In re City of Milwaukee

788 F.3d 717, 2015 U.S. App. LEXIS 9621, 2015 WL 3604203
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 9, 2015
DocketNo. 15-1848
StatusPublished
Cited by36 cases

This text of 788 F.3d 717 (In re City of Milwaukee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re City of Milwaukee, 788 F.3d 717, 2015 U.S. App. LEXIS 9621, 2015 WL 3604203 (7th Cir. 2015).

Opinion

HAMILTON, Circuit Judge.

The City of Milwaukee is defending a number of lawsuits brought by scores of plaintiffs alleging that its police officers have conducted unconstitutional stops and searches, including strip-searches and body-cavity searches. Judge Stadtmueller has been assigned to preside over several of these cases. Milwaukee, asserting that some of the judge’s comments in opinions and conferences in the related eases raise reasonable questions about his impartiality, moved for his recusal under 28 U.S.C. § 455(a). The judge declined. Hardy v. City of Milwaukee, — F.Supp.3d -, No. 13-CV-769, 2015 WL 1609159 (E.D.Wis. April 10, 2015).

Milwaukee and its police chief now seek to force the judge aside by petitioning for a writ of mandamus. (For convenience we refer to both petitioners as Milwaukee or the city.) The plaintiffs in the underlying cases have filed a joint response arguing that the petition should be denied. We conclude that Milwaukee’s petition for a writ of mandamus must be denied.

A mandamus petition is the proper way to challenge the denial of a recusal motion. See In re Sherwin-Williams Co., 607 F.3d 474, 477 (7th Cir.2010) (per curiam); United States v. Diekemper, 604 F.3d 345, 352 (7th Cir.2010). We independently assess questions raised about a judge’s impartiality from “the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Sherwin-Williams, 607 F.3d at 477, quoting Cheney v. U.S. Dist. Court for [720]*720Dist. of Columbia) 541 U.S. 913, 924, 124 S.Ct. 1391, 158 L.Ed.2d 225 (2004) (Scalia, J., in chambers) (citations and emphasis omitted); see also In re United States, 572 F.3d 301, 310 (7th Cir.2009) (“[W]e decide ... whether a reasonable, well-informed observer could question the Judge’s impartiality.”).

Milwaukee argues that five state-' ments reasonably call the judge’s impartiality into question. All five statements were made during the course of litigation. This is significant because “opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Rarely will a judge’s comments show such favoritism or antagonism unless those comments reflect at least some reliance on an “extrajudicial source.” Id.

Only one of Judge Stadtmueller’s statements appears to involve an extrajudicial source, so we start there. Hardy v. City of Milwaukee, No. 13-CV-769, was one of the first cases to go to trial. The jury found that the plaintiff had been illegally stopped and arrested but ruled in favor of defendants on a claim for an illegal search. The jury awarded $6,000 in compensatory damages and $500,000 in punitive damages. Judge Stadtmueller reduced the punitive damages to $54,000, noting that no evidence at trial showed that the defendant officers had engaged in “repeated acts of this sort.” That finding was followed by a footnote:

However, with that said, it is apparent that [the Milwaukee Police Department] has opted to continue the sort of illegal stops that Mr. Hardy was subject to. MPD Chief Edward Flynn has made clear that one of his prerogatives is encouraging large amounts of pedestrian stops, regardless of the reasons. In criticizing Floyd v. City of New York, the Southern District of New York case finding the New York Police Department’s stop-and-frisk tactics illegal, Chief Flynn stated, “That’s what worries us about what’s happening in New York. It would be a shame if some people decided to put us back in our cars just answering calls and ceding the streets to thugs.” Heather MacDonald, “How to Increase the Crime Rate Nationwide,” The Wall Street Journal (June 11, 2013) (quoting previous Flynn statements to L.A. Times).

Milwaukee argues that the comment that Chief Flynn was encouraging illegal stops is not supported by the substance of the cited newspaper article and thus that the judge’s conclusions bring his impartiality into question.

Milwaukee does not contend that Chief Flynn was misquoted in criticizing the Floyd decision. In Floyd, the Southern District of New York found that the New York Police Department’s stop-and-frisk policies had . violated Fourth and Fourteenth Amendment rights through a policy of illegal stops and frisks, particularly of people of color. Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y.2013). The Floyd decision was controversial and widely publicized, and New York City eventually dropped its appeal. See Floyd v. City of New York, 770 F.3d 1051 (2d Cir.2014) (denying intervention and granting motion to dismiss appeal).

Taken literally, the judge’s footnote about Chief Flynn’s comment was not out of place. The jury in the Hardy case found that the individual officers had violated Mr. Hardy’s rights. Finding no evidence that those individual officers had [721]*721engaged in other illegal stops, though, the judge cut the punitive damage award by nearly 90 percent. Putting the situation of the individual officers in context, the judge then cited Chief Flynn’s criticism of the Floyd decision.

A police force that wishes to replicate the New York City policy can be described fairly, though not conclusively, as intending to carry out a policy of illegal stops. The district court decisions in Floyd, in New York, or Hardy or other cases in Milwaukee, cannot resolve conclusively the legality of one stop or a broader policy. Both decisions were subject to appeal but were settled without appellate decisions on the merits. We do not view the judge’s comment setting the Hardy decision in a larger context as showing that the judge has abandoned his duty to decide each case fairly on its own merits.

Even if the judge’s footnote read too much into the chiefs comments, the argument for recusal also fails to grapple with the context within which the footnote appears. A reasonable observer is well informed about “all the surrounding facts and circumstances.” Sherwin-Williams, 607 F.3d at 477, citing Cheney, 541 U.S. at 924, 124 S.Ct. 1391 (Scalia, J., in chambers); see also In re Mason, 916 F.2d 384, 386 (7th Cir.1990) (“An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person.”). Judge Stadtmueller’s apparent concerns about Milwaukee’s policing tactics did not prevent him from ruling in the city’s favor.

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788 F.3d 717, 2015 U.S. App. LEXIS 9621, 2015 WL 3604203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-city-of-milwaukee-ca7-2015.