Floyd v. City of New York
Floyd v. City of New York
Opinion of the Court
OPINION AND ORDER
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.
I. BACKGROUND
Details of this litigation have been extensively covered in my decisions on defendants’ motion for summary judgment,
Dennis Smith is an associate professor of public policy at the Robert F. Wagner School of Public Service at New York University.
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.
Plaintiffs’ motion seeks to preclude Smith from testifying as follows:
1. Smith may not critique Fagan’s multivariate regression analyses and [Fagan’s] critique of the RAND study [that was commissioned by defendants];
2. Smith may not offer his correlation coefficient calculations and “alternative” regression analysis;
3. Smith may not opine on the meaning of low stop-and-frisk weapons recovery hit rates;
4. 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
5. Smith may not opine that NYPD officers do not conduct stops-and-frisks on the basis of race.14
11. LEGAL STANDARD
The proponent of expert evidence bears the initial burden of establishing admissibility by a “preponderance of proof.”
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 rehable 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 rehable foundation and is relevant to the task at hand.”
The courts’ gatekeeping function applies not only to “scientific” evidence, but also to proffers of “technical, or other specialized knowledge” under Rule 702.
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.”
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.
In his report, Smith argues that this is a major flaw in Fagan’s analysis.
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 percent of crimes might not be appropriate.
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.
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
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, 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.
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.”
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?”
Defendants are conflating two different aspects of Smith’s report: his benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and
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.”
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.
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 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?”
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, 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.
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
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.”
IY. 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.
SO ORDERED.
. Fagan submitted an expert report and supplemental report (collectively, “Fagan Report”) [Docket No. 132]. In an April 16, 2012 Opinion and Order, 861 F.Supp.2d 274 (S.D.N.Y. 2012) ("Fagan Daubert” ), I assessed defendants’ objections to Fagan’s qualifications and methodology under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and the Federal Rules of Evidence. His expertise in statistical analysis was documented in Fagan Daubert, 861 F.Supp.2d at 278-79.
. See 8/31/11 Opinion and Order ("SJ Opinion”), 813 F.Supp.2d 417 (S.D.N.Y. 2011).
. See Fagan Daubert, 861 F.Supp.2d 274.
. See 5/16/12 Opinion and Order ("Class Cert. Opinion”), 283 F.R.D. 153 (S.D.N.Y. 2012).
. 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.
. See Declaration of Dennis C. Smith ("Smith Decl.”) ¶ 2.
. See Smith Curriculum Vitae ("Smith CV”), Appendix A to Smith Report, at 4-8.
. See Deposition of Dennis C. Smith, Ph.D. ("Smith Dep.”), Ex. C to Charney Decl., at 300:17-301:25; Smith CV at 1.
. Smith Decl. ¶ 5.
. Id. ¶ 9.
. See Declaration of Robert M. Purtell in Opposition to Plaintiffs' Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith ("Purtell Decl.”) ¶ 1.
. Smith Decl. ¶ 12.
. See id. ¶ 18.
. Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Certain Opinions of Defendants' Proposed Expert, Dennis Smith ("PI. Mem.”) at 24.
. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (discussing Rule 104(a) of the Federal Rules of Evidence). Accord Daubert, 509 U.S. at 592, 113 S.Ct. 2786.
. 509 U.S. at 597, 113 S.Ct. 2786. Accord Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
. 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)).
. Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F.Supp.2d 558, 562 (S.D.N.Y. 2007) (citation and quotation marks omitted).
. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786.
. Id. at 592-95, 113 S.Ct. 2786.
. See Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167.
. Id. at 152, 119 S.Ct. 1167.
. Id. at 150, 119 S.Ct. 1167.
. Id. (quotations omitted).
. Id.
. Id. at 152, 119 S.Ct. 1167.
. Id. (quotation marks omitted).
. Advisory Committee Note to the 2000 Amendment to Fed.R.Evid. 702.
. United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008).
. See Fagan Daubert, 861 F.Supp.2d at 280-83, 288-91.
. See Smith Report at 42, et seq.
. See id. at 6.
. See id.
. 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, 861 F.Supp.2d at 282 (quoting Memorandum of Law in Support of Defendants’ Motion to Exclude Plaintiffs' Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 12).
. Pl. Mem. at 8.
. See Fagan Daubert, 861 F.Supp.2d at 281—83, 288-90. Notably, Fagan did perform such extrapolations in previous studies.
. 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.
. See Smith Deck ¶¶ 17-25.
. 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.
.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, 861 F.Supp.2d at 277, n. 36.
. Smith Report at 41.
. Id. at 4.
. PL Mem. at 18.
. Def. Mem. at 18-19.
. 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.
. See Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005).
. "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.
. 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 PI. Mem. at 21.
. See Fagan Daubert, 861 F.Supp.2d at 284-86. 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 previ
. See Class Cert. Opinion, 2012 WL 1868637, at *8.
. Smith Report at 39.
. Def. Mem. at 18.
. 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.
. PI. Mem. at 21 (quoting.Smith Report at 8).
. PL Rep. Mem. at 9.
Reference
- Full Case Name
- David FLOYD, Lalit Clarkson, Deon Dennis, and David Ourlicht, on behalf of themselves and all others similarly situated v. The CITY OF NEW YORK
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- 1 case
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- Published