Keeping Up With the Second Circuit's Stop and Frisk Decisions

The Second Circuit late Friday entered yet another decision in In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al., this time on four motions before the panel.  Recall that the Second Circuit panel previously entered an opinion clarifying its removal of District Judge Shira Scheindlin after its original brief order issuing a stay and removing her as judge, an occurrence that is apparently not so rare.   Judge Shira Scheindlin's opinions and orders in Floyd v. City of New York and in Ligon v. City of New York  found the NYPD's implementation of stop and frisk violative of equal protection.

In this most recent order from the Second Circuit panel, it denied NYC's motion to vacate Judge Scheindlin's orders and opinions, rather than issuing a stay.  This move by NYC - - - given that a change in mayors is imminent - - - certainly had political interpretations.  But whatever NYC's motives, the Court rejected the invitation to vacate the opinions. 

The Second Circuit panel also denied the motions seeking intervention by Judge Scheindlin, essentially characterizing them as moot given the panel's clarifying order and the denial of the motion to vacate.   However, the panel did take the opportunity to disagree with the motion's representation that the panel did not have access to the transcript of proceedings in the related case upon which it based its findings that Judge Scheindlin may have committed an improper application of the Court’s “related case rule.”  The Second Circuit panel stated:

A review of the record of the Court of Appeals, and of the October 29, 2013 extended oral argument in these cases, will reveal that the panel members had the transcript of the December 21, 2007 proceeding in front of them during the hearing, and that they asked questions in open court regarding its substance. For example, during the oral argument, one member of the panel twice referred to the proceedings in detail, and clearly noted that he was quoting from page 42 of the December 21, 2007 transcript. Our October 31, 2013 order specifically cited the transcript by caption, docket number, and date, and it included quotations that had not been reported in the New York Times article that was cited, or in any other public news report known to the panel.

It's interesting that the Second Circuit panel took time to refute the contention with specifics - - - and perhaps it is important that the panel also noted that the assertion that it did not have the transcript was being "echoed" by "other movants in the case," with this citation:

See, e.g., Br. of Amici Curiae Six Retired United States District Court Judges and Thirteen Professors of Legal Ethics, Ligon v. City of New York, No. 13-3123, Dkt. 221, Floyd v. City of New York, No. 13-3088, Dkt. 313, at 14.

The Second Circuit panel surely wants to correct the record about the record on this point.