Floyd et al v. The City of New York et al

Filing 201

OPINION AND ORDER: #101712 For the reasons explained above, defendants' motion is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 178]. re: #178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN filed by James Kelly, The City of New York, Michael Cousin Hayes, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Rodriguez, Goodman, Luis Pichardo. (Signed by Judge Shira A. Scheindlin on 4/16/2012) (cd) Modified on 4/20/2012 (jab).

uSDcSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-----------------------------------x
DA VID FLOYD, LALIT CLARKSON,
DEON DENNIS, and DAVID OURLICHT,
on behalf of themselves and all others
similarly situated,
Plaintiffs,

DOCUMENT
ELECrl\ONICAILYFILED
DOC II: . . . _ - - - - ­
DATE FILED: If .... I b

- t~

OPINION AND ORDER
08 Civ. 1034 (SAS)

- againstTHE CITY OF NEW YORK, et ai.,
Defendants.

-----------------------------------x
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Police officers are permitted to briefly stop any individual, but only

upon reasonable suspicion that he is committing a crime. I The source of that
limitation is the Fourth Amendment to the United States Constitution, which
guarantees that "the right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be
violated." The Supreme Court has explained that this "inestimable right of
personal security belongs as much to the citizen on the streets of our cities as to the

See Terry v. Ohio, 392 U.S. 1,30 (1968).

homeowner closeted in his study to dispose of his secret affairs.”2 The right to
physical liberty has long been at the core of our nation’s commitment to respecting
the autonomy and dignity of each person: “No right is held more sacred, or is more
carefully guarded, by the common law, than the right of every individual to the
possession and control of his own person, free from all restraint or interference of
others, unless by clear and unquestionable authority of law.”3 Safeguarding this
right is quintessentially the role of the judicial branch.
No less central to the courts’ role is ensuring that the administration of
law comports with the Fourteenth Amendment, which “undoubtedly intended not
only that there should be no arbitrary deprivation of life or liberty, or arbitrary
spoliation of property, but that equal protection and security should be given to all
under like circumstances in the enjoyment of their personal and civil rights.”4
On over 2.8 million occasions between 2004 and 2009, New York
City police officers stopped residents and visitors, restraining their freedom, even

2

Terry, 392 U.S. at 9.

3

Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

4

Yick Wo v. Hopkins, 118 U.S. 356, 367 (1886) (citation and quotation
omitted). “Though the law itself be fair on its face and impartial in appearance, yet,
if it is applied and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between persons
in similar circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.” Id. at 373-74.
2

if only briefly.5 Over fifty percent of those stops were of Black people and thirty
percent were of Hispanics, while only ten percent were of Whites. The question
presented by this lawsuit is whether the New York City Police Department
(“NYPD”) has complied with the laws and Constitutions of the United States and
the State of New York. Specifically, the four named plaintiffs allege, on behalf of
themselves and a putative class, that defendants have engaged in a policy and/or
practice of unlawfully stopping and frisking people in violation of their Fourth
Amendment right to be free from unlawful searches and seizures and their
Fourteenth Amendment right to freedom from discrimination on the basis of race.
To support their claims, plaintiffs have enlisted the support of Jeffrey
Fagan, a professor of criminology at Columbia Law School, who has submitted an
extensive report analyzing the NYPD’s practices.6 The City of New York (“City”)
and the other defendants object to the introduction of Fagan’s opinions, arguing
that he lacks the qualifications to make the assessments that he makes, that his
methodologies are fatally flawed, and that many of his opinions constitute

5

As the Supreme Court has explained, being stopped and frisked “must
surely be an annoying, frightening, and perhaps humiliating experience.” Terry,
292 U.S. at 25.
6

See Report of Jeffrey Fagan (“Report”) and Supplemental Report of
Jeffrey Fagan (“Supp. Rep.”) [Docket No. 132].
3

inadmissible conclusions of law.7
NYPD officers are required to fill out a detailed worksheet describing
the events before and during every stop that they perform. All of these records are
compiled in a database – a database that now contains a wealth of information
about millions of interactions between police officers and civilians. The
information is both incredibly rich and inevitably incomplete: rich because the
dozens of boxes on the worksheet are designed to solicit the very information –
who, when, where, why and how – that courts (and the NYPD itself) use to
evaluate whether a stop was lawful; incomplete because a fill-in-the-blank
document can never fully capture the nuances of a human interaction, because
these worksheets capture only the quick responses of police officers rather than of
the civilians who have been stopped, and because police officers do not always fill
them out perfectly.
How should a jury evaluate the NYPD’s stop-and-frisk policy? What
should attorneys and witnesses be permitted to tell the jury about the 2.8 million
interactions between officers and the people they have stopped? And what should
the Court tell those jurors? Both parties agree that the database contains valuable

7

See Memorandum of Law in Support of Defendants’ Motion to
Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey
Fagan (“Def. Mem.”).
4

and relevant information. But they disagree vehemently over how to accurately
summarize the information and how to fairly describe it to the jury. Defendants’
motion to exclude the opinions of Professor Fagan therefore presents this Court
with important questions regarding expert testimony and trial management.
With one important exception, Fagan’s report is methodologically
sound and, under the Federal Rules of Evidence, admissible. I will permit Fagan’s
generalizations where they are reasonable interpretations of the data and I will
prohibit them where I find that they are inaccurate or have little probative value.
For the reasons below, defendants’ motion is granted in part and denied in part.
II.

THE FAGAN REPORT
A.

Professor Fagan’s Qualifications
Fagan is the Isidor and Seville Sulzbacher Professor of Law at

Columbia Law School; director of the school’s Center for Crime, Community, and
Law; a Senior Research Scholar at Yale Law School; and a Fellow of the American
Society of Criminology.8 He has published dozens of refereed journal articles and
chapters on an array of topics in criminology including issues related to juveniles,

8

See Declaration of Jeffrey Fagan in Support of Plaintiffs’ Opposition
to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions
and Testimony of Jeffrey Fagan (“Fagan Decl.”) ¶ 1.
5

deterrence, capital punishment, race, and New York City.9 He has been studying
and writing about the policies at issue in this case for over a decade.10 Perhaps
most prominently, in 1999 Fagan conducted a study for the Civil Rights Bureau of
the New York State Office of the Attorney General, statistically analyzing the
NYPD’s data on approximately 175,000 stops and frisks and “focusing specifically
on racial disparities in stop rates and the extent to which stops complied with the
Fourth Amendment.”11 The results of his analysis were published that year in The

9

See Curriculum Vitae (“CV”), Appendix A to Fagan Decl., at 3-10.
Fagan has served as an expert witness in over a dozen cases, has received
numerous awards and honors, and has written technical reports for the United
States Department of Justice, the Centers for Disease Control, and the National
Institutes of Health, among other organizations. He serves on the editorial boards
of at least six criminology journals and has taught extensively in the fields of
criminology, law, and qualitative and quantitative research methods. See id. at 1623.
10

See Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race
and the New Disorder in New York City Street Policing, 7 J. Empirical Legal Stud.
591 (2010); Jeffrey Fagan et al., Street Stops and Broken Windows Revisited: The
Demography and Logic of Proactive Policing in a Safe and Changing City in Race,
Ethnicity, and Policing: New and Essential Readings (Stephen Rice & Michael
White eds., 2009); Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the
NYPD’s Stop-and-Frisk Policy in the Context of Claims of Racial Bias, 102 J. Am.
Statistical Ass’n 813 (2007); Jeffrey Fagan & Garth Davies, Policing Guns: Order
Maintenance and Crime Control in New York in Guns, Crime, and Punishment in
America (Bernard Harcourt ed., 2003); Jeffrey Fagan & Garth Davies, Street Stops
and Broken Windows: Terry, Race and Disorder in New York City, 28 Fordham
Urb. L.J. 457 (2000).
11

Fagan Decl. ¶ 6.
6

New York Police Department’s “Stop and Frisk” Practices: A Report to the People
of the State of New York from the Office of the Attorney General.12
As defendants point out, however, Fagan is not a lawyer and has never
taken courses at a law school.13 His graduate degrees are in industrial and civil
engineering, with a focus on policy science and criminal justice.14 Furthermore,
Fagan “has never worked in a law enforcement field, has never completed a [stop
and frisk] form, never conducted a Stop, Question & Frisk (“SQF”) and never
observed more than a few SQFs or gone for a ride along with a NYPD officer to
even observe a SQF.”15
B.

Fagan’s Data Sources
After conducting a stop, NYPD officers are required to fill out a

“Stop, Question and Frisk Report Worksheet,” which is a two-sided form
commonly known as a UF-250.16 Approximately 2.8 million of these worksheets
12

See Ex. 117 to Declaration of Darius Charney, plaintiffs’ counsel, in
Opposition to Defendants’ Motion for Summary Judgment.
13

See Def. Mem. at 2 n.5.

14

See CV at 1.

15

Def. Mem. at 2 n.5.

16

See Ex. B to Fagan Decl. Because the form is central to this case and
this motion, it is reproduced at the end of this opinion as Appendix 1. I use the
terms UF-250, worksheet, and form interchangeably. The NYPD’s use of a
revised UF-250 form was agreed to as part of the settlement in Daniels v. City of
7

were filled out between 2004 and 2009 and the NYPD entered the information
from each of the worksheets into a database and produced it to plaintiffs and Fagan
as electronic files.17 Each UF-250 includes information about the suspect’s
demographic characteristics (age, gender, race/ethnicity); the date, time, duration,
location, and outcome of the stop (e.g., frisk, search, type of weapon seized if any,
type of other contraband found if any, summons issued, arrest); the suspected
crime for which the person was stopped; and whether and what kind of physical
force was used. Because the suspected crimes were recorded “using individualized
and often idiosyncratic notation,” Fagan coded the notations into a set of 131
specific criminal charges and then distributed each “suspected crime” into one of
twenty aggregate crime categories (e.g., violent crime, minor violent crime, fraud,
drugs).18
On each UF-250, there are twenty boxes that can be checked by police
officers regarding the factors – or as Fagan calls them, the “indicia of suspicion” –
that motivated the stop. There are ten indicia on Side 1 of the worksheet
(“circumstances of stop” or “stop circumstances”) and ten more on Side 2

New York, 99 Civ. 1695, a class action similar to this one that was litigated by
some of the same attorneys.
17

See Report at 6.

18

Id.
8

(“additional factors”). The worksheet also contains nine checkboxes regarding the
indicia of suspicion that motivated any frisk that took place and four checkboxes
regarding the indicia of suspicion that motivated any search.
Fagan’s report relied on detailed demographic information, organized
by police precinct and census tract, which he compiled from a variety of resources
including the United States Census, the federal government’s American
Community Survey, and a commercial database called ESRI. Fagan used police
precincts as his principal unit of analysis because “precincts are the units where
police patrol resources are aggregated, allocated, supervised and monitored” and
because “precinct crime rates are the metrics for managing and evaluating police
performance.”19 The demographic data he collected includes information on race,
ethnicity, age, income, unemployment, housing vacancy, residential mobility, and
physical disorder.20 The City provided him with data on crime complaints from
2004-2009. This data specifies the location of a complaint and type of alleged
crime; Fagan categorized the alleged crimes using the same categories that he used
to analyze the UF-250s, which “provided a foundation for benchmarking the types
and rates of suspected crimes in the stops with the observed rates of reported

19

Id. at 7.

20

See id. at 7-9.
9

specific crimes in each police precinct.”21 The City also provided Fagan with
“patrol strength data” regarding the allocation of police resources to particular
neighborhoods. Finally, Fagan included in his analysis information about the
location of public housing (where there is often a large police presence) and
population density (which impacts the likelihood of police-civilian interactions).22
C.

Fagan’s Analysis Regarding Plaintiffs’ 14th Amendment Equal
Protection Claims and Defendants’ Criticism of That Analysis
In order to test plaintiffs’ 14th Amendment claim that defendants’

stop-and-frisk practices treat Blacks and Hispanics differently than they treat
Whites, Fagan designed and ran regressions that sought to determine the impact of
a person’s race on outcomes such as being stopped, being frisked, being subjected
to force during an arrest, etc.23 Fagan’s regressions compared the influence of race
on these outcomes with the influence of non-race factors such as residency in a
poor or high crime neighborhood. These analyses control for the fact that in New
York City, as a general matter, Blacks and Hispanics live in higher crime

21

Id. at 9.

22

See id. at 10-11.

23

See id. at 12.
10

neighborhoods than do Whites.24
Fagan created a benchmark against which “to determine if police are
selectively, on the basis of race or another prohibited factor, singling out persons
for stops, questioning, frisk or search.”25 Police officers may lawfully stop an
individual only when they have reasonable suspicion to believe that the person has
committed, is committing, or is about to commit a crime. The rates at which
different groups of people engage in behavior that raises such reasonable suspicion
is therefore relevant to the determination of whether the police are treating people
equally. According to Fagan, “a valid benchmark requires estimates of the supply
of individuals of each racial or ethnic group who are engaged in the targeted
behaviors and who are available to the police as potential targets for the exercise of
their stop authority.”26 Fagan used two variables in constructing a benchmark that
would fulfill these requirements: the local rate of crime and the racial distribution

24

Fagan makes a helpful comparison to the employment context: in
order to properly test for disparate treatment on the basis of race, an analysis
should compare the hiring rates of the racial groups in question while controlling
for plausible non-race factors such as education and experience. Because these
factors may be correlated with race, a proper regression will differentiate between
(lawful) differences in treatment based on relevant work experience and education
and (unlawful) differences in treatment based on race.
25

Id. at 15.

26

Id. at 16.
11

of the local population.27 This benchmark was designed, in part, “to test the extent
to which the racial composition of a precinct, neighborhood, or census tract –
separate and apart from its crime rate – predicts the stop-and-frisk rate in that
precinct, neighborhood, or census tract.”28
Based on his statistical analyses, Fagan reached the following
conclusions regarding disparate treatment:
The racial composition of a precinct, neighborhood, and census
tract is a statistically significant, strong and robust predictor of
NYPD stop-and-frisk patterns even after controlling for the
simultaneous influences of crime, social conditions, and allocation
of police resources.
NYPD stops-and-frisks are significantly more frequent for Black
and Hispanic residents than they are for White residents, even
after adjusting for local crime rates, racial composition of the local
population, police patrol strength, and other social and economic
factors predictive of police enforcement activity.
Blacks and Latinos are significantly more likely to be stopped by
NYPD officers than are Whites even in areas where there are low
crime rates and where residential populations are racially
heterogenous or predominately White.
Black and Hispanic individuals are treated more harshly during
stop-and-frisk encounters with NYPD officers than Whites who
are stopped on suspicion of the same or similar crimes.29

27

See id. at 18.

28

Fagan Decl. ¶ 23.

29

Id. ¶ 4(a)-(d).
12

Notably, Fagan did not include in his benchmark the rates of criminal
activity by race. This decision constitutes the parties’ central disagreement
regarding Fagan’s analysis of disparate treatment. Defendants believe that crime
rates by race, as reflected in the complaints of crime victims and in the NYPD’s
arrest data, is the best benchmark: “In an analysis concerned with whom the police
are stopping, a reliable benchmark must take into account who is committing the
crime.”30 Defendants argue that “Blacks and Hispanics comprise a majority of
violent crime suspects in all precincts except one in the City, and in most precincts
are the overwhelming majority of suspects.”31 Defendants point out that Fagan has
used arrest data in at least two previous studies, even though arrest data was less
complete at the time of those studies than it is today.32

30

Def. Mem. at 12.

31

Declaration of Robert Smith (“Smith Decl.”), defendants’ testifying
expert, ¶ 13. “As an illustration of the omitted variable bias manifest in Fagan’s
model, I note that NYPD stops are not proportionally correlated with the gender of
local populations. 93% of all stops in 2009 were of males while only 7% were of
females, who constitute 52.5% of the population . . . If an analyst were to conduct a
regression analysis using Fagan’s model design but including gender (rather than
race) as an independent (“explanatory”) variable, stop rates of men would appear
disproportionately large. Without taking into account data on the radically different
contributions by men and women to commission of crime, an analyst would be left
to conclude erroneously that police are targeting people for stops because they are
male.” Id. ¶ 17.
32

See Reply Declaration of Robert Smith (“Smith Reply Decl.”) ¶ 23
(pointing out that Fagan used arrest data to assess racial discrimination in his
13

Fagan explains that he chose not to use data from arrests and suspect
identifications here because that data is incomplete; imputing the characteristics of
the known data to the missing data, Fagan believes, would raise serious risks of
selection bias.33 Because suspect race is only known in fifty to sixty percent of
cases, extrapolation of that known racial distribution to the remaining forty or fifty
percent of cases may not be appropriate, Fagan argues, particularly if the suspect
crimes that animate a large share of stops (such as drug possession) do not
correlate well to crime reports that identify the race of a suspect (such as assault).
In the years since his earlier reports were written, Fagan explains, “the weight of
opinion among researchers who were doing this kind of work” is that his current
benchmark is an improvement on his earlier benchmarks.34
D.

Fagan’s Analysis Regarding Plaintiffs’ Fourth Amendment
Reasonable Suspicion Claim and Defendants’ Criticism of That
Analysis
In order to assess plaintiffs’ claim that defendants have engaged in a

practice of stopping and frisking New Yorkers without reasonable suspicion and in
violation of the Fourth Amendment, Fagan analyzed the combinations of boxes

article in the Journal of the American Statistical Association and in the Attorney
General’s report).
33

See 3/8/12 Hearing Transcript (“Tr.”) at 72-73.

34

Id. at 90:8-9.
14

that officers checked on the UF-250s. He did this in two ways. First, he assumed
that the forms had been filled out accurately and completely and sought to
determine whether reasonable suspicion existed in any given stop based on the
boxes that were checked off on the worksheet. Second, by searching for patterns in
the worksheet data from across the City and over the 2004-2009 period, Fagan
sought to determine whether the data on the forms is accurate and whether the
NYPD’s use of the forms is an effective way to ensure that officers are complying
with the law.35
1.

Analysis and Findings Regarding UF-250s, Assuming Their
Veracity and Completeness

Because there are ten “stop circumstances” on Side 1 of the form and
ten “additional factors” on Side 2, and because officers are not limited in the
number of boxes they can check (although they are required to check at least one
Side 1 stop circumstance), there are an enormous number of potential combinations
of boxes that can be checked. Fagan created the following system for determining
whether or not a stop was lawful: First, he categorized the stop factors on Side 1 as
either “justified” or “conditionally justified.” Second, he defined a stop itself as
“justified,” “unjustified,” or “indeterminate” based on which boxes had been
checked. He did this by analyzing case law, as described in Appendix D of his
35

See id. 74-77.
15

report. The following is a summary of Fagan’s algorithm and categorization
scheme:
Category 1: Stops are justified if one or more of the following three
“justified” stop circumstances on Side 1 are checked off: (1) “Actions Indicative
Of ‘Casing’ Victims Or Location”; (2) “Actions Indicative Of Engaging In Drug
Transaction”; (3) “Actions Indicative Of Engaging In Violent Crimes.”
Category 2: Stops are justified if at least one of the following six
“conditionally justified” stop circumstances on Side 1 are checked off and at least
one of the additional circumstances on Side 2 are checked off. The conditionally
justified stop circumstances are (1) “Carrying Objects In Plain View Used In
Commission Of Crime e.g., Slim Jim/Pry Bar, etc.”; (2) “Suspicions Bulge/Object
(Describe)”; (3) “Actions Indicative Of Acting As A Lookout”; (4) “Fits
Description”; (5) “Furtive Movements”; (6) “Wearing Clothes/Disguises
Commonly Used In Commission Of Crime.”
Category 3: Stops are unjustified if no stop circumstances on Side 1
are checked off, even if one or more additional circumstances on Side 2 are
checked off.
Category 4: Stops are unjustified if only one conditionally justified
stop circumstance on Side 1 is checked off and no additional circumstances on

16

Side 2 are checked off.
Category 5: Stops are justified if two or more conditionally justified
stop circumstances on Side 1 are checked off.
Category 6: Stops are indeterminate if “Other Reasonable
Suspicion Of Criminal Activity (Specify)” is the only stop circumstance checked
off on Side 1, regardless of whether one or more additional circumstances on Side
2 are checked off and regardless of what is written in the blank space under the
“Other” box.
Based on this classification system, Fagan concluded the following
about the stops conducted by the NYPD:
More than 170,000 stops, or 6.41% of all stops (6.71% of nonradio run stops, and 5.26% of radio runs), recorded by NYPD
officers between 2004 and 2009 were Unjustified.
For more than 400,000 stops, or approximately 15%, the
corresponding UF250 forms do not provide sufficient detail to
determine the stops’ legality.36

36

Fagan Decl. ¶ 4(e)-(f). Fagan’s report contained a few statements that
incorrectly described his algorithm but did not affect his results. See Def. Mem. at
6; Fagan Decl. ¶¶ 15-16. Fagan’s report also contained what he and plaintiffs
acknowledge was one substantive error: he coded Category 5 stops – in which two
or more conditionally justified circumstances had been checked – as Indeterminate
when they should have been coded as Justified. This improperly increased the
percentage of stops that were of “Indeterminate” legality from 15.4% to 24.4% and
decreased the number of justified stops from 78.2% to 68.9%. See Def. Mem. at 56; Fagan Decl. ¶ 17.
17

Defendants level many criticisms at Fagan’s classification system,37
including the following: First, the legality of a given stop cannot be determined
based solely on the information on the UF-250, since the worksheet is simply a
summary of the events and cannot substitute for a proper evaluation of the totality
of the circumstances. Second, Fagan’s descriptions of stops as justified,
unjustified, or indeterminate constitute inadmissible legal conclusions. Third,
Fagan did not incorporate into his analysis the handwritten notes on the worksheets
that are made when the box marked “Other” is checked (Category 6), even when
those notes provided an explanation of why reasonable suspicion existed. Fourth,
Fagan classified Category 3 stops as unjustified even when multiple Side 2
circumstances were checked and Category 6 stops as indeterminate even when the
“Other” box was coupled with multiple Side 2 circumstances; these decisions are
not supported by the caselaw, which permits some stops that fall into those
categories. Fifth, Fagan classified Category 4 stops as unjustified even though
courts have permitted stops on the basis of only one “Conditionally Justified”
factor. Sixth, Fagan failed to incorporate the location of a stop in determining
whether it took place in a high crime area, relying instead on whether the Side 2
high crime area box had been checked, and he failed to incorporate descriptive

37

See Def. Mem. at 2-7.
18

information about the person stopped (such as height, weight, etc.) that might
explain why an individual fit the description of a perpetrator of a crime.
2.

Analysis of the Accuracy and Effectiveness of the UF-250s
and the Stop-and-Frisk Policy

Fagan also sought to determine the extent to which the information on
the UF-250s was accurate and complete. This analysis was largely independent of
the justified/unjustified classification model described above. The most important
elements of Fagan’s analysis involved the trends in the usage of various stop
factors and the rates at which stops yielded arrests, summonses, and seizures of
weapons and contraband (what he calls the “hit rate”).
For example, Fagan found that police officers check the Side 2 box
“Area Has High Incidence of Reported Offense Of Type Under Investigation” in
approximately fifty-five percent of all stops, regardless of whether the stop takes
place in a precinct or census tract with average, high, or low crime.38 Relatedly,
the Side 1 box “Furtive Movements” is checked in over forty-two percent of stops;
in 2009 it was checked off in nearly sixty percent of stops.39 However, the arrest

38

See Report at 52-55; Fagan Decl. ¶ 19. The parties have generally
referred to this factor as “High Crime Area” and I do the same, although everyone
agrees that the abbreviation is not a perfect reflection of the description on the
worksheet.
39

See Supp. Rep. at 41.
19

rates in stops where the high crime area or furtive movement boxes are checked off
is actually below average.40
Fagan has found that over the study period, “the percentage of stops
whose suspected crime is uninterpretable has grown dramatically from 1.12% in
2004 to 35.9% in 2009.”41 Fagan calculates that “5.37 percent of all stops result in
an arrest,” that [s]ummonses are issued at a slightly higher rate: 6.26 percent
overall,” and that “[s]eizures of weapons or contraband are extremely rare. Overall,
guns are seized in less than one percent of all stops: 0.15 percent . . . . Contraband,
which may include weapons but also includes drugs or stolen property, is seized in
1.75 percent of all stops.”42
Defendants respond to these findings and conclusions with a number
of different criticisms. For example, they argue that the reliance on hit rates
“ignores deterrence as an outcome of a stop, which is perhaps the most successful

40

See Report at 52.

41

Supp. Report at 39. This “uninterpretable” category covers the
worksheets for which the box “Specify Which Felony/P.L. Misdemeanor
Suspected” is empty, filled in with “fel,” “felony,” “misd,” “misdemeanor,” or
contains a text string that does not describe a crime or violation. See id.
42

Report at 63. To determine whether these “hit rates” are low, Fagan
compares them to those at roadway check points where cars are stopped at random
intervals and concludes that “the NYPD stop and frisk tactics produce rates of
seizures of guns or other contraband that are no greater than would be produced
simply by chance.” Id. at 65.
20

outcome” and “conflates the legal standards required for stops [i.e., reasonable
suspicion] and arrests [i.e., probable cause].”43 Furthermore, “Fagan has no basis
and is unqualified to render an opinion as to what might be the appropriate
frequency for officers to conduct stops based in part on observed ‘furtive
movements’ or on presence in a ‘high crime area’ or under which circumstances it
would be proper for an officer to check off these boxes.” 44 Finally, Fagan’s
“groundless, highly speculative exposition insinuates that NYPD officers routinely
do not adhere to the requisite legal standard of [reasonable suspicion],”45 supplants
the role of the jury by reaching ultimate legal conclusions, and is “tantamount to an
impermissible credibility assessment.”46
III.

LEGAL STANDARDS
A.

Expert Evidence in General
The proponent of expert evidence bears the initial burden of

establishing admissibility by a “preponderance of proof.”47 Rule 702 of the
43

Def. Mem. at 9.

44

Id. at 8.

45

Id. at 7.

46

Id. at 10.

47

Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (discussing
Rule 104(a) of the Federal Rules of Evidence). Accord Daubert v. Merrell Dow
Pharm. 509 U.S. 579, 592 (1993).
21

Federal Rules of Evidence states the following requirements for the admission of
expert testimony:
If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Under Rule 702 and Daubert, the district court must determine
whether the proposed expert testimony “both rests on a reliable foundation and is
relevant to the task at hand.”48 The district court must act as “‘a gatekeeper to
exclude invalid and unreliable expert testimony.’”49 However, “the Federal Rules
of Evidence favor the admissibility of expert testimony, and [the court’s] role as
gatekeeper is not intended to serve as a replacement for the adversary system.”50 In
serving its gatekeeping function, the court’s focus must be on the principles and
methodologies underlying the expert’s conclusions, rather than on the conclusions

48

509 U.S. at 597. Accord Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147-49 (1999).
49

Bickerstaff v. Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999) (quoting
Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir. 1999)).
50

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d
558, 562 (S.D.N.Y. 2007) (citation and quotation marks omitted).
22

themselves.51 In assessing an expert’s methodology, courts may consider (1)
“whether [the method or theory] can be (and has been) tested,” (2) “whether [it]
has been subjected to peer review and publication,” (3) “the known or potential
rate of error [associated with the technique] and the existence and maintenance of
standards controlling the technique’s operation,” and (4) whether the method has
achieved “general acceptance” with the relevant community.52
The courts’ gatekeeping function under Daubert applies not only to
“scientific” evidence, but also to proffers of “technical, or other specialized
knowledge” under Rule 702.53 The objective of this function is to “make certain
that an expert, whether basing testimony upon professional studies or personal
experience, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.”54 However,
recognizing that “there are many different kinds of experts, and many different
kinds of expertise,” the Supreme Court has emphasized that the reliability inquiry
“is a flexible one.”55 Accordingly, the factors “identified in Daubert may or may
51

See Daubert, 509 U.S. at 595.

52

Id. at 592-95.

53

See Kumho Tire, 526 U.S. at 141.

54

Id. at 152.

55

Id. at 150.
23

not be pertinent in assessing reliability, depending on the nature of the issue, the
expert’s particular expertise, and the subject of his testimony.”56 Ultimately, the
inquiry “depends upon the particular circumstances of the particular case at
issue.”57 In sum, the trial court has “the same kind of latitude in deciding how to
test an expert’s reliability . . . as it enjoys when it decides whether or not that
expert’s relevant testimony is reliable.”58
In addition, Rule 403 of the Federal Rules of Evidence states that
relevant evidence “may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.” “Expert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk, the judge in
weighing possible prejudice against probative force under Rule 403 . . . exercises
more control over experts than over lay witnesses.”59 Generally, “the rejection of
expert testimony is the exception rather than the rule.”60 “The admission of expert

56

Id. (quotations omitted).

57

Id.

58

Id. at 152.

59

Id. (quotation marks omitted).

60

Advisory Committee Notes to the 2000 Amendment to Fed. R. Evid.

702.
24

testimony is committed to the broad discretion of the District Court and will not be
disturbed on review unless found to be ‘manifestly erroneous.’”61
B.

Expert Evidence Regarding Mixed Questions of Fact and Law
As a general matter, experts may not testify as to conclusions of law.62

Doing so would usurp the role of the court in determining the applicable legal
standards.63 Although Federal Rule of Evidence 704 says that “[a]n opinion is not
objectionable just because it embraces an ultimate issue,”64 the Second Circuit has
held that Rule 704 “was not intended to allow experts to offer opinions embodying
legal conclusions.”65 However, the Circuit has also explained that “experts may

61

United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008).

62

See United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991).

63

See United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999).

64

“The reasoning behind Rule 704(a) is that if a witness (especially an
expert) provides a solid foundation and explanation on an issue for which the
fact-finder needs assistance, the factfinder might be left hanging if the witness
cannot cap off the testimony with a conclusion about the ultimate issue to which
the expert is testifying. Testimony is a narrative, and jurors can be upset and
confused if a witness leaves them with testimony that is less than a full narrative –
it is like the joke without the punchline, the mystery without the last page.” 3
Stephen Saltzburg et al., Federal Rules of Evidence Manual § 704.02[1] at 704-3
(10th ed. 2011).
65

United States v. Scop, 846 F.2d 135, 139 (2d Cir. 1988), rev’d in part
on other grounds, 856 F.2d 5 (2d Cir. 1988).
25

testify on questions of fact as well as mixed questions of fact and law.”66 In United
States v. Scop, the impermissible testimony “deliberately tracked the language of
the relevant regulations and statutes [and] was not couched in even conclusory
factual statements” whereas in Fiataruolo v. United States, the permissible legal
conclusions were accompanied by detailed factual background and explanation that
gave the jury “helpful information beyond a simple statement on how its verdict
should read.”67 This was true even though the expert shared his legal conclusions
regarding the ultimate issue that was presented to the jury. The trial court
admonished the jury that the expert’s opinions were “not binding” and that
warning, in combination with the factual support that the expert provided, made his
testimony admissible.68
C.

Reasonable Suspicion to Conduct A Stop
“‘[T]he police can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable facts
that criminal activity may be afoot, even if the officer lacks probable cause.’”69

66

Fiataruolo v. United States, 8 F.3d 930, 941 (2d Cir. 1993).

67

Id. at 942.

68

See id.

69

United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting
United States v. Sokolow, 490 U.S. 1, 7 (1989)). Under New York law, the
26

This form of investigative detention has become known as a Terry stop.70 “While
‘reasonable suspicion’ is a less demanding standard than probable cause and
requires a showing considerably less than preponderance of the evidence, the
Fourth Amendment requires at least a minimal level of objective justification for
making the stop.”71 “‘The officer [making a Terry stop] . . . must be able to
articulate something more than an inchoate and unparticularized suspicion or
hunch.’”72 “Reasonable suspicion is an objective standard; hence, the subjective
intentions or motives of the officer making the stop are irrelevant.”73
It is sometimes the case that a police officer may observe, “a series of
acts, each of them perhaps innocent in itself, but which taken together warrant[]
further investigation.”74 “An individual’s presence in an area of expected criminal
activity, standing alone, is not enough to support a reasonable, particularized

justifications required for different levels of police intrusion were established in
People v. DeBour, 40 N.Y.2d 210 (1976).
70

See Terry, 392 U.S. 1.

71

Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

72

Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490

U.S. at 7).
73

United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).

74

Terry, 392 U.S. at 22.
27

suspicion that the person is committing a crime.”75 However, “the fact that the stop
occurred in a ‘high crime area’ [may be] among the relevant contextual
considerations in a Terry analysis.”76 A court “must look at the totality of the
circumstances of each case to see whether the detaining officer has a particularized
and objective basis for suspecting legal wrongdoing.”77 “[T]he proper inquiry is
not whether each fact considered in isolation denotes unlawful behavior, but
whether all the facts taken together support a reasonable suspicion of
wrongdoing.”78
IV.

DISCUSSION
A.

Fagan’s Disparate Treatment Analysis Is Admissible
Defendants make one central critique of Fagan’s disparate treatment

model: that it uses the wrong benchmark to measure bias. Fagan’s benchmark
relies on local demographic characteristics and local rates of crime. According to
defendants and their expert,

75

Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47

(1979)).
76

Id.

77

United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks
and citation omitted).
78

United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990).
28

the most logical and reliable method to assess the question of
whether police are stopping individuals based on race or on
[reasonable articulable suspicion] is to use a benchmark of rates
of criminal participation by race. . . . Fagan’s choice of local crime
rate as a benchmark to measure possible evidence of bias in
NYPD stop-and-frisk activity is a fundamental methodological
flaw which robs his analysis of any probative value.79
The Supreme Court has explained that “[n]ormally, failure to include
variables will affect the [regression] analysis’ probativeness, not its admissibility”
but that “[t]here may, of course, be some regressions so incomplete as to be
inadmissible as irrelevant.”80 The question, then, is whether Fagan’s analysis is so
incomplete as to be irrelevant or so misleading as to be unhelpful to the jury. It is
neither.
Fagan explains that he has used the current benchmark in four
published studies, including two that were peer reviewed, and in the study for the
Attorney General’s office.81 One major reason for his use of this benchmark is that

79

Def. Mem. at 11.

80

Bazemore v. Friday, 478 U.S. 385, 400 & n.10 (1986). See
Bickerstaff, 196 F.3d at 449 (affirming the exclusion of a regression analysis not
because it included “less than all the relevant variables” but because “it omitted the
major variables”).
81

See Fagan Decl. ¶ 21 (citing articles in the Journal of Empirical Legal
Studies, the Journal of the American Statistical Association, the Fordham Urban
Law Journal, and in the book Race, Ethnicity, and Policing: New and Essential
Readings). As the Supreme Court explained in Daubert, “publication (or lack
thereof) in a peer reviewed journal thus will be a relevant, though not dispositive,
29

he believes there are no better alternatives: suspect race data, which defendants
argue is the appropriate benchmark, is only known for sixty-two percent of crimes
from 2009 and 2010 (and for fewer crimes before 2009), and the extrapolation of
that data to the thirty-eight percent of unknown suspects “would result in sample
selection bias.”82 Although he has used suspect data in previous studies, “the
weight of opinion among researchers who were doing this kind of work” is that his
current benchmark is an improvement on his earlier benchmarks. Furthermore, he
used this benchmark “to test the extent to which the racial composition of a
precinct, neighborhood, or census tract – separate and apart from its crime rate –
predicts the stop-and-frisk rate in that precinct, neighborhood, or census tract.”83
Defendants’ proposed benchmark would not permit Fagan to conduct such an
analysis.
Defendants point to Wards Cove Packing Co. v. Atonio 84 to support
their argument that because Fagan’s analysis ignores data on who is committing

consideration in assessing the scientific validity of a particular technique or
methodology.” 509 U.S. at 594.
82

Fagan Decl. ¶ 27. In 2010, when Fagan produced his report, suspect
data was known for an even smaller number of crimes. Updated data was provided
to him by defendants in late 2011, nearly a year later. See id. ¶ 25.
83

Id. ¶ 23.

84

490 U.S. 642 (1989).
30

crimes, it “fails to capture the information necessary to support a valid causal
inference of racial discrimination.”85 Indeed, the Supreme Court did hold in Wards
Cove that the “proper comparison is between the racial composition of the at-issue
jobs and the racial composition of the qualified . . . population in the relevant labor
market.”86 But Wards Cove did not hold that the statistical evidence at issue
should not have been admitted; it held only that a prima facie case of
discrimination could not be based “solely on respondents’ statistics”87 showing that
Whites were generally hired for high-skilled jobs and non-Whites were hired for
low-skilled jobs. The question here is not whether Fagan’s analysis, standing
alone, would suffice to establish a claim of disparate treatment; it is simply
whether Fagan’s analysis will be helpful to the jury in assessing such a claim.88

85

Def. Mem. at 12.

86

490 U.S. at 650.

87

Id.

88

In addition to these statistics, plaintiffs plan to introduce evidence
purporting to show that defendants have failed to comply with the terms of the
Daniels settlement; failed to adopt the recommendations made by the RAND
Corporation in a study that the City solicited; failed to implement several
provisions of the NYPD’s own written Policy Against Racial Profiling; and failed
to supervise, train, monitor, and discipline police officers so as to prevent the use
of race as a determinative factor in the decision to stop a suspect. See Plaintiffs’
Memorandum of Law in Opposition to Defendants’ Motion for Summary
Judgment (“Pl. SJ Mem.”) at 13-25.
31

Furthermore, Fagan has designed his benchmark in order to capture
the underlying rate at which New Yorkers of different races and ethnicities engage
in behavior that raises reasonable suspicion that crime is afoot – the population
equivalent to what in Wards Cove was called “the racial composition of the
qualified population.” He has simply done so using a method that defendants find
inadequate.89
Fagan’s conclusions do not misrepresent his methodology. He does
not claim that Blacks and Hispanics are stopped more frequently than Whites, even
controlling for rates of criminal participation by race. Instead, he concludes that
(1) the racial composition of a local area is a significant, strong, and robust
predictor of stop-and-frisk patterns even after controlling for crime, social
conditions, and police resources; (2) Blacks and Latinos are more likely to be
stopped by NYPD officers, even in low-crime and racially heterogeneous
neighborhoods and when controlling for neighborhood crime rates and police

89

The majority in Wards Cove recognized that when the data of interest
– i.e., the racial makeup of the pool of qualified job applicants or, in this case, the
racial makeup of the population of New Yorkers engaged in activity that gives rise
to reasonable suspicion – is difficult to ascertain, other statistics (including in some
instances the racial distribution of the local population) may be “equally
probative.” See 490 U.S. at 651 & n.6. It is also worth noting that the Wards Cove
disparate impact framework was “flatly repudiated” by Congress when it passed
the Civil Rights Act of 1991. Gross v. FBL Fin. Servs., 557 U.S. 167, ___, 129 S.
Ct. 2343, 2356 (2009) (Stevens, J., dissenting).
32

patrol strength; and (3) Blacks and Hispanics are treated more harshly during stopand-frisk encounters with NYPD officers than Whites who are stopped on
suspicion of the same or similar crimes.90 These are the conclusions of an expert
criminologist, based on his methodologically sound analyses. At trial, defendants
will be permitted to present evidence and argument that the rates of criminal
participation explain Fagan’s findings and that the NYPD is not discriminating on
the basis of race or ethnicity. When they cross-examine Fagan, defendants will
surely challenge his opinions vigorously. But they may not prevent plaintiffs from
presenting those opinions in the first place.
B.

Fagan’s Reasonable Suspicion Analysis Is Largely Admissible
1.

As a General Matter, Paperwork Is Admissible and
Probative

Defendants begin their critique of Fagan’s Fourth Amendment
analysis by arguing that the UF-250 database cannot be used to establish the
existence of a policy or practice of suspicionless stops:
[A]n analysis of check-boxes on a UF250 form cannot be used to
establish that a particular stop was not justified.
That
determination depends on an analysis of the totality of the
circumstances of the stop, a fact-intensive inquiry that amounts to
far more than whether a box is checked or not. What cannot be
done based on a single form cannot be done in the aggregate,

90

See Fagan Decl. ¶ 4(a)-(d).
33

either.91
Defendants are correct that as a general matter, courts do not rely
solely on police paperwork to determine whether a stop was lawful. Paperwork
offers only a limited summary of the events preceding a stop and only from the
perspective of the police officer. Faced with suppression motions or section 1983
claims, judges and juries listen to live testimony from officers, suspects, and
witnesses with first-hand knowledge of the stop. But courts also review the
paperwork. Sometimes paperwork corroborates the officer’s testimony; sometimes
it undercuts that testimony. Even the absence of paperwork can be probative and
admissible.92 In short, while courts rarely, if ever, rely solely on paperwork, courts
almost always consider it.
Plaintiffs allege a practice of unconstitutional policing that spans half
a decade and 2.8 million stops. Taking live testimony on each of these stops is
impossible; taking live testimony on some small sample of the stops would present
more problems than it would solve, because there would be no way to confidently
generalize from the sample to the entire population. Neither party disagrees with
this reality. But in the face of this challenge, the parties offer radically different

91

Defendants’ 3/14/12 Letter at 3.

92

See Lloyd v. City of New York, 11 Civ. 756, 2/8/12 Transcript at 19:19 [Docket No. 36].
34

solutions: plaintiffs seek to use the database to make general statements about the
number of “justified” and “unjustified” stops; defendants seek to exclude the
database entirely from the analysis of how often stops are constitutional or
unconstitutional.
Defendants are correct that it would be improper to declare certain
stops “unjustified” and others “justified” on the basis of paperwork alone without
offering any qualifications: a perfectly lawful stop cannot be made unlawful
because the arresting officer has done a poor job filling out the post-arrest
paperwork; nor can an egregiously unlawful stop be cured by fabrication of the
paperwork. Indeed, Fagan has presented evidence – entirely independent of his
classification system – that would permit a reasonable juror to conclude that a large
number of the UF-250s include incorrect information.
But it would be an injustice to prevent the jury from hearing about the
extremely rich and informative material contained in the 2.8 million forms and the
56 million boxes on Sides 1 and 2 of the UF-250s. Thousands of New York City
police officers have spent an enormous amount of time documenting, in significant
detail, the circumstances that led to the stops at issue in this lawsuit; the NYPD has
invested tremendous time, money, and energy in compiling, reviewing, and
analyzing that data. Although by no means perfect, this information can surely

35

help the jury to evaluate the parties’ claims and defenses.93 The data will not be
presented in a vacuum – it will be accompanied by the testimony of numerous
witnesses and the presentation of much other documentary evidence.94 Plaintiffs
will not be asking the jury to find a pattern of suspicionless stops on the basis of
the UF-250 database alone; just as during the adjudication of a single stop, they
will present “the paperwork” alongside much other evidence. The purpose of the
Federal Rules of Evidence is to help courts “administer every proceeding fairly . . .
to the end of ascertaining the truth and securing a just determination.”95 I have no
doubt that those purposes are best served by permitting plaintiffs to present this
evidence to the jury. The remaining question, therefore, is how to ensure that the
presentation is accurate. The short answer is that I will permit generalizations
where they are reasonable interpretations of the data and I will prohibit them where
they are inaccurate and thus have little or no probative value. During trial, Fagan

93

It is worth noting that the defendants are challenging the accuracy and
the utility of a form that they helped create and that their officers fill out.
94

Perhaps most significantly, plaintiffs intend to show that there exists a
widespread custom or practice of imposing quotas on officer activity such as stops
and frisks and the issuance of summons, and to argue that these quotas are a
driving force behind the rates of unlawful stops and frisks. See Pl. SJ Mem. at 1213. Plaintiffs intend to produce audio recordings and testimony from commanders
and supervisors from multiple precincts and boroughs to support these claims. See
id.
95

Federal Rule of Evidence 102.
36

(and defendants’ witnesses) will be required to acknowledge the limitations and
shortcomings of the data.
2.

Fagan’s Classification System Is Largely Admissible But
Must Be Modified Before Being Presented to the Jury

Defendants raise numerous concerns with Fagan’s classification
system. I address each of them in turn. My conclusions require plaintiffs to make
some limited modifications to the way that Fagan’s opinions are presented to the
jury.
a.

Expert Legal Opinions

Defendants believe that the use of Fagan’s classification system
constitutes an inadmissible legal conclusion.96 They cite to Bilzerian for the
proposition that expert testimony “must be carefully circumscribed to assure that
the expert does not usurp the role of the trial judge in instructing the jury as to the
applicable law or the role of the jury in applying that law to the facts before it.” 97
Fagan will not be permitted to do either of those things.
First, the Court, and not he, will instruct the jury on the law of
reasonable suspicion. Fagan will be permitted to describe his analysis of the 2.8
million UF-250s in light of the legal criteria articulated in this Opinion and Order

96

See Def. Mem. at 2-3.

97

926 F.2d at 1294 (quotation and citation omitted).
37

and in any other pre-trial instructions that I give to the parties.98 Any statements he
makes regarding reasonable suspicion will have to “‘be phrased in terms of
adequately explored legal criteria.’”99 As described below in Part IV.B.2.d, he has
misinterpreted the relevant caselaw in one important respect and his findings will
need to be revised. In addition, his use of the phrase “Indeterminate” with respect
to an entire category of stops will not be permitted. His statistical analysis, as
revised, is nonetheless admissible.
Second, Fagan’s testimony will not usurp the role of the jury: the
ultimate question at issue in this suit is whether defendants have a policy and/or
practice of conducting suspicionless stops. Although Fagan’s testimony will be
helpful to the jury in resolving that question – as it must be to be admissible –
Fagan does not seek and will not be allowed to express an opinion on that question.
Defendants cite to Cameron v. City of New York, in which the Second

98

See Pereira v. Cogan, 281 B.R. 194, 199 (S.D.N.Y. 2002) (permitting
expert to discuss the “principles and rules” guiding corporate governance because
they were taken directly from previous opinions in the case).
99

In re MTBE Litig., 2008 WL 1971538, at *13 (S.D.N.Y. May 7, 2008)
(quoting Fed. R. Evid. 704 Advisory Committee Note (giving the example that
“the question ‘Did T have capacity to make a will?’ would be excluded, while the
question ‘Did T have sufficient mental capacity to know the nature and extent of
his property and to know the natural objects of his bounty and to formulate a
rational scheme of distribution?’ would be allowed.”)).
38

Circuit explained that in a malicious prosecution suit against police officers, it was
clear error to allow prosecutors “to testify to the officers’ credibility and to the
existence of probable cause” and that such testimony “violated bedrock principles
of evidence law that prohibit witnesses . . . from testifying in the form of legal
conclusions.”100 In Cameron, the prosecutors testified that the arresting police
officers were credible. They also testified that they believed, based on the totality
of the circumstances, that probable cause had in fact existed to arrest Cameron.
The Second Circuit held that such testimony was highly prejudicial.101 Cameron
thus would preclude Fagan from expressing his opinion about whether defendants’
stop-and-frisks of David Floyd or Lalit Clarkson were lawful and from opining
about the credibility of another witness. But plaintiffs do not seek to solicit such
testimony. Instead, they seek to solicit testimony that will help a jury of lay people
understand the significance of 2.8 million stops and the 56 million boxes
describing the indicia of suspicion that led to those stops.
b.

Use of the Terms “Justified” and “Unjustified”

For the reasons discussed in Part IV.B.1 above, Fagan’s use of the

100

598 F.3d 50, 54, 65 (2d Cir. 2010).

101

See id. at 54. Similarly, in Rizzo v. Edison Inc., 419 F. Supp. 2d 338
(W.D.N.Y. 2005), the court held that an expert could not testify as to whether the
police, in a specific case, had probable cause to make an arrest.
39

terms “justified” and “unjustified” may improperly suggest that the (il)legality of a
stop can be conclusively determined on the basis of paperwork alone. But this
danger can be prevented by a limiting instruction to the jury at trial clarifying that
the database is necessarily an incomplete reflection of the totality of the
circumstances leading to each stop. Fagan will be permitted to explain that if the
forms are assumed to be accurate and complete, a certain percentage contain
information sufficient to suggest that the stop was lawful and a certain percentage
do not contain sufficient information to make such a generalization. The parties
will be permitted to introduce evidence and make arguments about when and
whether those assumptions regarding accuracy and completeness are appropriate.
The parties will inevitably use shorthand to describe these categories – perhaps
using phrases such as “apparently justified based on reasonable suspicion” and
“apparently unjustified based on the lack of reasonable suspicion” – and it will be
the responsibility of the Court and the skilled litigators involved in this case to
ensure that the jury is not being presented with misinformation. But the
complexity involved in describing the relationship between the worksheets and the
stops that they summarize is not a reason to exclude all generalizations about the
information that the worksheets contain.
c.

Classification of “Other” Stops

40

Professor Fagan classified as “Indeterminate” the UF-250s on which
“Other Reasonable Suspicion Of Criminal Activity (Specify)” was the only stop
circumstance checked off on Side 1, regardless of whether one or more additional
circumstances on Side 2 were checked and regardless of what was written in the
blank space underneath the “Other” option. More than 400,000 stops, or
approximately fifteen percent of all stops, fall into this category.102 According to
defendants, in approximately 99.8 percent of the UF-250s on which police officers
checked off the “Other” box on Side 1, they also wrote something in the narrative
field.103 Fagan chose not to use that narrative information, however, because “what
was specified was not something that was usable to us in making a systematic
analysis.”104 Fagan explained that many of the narratives were either gibberish
(such as the letter X or NA) or uninterpretable abbreviations;105 others listed a
crime such as “trespass” or an activity such as “hanging out in the hallway” but,
according to Fagan, “that didn’t help us ascertain what the basis of suspicion was

102

See Fagan Decl. ¶ 4(f).

103

3/14/12 Letter at 1.

104

Tr. at 62:11-13.

105

Defendants state that at least some of these abbreviations were defined
in the “ReadMe” file that accompanied their production of the database. See
3/14/12 Letter at 2 n.2.
41

for that stop.”106 He explains that trying to classify the narratives “would invite a
host of potential biases and errors, and would render any conclusions statistically
meaningless.”107
At the Court’s request, Fagan submitted a random sample of 1,000
handwritten entries corresponding to the “Other” stop circumstance that he had
evaluated.108 The first page of the Narrative List, which contains forty-one entries,
is attached to this opinion as Appendix 2. Standing alone, perhaps a dozen of those
forty-one narratives suggest that there was reasonable suspicion to make a stop –
these include narratives such as “inside bak [sic] w/no pass code (set off alarm),”
“appeared to be smoking marij,” “no headlights,” and “person stopped by store
manager for suspicion of petit larceny.” Many of the other narratives, however, do
not explain why the officer had reasonable suspicion to believe that a crime had
occurred, was occurring, or was about to occur. These include narratives such as
“hanging out in lobby,” “TAP building,” “waistband,” “crim tress,” “cell phone,”
“deft observed in NYCHA building,” “proximty [sic] to crime location.” Although
some of these narratives might help establish reasonable suspicion when combined

106

Tr. at 61:15-62:8.

107

Fagan Decl. ¶ 13.

108

See Fagan Supplemental Declaration, Ex. A (“Narrative List”).
42

with other factors, standing alone they do not.
Particularly noteworthy is the narrative “keyless entry,” which appears
four times in the first forty-one narratives and which defendants say appears, in
one form or another, approximately 52,500 times throughout the database.109
According to the City, approximately 50,000 of these narratives were completed by
a “housing officer,” which I presume means that they are related to patrols in or
around New York City Housing Authority buildings.110 Defendants argue that
“Fagan did not account for the significance of this [“keyless entry”] narrative on its
own, in conjunction with the place of the stop or in combination with any
[additional circumstances] on Side 2, all of which may be sufficient to qualify the
stop as Justified.”111 To support this claim, they point to United States v. Pitre, in
which Judge Michael Mukasey held that reasonable suspicion existed based on
“defendant’s entry into the lobby by catching what otherwise would have been a
locked door, and his nervous and confused response when asked whether he lived

109

3/14/12 Letter at 2 n.3. This suggests that “keyless entry” constitutes
approximately twelve percent of all “Other” stops and nearly two percent of all
stops.
110

This specific aspect of the NYPD’s stop-and-frisk program is the basis
of at least one putative class action suit. See Davis v. City of New York, 10 Civ.
699. See also Ligon v. City of New York, 12 Civ. 2274 (addressing stops and frisks
in private buildings that are part of Operation Clean Halls.)
111

3/14/12 Letter at 2 n.3.
43

in the building and where he was going.”112 Defendants are mistaken that the
narrative keyless entry “on its own” may be sufficient to qualify the stop as
justified. As Judge Mukasey explained very clearly, standing on its own a keyless
entry is not suspicious behavior:
Pitre claims his keyless entry just behind the unidentified woman
was not suspicious behavior because he could easily have been a
resident of the building walking just behind another resident, and
did not want to let the door close and then stand out in the cold –
this was mid-December – fumbling for his keys. True enough, but
there was more to the encounter before Pitre was stopped within
the meaning of Terry.113
It was only after Pitre was unable to clearly answer the police officers’
question “where are you going?” and he repeatedly touched the pocket of his jacket
and his right side as if feeling for contraband, that the police had reasonable
suspicion to stop him. This all occurred in the lobby of a building that the police
officers knew was the site of frequent drug and firearms activity. By no means did
a keyless entry alone, or even keyless entry plus high crime area, raise reasonable
suspicion.
Also noteworthy is the narrative “Loitering,” which appears ten times
in the first eighty-five narratives. Some of these narratives describe the loitering as

112

No. 05 Cr. 78, 2006 WL 1582086, at *4 (S.D.N.Y. June 6, 2006).

113

Id. (emphasis added).
44

happening “in lobby,” “in halls,” or “in hallway,” but others contain only that
single word. Although parts of New York State’s prohibition on loitering remain
good law,114 and some of the narratives might plausibly refer to those genuine
violations, the NYPD’s misuse of this statute has a long and ugly history: “[t]he
City of New York, operating principally through the [NYPD], has continuously
enforced three unconstitutional loitering statutes for decades following judicial
invalidation of those laws and despite numerous court orders to the contrary . . . .
The human toll, of course, has been borne by the tens of thousands of individuals
who have, at once, had their constitutional rights violated and been swept into the
penal system.”115 Although “loitering” may at times be an officer’s shorthand way
of describing criminal trespass, its use is often more probative of an unlawful stop

114

See, e.g., Church of the Am. Knights of the Klu Klux Klan v. Kerik,
356 F.3d 197 (2d Cir. 2004) (upholding loitering statute’s ban on public
congregations of masked people, except in connection with “a masquerade party or
like entertainment,” against a First Amendment challenge); N.Y. Penal L. §
240.35(2) (loitering for the purpose of gambling).
115

Casale v. Kelly, 710 F. Supp. 2d 347, 347 (S.D.N.Y. 2010). Close
cousins to the statutes prohibiting loitering were those that outlawed vagrancy.
Until the law was struck down in 1967, New York State made it a crime,
punishable by six months in jail, to be “a person who, not having visible means to
maintain himself, lives without employment.” See Fenster v. Leary, 20 N.Y.2d
309, 311 (1967). See also Michelle Alexander, The New Jim Crow (2010) at 2832 (describing the adoption of criminal vagrancy laws by the Southern states after
the Civil War, and then again after Reconstruction, as a mechanism for creating a
new pool of cheap and free Black laborers – this time labeled “convicts” and leased
out to landowners – to replace the freed slaves).
45

than a lawful one. Furthermore, merely naming a penal code violation does not
constitute reasonable suspicion.
In short, the narratives accompanying the “Other” stop circumstance
are extremely difficult to summarize and Professor Fagan is correct that they
cannot be uniformly placed into either his “justified” or “unjustified” categories.
However, at least to the extent that other groups of checked boxes are probative of
a stop’s (il)legality, it is misleading to say, as he does, that for all 400,000 of these
“Other” stops, “the corresponding UF250 forms do not provide sufficient detail to
determine the stops’ legality”116 and that these stops are therefore “Indeterminate.”
That is to say, many of these forms do provide as much or more detail than the
ones that Fagan classifies as “justified.” If the jury assumes that it was filled out
accurately, a form that contains the narrative “smoking cigarette strong smell of
marijuana”117 would be strong evidence of reasonable suspicion. In contrast, if the
jury assumes that it was filled out completely, a UF-250 containing no
circumstances beyond the “Other” narrative “licking rolling paper” would be
strong evidence that no reasonable suspicion existed.118

116

Fagan Decl. ¶ 4(f).

117

Narrative List at 2.

118

Id. at 8. I do not know if other boxes were checked off on this
particular UF-250 and use it only as a hypothetical.
46

The UF-250s containing only “Other” on Side 1 are thus not properly
described as “Indeterminate.” It is most accurate to say that one cannot fairly
generalize about them. In many individual instances, when reviewing a particular
UF-250, one can make certain determinations – or at least make determinations
with the same or more confidence than one could as to other UF-250s. But one
cannot make such determinations in a systematic or general way.
This distinction matters because plaintiffs seek to use the fifteen
percent of forms that Fagan calls “Indeterminate” as evidence for their claim that
the City is liable for a failure to monitor and supervise. Plaintiffs claim that “[t]he
NYPD’s reliance on information provided by officers on UF-250 forms to assess
whether stops are based on reasonable articulable suspicion is an ineffective way to
regulate the constitutionality of officer stop-and-frisk practices.”119
Fagan may not opine that all 400,000 of the UF-250s on which the
only box checked on Side 1 is “Other” are “Indeterminate.” Instead, he may testify
that his classification system does not permit him to draw general conclusions
about this group of UF-250s. Similarly, defendants cannot make wholesale
generalizations about these forms. However, the parties will be permitted to
introduce a number of “Other” UF-250s and make arguments to the jury about

119

Fagan Decl. ¶ 4(g). See First Amended Complaint ¶¶ 97-107.
47

what conclusions it should or should not draw from those forms; determining the
form and scope of that evidence and argument will be a matter of trial
management.
d.

Forms Containing Multiple Side 2 Circumstances

Defendants’ fourth criticism of Fagan’s reasonable suspicion analysis
addresses his classification of some of the UF-250 forms in which two or more
Side 2 circumstances are checked off. Fagan labeled Category 3 stops (those with
no Side 1 circumstances checked off) as unjustified even when two or more Side 2
circumstances were checked off. He also labeled Category 6 stops (those with only
“Other” checked off on Side 1) as indeterminate even when two or more Side 2
circumstances were checked off. Defendants argue that this was improper because
“caselaw holds that any number and combination of these ‘additional
circumstances’ could support a finding of [reasonable suspicion].”120
Defendants point to a number of cases in which they argue that only
Side 2 circumstances existed but that courts nonetheless found reasonable
suspicion for a stop.121 Most of the cases, however, do not support defendants’

120

Def. Mem. at 5.

121

See Defendants’ Case Summaries, Ex. A to Declaration of Heidi
Grossman (“Grossman Decl.”), defendants’ counsel, in Support of Defendants’
Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony
of Jeffrey Fagan at 10-14.
48

argument because they presented circumstances that are captured by the boxes on
Side 1.122 Two of defendants’ cases do, however, lend some support to their
argument. In United States v. McCargo, the Second Circuit found that reasonable
suspicion existed when officers responded to a 911 call for an attempted burglary
at 1:00 am and observed the defendant walking alone in a high crime area 200 feet
from the crime scene.123 Defendants point out that all of the circumstances that
clearly fit this fact pattern are on Side 2 – “Report From Victim/Witness,”
“Proximity to Crime Location,” “High Crime Area,” and “Time of Day . . .
Corresponding to Reports of Criminal Activity.” Plaintiffs argue that the Side 1
circumstance “Furtive Movement” is also applicable, since the court found that the
defendant had been staring so intently at one police car that was at the scene of the
crime that he did not notice a second police car pulling up along side him.124
Because a Side 1 box is applicable, they argue, McCargo does not undercut

122

See, e.g., United States v. Simmons, 560 F.3d 98 (2d Cir. 2009)
(defendant matched a witness’s description of the suspect); United States v.
Muhammad, 463 F.3d 115 (2d Cir. 2006) (same); People v. Sierra, 83 N.Y.2d 928
(1994) (police saw defendant engaged in actions indicative of a drug transaction).
123

464 F.3d 192 (2d Cir. 2006).

124

See Corrections to Summaries of Cases Listed in Grossman
Declaration (“Pl. Case Summaries”), Ex. D to Declaration of Darius Charney
(“Charney Decl.”), plaintiffs’ counsel, in Support of Plaintiffs’ Motion in
Opposition to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports,
Opinions and Testimony of Jeffrey Fagan at 7.
49

Fagan’s classification of Category 3 worksheets as “unjustified.” This is a rare
instance in which plaintiffs – whose expert strongly criticizes the NYPD’s use of
“furtive movement” to justify stops and (perhaps fairly) derides the term as so
ambiguous as to be “almost meaningless”125 – are seeking to describe what might
arguably be considered an innocent action as furtive and suspicious. Like Judge
Richard Posner, I am skeptical that staring intently can constitute suspicious
behavior,126 but I recognize that the Second Circuit considered McCargo’s staring
in its reasonable suspicion analysis. Although the Circuit never used the term
“furtive,” McCargo’s stare could only be classified on the UF-250 under either the
“Furtive Movement” box or under one of the two “Other” boxes. This case
therefore arguably supports defendants’ criticism of Fagan’s Category 3.
The second case cited by defendants that arguably supports their claim
that two or more Side 2 factors can indicate reasonable suspicion even in the

125

See Report at 52.

126

“Gilding the lily, the officer testified that he was additionally
suspicious because when he drove by Broomfield in his squad car before turning
around and accosting him he noticed that Broomfield was ‘star[ing] straight
ahead.’ Had Broomfield instead glanced around him, the officer would doubtless
have testified that Broomfield seemed nervous or, the preferred term because of its
vagueness, ‘furtive.’ Whether you stand still or move, drive above, below or at the
speed limit, you will be described by the police as acting suspiciously should they
wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable
intuition should not be credited.” United States v. Broomfield, 417 F.3d 654, 655
(7th Cir. 2005) (Posner, J.).
50

absence of a Side 1 factor is Sutton v. Duguid, in which Judge Joseph Bianco of the
Eastern District of New York found that reasonable suspicion existed to stop
Sutton “based on: (1) the observed narcotics activity in a high crime area; (2)
plaintiff’s proximity to the individual identified as involved in the sale of narcotics;
and (3) plaintiff’s effort to walk away from the commotion as soon as it broke
out.”127 As defendants point out, “High Crime Area,” “Proximity to Crime
Location,” and “Changing Direction at Sight of Officer/Flight” are all Side 2
circumstances. Plaintiffs again argue that Sutton’s sudden movement away from
the commotion could be characterized as a Furtive Movement on Side 1. Again, I
am skeptical of the argument, although it is plausible.
Illinois v. Wardlow, however, is more problematic for Fagan’s
Category 3 than any of the cases cited by defendants. There, the Supreme Court
held that a defendant’s “presence in an area of heavy narcotics trafficking” and
“unprovoked flight upon noticing the police” were together sufficient to raise
reasonable suspicion and justify a stop.128 These two factors align most closely
with the Side 2 circumstances “High Crime Area” and “Changing Direction at
Sight of Officer/Flight.” The Supreme Court did not base its decision on any other

127

No. 05 Civ. 1215, 2007 WL 1456222, at *7 (E.D.N.Y. May 16, 2007).

128

See Wardlow, 528 U.S. at 124.
51

indicia of suspicion, although it did note that headlong flight is the “consummate
act” of nervous, evasive behavior. Again, a police officer might in this instance
check the Side 1 “Furtive Movement” box, although the far more appropriate
boxes would be the ones on Side 2.
In combination, McCargo, Sutton, and Wardlow suggest that stops
may be lawful even if they are based only on factors described on Side 2 of the
UF-250s. It is also clear, however, that some combinations of Side 2 factors would
be insufficient to establish reasonable suspicion. The two most frequent Side 2
factors were “High Crime Area” and “Time of Day, Day Of Week, Season
Corresponding To Reports Of Criminal Activity,” which were checked off on
55.4% and 34.1% of all worksheets.129 Reasonable articulable suspicion does not
exist merely on the basis of those two factors: many people live in high crime areas
and many crimes occur at night; simply being in a high crime area at night is not
suspicious behavior.130 It is very difficult to generalize, therefore, about UF-250s

129

See Fagan Report at 51.

130

See United States v. McCrae, No. 07 Cr. 772, 2008 WL 115383
(E.D.N.Y. Jan. 11, 2008) (Gleeson, J.) (suppressing a gun seized during a stop that
took place at around 3:00 a.m. in a high crime area because there were no
additional factors giving rise to reasonable suspicion); United States v. Doughty,
No. 08 Cr. 375, 2008 WL 4308123 (S.D.N.Y. Sept. 19, 2008) (Patterson, J.)
(suppressing a gun seized during a stop that took place after 10:00 p.m. three
blocks from a high crime building, even though the defendant engaged in a
readjustment of his waistband that suggested the presence of a weapon to the
52

that contain two or more Side 2 factors but no Side 1 factors.
The importance of this complexity is mitigated in part because, as
plaintiffs point out, police officers have marked very few UF-250s with no Side 1
factors and two or more Side 2 factors. Of the 2.8 million worksheets, only 7,295
– or approximately 0.26% – fit this description.131 “Thus Fagan’s inclusion of
these stops in this category, even if erroneous, had no meaningful impact on the
overall results of his analysis, and therefore would not warrant exclusion.” 132 At
trial, these few stops will be included in the category of stops for which
generalization is impossible.
The larger problem, however, relates to stops in Category 6 in which
only the “Other” circumstance was checked on Side 1 and two or more
circumstances were checked on Side 2. There are 161,130 of these stops, which
make up 5.7% of all stops. Fagan marked them as “Indeterminate.” As I discussed
above, the narratives on the first page of Fagan’s random sample exemplify the

police). For two of the many pieces of scholarship criticizing the “high crime
area” doctrines, see Christopher Slobogin, The Poverty Exception to the Fourth
Amendment, 55 Fla. L. Rev. 391, 405 (2003) and David A. Harris, Factors for
Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind.
L.J. 659, 677-78 (1994). And for a trenchant critique of the state of Fourth
Amendment jurisprudence in the War on Drugs, see Alexander at 61-73.
131

See Pl. Mem. at 7-8 and Defendants’ 3/14/12 Letter.

132

Pl. Mem. at 7.
53

reason why categorization of these stops is difficult. One narrative reads
“dismatling [sic] 95 Honda DLJ6727.”133 Without more, this information would
not raise reasonable suspicion – mechanics and car owners regularly dismantle
cars. However, if the car’s alarm was going off and the individual was unable to
give a clear answer to the officers’ questions, then the two additional
circumstances – best categorized by the Side 2 boxes “Sights and Sounds of
Criminal Activity, e.g., Bloodstains, Ringing Alarms” and “Evasive, False or
Inconsistent Response To Officer’s Questions” – in combination with the “Other”
narrative likely would give rise to reasonable suspicion.134 Or, to take another
example, “Evasive, False or Inconsistent Response To Officer’s Questions” and
“Changing Direction At Sight Of Officer/Flight” might sufficiently contextualize
one of the many “keyless entry” notations to suggest that reasonable suspicion
existed in that case as well.135
Some of the “Other” narratives, however, probably would not suggest
reasonable suspicion even when combined with two Side 2 factors. I doubt that the
narrative “loitering” indicates reasonable suspicion, even when combined with

133

Narrative List at 1.

134

“Sights and Sounds” was checked off in 1.8% of all stops and
“Evasive Response” was checked off in 16% of stops. See Report at 51.
135

“Changing Direction” was checked off in 24.7% of stops. See id.
54

“High Crime Area” and “Time of Day,” the two most common Side 2 factors. The
same could be said for the many “keyless entry” narratives – as Judge Mukasey
noted in Pitre, the fact that the defendant entered a building lobby in a high crime
area without a key on a cold December night was not in itself suspicious
behavior.136
In short, it is very difficult to generalize about the worksheets that
contain only an “Other” factor on Side 1, even if two or more “additional
circumstances” are checked off on Side 2. Defendants will surely be able to
present to the jury many individual forms in this category that do appear to indicate
that reasonable suspicion existed; plaintiffs will likely be able to present many that
suggest that no reasonable suspicion existed. I find that admitting expert testimony
that makes generalizations about the level of reasonable suspicion indicated by the
forms in this group would mislead the jury. The parties’ experts will be permitted
to testify about verifiable aspects of these forms (e.g., how often certain Side 2
boxes are checked or how often the phrase “keyless entry” or “loitering” appears)
and counsel will be able to make arguments about what inferences and conclusions
the jury should draw from this data.
e.

136

Forms Containing Only One “Conditionally
Justified” Factor

2006 WL 1582086, at *4.
55

Defendants point to a number of cases in which, they argue, courts
have found stops lawful even though only one Side 1 “conditionally justified”
indicia of suspicion was present. Over 137,000 worksheets were filled out with
only one of these factors and they constitute the large majority of the stops in
Fagan’s “unjustified” category. Defendants’ reading of the caselaw, however, is
incorrect.
Plaintiffs have properly identified the components of the various
courts’ decisions that were excluded from defendants’ case summaries and that, if
reflected on the arresting officer’s UF-250, would have placed the stops in Fagan’s
“justified” category.137 Even People v. Fernandez, which plaintiffs appear willing
to concede arguendo because it would impact the classification of very few
worksheets, does not support defendants’ argument.138 In Fernandez, the New
York Court of Appeals held that a police officer could lawfully stop a person for
carrying what the officer had reason to believe was a “gravity knife” based on the
“identifiable characteristics of the knife.”139 The possession of such knives is per
se illegal because of the ease with which they can be used for violence.

137

See Pl. Case Summaries at 1-3, responding to the cases in Defendants’
Case Summaries at 1-5.
138

16 N.Y.3d 596 (2011). See Pl. Mem. at 8.

139

16 N.Y.3d at 599.
56

Defendants argue that Fernandez therefore justifies stops solely on the basis of the
Side 1 box “Carrying Objects In Plain View Used in Commission of Crime, e.g.,
Slim Jim/Pry Bar, etc.,” which Fagan deemed “Conditionally Justified,” not
“Justified.” But unlike gravity knives, it is not per se illegal to possess slim jims or
pry bars. Possession of those items is not in itself suspicious behavior that justifies
a stop because there are many lawful uses of those items. An officer who observes
what he believes to be an illegal weapon should also check the boxes “Suspicious
Bulge/Object,” “Actions Indicative Of Engaging In Violent Crimes,” and/or “Other
Reasonable Suspicion.” Fernandez does not support the argument that a person
can be stopped based solely on the fact that he is carrying a pry bar or a slim jim.
f.

Location and Time of Stops

Defendants’ final criticism of Fagan’s classification system is that it
fails to incorporate the location of the stop and other writings on the form (beyond
those in the line under the circumstance “Other”). Officers are required to note on
the worksheet the address or intersection where the stop takes place and defendants
argue that this information may support a finding of reasonable suspicion if the
location is in a high crime area; this is the case, they argue, even if the officer did
not check off “High Crime Area” on the worksheet.140 During certain years, the

140

See Def. Mem. at 4.
57

entirety of the 73rd and 75th Precincts were classified as high crime “impact zones.”
Defendants argue that “High Crime Area” should be imputed to all stops from
those precincts during those years, converting approximately 33,000 stops from
“unjustified” to “justified.”141 That number would grow significantly if stops in
other impact zones were treated similarly.
Professor Fagan provides a reasonable explanation of why he chose
not to impute that category onto worksheets on the basis of location:
[W]e assumed and based our decision on the fact that officers
were trained to check all [boxes] that applied. And we assumed
that if, in fact, the stop took place in a high crime area, they would
have checked the box accordingly. So we really didn’t want to
second guess the decision of the officer.
Second, we didn’t want to impose our decision or criteria about
what’s a high crime area versus a low crime area. I think as you
can see from some of our charts, crime distributes very widely
across the city from very low crime rates in some places to high
crime rates in other places. We didn’t know what the cut-off was.
We couldn’t say how officers are trained to think about high crime
area. Was it very high in the last month or week? What
constitutes high? Three [] robberies [? T]en total felony crimes?
Does it include felonies plus misdemeanors? 142
Fagan’s explanation is certainly reasonable. Rather than try to

141

See Reply Memorandum of Law in Further Support of Defendants’
Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony
of Jeffrey Fagan (“Reply Mem.”) at 3.
142

Tr. at 82:18-83:7.
58

develop his own complex formula for determining what is or is not a high crime
area for the purpose of reasonable suspicion, he deferred to the police officers’
simple binary decision to check or not to check the “High Crime Area” box. When
evaluating reasonable suspicion in an individual suppression hearing or Section
1983 case, such blind deference is inappropriate and officers should be required to
support their claims with evidence.143 But when trying to generalize about 2.8
million stops, Fagan’s choice was reasonable. Defendants correctly note some of
the drawbacks of that methodological decision but, at best, their arguments impact
the weight of Fagan’s opinion, not its admissibility. The same is true of his
decision not to use the time of a stop as a substitute for the Side 2 circumstance
“Time of Day, Day of Week, Season Corresponding To Reports Of Criminal
Activity” and his decision not substitute any notation about a suspect’s
height/weight/tattoos in place of the Side 1 circumstance “Fits Description.”144 If
police officers chose not to check those boxes, it was reasonable of Fagan not to
second guess that choice.

143

“The citing of an area as ‘high-crime’ requires careful examination by
the court, because such a description, unless properly limited and factually based,
can easily serve as a proxy for race or ethnicity. District courts must carefully
examine the testimony of police officers in cases such as this, and make a fair and
forthright evaluation of the evidence they offer, regardless of the consequences.”
United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000).
144

See Defendants’ 3/14/12 Letter at 2.
59

3.

Fagan’s Opinions Regarding the Results of the Stop-andFrisk Policy Are Admissible

Finally, defendants argue that Fagan makes speculative and
conjectural opinions about the process by which officers complete the UF-250 and
about the outcomes of the stops. Specifically, defendants object to Fagan’s
hypotheses regarding the frequent use of “high crime area” and “furtive
movements” on the UF-250s and his use of a “hit rate” in assessing the
effectiveness and legality of the NYPD’s stop-and-frisk policy. Neither argument
has merit.
Fagan notes that officers check the “High Crime Area” box in
approximately fifty-five percent of all stops, regardless of whether the stop takes
place in a precinct or census tract with average, high, or low crime.145 Defendants
believe that this analysis is “misleading” because there are high crime pockets even
in low crime precincts and “it is not unreasonable for officers to check this box
when a stop occurs” in such an area.146 Fagan rebuts defendants’ argument by
noting that his analysis is true at the census tract level as well, and plaintiffs

145

Report at 52-55; Fagan Decl. ¶ 19. The fact that Fagan assumed the
veracity of forms (including the officers’ use of “high crime area”) for one part of
his analysis does not preclude him from then testing and critiquing that assumption
in another part of his analysis. When lawyers do this, they frequently use the term
arguendo.
146

Def. Mem. at 8-9.
60

correctly note that this is simply a disagreement over the expert’s conclusions, not
his methodology.147 The same is true for Fagan’s observation that when the “High
Crime Area” and “Furtive Movement” boxes are checked off, police officers are
less likely to make an arrest than when those boxes are not checked off.148 Fagan
hypothesizes that this result may occur because officers are marking these two
“broad and subjective” boxes after conducting stops for which they actually did not
have objective reasons to be suspicious. Or, as retired NYPD officer Peter
Mancuso said at a 2010 New York City Bar Association forum, “[f]urtive
movements . . . tells me that the cops are out there winging it a bit . . . they’re
really not looking for individuals.”149 Defendants object to this hypothesis because

147

Pl. Mem. at 11.

148

See Report at 52. Fagan believes that “[t]he broad and indiscriminate
use of furtive movement or high crime area – the two most commonly cited factors
– and the loss of crime detection efficiency in cases where either are checked off –
raises doubts about whether stops based on these factors are valid markers of
[reasonable suspicion]. Recall that the stop factors are entered onto the UF-250
form after the stop is completed. If the initial basis for suspicion leading to the stop
was thin, then adding on either of these subjective and ill-defined factors, both of
which are constitutionally problematic, provides a post hoc justification to a stop
that was most likely erroneous with respect to whether crime was afoot, and might
have been based on a threshold of suspicion that otherwise would have been
legally insufficient to justify the stop.” Id. at 53-55.
149

Id. at 53 (quoting John Jay College of Criminal Justice, The New
York Police Department’s Stop and Frisk Policies (transcript) at 40-41 (Mar. 9,
2010)).
61

“[e]xpert testimony offering ‘interpretations of conduct or views as to the
motivation of parties’ has been excluded on the grounds that it invades the
province of the jury and addresses matters that jurors are capable of understanding
on their own” and that it constitutes “an impermissible credibility assessment” of
the police officers who fill out the forms.150 But the testimony excluded in Rezulin
was (a) the opinion of an “expert” on what he believed constituted ethical medical
behavior151 and (b) speculation about the motivations of individual defendants on
the basis of what those defendants had said and written.152 This is entirely different
from Fagan’s proposed testimony, in which he offers hypotheses regarding the
causes of trends that he has observed by performing statistical analyses of
complicated data sets. Unlike in Rezulin, the expert’s testimony will not address
“‘lay matters which a jury is capable of understanding and deciding without the
expert’s help.’”153 Fagan is indisputably a criminology expert who is qualified to

150

Def. Mem. at 9-10 (quoting In re Rezulin Prods. Liab. Litig., 309 F.
Supp. 2d 531, 541 (S.D.N.Y. 2004)).
151

See Rezulin, 309 F. Supp. 2d at 543.

152

See id. at 545-46.

153

Id. at 546 (quoting Andrews v. Metro North Commuter R. Co., 882
F.2d 705, 708 (2d Cir. 1989)). Fagan’s observation that over the study period, “the
percentage of stops whose suspected crime is uninterpretable has grown
dramatically from 1.12% in 2004 to 35.9% in 2009” is similarly unproblematic.
Supp. Report at 39.
62

offer opinions about trends that he observes in the interactions between the police
and civilians; he is not passing judgment about the credibility of any one witness
but is instead offering theories about what kinds of behavior might lead to certain
results that are evident in the data. Defendants may dispute these conclusions but
they may not prevent their admission.
Defendants also object to Fagan’s reliance on “hit rates.” He
calculates that “5.37 percent of all stops result in an arrest,” that [s]ummonses are
issued at a slightly higher rate: 6.26 percent overall,” and that “[s]eizures of
weapons or contraband are extremely rare. Overall, guns are seized in less than one
percent of all stops: 0.15 percent . . . Contraband, which may include weapons but
also includes drugs or stolen property, is seized in 1.75 percent of all stops.”154
Defendants argue that Fagan “conflates the legal standards required
for stops [i.e., reasonable suspicion] and arrests [i.e., probable cause].”155 While of
course it is true that “‘reasonable suspicion’ is a less demanding standard than

154

Report at 63. To determine whether these “hit rates” are low, Fagan
compares them to those at roadway check points where cars are stopped at random
intervals and concludes that “the NYPD stop and frisk tactics produce rates of
seizures of guns or other contraband that are no greater than would be produced
simply by chance.” Id. at 65.
155

Def. Mem. at 9.
63

probable cause,”156 the requisite level of confidence that officers must have in
either event relates to the same question: whether or not crime is afoot. If the
underlying data is reliable, arrest or “hit rates” are probative – although perhaps not
dispositive – of whether or not officers are making stops and arrests on the basis of
reasonable suspicion and/or probable cause. This analysis is properly facilitated by
comparing the hit rates based on “reasonable suspicion” to hit rates based on
random stops.157
The City argues that the use of hit rates “ignores deterrence as an
outcome of a stop, which is perhaps the most successful outcome,” and posits as its
example of such deterrence a scenario in which an officer “stops a person for
casing an individual or property, before such person has an opportunity to commit
an offense” and thereby prevents the commission of a crime.158 However, in such a
scenario, where the suspect has already taken significant steps towards the

156

Wardlow, 528 U.S. at 123.

157

See United States v. McCrae, No. 07 Cr. 772, 2008 WL 115383
(E.D.N.Y. Jan. 11, 2008) (“I am mindful that reasonable suspicion cannot be
captured solely by resort to probabilities . . . [but] I find it quite significant that [the
police officer’s] methodology for generating ‘suspicion’ demonstrated at best a
success rate of approximately 3.33%, well below the success rate of the
suspicionless roadblocks in Edmond). See also City of Indianapolis v. Edmond,
531 U.S. 32 (2000); Edmond v. Goldsmith, 183 F.3d 659, 666 (7th Cir. 1999).
158

Def. Mem. at 9 & n.16.
64

commission of a crime, there would in fact be probable cause to arrest that suspect
for an “attempt” crime. It is notable that the City acknowledges that “deterrence”
is a goal of its stop-and-frisk policy. Deterrence is of course a crucial aspect of law
enforcement (and criminal justice policy in general) and it may lawfully be pursued
in many different ways – more cops walking their beats, better detective work, etc.
But it may not be accomplished through the use of unlawful stops.159 A Terry stop
may only be used when the police have reasonable suspicion that a crime has taken,
is taking, or is about to take place.
Plaintiffs have submitted a sworn affidavit from New York State
Senator Eric Adams, who retired as a police captain after more than twenty years
of service in the NYPD. Senator Adams says that in July 2010 he met with
Defendant Police Commissioner Raymond Kelly to discuss proposed legislation
regarding stop and frisk practices and that during the meeting
Commissioner Kelly stated that the NYPD targets its stop-and-frisk
activity at young black and Latino men because it wants to instill the
belief in members of these two populations that they could be stopped
and frisked every time they leave their homes so that they are less
159

See Brown v. Texas, 443 U.S. 47, 52 (1979) (“The Texas statute under
which appellant was stopped and required to identify himself is designed to
advance a weighty social objective in large metropolitan centers: prevention of
crime. But even assuming that purpose is served to some degree by stopping and
demanding identification from an individual without any specific basis for
believing he is involved in criminal activity, the guarantees of the Fourth
Amendment do not allow it.”).
65

likely to carry weapons.160
Commissioner Kelly denies Senator Adams’ claim:
At that meeting I did not, nor would I ever, state or suggest that the
New York City Police Department targets young black and Latino
men for stop and frisk activity. That has not been nor is it now the
policy or practice of the NYPD. Furthermore, I said nothing at the
meeting to indicate or imply that such activity is based on anything
but reasonable suspicion. At the meeting, I did discuss my view that
stops serve as a deterrent to criminal activity, which includes the
criminal possession of a weapon.161
Although by no means dispositive of the question, Fagan’s finding
that guns are seized in approximately 0.15% of all stops is at least relevant to an
assessment of Commissioner Kelly’s claim that the NYPD’s policy is a deterrent to
the illegal possession of weapons. Fagan’s findings related to seizure of other
contraband and to the arrest and summons rates are also admissible, even if
defendants object strenuously to the conclusions that plaintiffs will ask the jury to
draw from those statistical observations.

160

Affidavit of Eric Adams, Ex. 10 to Declaration of Darius Charney in
Support of Plaintiffs’ Motion for Class Certification, ¶ 5.
161

Declaration of Raymond W. Kelly, Ex. A to Declaration of Heidi
Grossman in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class
Certification, ¶¶ 3-4.
66

V.

CONCLUSION
For the reasons explained above, defendants' motion is granted in part

and denied in part. The Clerk of the Court is directed to close this motion [Docket
No. 178].

SO ORDERED:

Dated:

Apri116,2012
New York, New York

67

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APPENDIX 2:
PAGE 1 OF “OTHER” NARRATIVE LIST
MISSING FRONT PLATE
HANGING OUT IN LOBBY
PROS PRONE LOCATION
TAP BUILDING
BURG PATTERN INVESTIGATION
INSIDE BAK W/NO PASS CODE (SET OFF ALARM)
APPEARED TO BE SMOKING MARIJ
NO HEADLIGHTS
LOITERING IN LOBBY
WAISTBAND
XNE
KEYLESS ENTRY
LOITERING ON 2FL HALLWAY
DISMATLING 95 HONDA DLJ6727
CRIM TRESS
KEYLESS ENTRY
WAS NOT OWNER DID NOT KNOW OWNER.
OPEN DOOR 10-11
PLATES DID NOT MATCH VEHICLE
XNE
KEYLESS ENTRY
CELL PHONE
UNREGISTERED VEHICLE
LEANING ON LOBBY HALL
PERSON STOPPED BY STORE MANAGER FOR SUSPICION OF PETIT LARCENY
10-39 LEAVING BUILDING
10-11
REAR ENTRY
REPORT FROM WITNESS
NO FRONT PLATE ON VEHICLE/TRUNK LOCK BROKEN
FORD PROBE PINK ECK 87D2
VENDING ON STREET
CRIM TRES
BANGING OUT OUTSIDE ON BALCONY OF NYCHA BUILDING
DEFT OBSERVED IN NYCHA BUILDING
THROWING TRASH, YELLING
TRESPASS
LOITERING
KEYLESS ENTRY
LOITERING IN HALLS
PROXIMTY TO CRIME LOCATION
70

- Appearances -

For Plaintiffs:
Darius Charney, Esq.
Sunita Patel, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
[phone]
Jonathan C. Moore, Esq.
Jennifer Borchetta, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, New York 10016
[phone]
Philip Irwin, Esq.
Eric Hellerman, Esq.
Gretchen Hoff-Varner, Esq.
Covington & Burling LLP
620 Eighth Avenue
New York, New York 10018
[phone]

For Defendants:
Heidi Grossman
Linda Donahue
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]
71