Stop and Frisk Appeal, The Sequel

By Anil Kalhan

Were any of you feeling a sense of déjà vu on Wednesday? For the second time in as many Octobers, a panel of the U.S. Court of Appeals for the Second Circuit consisting of Judges José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr. heard two hours’ worth of oral argument on procedural matters in the long-running litigation over the New York Police Department’s stop and frisk practices, Floyd v. City of New York and Ligon v. City of New York. New York City politics was in the air, as community-based groups and elected officials rallied outside the courthouse before the argument and called upon the three judges to “#stopthedelay” in moving forward with the stop and frisk reform process.

To briefly refresh your collective recollections, at almost exactly this time last year—on the eve of the New York City mayoral election—Judges Cabranes, Walker, and Parker were presented with a motion filed by the Bloomberg administration seeking a stay pending appeal of both U.S. District Judge Shira Scheindlin’s liability decision holding the NYPD’s stop-and-frisk practices unconstitutional and her accompanying order initiating a process to remedy those violations. In response, the motions panel not only granted the City’s stay motion, but also hastily acted sua sponte to oust Judge Scheindlin from the litigation altogether and, for good measure, grabbed jurisdiction for itself to adjudicate the merits of the stop and frisk appeal. Regular readers will recall that I examined some of the issues arising from that episode here and here. (Since then, I have developed the themes initially outlined in those posts in greater depth in a law review article that will be published in the Georgetown Journal of Legal Ethics in the coming weeks.) Professor Dorf examined the issues in the stop-and-frisk appeal at some length back then as well, and his posts are here and here.

But what a difference a year can make. In the year since Judges Cabranes, Walker, and Parker issued their Halloween Order, the new administration of Mayor Bill de Blasio settled the litigation and agreed to take steps to withdraw the City’s appeal, which would leave Judge Scheindlin’s liability opinion and remedial order in place and allow the stop and frisk reform process to proceed. New York’s police unions have sought to scuttle that settlement by moving to intervene in the litigation, so that they might prosecute the appeal in the City’s place. However, U.S. District Judge Analisa Torres denied the unions’ effort to intervene in a detailed opinion over the summer, concluding not only that their motion was untimely, but that they lacked any legally protectable interests sufficiently distinct from the City’s own interests to warrant intervention and did not have standing to pursue the appeal once the City itself had declined to do so. In an op-ed for the Huffington Post earlier this week, I argued that the appellate judges should affirm Judge Torres’s decision and grant the de Blasio administration’s bid to voluntarily dismiss the City’s appeal.

Only trace elements of the unpleasantness surrounding last year’s ouster of Judge Scheindlin were evident during Wednesday’s oral argument, which was held before a courtroom filled to capacity and was simulcast by video to two overflow rooms. Having attended the proceeding, my own impressions are broadly consistent with those given in news accounts. (For coverage of Wednesday’s oral argument, have a look at the New York Law Journal, Newsday, the Wall Street Journal, NY1, the Associated Press, and the New York Daily News.) All three judges seemed deeply skeptical of the claims for intervention advanced by the unions’ lawyers. It was not entirely clear whether the three judges agreed on the precise basis (timeliness, failure to satisfy the criteria for intervention, or standing) upon which Judge Torres’s order potentially might be affirmed—or even, for that matter, whether they had definitively made up their minds about which way to rule. But the lawyers appearing on behalf the unions faced pointed and challenging questions on all three of those potential grounds.

However, these news accounts largely ignored an important series of exchanges initiated by Judge Cabranes with the three lawyers representing the City and the two sets of plaintiffs concerning the precise nature of the decree that each of them was seeking. Judge Cabranes described this matter as a “clerical” question, and the ensuing discussion might have confirmed for many observers—who, given last year’s judicial smackdown, might have been hoping for some high courtroom drama—that (as Entertainment Weekly has scientifically proven) the sequel is invariably worse than the original. But the “clerical” issue that Judge Cabranes raised was more consequential than that description might have suggested. With respect to the unions’ efforts to intervene in the litigation, all three lawyers expressed agreement that they wished to see an order affirming Judge Torres’s denial of the unions’ motions to intervene as well as a second order denying the unions’ separate motions to intervene directly in the Second Circuit, which had been filed last fall. With respect to the City’s unopposed motion to voluntarily dismiss its appeal with prejudice, the three lawyers also agreed that they wanted to see the panel grant that motion and issue the mandate forthwith. As the lawyer appearing for the City emphasized, the de Blasio administration wanted to look forward, not backward, and all three lawyers indicated that they were eager to promptly get to work right away on the next stages of the reform process.

To that extent, the panel’s exchanges with the lawyers were fairly straightforward and indeed very “clerical.” However, those ostensibly clerical questions suddenly became a lot more substantive when Judge Cabranes raised the question of whether the panel should do anything with respect to Judge Scheindlin’s liability opinion. The contents of that opinion are a principal source of the unions’ objections to the settlement and a principal ground in support of their motions to intervene. Indeed, at least one newspaper columnist who strongly supports the unions’ position has expressly urged that, even if the panel denies the unions’ efforts to intervene and permits the settlement to go into effect, the liability opinion nevertheless should be vacated. In this context, it was rather odd when the City’s lawyer professed to have no position on the issue. By contrast, counsel for the plaintiffs in Floyd, Baher Azmy, made crystal clear that the plaintiffs would strenuously object to any vacatur or modification of the liability opinion. General news stories about the oral argument did not discuss this seemingly technical question—but the New York Law Journal’s Mark Hamblett (who writes for an audience primarily consisting of lawyers) perceptively picked up on its significance:

[Judge] Cabranes asked what should be done about the liability opinion and whether it should stand…. Azmy told the court he wanted the opinion to stay in place, because it is of a piece with the remedial order. And progress with the remedial process—training, better evaluations and supervision of police—cannot be measured without reference to the liability order. [link]

This exchange about the fate of Judge Scheindlin’s liability opinion was awkward, insofar as it marked the only moment during the argument in which the ouster of Judge Scheindlin by Judges Cabranes, Walker, and Parker directly came up. Judge Cabranes indicated, only a little bit obliquely, that he had raised the issue of what to do with the liability opinion in order to consider whether it might be seen as anomalous for the three judges to effectively “ratify” that opinion when, by virtue of "certain findings” that the panel had previously made in the course of Judge Scheindlin's ouster, they might also be understood to have concluded that the stop and frisk cases should never have been before her in the first place.

However, as Azmy pointed out, the panel had subsequently purported to clarify that it had not intended to make any finding that the cases should not have been assigned to Judge Scheindlin or that she had otherwise engaged in any actual misconduct, but only had decided that the cases prospectively should be reassigned to another district judge in the interests of justice and to ensure the appearance of impartiality. As such, he argued, the possibility described by Judge Cabranes did not present any meaningful concern. As both Professor Dorf and I have separately explored, whether that is in fact the correct away to understand the panel's decision-making last year, which oscillated between multiple rationales in a somewhat confusing manner, is not at all obvious. But Azmy's response did provide an entirely faithful and accurate account of what the panel itself professed to be doing. Were the panel now to embrace yet another account of what it purported to be doing by removing Judge Scheindlin, it would add another layer of confusion to the panel's already confused decision-making in this set of cases.

What seemed much more clear based on that exchange is that any effort by the panel to vacate or otherwise undermine Judge Scheindlin’s liability opinion could end up being rather messy—not only by undermining the substantive basis for the settlement itself, as Azmy emphasized, but also by dredging up much of the drama that the panel unleashed with its decision to oust Judge Scheindlin in the first place. While mostly relegated to the background during Wednesday’s argument itself, that decision continues to cast a shadow over the Second Circuit’s involvement in the stop and frisk litigation as an institution. Indeed, because of the fallout from that decision, counsel for both sets of plaintiffs filed petitions for rehearing en banc last November that not only sought reversal of the panel’s decision, but also, quite remarkably, urged reassignment of the appeal to a different panel altogether. Those petitions—along with motions questioning whether the panel had appellate jurisdiction in the first place—are still pending, and only last month counsel for the plaintiffs directly signaled to the court that they were prepared to renew their petitions for en banc review.

The settlement gives both the panel and the Second Circuit more generally a straightforward potential exit strategy from this unfortunate episode, one that would leave no reason for the plaintiffs to renew those requests for en banc review and would avoid reopening the wounds inflicted a year ago. In this context, while it garnered no headlines and may have made many eyes in the packed galleries glaze over, Judge Cabranes was entirely justified in raising and dwelling upon the details concerning the nature of the decree the parties were seeking. The issue undoubtedly was mindnumbing for many in attendance, but whether the panel’s disposition of these motions in fact does enable everyone to move on, and to avoid having to endure “Stop and Frisk Appeal, The Threequel,” may depend significantly upon this seemingly “clerical” but in fact highly substantive detail to a greater extent than many observers might realize.