### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 1848

I N R E : C ITY OF M ILWAUKEE

, et al

.,

Petitioners

.

____________________ Petition for Writ of Mandamus

to the Eastern District of Wisconsin.

Nos. 13

‐ cv

‐ 920

‐ JPS, 14

‐ cv

‐ 1224

‐ JPS, 14

‐ cv

‐ 1548

‐ JPS,

15

‐ cv

‐ 311

‐ JPS

— J.P. Stadtmueller

, Judge

.

____________________

S UBMITTED M AY 20, 2015

— D ECIDED J UNE 9, 2015

____________________

Before W OOD

, Chief Judge

, and P OSNER and H AMILTON

,

Circuit Judges

.

H AMILTON

, Circuit Judge

. The City of Milwaukee is de

‐ fending a number of lawsuits brought by scores of plaintiffs

alleging that its police officers have conducted unconstitu

‐

tional 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 confer

‐

ences in the related cases 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

, —2 No. 15

‐ 1848

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 con

‐

venience 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 independent

‐ ly 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 Dist. of Columbia

, 541 U.S. 913, 924 (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 statements 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 ba

‐

sis for a bias or partiality motion unless they display a deep

‐

seated favoritism or antagonism that would make fair judg

‐

ment impossible.” Liteky v. United States

, 510 U.S. 540, 555No. 15

‐ 1848 3

(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 com

‐

pensatory damages and $500,000 in punitive damages. Judge

Stadtmueller reduced the punitive damages to $54,000, not

‐ ing that no evidence at trial showed that the defendant offic

‐

ers 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. Har

‐ dy 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 ced

‐ ing the streets to thugs.” Heather MacDonald,

“How to Increase the Crime Rate Nationwide,”4 No. 15

‐ 1848

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 sub

‐

stance 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 mis

‐ quoted in criticizing the Floyd decision. In Floyd

, the South

‐

ern 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 ille

‐ gal 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 inter

‐

vention 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 engaged 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 cas

‐

es in Milwaukee, cannot resolve conclusively the legality ofNo. 15

‐ 1848 5

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 chief’s

comments, the argument for recusal also fails to grapple

with the context within which the footnote appears. A rea

‐

sonable observer is well informed about “all the surround

‐ ing facts and circumstances.” Sherwin

‐ Williams

, 607 F.3d at

477, citing Cheney

, 541 U.S. at 924 (Scalia, J., in chambers); see

also In re Mason

, 916 F.2d 384, 386 (7th Cir. 1990) (“An objec

‐

tive 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 polic

‐ ing tactics did not prevent him from ruling in the city’s fa

‐

vor. We cannot overlook the fact that the footnote appears in

an order that found for the officers on an important issue

and reduced the jury’s punitive damages award by nearly 90

percent. A reasonable observer reading the footnote would

understand that context and would not question whether

Judge Stadtmueller can preside fairly.

We turn to the remaining four statements. Because none

of them involve an extrajudicial source, Milwaukee’s burden

is even heavier. Only in “the rarest circumstances” will judi

‐

cial statements show “the degree of favoritism or antago

‐

nism required

... when no extrajudicial source is involved.”

Liteky

, 510 U.S. at 555.6 No. 15

‐ 1848

First, in the same Hardy order that reduced the punitive

damages award, the judge described a particular police of

‐

ficer as “MPD’s primary strip

‐ search offender” and said that

the officer “is now serving a prison sentence as a result of his

criminal actions.” Milwaukee says that these comments

show the judge’s bias towards the officer because the officer

“maintains his innocence and entered no contest ( no

‐

lo contendere ) pleas to several counts of misconduct in office

and illegal searches

... to avoid trial risk.” Milwaukee also

argues that the judge inaccurately described testimony about

a search conducted by the officer.

These comments do not show deep

‐ seated antagonism or

other bias calling for recusal. Even if the officer maintains his

innocence, he was convicted and sent to prison on his pleas

of no contest. Describing him as an “offender” was both en

‐ tirely accurate and relevant to the judge’s factual findings

about the particular events and testimony in the Hardy case.

The judge’s comment did not reflect judicial bias.

On the record before us, we will not attempt to determine

whether the judge’s description of testimony about the spe

‐

cific actions of that officer might have been inaccurate. The

judge presided over the trial and knows the record better

than we do. If a district judge makes a clearly erroneous fac

‐

tual finding that affects the outcome of a case, we will con

‐

sider such arguments in a direct appeal. Despite our best ef

‐

forts, though, federal judges sometimes make mistakes or

see factual or legal issues differently. Such ordinary errors or

disagreements provide a basis for appeal but not for recusal.

See In re Mason

, 916 F.2d at 386 (noting importance of objec

‐ tivity when evaluating alleged judicial bias).No. 15

‐ 1848 7

The second statement was made in the final pretrial con

‐

ference in Bohannon v. City of Milwaukee

, 13

‐ CV

‐ 1224:

If the facts are on your side, you’re going to

prevail; but unfortunately, in these cases from

what the Court has seen thus far, the City has

got a very, very tall order to be an effective de

‐

fender of what occurred particularly when you

see what occurred in this and other cases if on

‐ ly what’s come through the criminal justice

system...

. And, eventually, it comes at a very,

very high cost whether it’s morale in the police

department, whether it’s the citizens’ respect

for the rule of the law in the community, that

there are those in [the] City that want to defend

this sort of conduct. It’s plainly unconsciona

‐

ble. That’s the end of the discussion. So it’s

time to roll up the sleeves and get real serious

about [where] we are going with this

... .

In the city’s view, the judge effectively said that it is un

‐

conscionable for the city to defend the lawsuits. We do not

read the comment the same way. The antecedent of “It” in

“It’s plainly unconscionable” appears to be the alleged police

conduct at issue rather than the city’s defense of the law

‐

suits. “Unconscionable” is not an unfair description of the

alleged conduct, based on what the judge had learned about

it on the bench. In any event, as Judge Stadtmueller recog

‐

nized in the quoted passage and other comments in the same

conference, it will be his duty and the duty of juries and oth

‐

er courts to evaluate the law and the evidence fairly in each

of the cases as they are tried or otherwise presented for deci

‐

sion. Even a sharply critical comment about what the judge8 No. 15

‐ 1848

has learned in presiding over related cases does not mean

the judge cannot be impartial.

As part of that same larger context for the “unconsciona

‐

ble” comment, plaintiffs’ counsel also point out, in the same

conference the judge criticized their actions as well. They

view his criticisms as inaccurate and unjustified. But federal

courts resolve significant disputes that often generate strong

feelings and views on all sides. A judge’s frank assessments

in conferences are not guaranteed to be infallible, but they

can be helpful in coping with attorneys’ sometimes unrealis

‐

tic devotion, on all sides, to their clients’ causes.

The judge said here that Milwaukee, though it may have

a “very, very tall order,” will win if the facts are on its side.

As we noted with regard to the Hardy case, he has ruled in

Milwaukee’s favor on important issues in these cases. The

judge is troubled by what the evidence in these cases has

shown thus far, but opinions developed during litigation,

past or present, do not require recusal unless they “would

make fair judgment impossible.” Liteky

, 510 U.S. at 555; see

also Frey v. E.P.A.

, 751 F.3d 461, 472 (7th Cir. 2014) (affirming

denial of recusal where judge presided over series of related

cases); Diekemper

, 604 F.3d at 352 (“The statement that

Diekemper is ‘manipulative, narcissistic, and twisted

... is a

reflection of the facts before the district court.”).

The third statement comes from a scheduling conference

in Caine v. City of Milwaukee

, 14

‐ CV

‐ 01548. Judge Stadt

‐

mueller warned Milwaukee’s attorneys that they should not

repeat any “non

‐ starter arguments that were raised” in other

cases unless they want “to find themselves on the short end

of the stick with sanctions.” Milwaukee contends this warn

‐ ing shows a “deep

‐ seated antagonism” because argumentsNo. 15

‐ 1848 9

that are non

‐ starters in one case may be reasonable in anoth

‐

er. This argument is not persuasive.

Judges have discretion in running their cases, and “[a]

judge’s ordinary efforts at courtroom administration

... re

‐

main immune” from charges of partiality, even if the judge

exhibits “impatience, dissatisfaction, annoyance, and even

anger.” Liteky

, 510 U.S. at 555–56. Effective case management

sometimes calls for such warnings to avoid waste of time

and distraction from the principal issues. Attorneys and par

‐

ties who disagree with a judge’s assessment of their posi

‐

tions have many remedies and protections, but recusal is not

one of them except in extreme cases, and this is not one.

Judge Stadtmueller’s warning falls into the category of ordi

‐

nary courtroom administration.

The final statement was made in the judge’s opinion

denying the motion to recuse. When explaining that he did

not intend to say that defending these lawsuits is uncon

‐

scionable, the judge noted that the phrase “those in [the]

City that want to defend this sort of conduct” referred to

“the City leadership who has elected to oppose the strip

‐

search lawsuits without any indication of efforts to combat

the systemic problems that gave rise to the suits in the first

place.” In Milwaukee’s view, this reference to “systemic

problems” shows “a bias so deep

‐ seated that the judge does

not appear to recognize that he has apparently already

reached conclusions regarding issues central to these cases;

namely whether the City has had, and continues to have, un

‐

lawful municipal policies or customs.”

We disagree. Recognizing that there may be a “systemic

problem” is not necessarily the same as saying that Milwau

‐

kee has a custom or policy that is unlawful. Judge Stadt

‐10 No. 15

‐ 1848

mueller is presiding over a number of these cases. It is not

surprising that he might draw conclusions about the nature

of the issue or problem. We would expect him to look for

and consider common threads and possible systemic prob

‐

lems to manage the cases effectively and decide them fairly.

See Fed. R. Civ. P. 1. His comments do not raise a reasonable

concern about the judge’s impartiality unless they show an

‐ tagonism so deep that he can no longer preside fairly. See

Liteky

, 510 U.S. at 555. Nothing we have seen, even consider

‐ ing all the challenged statements together, reasonably sug

‐

gests such antagonism.

The petition for a writ of mandamus is D ENIED

.