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

Filing 224

OPINION AND ORDER: #102223 Plaintiffs motion is granted in part and denied in part. The Clerk of the Court is directed to close the motion [Docket No. 215]. A status conference is scheduled for August 27 at 3:30 p.m. Defendants are directed to make Robert Purtell available for deposition as soon as practicable. (Signed by Judge Shira A. Scheindlin on 8/17/2012) (js) Modified on 8/22/2012 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

----------------------------------------------------- )(
DAVID FLOYD, LALIT CLARKSON,
DEON DENNIS, and DAVID OURLICHT,
on behalf of themselves and all others
similarly situated,

t.._

. '

OPINION AND ORDER
08 Civ. 1034 (SAS)

Plaintiffs,
- againstTHE CITY OF NEW YORK, et ai.,
Defendants.
)(

SHIRA A. SCHEINDLIN, U.S.D.J.:

To support their claims in this class action lawsuit, plaintiffs intend to
rely on the testimony of Jeffrey Fagan, a criminologist with expertise in statistical
analysis. l To rebut Fagan's testimony, defendants seek to offer the opinions of
Dennis Smith, a political scientist with an expertise in police organizations.
Plaintiffs now move to preclude parts of Smith's opinions. Their motion is granted
Fagan submitted an expert report and supplemental report
(collectively, "Fagan Report") [Docket No. 132]. In an April 16,2012 Opinion
and Order, _ F. Supp. 2d _,2012 WL 1344514 (S.D.N.Y. Apr. 16,2012)
("Fagan Daubert"), I assessed defendants' objections to Fagan's qualifications and
methodology under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),
and the Federal Rules of Evidence. His expertise in statistical analysis was
documented in Fagan Daubert, 2012 WL 1344514, at *2.

1

in part and denied in part.
I.

BACKGROUND
Details of this litigation have been extensively covered in my

decisions on defendants’ motion for summary judgment,2 defendants’ Daubert
motion challenging Fagan’s report,3 and plaintiffs’ motion for class certification.4
Familiarity with these opinions is assumed. I include only new background here.
Dennis Smith is an associate professor of public policy at the Robert
F. Wagner School of Public Service at New York University.5 He is an expert on
police organizations and police behavior and has been studying the New York City
Police Department (“NYPD”) since the 1970s.6 His scholarship (some of which
has been published in books and peer-reviewed journals and much of which has
not) has focused on “performance management” and on evaluating the efficacy of

2

See 8/31/11 Opinion and Order (“SJ Opinion”), 813 F. Supp. 2d 417
(S.D.N.Y. 2011).
3

See Fagan Daubert, 2012 WL 1344514.

4

See 5/16/12 Opinion and Order (“Class Cert. Opinion”), __ F.R.D. __,
2012 WL 1868637 (S.D.N.Y. May 16, 2012).
5

See Report of Dennis C. Smith, Ph.D. (“Smith Report”), Ex. B to
Declaration of Darius Charney (“Charney Decl.”) in support of plaintiffs’ Motion
to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith, at 1.
6

See Declaration of Dennis C. Smith (“Smith Decl.”) ¶ 2.
2

public services, with a particular emphasis on police performance.7 He is not a
statistician and his only formal study of statistics took place over thirty-five years
ago in graduate school, when he received his Ph.D. in political science.8 However,
according to Smith, his policy research has involved extensive collaboration with
experts from other fields, including statistical experts. “Statistical analyses . . .
have consistently been critical components of [his] studies and publications.”9
Smith explains that he has “extensive experience critiquing the theories and
assumptions underlying statistical models” and that he is “able to understand and
develop hypotheses regarding specific multiple regression models.”10
Since 2006, Smith has collaborated with Robert Purtell on much of his
work regarding the NYPD. Purtell is an assistant professor of finance and the
director of the Masters in Public Administration Program at the University at
Albany, Nelson A. Rockefeller College of Public Affairs & Policy.11 According to
7

See Smith Curriculum Vitae (“Smith CV”), Appendix A to Smith
Report, at 4-8.
8

See Deposition of Dennis C. Smith, Ph.D. (“Smith Dep.”), Ex. C to
Charney Decl., at 300:17-301:25; Smith CV at 1.
9

Smith Decl. ¶ 5.

10

Id. ¶ 9.

11

See Declaration of Robert M. Purtell in Opposition to Plaintiffs’
Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis
Smith (“Purtell Decl.”) ¶ 1.
3

Smith, “[i]n all of my prior collaborative work with Purtell [on policing in New
York City], the models tested by his statistical analysis were developed primarily
by me based on my knowledge of policing – an area in which Purtell himself lacks
expertise and relies upon my guidance.”12 Purtell uses his expertise in statistics
and modeling to construct and implement regressions that will test Smith’s
theories.13 Although Purtell was initially identified as a testifying expert by
defendants, he did not produce an expert report.
Plaintiffs’ motion seeks to preclude Smith from testifying as follows:
1.

2.
3.
4.

5.

II.

Smith may not critique Fagan’s multivariate regression
analyses and [Fagan’s] critique of the RAND study [that
was commissioned by defendants];
Smith may not offer his correlation coefficient calculations
and “alternative” regression analysis;
Smith may not opine on the meaning of low stop-and-frisk
weapons recovery hit rates;
Smith may not opine on crime reduction in New York City,
or otherwise testify about the results of the studies attached
as Appendices D and E to his Expert report; and
Smith may not opine that NYPD officers do not conduct
stops-and-frisks on the basis of race.14

LEGAL STANDARD

12

Smith Decl. ¶ 12.

13

See id. ¶ 18.

14

Memorandum of Law in Support of Plaintiffs’ Motion to Exclude
Certain Opinions of Defendants’ Proposed Expert, Dennis Smith (“Pl. Mem.”) at
24.
4

The proponent of expert evidence bears the initial burden of
establishing admissibility by a “preponderance of proof.”15 Rule 702 of the
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.”16 The district court must act as “‘a gatekeeper to
exclude invalid and unreliable expert testimony.’”17 However, “the Federal Rules
of Evidence favor the admissibility of expert testimony, and [the court’s] role as

15

Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (discussing
Rule 104(a) of the Federal Rules of Evidence). Accord Daubert, 509 U.S. at 592.
16

509 U.S. at 597. Accord Kumho Tire Co. v. Carmichael, 526 U.S.
137, 147-49 (1999).
17

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)).
5

gatekeeper is not intended to serve as a replacement for the adversary system.”18 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
themselves.19 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.20
The courts’ gatekeeping function applies not only to “scientific”
evidence, but also to proffers of “technical, or other specialized knowledge” under
Rule 702.21 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

18

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d
558, 562 (S.D.N.Y. 2007) (citation and quotation marks omitted).
19

See Daubert, 509 U.S. at 595.

20

Id. at 592-95.

21

See Kumho Tire, 526 U.S. at 141.
6

practice of an expert in the relevant field.”22 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.”23
Accordingly, the factors “identified in Daubert may or may not be pertinent in
assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.”24 Ultimately, the inquiry “depends
upon the particular circumstances of the particular case at issue.”25 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.”26
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
22

Id. at 152.

23

Id. at 150.

24

Id. (quotations omitted).

25

Id.

26

Id. at 152.
7

weighing possible prejudice against probative force under Rule 403 . . . exercises
more control over experts than over lay witnesses.”27 Generally, “the rejection of
expert testimony is the exception rather than the rule.”28 “The admission of expert
testimony is committed to the broad discretion of the District Court and will not be
disturbed on review unless found to be ‘manifestly erroneous.’”29
III.

DISCUSSION
Plaintiffs seek to exclude five aspects of Smith’s report. I assess each

one in the following discussion.
A.

Smith’s Critique of Fagan’s Multivariate Regression Analyses
Fagan conducted various regression analyses in order to evaluate

plaintiffs’ allegation that defendants are conducting stops and frisks on the basis of
race, in violation of the Fourteenth Amendment.30 Among many other findings,
Fagan’s regression analyses show that “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

27

Id. (quotation marks omitted).

28

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

29

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

30

See Fagan Daubert, 2012 WL 1344514, at *3-4, *10-11.

702.

8

population, police patrol strength, and other social and economic factors predictive
of police enforcement activity.”31 Notably, however, Fagan’s regression analyses
do not account for the racial distribution of the perpetrators of crime in New York
City.
In his report, Smith argues that this is a major flaw in Fagan’s analysis.32
Smith believes that by comparing the racial distribution of stops to the racial
distribution of the population, instead of to the racial distribution of criminal suspects,
Fagan is using the wrong “benchmark.”33 As an analogy, Smith notes that the NYPD
stops women, children, and senior citizens at rates far below their share of the
population.34 These groups of people are stopped at low rates, he argues, because they
commit a disproportionately small number of crimes. Like the disparity in stops on
the basis of gender and age, Smith argues, the disparity in stops on the basis of race
and ethnicity is driven by the disparity in the commission of crime, not by
unconstitutional discrimination. This dispute over “benchmarking” constitutes the

31

Id. at *4.

32

See Smith Report at 42, et seq.

33

See id. at 6.

34

See id.
9

parties’ central disagreement regarding Fagan’s analysis of discrimination.35
Plaintiffs argue that Smith is not qualified to make this benchmarking
critique because he “has never conducted a statistical study to assess the racial bias of
stop-and-frisk or any other law enforcement program, practice, strategy or tactic, or
claims of racial discrimination in any other governmental or private institution” and
that, prior to his work on this case, Smith had done very little research into the
question of racially-biased police stops.36
Plaintiffs’ point is better suited for cross-examination and closing
argument than a Daubert motion. As an expert in police practices, Smith has the
necessary expertise to evaluate Fagan’s hypotheses and the assumptions that Fagan
used to build his model and he has the expertise to make his central “benchmark”
criticism. Fagan explains that he chose not to use the crime suspect data in his
benchmark because the data is incomplete; “race” is only known for approximately
sixty percent of crimes and extrapolating that information to the remaining forty

35

As defendants put it, “[i]n an analysis concerned with whom the
police are stopping, a reliable benchmark must take into account who is
committing the crime.” Fagan Daubert, 2012 WL 1344514, at *4 (quoting
Memorandum of Law in Support of Defendants’ Motion to Exclude Plaintiffs’
Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 12).
36

Pl. Mem. at 8.
10

percent of crimes might not be appropriate.37 Whether such an extrapolation would
be sound is as much a question of social science as technical statistics and the answer
turns largely on the investigator’s assumptions about the characteristics of the relevant
populations and about the accuracy of alternative metrics (such as the regression
analysis used by Fagan). Smith is therefore qualified to critique Fagan’s decision on
this issue.38
B.

Smith’s Alternative Regression Analysis and Correlation Coefficient
Calculations
In order to highlight what he believed was the central flaw with Fagan’s

benchmark decision, Smith devised (and Purtell constructed) an alternative regression
analysis based on arrest and crime complaint reports.39 Plaintiffs correctly point out

37

See Fagan Daubert, 2012 WL 1344514, at *4, *10. Notably, Fagan
did perform such extrapolations in previous studies.
38

This was also the central issue in Fagan’s critique of the RAND study
and Smith is likewise qualified to opine on that question. The other criticisms of
Fagan’s regressions described in paragraph fifteen of Smith’s declaration
(regarding temporal assumptions, smoothing of crime spikes, and the lack of detail
in Fagan’s presentation) are relatively minor and may be more likely to confuse the
jury than to clarify the issues; if necessary, the admissibility of these criticisms will
be determined at trial.
Smith is not qualified to make technical critiques regarding the types
of regression functions (negative binomial, multilevel logistic, etc.) that Fagan
chose to use. As with the alternative regression analysis discussed below,
however, Purtell will be permitted to address these topics.
39

See Smith Decl. ¶¶ 17-25.
11

that because he is not an expert in statistics, Smith is unable to “establish that both the
choice of variables and the actual running of the model were methodologically
sound.”40 Without these verifications, Smith’s testimony is inadmissible.
However, given the importance of presenting otherwise admissible
information to the jury in this case and given the lack of prejudice to plaintiffs, the
appropriate solution is to permit Purtell to testify about the technical aspects of the
alternative regression analysis and the correlation coefficient calculations. If he
agrees with it, Purtell may therefore “adopt” Smith’s expert report, be deposed by
plaintiffs, and testify at trial regarding technical aspects of Smith’s report. This late
alteration to the expert schedule is appropriate because discovery and motion practice
has taken many years, one additional deposition will not delay the trial date, and in a
case of such significance involving complicated social science data it is important that
the jury be permitted to fully consider both parties’ admissible arguments about what
the data shows.
Plaintiffs argue that Purtell, like Smith, is not qualified to offer critiques
of Fagan’s regressions because he has never conducted racial disparity studies or
researched appropriate benchmarking techniques. But this argument goes to weight,

40

Plaintiffs’ Reply Memorandum of Law in Further Support of Their
Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis
Smith (“Pl. Rep. Mem.”) at 6.
12

not admissibility; even if Purtell has not previously conducted regression analyses on
these particular topics, he has conducted many regressions on other topics and he is
qualified to point out what he perceives as errors in Fagan’s methodology and explain
the technical aspects of Smith’s alternative regression model.
After Purtell establishes the methodological soundness of the alternative
regression analysis, Smith may testify regarding the qualitative theories and
assumptions that went into its construction and to the conclusions that he believes it
supports. Although the regression was disclosed belatedly, fairness requires its
admission.41
C.

Smith’s Crime Reduction Studies and Opinions
Smith devotes a significant portion of his report to discussing the central

role that he believes the NYPD’s stop and frisk program (and the related Operation
Impact) has had in “the historic crime decline achieved by New York City.”42 One of
Smith’s central critiques is that “[t]he Fagan analysis does not explicitly confront the
41

The alternative regression was disclosed on December 19, 2011, as
part of defendants’ Daubert attack on Fagan’s testimony, which was more than a
year after the deadline for submission of expert rebuttal reports. I permitted
plaintiffs and Fagan to submit a new and tardy analysis when seeking partial
reconsideration at the summary judgment stage, see 813 F. Supp. 2d at 462, and
permitted Fagan to make corrections to his findings in February 2012 after Purtell
and Smith pointed out major errors in his calculations, see Fagan Daubert, 2012
WL 1344514, at n. 36.
42

Smith Report at 41.
13

historic shift at NYPD away from a primary mission of responding to crime to a
mission of preventing crime through proactive and crime targeted police vigilance.”43
Included as appendices to Smith’s report are two studies that he and Purtell wrote
about reduced crime rates resulting from Operation Impact and the NYPD’s stop and
frisk program.
Plaintiffs argue that “Smith’s crime reduction opinions” should be
excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and
Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks
without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?”44
Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of
these programs “are indeed relevant, as they represent alternative, race-neutral
explanations for the racial patterns in [stops and frisks] which Fagan failed to consider
in his analysis of the data” and that “[e]xcluding Smiths opinions would be highly
prejudicial by forcing the jury to accept Fagan’s word unchallenged . . . when such
strong evidence of methodological problems exists.”45
Defendants are conflating two different aspects of Smith’s report: his

43

Id. at 4.

44

Pl. Mem. at 18.

45

Def. Mem. at 18-19.
14

benchmarking critique and his separate conclusion that the NYPD’s programs are a
proven strategy to combat crime and increase safety, particularly in minority
neighborhoods. As I explained above, Smith’s benchmarking critique challenges
Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher
rates; it is a descriptive claim about the nature of racial disparities that is probative of
the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore
admissible.
However, Smith’s opinions about the deterrence and crime reduction
impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s
opinion that increased [stop and frisk] activity reduces neighborhood crime provides
further evidence for his alternative hypothesis that [stops and frisks] are driven by
where the crime occurs rather than by racial discrimination.”46 But there are only two
ways in which the effectiveness of the stop and frisk program can be probative of its
legality.

First, defendants could argue that they have adopted a program that

discriminates on the basis of race but nevertheless survives strict scrutiny because it
is narrowly tailored to achieve a compelling governmental objective.47 But defendants

46

Id. at 19. Plaintiffs point out that Fagan’s regressions show that racial
disparities persist even when he controls for “where the crime occurs,” but this is a
reasonable ground for disagreement given the benchmarking dispute.
47

See Johnson v. California, 543 U.S. 499, 505 (2005).
15

explicitly disclaim any such defense.48 The only other way in which “Smith’s opinion
that increased [stop and frisk] activity reduces neighborhood crime” could be
probative of the activity’s legality is by bolstering the defense that NYPD
policymakers and officers have the intent only of reducing crime and are not deciding
whom to stop on the basis of race.49 But Smith is not qualified to provide this
testimony. Both in their court filings and in public comments, defendants regularly
state that the intent behind the program is to reduce crime, not to discriminate.
Defendants and their representatives may testify about why the City has adopted and
pursued the stop and frisk program; on the basis of that testimony and the testimony
of plaintiffs’ witnesses, the jury will determine whether defendants are discriminating
on the basis of race, either when making individual stops or as a matter of policy or
custom. Defendants clearly believe that the program has been effective in reducing
crime. Whether or not Smith agrees with defendants’ assessment is irrelevant.
Moreover, admitting Smith’s testimony – and permitting the parties to delve into the
question of whether the stop and frisk program actually reduces crime – would risk

48

“The strict scrutiny inquiry is unnecessary in the present case because
the City will establish, based on the evidence provided by Smith and others, that
there is no discriminatory purpose on the part of the NYPD.” Def. Mem. at 24.
49

Both parties agree that in order to prevail on their Fourteenth
Amendment claims in this case plaintiffs are required to prove racially
discriminatory intent or purpose. See Pl. Mem. at 21.
16

turning the trial into a policy debate over the wisdom of the program rather than a
judicial proceeding that assesses plaintiffs’ constitutional claims.
D.

Smith’s Hypotheses on Hit Rates
According to Fagan, the NYPD’s data shows that approximately five

percent of stops result in an arrest, six percent of stops result in a summons, guns are
seized in 0.15 percent of stops, and contraband of any kind is seized in 1.75 percent
of stops.50 I found these statistics powerful evidence of a widespread pattern of
unlawful stops: In “eighty-eight percent of cases [where no arrest was made or
summons given], although they were required by law to have objective reasonable
suspicion that crime was afoot when they made the stop, police officers ultimately
concluded that there was no probable cause to believe that crime was afoot. That is to
say, according to their own records and judgment, officers’ “suspicion” was wrong
nearly nine times out of ten.”51
In rebuttal, defendants seek to admit Smith’s opinion that “the test of
success in a proactive, prevention-focused program is not the same as in an
assessment of a reactive program” and that if “the goal of NYPD is to pursue
50

See Fagan Daubert, 2012 WL 1344514, at *7. According to numbers
obtained by the New York Post, the gun recovery hit rate in the second quarter of
this year was 0.14 percent, almost identical to the rate over previous years. See
David Seifman, NYPD Less ‘Frisk’y, N.Y. Post, Aug. 3, 2012.
51

See Class Cert. Opinion, 2012 WL 1868637, at *8.
17

practices that convince would be gun carriers to leave their guns at home, why would
the fact that over time fewer guns are found in suspicion-based stops be a sign of
failure?”52 Defendants argue that Smith should be permitted to opine that the low rate
of gun recoveries “may be explained in part by the deterrent effect of increased [stops
and frisks],” because he is simply offering a “plausible alternative explanation” that
will “challenge the reliability of Fagan’s conclusion” about the significance of this
statistical pattern.53
Defendants are wrong.

Fagan is proposing hypotheses about the

objective circumstances that immediately precede stops on the basis of those stops’
outcomes: if police officers only arrest or give summonses to twelve percent of the
people they stop, then perhaps their initial “suspicion” that crime was afoot was in fact
not reasonable; if guns are rarely recovered, then perhaps the “suspicious bulges” that
police identify are not really suspicious. Smith, on the other hand, offers a hypothesis
about the class members’ fears and motives: perhaps New York City residents are not
carrying guns, he says, because they know that they will be stopped and frisked.
Smith cites no evidence for this hypothesis. This theory about the reasons that so few
stopped people are carrying weapons is too speculative to be admitted at trial,

52

Smith Report at 39.

53

Def. Mem. at 18.
18

particularly through the testimony of an expert.
I also note that Smith’s hypothesis is not even couched as a rebuttal of
Fagan’s hypothesis that the low hit rates suggest a lack of reasonable suspicion;
instead, Smith appears simply to attempt to justify stops on the basis of their deterrent
impact, regardless of their legality.54 Thus, the opinion is also irrelevant, and it is
surely not based on any scientific methodology.
E.

Smith’s Opinion that NYPD Stops-and-Frisks Are Not Racially
Motivated
Plaintiffs seek to exclude Smith’s opinion that “there is no compelling

evidence that NYPD officers are making stops based on race or ethnicity, but instead
are pursuing a strategy and using tactics that prevent crime and benefit the City as a
whole, and communities of color in particular.”55 As stated above, Smith will be
permitted to testify that, because of the benchmarking dispute and other more minor
critiques, he does not believe Fagan’s report presents compelling evidence that NYPD
54

Smith compares street stops with airport security and asks, “[i]f the
security checks at airports find an infinitesimal number of weapons or bombs
would any reasonable person assess this as a failure of this deterrence practice?”
Smith Report at 39. This flawed analogy highlights the analytical shortcoming of
Smith’s persistent focus on deterrence rather than on the law of reasonable
suspicion. People go through airport security as a condition of their voluntary
choice to board an airplane; the class members have been stopped and frisked
involuntarily while sitting on their stoops or walking down the street, which
implicates an entirely different legal analysis.
55

Pl. Mem. at 21 (quoting Smith Report at 8).
19

officers are making stops based on race or ethnicity.
But, as plaintiffs argue, “Smith did not conduct a study through which
he determined that crime deterrence, rather than race, was a statistically significant
and robust predictor of stop and frisks, nor did he conduct a statistical analysis that
identified crime deterrence as the motivating factor in NYPD stops and frisks.”56
Smith will not be permitted to testify regarding his opinion that the NYPD’s policies
“prevent crime and benefit the City as a whole, and communities of color in
particular.” As explained above, although his crime reduction opinions may be
relevant as a policy matter, they will not help the jury answer the constitutional
questions posed by this lawsuit. Neither expert will be permitted to speculate about
the intent of NYPD policymakers or the efficacy of those policies, although
defendants and their representatives may testify as to their intent.
IV.

CONCLUSION
Plaintiffs’ motion is granted in part and denied in part. The Clerk of

the Court is directed to close the motion [Docket No. 215]. A status conference is
scheduled for August 27 at 3:30 p.m. Defendants are directed to make Robert
Purtell available for deposition as soon as practicable.

56

Pl. Rep. Mem. at 9.
20

SO ORDERED:

Dated:

August 17,2012
New York, New York

21

- 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]
Eric Hellerman, Esq.
Philip Irwin, Esq.
Gretchen Hoff-Varner, Esq.
Daniel A. George, Esq.
Covington & Burling LLP
620 Eighth Avenue
New York, New York 10018
[phone]

For Defendants:
Heidi Grossman
Stephanie M. Breslow
Judson Vickers
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]
22