ambiguous, and six per cent appeared to be unjustified. Projecting that ratio over a decade, Fagan concluded that the N.Y.P.D. had made more than two hundred and www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 6/13

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sixty thousand illegal stop-and-frisks. The plaintiffs have emphasized that only six per cent of stops led to arrests, just two per cent yielded seizures of contraband, and only a tenth of one per cent led to seizures of guns. According to Moore, “What this means is that the stops are unjustified more than ninety per cent of the time.” Moreover, the plaintiffs used Fagan’s findings to support a claim that the police engaged in racial discrimination. According to Fagan’s analysis, N.Y.P.D. stop-and-frisks are significantly more frequent for black and Hispanic residents—constituting eighty-four per cent of the stops—than they are for white residents, even after adjusting for local crime rates, the racial composition of the local population, and other social and economic factors. “Statistics is a big part of how we are proving racial discrimination by the police,” Darius Charney, who is a co-lead counsel, with Moore, in the Floyd case, said. “We don’t need to find blatant racial animus. It doesn’t have to be motivated by hatred of black or Hispanic people. We are looking at evidence of stereotypical thinking. We’re looking for cops using race as a factor to make these decisions in a law-enforcement context. It’s using race as a proxy for crime.” In public, police officials have a clear answer to these accusations. “We have had tremendous success,” Raymond Kelly, the police commissioner since 2002, told me. “Crime is down, and stop- and-frisk is an important reason why.” Civil libertarians say that other factors (such as changing inner-city demographics and the end of the crack epidemic) are involved, and dispute any clear correlation between more aggressive police behavior and the falloff in crime. What is indisputable is that since Bloomberg took office, in 2002, murders have dropped twenty-eight per cent, to four hundred and nineteen in 2012, the lowest number since the city began keeping records, in 1963. Even compared with other cities where crime has also declined, New York has experienced dramatic changes. Since 2002, major crimes across the country have declined fourteen per cent; in New York, they have declined thirty-four per cent. The contrast is even more striking between New York and other big cities. If New York had Detroit’s murder rate last year, there would have been forty-five hundred murders in the city—more than ten times the actual number. Lawyers for the city tried to make the argument before Scheindlin about the effectiveness of stop-and-frisk, but she shut them down before they had the chance. In order to rebut Fagan’s analysis of the UF-250 forms, they sought the testimony of Dennis Smith, a professor of public policy at New York University who is an expert on police management. In particular, the city lawyers wanted Smith to testify about his view that the stop-and-frisk policy was an important factor in what they termed “the historic crime decline achieved by New York City.” In a pretrial ruling, Scheindlin excluded much of Smith’s proposed testimony. She said that “permitting the parties to delve into the question of whether the stop-and-frisk program actually reduces crime would risk turning the trial into a policy debate over the wisdom of the program rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.” Still, as the trial has

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unfolded, city lawyers have continued to argue that stop-and-frisk has been a success—to Scheindlin’s mounting irritation. When Brenda Cooke, the city’s lead attorney, who was cross- examining Fagan, tried to make that point, Scheindlin cut her off. “I got to put a stop to this,” the Judge said. “It is not a good use of my time. For one thing, I’ve said repeatedly that one issue that is not present here is the effectiveness of this policy, because that’s not for this court. This court is only here to judge the constitutionality. . . . We could stop giving Miranda warnings. That would probably be exciting for reducing crimes. But we don’t allow that. So there are a number of things that might reduce crime, but they’re unconstitutional. This court is only concerned with the Constitution, not with the effectiveness of the policy. I’ve tried and tried to explain that. This is my third or fourth try.” Even then, the city’s witnesses persisted in defending stop-and-frisk as a sure means to reduce crime. In a way, the entire conflict in the case came down to a single exchange between Moore and Joseph J. Esposito, who had just stepped down, after thirteen years, as the chief of department in the N.Y.P.D., the highest-ranked uniformed officer in the force. Chief Espo, as he is known, was a renowned figure in the N.Y.P.D., and his demeanor on the stand suggested that he was more accustomed to giving orders than to answering questions. Esposito poorly concealed his contempt as Moore, shambling but relentless, pursued him about the propriety of stop-and-frisk. Moore noted that the number of stop-and-frisks had increased from approximately ninety-seven thousand, in 2002, to almost six hundred and eighty-five thousand, in 2011. “So that increase is all on your watch, correct?” Moore asked. “Yes, it is,” Esposito said, plainly seething. After a slight pause, he volunteered, eyes flashing, “As is the forty-per-cent decrease in crime during my time—as is the eighty-per-cent decrease in the last twenty years.”

I n the Southern District, plaintiffs in civil cases can designate new cases as related to old ones and thus guarantee that the same judge presides. Ever since the Daniels case, civil-rights and civil-liberties groups have continued to challenge the stop-and-frisk policies of the N.Y.P.D. Each time, the plaintiffs have made sure that the cases went before Judge Scheindlin, who currently has three such class actions on her docket. The Floyd case challenges the practice citywide; Davis v. City of New York, which will go to trial later this year, involves stops at city-owned housing projects; and Ligon v. City of New York, which is farthest along in the process, concerns searches at privately owned properties around the city. The Ligon case was initiated by the Bronx Defenders, a nonprofit organization that represents indigent defendants in the borough. The lawsuit was based on the experience of, among others, Charles Bradley, a fifty-year-old security guard from the South Bronx who went to visit his fiancée at her apartment building, in the Parkchester neighborhood, on May 3, 2011. When he went upstairs, she didn’t answer her doorbell at first—she is deaf in one ear—so Bradley went www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 8/13

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downstairs to wait. “An officer got out of an unmarked van and came up to me,” Bradley recalled. “I just accommodated the officer to the best of my ability, and, in turn, what happened was, he went into my pockets. . . . There was nothing in my pockets except my house keys, my cell phone, my wallet. The thing about it that was so appalling was that I had spent my last dollar to see my loved one. And then he said, ‘Fuck that, you’re going in.’ ” Bradley was arrested for trespassing, a misdemeanor, and strip-searched. At the local precinct, Bradley was given a Desk Appearance Ticket, a common first step in the legal process for minor offenses in New York City. He was instructed to appear in criminal court on July 19th, but he faced a more immediate problem. “There was a domino effect from being arrested,” Bradley said. The arrest would be reported to a New York State licensing agency for security guards, and that might mean the loss of Bradley’s job. “I need a license to be a security guard, and I would have lost it if they pressed charges,” he said. “If I lose my license, I lose my income. I could have been put into homelessness for all this.” Bradley took the ticket to the offices of the Defenders, who have pioneered what they call “holistic defense,” a method based on recognizing that, for criminal defendants like Bradley, deportation, eviction, or the loss of parental rights may be more ruinous than conviction or jail. Bradley met with two lawyers—an employment specialist and a criminal-defense attorney. “Charles was freaking out,” Molly Kovel, the employment lawyer, said. “We had seen it before. Many of our clients are security guards or cabdrivers, and both are licensed by the government. For a lot of minor crimes, the bigger threat to their lives is losing their jobs, rather than getting convicted.” Kovel kept the licensing authorities at bay while a colleague, Cara Suvall, dealt with the criminal case. “I had the problem of how to prove his innocence,” Suvall said. “So we went and got a notarized letter from his fiancée saying that he really was visiting her. I took it to the district attorney, and they agreed to drop the charges.” Still, the experience of Bradley and others prompted the Bronx Defenders to file a class-action suit against the city. The case focussed on the N.Y.P.D.’s Operation Clean Halls program, through which private landlords give the police advance permission to patrol their property. This led to Ligon v. City of New York, in which the Defenders were joined by the New York Civil Liberties Union, the public-interest group Latino Justice, and the law firm of Shearman & Sterling. (Jaenon Ligon, the lead plaintiff in that class action, had also claimed to be the victim of an unlawful stop- and-frisk.) They charged that the police were using Operation Clean Halls to conduct unconstitutional stop-and-frisk searches of innocent citizens like Bradley. At a hearing in October, 2012, Scheindlin listened to testimony from both Bradley and Miguel Santiago, the officer who placed the cuffs on him. Santiago testified that Bradley was in a “drug- prone location” in a high-crime neighborhood and was “suspiciously walking back and forth” outside the building. Santiago said that he approached Bradley by saying, “Excuse me, sir, could you

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come over here?” and that Bradley could not tell him his girlfriend’s name or produce any identification. But Judge Scheindlin noted that Santiago’s paperwork contradicted his account in several ways—he had written, for example, that he approached Bradley inside the building. In a hundred-and-fifty-seven-page opinion, handed down on January 8th this year, Scheindlin gave the Defenders a resounding victory. “Officer Santiago claimed that he was able to see Bradley’s suspicious behavior even though he was inside a police van parked across the street, twenty or thirty feet from the door, separated from Bradley not only by the street but by the windows of the front door, a vestibule, the windows of an inner door, and the hallway,” Judge Scheindlin observed. “I find Bradley’s account credible.” She was especially moved by Bradley’s story. “If an unjustified stop happens to lead to an unjustified arrest for trespassing, as it did in Charles Bradley’s case, not every overburdened public defender will have the wherewithal to obtain a notarized letter from the defendant’s host explaining that the defendant was invited, as Bronx Defender Cara Suvall did on behalf of Bradley,” she wrote. “When considering the relative hardships faced by the parties, it is important to consider the potentially dire and long-lasting consequences that can follow from unconstitutional stops.” Scheindlin concluded that a “very large number of constitutional violations took place” as a result of Operation Clean Halls. Scheindlin had found the city liable in the Ligon case, but what was the remedy? Here the Judge sprang a surprise. She wrote that she was going to decide the city’s punishment in the Ligon case (which the city had already lost) at the end of the Floyd trial (which had not even taken place). In other words, it looked as though Scheindlin were scheduling her remedies hearing as if she had already ruled against the city in Floyd. In a footnote, Scheindlin added, “I emphasize that this ruling should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in Floyd.” But the city lawyers in the Floyd case are skeptical that the Judge’s mind is open. “It’s like she has scheduled our sentencing before she’s even found us guilty,” one said.

P olitically, the verdict on stop-and-frisk seems already clear. The Democratic mayoral candidates running to succeed Michael Bloomberg all criticize stop-and-frisk, differing only in the intensity of their complaints. Christine Quinn, the City Council speaker, said recently, at Barnard College, “I want to leave it as a tool in police officers’ toolboxes,” but she noted, “We need to put an infrastructure of reform around stop-and-frisk.” Bill de Blasio, the public advocate, said at a mayoral forum, “We need to send a message to every young man of color that they are beloved, they are valuable, they are our future. You can’t do that if you’re constantly treating people as suspects.” John Liu, the comptroller, has gone even further. “Stop-and-frisk doesn’t have to be amended, it has to be ended,” he said at the forum. In response, Bloomberg took the unusual step last month of giving a speech to the leadership of the N.Y.P.D. in which he both celebrated his record in reducing crime and addressed the allegations in the Floyd case. “As the ongoing federal court case is now demonstrating for any objective www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 10/13

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observer to see,” the Mayor said, “the N.Y.P.D. conducts stops based on seeing something suspicious, or witnesses’ descriptions of suspects, not on any preconceived notions, or on demographic data that would have you stopping old women as often as you stop young men.” Commissioner Kelly, for his part, is dismissive of the mayoral candidates’ criticism. “This is just pandering. This is what goes on in New York politics,” he told me. “They try and get as far left as they can for the primary, where it’s just a tiny number of people who are voting. Then the challenge is to get to the center for the general election. That’s all that’s going on here.” In the courtroom, before Judge Scheindlin, the city is attempting to put on a defense. The lawyers are pushing back on the plaintiffs’ most incendiary claim—that the stop-and-frisk policy has been applied in a racially discriminatory manner. “It’s close to a perfect correlation between who is committing crime and who is being stopped,” Celeste Koeleveld, the deputy Corporation Counsel who is supervising the defense, said. “That’s true in minority neighborhoods, and also in predominantly white areas, like Staten Island.” She noted that more than half of the N.Y.P.D. consists of racial minorities. Kelly goes further, asserting that stop-and-frisk protects, rather than oppresses, the African-American community. In a speech last month before Al Sharpton’s National Action Network, Kelly said, “African-Americans, who represent twenty-three per cent of the city’s population, made up sixty-four per cent of the murder victims and seventy-one per cent of the shooting victims in this city last year.” He added, “African-American men between the ages of sixteen and thirty-seven, who are just four per cent of the city’s population, comprise forty per cent of those murdered citywide; eighty-two per cent of these young men were killed with a firearm. As a city, as a society, we cannot stand idly by in the face of these facts.” He said, “I believe that this tactic is lifesaving,” and, referring to Terry v. Ohio, he added, “It is also lawful and constitutional as upheld by the U.S. Supreme Court in 1968.” Nevertheless, it appears that public criticism—and Scheindlin’s rulings—has already changed the behavior of the police. In March, just as the Floyd trial was beginning, the N.Y.P.D. revised its instructions to officers in filling out the stop-and-frisk reports, demanding that they provide narrative details on their reasons for the confrontations. More significant, perhaps, in the first quarter of this year the number of police stops dropped by fifty-one per cent.

I n both the Floyd and the Ligon cases, the plaintiffs are asking for Scheindlin to appoint an independent monitor, to make sure that the police comply with the Constitution. They want the Judge to impose a sort of receivership on the police, creating a dual internal authority as a check on the existing leadership. As a model, the plaintiffs’ lawyers cite a case in Cincinnati a decade ago, in which the city agreed to fund an independent monitor who filed regular reports on the local cops’ compliance with the law. (Bloomberg called this notion a recipe for chaos.) The idea of the independent monitor, like the lawsuits themselves, is rooted in the hope that a single judge can diagnose a complex problem and reform a huge organization like the New York Police Department www.newyorker.com/reporting/2013/05/27/130527fa_fact_toobin?printable=true&currentPage=all 11/13

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based on the imperfect medium of trial testimony. Scheindlin’s dedication to protecting citizens’ rights is beyond question; it is less clear that she has the wisdom, or even the ability, to impose her vision in the real world of New York. Scheindlin’s confidence in her understanding of the Constitution remains unshaken. Back in her chambers, after a long day of testimony from a plaintiff’s expert on police procedures, Scheindlin talked about another celebrated case of hers. Shortly after the terrorist attacks of September 11, 2001, investigators found the name and phone number of Osama Awadallah on a scrap of paper in a car rented by one of the hijackers. On September 21, 2001, F.B.I. agents in California arrested Awadallah. He was not charged with any crime but was held as a material witness. On October 10th, he testified before a grand jury in New York that he was acquainted with one of the hijackers but denied knowing another who lived in the San Diego area. He was indicted for perjury, but on April 20, 2002, before the trial had even begun, Scheindlin threw out the case against him. In a pair of lengthy opinions, Scheindlin said that the government had violated the material- witness law, by holding Awadallah too long and under unduly harsh conditions. She quoted the famous Supreme Court case of Ex Parte Milligan, in 1866: “The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.” The Court of Appeals reversed Scheindlin’s ruling and ordered her to bring Awadallah to trial. The trial ended in a hung jury; in a second trial, he was acquitted. “That case was just an enormously satisfying experience,” Scheindlin told me. “What I did was gutsy, because it was so close to 9/11. For me to suppress that evidence stunned people, because there was no question that he did know the hijackers. You saw the world changing in how each jury saw the case. The first jury was eleven-to-one to convict. But by the time of the second trial the Bush policies were unpopular, and he was acquitted. That was a vindication.” Each day, before Scheindlin goes to court, the last thing she sees in her chambers is a framed copy of an article she co-wrote with Brian Lehman, a former law clerk, in the New York Law Journal. Headlined “ONE DAY IN SEPTEMBER,” and published in September of 2006, it was, like many stories published around that time, a commemoration of an anniversary. “It was a day in September that changed America forever,” she wrote. But her story wasn’t about September 11, 2001. It was about September 25, 1789, the day that Congress passed the Bill of Rights. Thanks to that document, the authors wrote, “If a judge decides that a defendant’s rights have been violated and the case is dismissed, a remarkable thing happens: the government bows to the rule of law.” ♦

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APPENDIX D

NY 'frisk' judge calls criticism 'below-the- belt' By LARRY NEUMEISTER May 19, 2013 2:44 PM

NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-and- frisk practices of the New York Police Department has no doubt where she stands with the government.

"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday. It was another moment of candor for a judge known for her call-it-as-she-sees-it manner and willingness to confront government lawyers in a courthouse where many judges — former federal prosecutors themselves — seem less inclined.

"I do think that I treat the government as only one more litigant," she said during the interview that proceeded with a single rule: no questions about the trial over police tactics that reaches closing arguments Monday.

The trial has put the NYPD and City Hall on the defensive as they justify a long-running policy of stopping, questioning and frisking some residents to deter crime. Critics say it discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic, since it has been found to be legal, but she does have the power to order reforms in how it is implemented.

During the trial, she's shown an impatience with lawyers on both sides when they stray from the topic at hand, and a willingness to directly question witnesses — including police supervisors — about the nuts and bolts of trying to keep streets safe.

"I don't think they're entitled to deference," she said of government attorneys. "I think some of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ... They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office, they know the people there, whatever. I try not to do that."

Scheindlin, 66, appointed by President Bill Clinton, has had plenty of high-profile cases in 19 years in federal court, including three trials of John "Junior" Gotti, the son of the late legendary mob boss John Gotti, two trials of a California student who knew two of the Sept. 11 hijackers and the trial of international arms dealer Viktor Bout.

The AP interview came after a New York Daily News article revealed that the staff of Mayor Michael Bloomberg had reviewed her record to show that 60 percent of her 15 written "search-and-seizure" rulings since she took the bench in 1994 had gone against law enforcement.

The judge called it a "below-the-belt attack" on judicial independence. She said it was rare when any judge grants a request to suppress evidence in a law enforcement case and that inclusion of the numerous times when she rejected the requests with oral rulings from the bench would likely reduce the total to less than 5 percent.

She said reports that the mayor's office was behind the study made it worse.

"If that's true, that's quite disgraceful," Scheindlin said. "It was very discouraging and upsetting. I can't say it has no toll."

Of such criticism, she said: "It's very painful. Judges can't really easily defend themselves. ... To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me."

A Bloomberg spokesman said Saturday, "We did a simple search of publicly available written decisions, as the media is also free to do."

The New York County Lawyers' Association called the report meaningless because it sampled so few Scheindlin rulings.

Scheindlin has faced heat before, most notably a decade ago when she presided over the trials of Osama Awadallah and one newspaper labeled her "Osama's best friend," a reference that some could misinterpret to refer to Osama bin Laden.

"You could be in danger, physically," she said.

The Awadallah case is memorable to Scheindlin for how it reflected the mood of the attitude across the country after the Sept. 11 attacks. Awadallah, born in Venezuela and raised in

Jordan, was a young immigrant in San Diego who was picked up as a material witness after his telephone number was found in a car that one of the hijackers drove to the airport on Sept. 11. Prosecutors agreed he was no terrorist but claimed he intentionally misled grand jurors about how well he knew one of the terrorists. Defense attorneys said he was left confused after 20 days in detention.

She said she learned in talking to jurors after Awadallah's first trial that they came within one vote of convicting him of false statements. At the next trial, he was exonerated.

"Same evidence. Same prosecutor. Same defense lawyers. Jury goes from 11-to-1 to 12- zip," she recalled. "So I asked what happened. The answer is the country had turned in a new direction."

She said immediately after Sept. 11, "people were so worried and so terrified that the next attack was around the corner that they were willing to cede many of their civil liberties."

She added: "The second half of the (President George W.) Bush term, Bush policies were not popular any longer. People were much more distant from the event of 9/11. Now they were more concerned with civil liberties and less concerned with the security threat. ... I thought it was dramatically shown by what happened in that case."

In choosing law clerks, Scheindlin looks for varied experience like her own. She has been a prosecutor and a defense lawyer and was once politically active.

"I don't want a kid who's just done seven straight years of A's at Harvard," she said. "I want to know that they've done something, worked somewhere. Some experience. Some work. Some life. That makes for a rounded person."

And should they someday become a judge, it makes them well prepared for the rare case of impact.

"That's the day you live for, to do something that you believe is right and that is upheld as right and has a national impact, that's great," Scheindlin said. "That's why people want to be judges, I think, so they can make a difference."

___ Associated Press writers Tom Hays and Colleen Long contributed to this report.

APPENDIX E

11/11/13 New York Law Journal: Stop and Frisk Judge Relishes Her Independence

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Stop-and-Frisk Judge Relishes Her Independence Mark Hamblett

New York Law Journal 2013-05-20 00:00:00.0

The judge presiding over one of the most politically charged cases in recent New York City history says her 20 years on the bench have taught her to "appreciate more than ever the words 'judicial independence.'"

Shira Scheindlin, in a recent interview during the nine-week bench trial over the constitutionality of the New York City Police Department's anti-crime stop, question and frisk policies, said there are too many judges who don't want to take chances and deliver controversial rulings.

"They are fearful or they want a promotion or whatever it is, they don't exercise the independence they should have. State court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don't appreciate how much independence they have—many of them are a little cautious, more cautious than they should be."

Few court observers would describe Scheindlin as cautious and the judge spoke freely when she sat down recently with the Law Journal to discuss some of her prior decisions and her views on being a federal judge. The only subject off the table was the ongoing trial, expected to wrap up on May 20 with closing arguments.

The judge, who already has made some rulings critical of the city for stop-and-frisk, has not been reluctant to make controversial decisions in the realm of civil liberties and constitutional law that have drawn the ire of police and prosecutors.

"I do think judges have a duty to protect individual rights because that's what the Bill of Rights is all about," she said. "It's the responsibility of the judiciary to protect those rights granted by our Founders. Now, does that make me an activist? No. Some people have said I'm conservative because I go back to what the Founders wrote and what they meant. I see it as abiding by my constitutional duty and our oath."

Among her other matters, Scheindlin (See Profile) has issued a series of groundbreaking opinions on e-discovery in Zub ulake v. UBS Warb urg, which she regards as her most significant case. (See, for example, NYLJ, May 13, 2003, and July 25, 2003).

She has presided over multi-district litigation on conflicts of interest at investment banks in initial public offerings, and has presided over the trials of mobster John Gotti Jr. and Police Officer Francis Livoti in the use of a deadly chokehold on Anthony Baez.

Scheindlin has held parts of New York's anti-harassment statute unconstitutional; found police in contempt for continuing to enforce a law against loitering for the purposes of begging for money or cruising for sex that had long been ruled unconstitutional; held the National Football League was violating the antitrust laws by preventing underclassman Maurice Clarett from participating in the league draft (later reversed); and compelled the Metropolitan Transportation Authority to reinstate subway advertising that mocked Mayor Rudolph Giuliani.

"What I've learned is do what you think is right, follow the law, do what you think you can do," she said. "Sometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer."

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11/11/13 New York Law Journal: Stop and Frisk Judge Relishes Her Independence Scheindlin, 66, has earned a reputation as a hard-working judge and has kept up a full docket since taking senior status last year. She takes an average of 15 new cases a month and has a pending caseload of 132, not including related cases in multidistrict litigation. Her workload is in the upper half of senior judges in the district.

She sets a quick pace in her courtroom, with little tolerance for lawyers who obfuscate or belabor a point. She often asks questions herself when things slow down, although she said, "I don't think I've committed the sin of taking over trials."

"She is a judge who runs a very, very strong courtroom and has a clear idea of how she wants to do it," said one veteran Southern District practitioner.

"I think sometimes people can be critical of her because she can sometimes be sharp to litigants, put people down and be critical. But from my experience, when she comes on the bench, she's prepared, she has strong views and she has the courage of her convictions," he added. "Her ideas can sometimes be idiosyncratic. She's not afraid to think independently."

Scheindlin "runs a very orderly courtroom, dignified, and as a jurist she's not only smart but she's creative," said Robert Swift of Kohn Swift & Graf in Philadelphia, who has appeared before her. "She asks good questions and is polite to counsel, but, by the same token, she doesn't let counsel argue silly motions or make silly requests—she's well in control of her courtroom. She's certainly been reversed, but that's also indicative of a judge being certain of what the law should be—not just what it is."

Like other judges, Scheindlin said she expects lawyers who appear before her to be well prepared.

"They need to be familiar with the facts and the law on the spot and not say, 'Oh sorry, I have to go look that up, or 'I'm sorry, I have to ask a colleague,'" she said.

Unusual Path to the Law

Scheindlin was born in Washington, D.C., raised in Detroit, and educated at the University of Michigan, Columbia University and Cornell Law School.

She was working at Columbia as a graduate student in Far Eastern studies, but she said the language requirements were so rigorous—years of Chinese and Japanese included—"that I knew I would never finish my dissertation. So I said, 'What's next?'

"I really didn't know much about the law but I knew it offered a broad education that gives you lots of possibilities of what you might do with it afterward," she said.

"I think at that point I thought I was going to be doing divorces and house closings and DWIs," she said. "I thought I'd be a local town lawyer married to a professor on the campus."

After graduating from Cornell in 1975, she spent a year at Stroock & Stroock & Lavan, then clerked for Southern District Judge Charles Brieant and was hired by David Trager, who was then the U.S. attorney in the Eastern District. She rose from general prosecutions to handling political corruption cases before being named deputy chief of the Economic Crimes Unit while working as Trager's administrative assistant U.S. attorney.

Scheindlin counts Trager, along with Brieant and Eastern District Judge Jack Weinstein, as mentors. Trager, she said, "was funny, he would speak in the imperative—'you will get a clerkship, you will apply to be a magistrate."

She spent a year as general counsel at the New York City Department of Education and then returned to the Eastern District as a magistrate judge from 1982 to 1986, where she was also appointed as special master by Weinstein in the Agent Orange cases and litigation over asbestos.

Scheindlin returned to private practice in 1986 as a partner with Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and then Herzfeld & Rubin, where she worked as a commercial litigator until she was named a federal judge by President Bill Clinton in 1994, part of a wave of new judges who sometimes refer to themselves as the "Class of '94."

It is rare for magistrates to be promoted to Article III judgeships, and Scheindlin said her experience as a special master and magistrate —the first woman magistrate judge or district judge in the Eastern District—helped her hit the ground running when she took the bench in Manhattan.

"I just took that bench and I knew what I was doing," she said. "And I got feedback right away like, 'Boy you look like you've been doing this forever' and I would make a joke, 'Well, that's because I have.'"

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11/11/13 New York Law Journal: Stop and Frisk Judge Relishes Her Independence She added,"I was incredibly fortunate—it is not easy for those who have not had any judicial experience."

Scheindlin said she never had any interest in moving to the U.S. Court of Appeals for the Second Circuit because cases are built at the district court level.

District judges "have a much more exciting job than the Court of Appeals, because we shape the case in the first instance. We shape the issue—the case comes in the door and we are the first judge on the line, with the first crack at giving an answer and shaping a ruling, shaping the whole future of that case, right?

"The Court of Appeals has to use what we've done—we have the tough job—all they can do is review it and say 'You got it right or you got it wrong.'"

Scheindlin said the problem with the appellate court is that "there you've got to negotiate and get votes and there's three of you and you can end up in dissent when you really don't want to. To me, this is the best of all worlds."

One case where the circuit said Scheindlin "got it wrong" was an opinion she remains proud of—her ruling that the government had abused the material witness statute by detaining Osama Awadallah in the 9/11 investigation and then prosecuting him for perjury. Awadallah had known two of the 9/11 hijackers in California (NYLJ, April 30, 2002).

Scheindlin dismissed the charges, calling it a "perjury trap" and holding the material witness statute was intended to be used only for trial witnesses, not people being interviewed in connection with an investigation.

The Second Circuit reversed and sent it back for trial (NYLJ, Nov. 10, 2003). The first jury hung 11 to 1 for conviction. The second, the judge recalled, "was 12-zip for acquittal."

"What happened in between?" Scheindlin asked. "It was exactly the same evidence, the same lawyers, and it was word for word the same trial record. What happened is that, it was later in the Bush administration and his policies were no longer as popular and people had pulled back…and were now looking at some of the consequences of the event that they didn't really like."

But the judge also said that the jury in the second trial was subjected to a "much stronger voir dire."

"The second questionnaire worked much harder to probe bias—'did you know anybody even indirectly, who was injured that day?'"

"We know that the first jury was in tears, people were crying, telling about their neighbor who had lost a son, which was not at all the point of the prosecution."

'Judges Are Hum an Beings' Scheindlin's ruling in the Awadallah case drew criticism that she said found hard to take.

"Judges are human beings and it always hurts to be attacked when you can't defend yourself—that's a very painful thing," she said. "Over the years I have read editorials such as the famous 'Osama's Best Friend' after the Awadallah decision, it was hurtful.

"I would have liked to have been able to explain the decision so that the public understood it so I was not wrongly attacked but a judge doesn't have that ability," she said. "In recent years the bar associations have really stepped up to the plate and tried to defend judges, not on the merits of their decisions but by explaining their job, that the judge is a neutral and does the best they can. To attack them personally when it's not a matter of dishonesty, just disagreement, is a terrible thing."

With her involvement in the stop-and-frisk litigation Scheindlin has had to cope with sharp criticism from city officials like Police Commissioner Raymond Kelly, who has accused her of being in the thrall of a few civil rights lawyers.

The New York County Lawyers' Association wrote to the New York Daily News on May 15 to protest an article reporting that an "internal report" by the mayor's office purporting to show that Scheindlin is biased against law enforcement because she has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994.

In its letter, NYCLA argued that the report was misleading because it did not consider her suppression decisions from the bench. Moreover, NYCLA wrote, "Judges are not supposed to grade on the curve. They are supposed to decide cases on their merits," and the report didn't consider the merits of Scheindlin's rulings.

"I think it's inappropriate to label any judge as liberal or conservative," Scheindlin said in the interview. "I like to think of myself as a fair-minded neutral who calls the case outcomes the way that the law and justice require."

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11/11/13 New York Law Journal: Stop and Frisk Judge Relishes Her Independence Im proved Atm osphere

Scheindlin said she thinks Americans' attitude toward civil liberties has changed since the Sept. 11, 2001, terrorist attacks.

"I think it's better—I think the worst time was around 9/11. People just didn't want to hear about the rights of anybody when they felt their security was threatened—so I think, actually its been slowly better for the last decade as 9/11 has receded," she said. "One worries again, though, with the Boston Marathon bombers and whether public opinion shifts back, but I don't think anybody was particularly outraged [the surviving suspect] wasn't read Miranda rights.

"It's events like this that test people's commitments to civil liberties…I think the atmosphere has been much better because more of the population has been critical of what I might call the Bush-era policies—the torture memo, the Guantanamo issue, the military courts, the detention without charges."

She said she thinks that President Barack Obama would like to close the detention center at Guantanamo but cannot get Congress to go along.

"It's deeply troubling to hold people in perpetuity without charging them," Scheindlin said. "We like to think we don't do that." Scheindlin said that politics influences the selection of federal judges, but that is mainly on the appellate court level.

"Let's be realistic, these are political appointments and the makeup of the circuit judges in this circuit is slowly changing now that President Obama has been here five years," she said.

But she said that the Southern District had been "extraordinarily lucky" in avoiding political polarization.

"I'm saying that it's not partisan, she said. "All through the Bush years, all through the Obama years we have had really high quality people. We are so lucky here we don't have political hacks. We have well-qualified judges virtually across the board."

Scheindlin said that she was disappointed in the U.S. Supreme Court's ruling last month on the Alien Tort Claims Act, Kiob el v. Royal Dutch Petroleum, 569 U.S. — (2013), determining that there was no extraterritorial application of the law.

In 2009, Scheindlin had recognized aiding and abetting liability for corporations on human rights violations in South Africa, the case along with Awadallah that has given her the greatest pride (NYLJ, April 9, 2009). But her ruling was put on hold while the Supreme Court considered the issue.

Scheindlin said Justice Samuel Alito "reached out" and skirted the aiding and abetting question just to strike down the law on extraterritoriality grounds, and "that was sad."

Scheindlin observed that new technologies had changed the law since she joined the bench, as evidenced by her own e- discovery rulings in Zub ulake and other cases.

"This is what lawyers really talk about—social media, GPS, cell sites, data collection, technology-assisted review," she said. "The biggest change in the law is that all these issues that have arisen out of the new world we live in.

"Now, the civil side is very advanced, the criminal side is just beginning to catch up, but all data is electronic data, all discovery is e-discovery," she said.

And, like many judges, she worries about the impact of social media on juries.

In the case of arms trafficker Viktor Bout, she made the jury sign a "pledge" not to go on Facebook, Twitter, LinkedIn or other outlets and promise they would not communicate that way, and if they did, "they understood they would be subjected to prosecution which was supposed to be an in terrorem effect," she said.

They signed, but one juror in the whole selection process said, "'I can't sign that' and I said ' Well, thank you for telling me, you're off," Scheindlin said. "It really is threatening to the jury system—the ease of obtaining evidence outside the courtroom. This has happened again and again."

Scheindlin has been married for almost 30 years to Stanley Friedman, the associate dean of education at SUNY Downstate Medical Center. She has two grown children.

She admits to having virtually no outside interests.

"I love to work," she said. "The only other way I know how to enjoy myself is exercise. Otherwise, I'm a great reader. I love audio books."

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11/11/13 New York Law Journal: Stop and Frisk Judge Relishes Her Independence She said she's at the courthouse most days from 10 a.m to 8 p.m., "really living here." She also works all weekend and requires her clerks to work one weekend day.

"This is sort of my home away from home," she said. @|Mark Hamb lett can b e contacted at mhamb lett@alm.com. Copyright 2013. ALM Media Properties, LLC. All rights reserved. www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202600625151# 5/5