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In re Reassignment of Cases

United States Court of Appeals, Second Circuit

November 13, 2013

In re Reassignment of Cases
v.
City of New York, et al., Defendants-Appellants. Jaenean Ligon, et al., Plaintiffs-Appellees, David Floyd, et al., Plaintiffs-Appellees,
v.
City of New York, et al., Defendants-Appellants.

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.

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the cases to a different district judge, to be chosen randomly.[1] We now explain the basis for that order, which is superseded by this opinion.[2]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. This opinion deals only with our procedural decision to direct the reassignment of the cases and turns on how the cases came before Judge Scheindlin and the media interviews she gave during the pendency of these lawsuits.

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

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

In a decision dated January 8, 2013, and amended on February 14, 2013, Judge Scheindlin granted the Ligon plaintiffs' motion for a preliminary injunction, holding that they had "shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx."[5] In a separate opinion, Judge Scheindlin granted the defendants' motion to stay any remedies until after the "issuance of a final decision regarding the appropriate scope of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any) in Floyd."[6]

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

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

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

Discussion

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

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

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

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

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

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

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

(TR 15) (emphasis added).

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

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

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

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

(TR 42) (emphasis added).

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

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 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 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 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 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 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]

APPENDIX A

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 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.

APPENDIX B

DANIELS, Plaintiff,

V.

THE CITY OF NEW YORK, Defendant.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 21, 2007

Before: HON. SHIRAA. SCHEINDLIN, District Judge.

(In open court)

MS. GROSSMAN: Your Honor, may I just bring one issue to your attention?

THE COURT: Not until I reach you.
Good afternoon, Mr. Moore.
MR. MOORE: Good afternoon, Judge.
THE COURT: Good afternoon, Ms. Costello.
MS. COSTELLO: Yes, good afternoon, your Honor,
THE COURT: Mr. Franklin.
And who is the person in between all of you?
MS. COSTELLO: Your Honor, this is Garrett Wright, he is a recent law graduate from our office.
THE COURT: And good afternoon, Ms. Grossman and Ms. Donahue.
Yes, what is it?
MS. GROSSMAN: There may be some reference to some confidential material during our conference, and I just wanted to bring that to the Court's attention, in that we believe the courtroom might have to be sealed for a very brief moment. For now, plaintiffs counsel is not prepared to raise those issues while we have other people here in the courtroom.
I think we are fine to keep the courtroom open.
THE COURT: I know who two of the people are, they are here on the criminal case. Who are the other people?
A VOICE: We are with the Center for Constitutional Rights.
THE COURT: Are you both attorneys?
A VOICE: I am an attorney.
I am a paralegal.

THE COURT: They are — I understand your point. As soon as I can, I'd be happy to get the criminal case out of the courtroom. As soon as I can.

Let me get started on this matter of Daniels versus The City of New York.

I have a letter from the plaintiffs dated December 14, 2007. And they are seeking a number of things. But I suppose on the most immediate basis they are seeking some kind of an order extending the Court supervision by no less than a few months, for the sole purpose of letting them fully brief the request for relief in this letter. So there is no rush.

So they are saying, the best way to have no rush and have no air is to have the defendant consent to a two-or-three month adjournment minimally, just so everybody can get these issues fully briefed and on the table. And if the Court denies all the relief, so be it.

But rather than have them work it out in eight or nine days, you are saying just to get some kind of interest of justice extension or something.

So I won't go into the rest of the relief they seek, more in terms of summarizing the letters, but the largest overall summary is that there has been a lack of compliance in various ways with the stipulation of settlement. And so the Court should modify the stipulation of settlement order, specific performance of certain aspects of the stipulation of settlement.

And then they ask for the third point of relief, which is what I think you were referring to, where they think there should be a modification of the protective order as to some of the terms that have been declared confidential.

One reason is they say the Court will have to use some of the confidential information to determine what to do with the motion. But, secondly, they are saying some of it has been disclosed by the defendant in another context, and it is already much discussed, and you should withdraw the designation if it has been publicly disclosed.

Then I received a letter in response dated December 1 9, but actually received in chambers December 20, which was yesterday. And yesterday was a relatively busy day on the bench. So the long and short of it, I haven't had a chance to study the attachments carefully. But I did have the opportunity to read the letter, which itself was long, I guess, the pages aren't numbered so I can't tell how many, there is a lot of single-spaced pages, five or six. And I did read them.

And the quick summary of the defense letter is that plaintiffs want to pretend that the settlement agreement says things it doesn't say. So the alleged breaches aren't breaches to do what the plaintiffs say is a breach.

And defendants write a number of times in the letter, plaintiffs may have wanted the stipulation of settlement to say these things, but it doesn't. And there were intense and detailed settlement negotiations. And if they didn't get what they didn't get, they can't complain about it now.

And so the defendant opposes all the requests for relief, opposes any modification of the stipulation, opposes any order for specific performance, opposes any extension of the December 31 deadline, and opposes the modification of the protective order.

All of that said, it would nonetheless be helpful to the Court and all the parties, in the nine days remaining between now and the 31 st of December, to be — deny this in an orderly fashion by extending the deadline.

If the Defendant refuses to do that, the city will write briefs every day for the next nine days. And if that's how you want to spend your Christmas and New Year's, that's up to you.

You may have the better of all the arguments, but I need to get enough of a record to figure it out. And if you want to do that much all through Christmas and New Year's.

Who is carrying the lead?

MR. MOORE: Ms. Costello.

THE COURT: Well, Ms. Costello, I think you have sought of the burden to make your oral argument the equivalent of a reply letter. I think you need to answer all the points that Ms. Grossman made in her very thorough submission point by point. Because her points, as you notice, stay closely away from the merits, so to speak. And they try not to tell me about whether or not, you know, there is a policy of discrimination, or whether your statistics show discrimination. They want to talk procedure and they want to talk about what is or isn't in the stipulation. What rights you have or don't have in the stipulation.

And I understand that is a contract and they are saying, no matter how bad things may be, that's not part of this lawsuit.

Do you have another lawsuit to bring?

But they placed some interesting alliance on the Latino Officers Association of The City of New York, where they quoted the Court as denying any further relief. And they thought that was a pretty good precedent for them. And it did seem to be a pretty good precedent for them.

For example, at one point the Court — now there is no guarantees in discrimination in the settlement document, and that Court said, quote, even a convincing demonstration of persistent discrimination would not mean that the defendants are violating the provisions of the settlement agreement.

That, sort of, is exactly the situation I may be in. You may be sort of seeing problems that are all very interesting but not part of this settlement agreement. So I think you need to give me a reply brief, if you wish, orally.

MS. COSTELLO: Yes, your Honor. I can try my best.

One point that the city raises about just the fact that there are no in substantial remedies in the consent

THE COURT: I have the consent decree. I think somebody attached it as Exhibit A.

MS. GROSSMAN: Yes, your Honor.

THE COURT: So you are going to have to show me, don't tell me you disagree, show me the language.

MS. COSTELLO: In section C1, your Honor, in section C1.

Let me just back up one second, your Honor. I think there were two ways, and this is part of what we would like to brief for the Court, there are two ways that the Court could extend the life of the consent decree and also grant our request for modification. One is within the Court's equitable powers and the second is standard under Ruffo for modification.

I think what Ms. Grossman's letter focuses on is the straight reading, the non-compliance and specific performance and contempt proceeding that would result, flow from that which the dispute resolution mechanism in the agreement itself, if you look at the standard under Ruffo, a much more flexible standard that takes into account the public interest and the change in circumstances. The city doesn't address that at all,

THE COURT: No, they never cite Ruffo, I don't think they did. I read it fairly quickly.

MS. COSTELLO: Under the standard in Ruffo, we think that the modification would be appropriate.

Putting that aside for the moment, and just looking at the language of the consent decree, section CI of the stipulation requires that the NYPD shall have a written policy regarding racial or ethnic or national origin profiling, that complies with the United States Constitution and the New York State Constitution.

And I think that we have shown that there is evidence of racial profiling going on.

THE COURT: Even if there is evidence of racial profiling, that paragraph doesn't have anything to do with

It says that the NYPD shall have a written policy that complies with the Constitution of both the United States and New York State. Okay, that's what they have to have.

Do they have — let me give you an example, let's say they had a written policy that complies with it, and that they violated it all the time. They wouldn't have violated paragraph 1. Paragraph 1 says you have to have a written policy that complies with the —

MS. COSTELLO: — if you read paragraph CI in connection with, which requires training on the policy, training on the officers in stop and frisk procedures, in section E there is a provision in there for palm cards which go out to individuals in the community. If they believe they have been improperly stopped and frisked they can file a complaint with the Civilian Complaint Review Board.

We think that all of that means there was an implication of this policy --

THE COURT: — you are asking me to rewrite your settlement agreement. This is hypothetical, it is not a fact.

I don't want anybody to be confused by reading the record. I am saying hypothetically if they have a written policy that complies with the Constitution of the United States and of New York State, regarding racial and ethnic origin profiling, they satisfied number 1, paragraph CI.

Even if there were evidence that they were violating their own policy, they still say that.

Number 1 only requires them to have appropriate written policy.

That seems to be the whole point of this notion that there is no guarantees in this agreement. Nowhere in the agreement is the city guaranteed that it will not have an inappropriate racial profiling. There is no guarantee in here. It is exactly the same thing that Judge Kaplan was trying to say.

MS. COSTELLO: If you look at section C2, which says that the NYPD may alter the policy — HE COURT: — let me read that. It says: (Reading) The NYPD may alter the racial profiling policy at any time in compliance with paragraph CI.

That just means if they have the policy that isn't in compliance, and they want to make a written policy that is in compliance, I don't see that number 2 provides you the guarantee that you seem to be talking about.

MS. COSTELLO: I think number 2 also relates to altering the policy. And I think that the intent of this agreement was not to bargain for a policy that meant nothing that the NYPD could just go out and violate people's Fourth Amendment rights and Fourteenth Amendment rights with no recourse to plaintiffs. I think that would —

THE COURT: — maybe it is an —- why don't you file a lawsuit?

MS. COSTELLO: We did, we are here. THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1 999 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 on 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 has not rebutted maybe she did, that's why we didn't do something, because we didn't want them to write this 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 me about a stipulation of settlement, why don't you craft a lawsuit?

MS. COSTELLO: We could, but the only other issue is "

THE COURT: That's what would I like to turn to.

Can we talk about the noncompliant?

MR. MOORE: Judge, could I just say a few things, before we do that? About the notion that what we were bargaining for was simply a piece of paper that had no substance to it.

THE COURT: I didn't say it had no substance. But it didn't have the word guarantee. Didn't she write in her letter there were no guarantees? And Judge Kaplan talked about that in his settlement. I didn't have time to read his decision, I only read these two letters. Sometimes a Judge has some time and sometime not. I didn't have a lot of time, especially the city's letter just came in yesterday.

MR. MOORE: To the extent that given my involvement with the case in the beginning, I can shed any light on that, on what our understanding was, about what we were bargaining for.

We believed that we were getting a policy that the city would put into effect. That was, it is reason why we brought the lawsuit. And certainly as Ms. Costello said, there were not just — they didn't just agree to change the written policy, they agreed to do several things.

THE COURT: But we have to find them chapter and verse, because their argument — I'd like to interrupt you just for a minute, and take this criminal case. (Recess)

THE COURT:: I think you were speaking, Mr. Moore. MR. MOORE: I had been making a general observation about my understanding in the course of our negotiating this decree.

I find it hard to believe that The City of New York would, in effect, say to this Court, or to anybody, well, we have a policy, but we don't have to follow it.

THE COURT: I was saying as a hypothetical. I didn't say they said —

MR. MOORE: — I think they say that in their letter, that we can change the policy — we can — as long as we have a written policy, we can essentially do whatever we want.

I just think that if that's, in fact, what the position of the city of New York is, it is a significant difference from what we understood we were getting, which was policy that had some substance to it. Not just a policy on paper.

It's sort of like passing the Thirteenth Amendment abolishing slavery as long as we have an amendment that you can't have slavery. But in practice we still have slavery.

It seems to me it is a hyper technical interpretation of the words in the decree. The decree was meant to address what we believed was a serious issue with respect to racial profiling which, apparently, has not gone away. And even their own Rand study that they commissioned, suggests that at least with respect to the frisks, maybe not the stops, but even the frisks, that there is a racial disparity, that's their own expert's testimony, their own expert's report.

So I just find the notion that we were tying to basically engage in a law school exercise of getting a policy that had no substance —

THE COURT: -- well --

MR. MOORE: -- contrary to my understanding and contrary --

THE COURT: -- I will quote from page 4 of the letter, the first full paragraph.

(Reading) In conclusion, it is important to state that plaintiffs vigorously bargained for a provision which would create for an obligation on the part of the defendants to guarantee that there would be no racial profiling. The city refused to agree to such a term for reasons here are negotiated.

MR. MOORE: I don't know, there is no citation to that, there is no -- it is sort of, in a way, it was — maybe it was by being silent they hoped that we wouldn't say to you, say to the city, and you are going to comply with that, you are going to actually implement the policy.

I don't think — I mean, a municipality that agrees to adopt a policy should be then saying, now that we have adopted a written policy, we don't have to implement it in practice. When, in fact, they were making — they were, you ...


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