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.

____________________________________
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.


                                                          2
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.




                                                             3
        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.

                                                              4
       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).


                                                         5
         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).


                                                            6
                                                       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).


                                                       7
       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.




                                                  8
(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

                                                            9
                                                            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).


                                                            10
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).


                                                     11
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.


                                                           12
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

                                                           13
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).


                                                              14
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.


                                                     15
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
                                                           2
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.
                                                       3
APPENDIX B
                                                        1

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
                                                                    12


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

  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
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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
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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
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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
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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.” ♦

  PHOTOGRAPH: REPORTAGE BY GETTY IMAGES



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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




  ALM Properties, Inc.
  Page printed from: New York Law Journal

  Back to Article




  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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  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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  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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  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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  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.




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