In the
United States Court of Appeals
For the Seventh Circuit
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No. 15‐1848
IN RE: CITY OF MILWAUKEE, et al.,
Petitioners.
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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.
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SUBMITTED MAY 20, 2015 — DECIDED JUNE 9, 2015
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Before WOOD, Chief Judge, and POSNER and HAMILTON,
Circuit Judges.
HAMILTON, 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, 555
No. 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 of
No. 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 judge
8 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 arguments
No. 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 DENIED.