DocketNumber: No. 08 Civ. 1034(SAS)
Citation Numbers: 861 F. Supp. 2d 274
Judges: Scheindlin
Filed Date: 4/16/2012
Status: Precedential
Modified Date: 11/26/2022
OPINION AND ORDER
I. INTRODUCTION
Police officers are permitted to briefly stop any individual, but only upon reasonable suspicion that he is committing a crime.
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.”
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.
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 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.
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.
As defendants point out, however, Fagan is not a lawyer and has never taken courses at a law school.
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.
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 (“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.”
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.
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.”
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.*282 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
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.”
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.
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 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.
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 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.cj., 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 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
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 non-radio 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
Defendants level many criticisms at Fagan’s classification system,
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.
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.”
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 outcome” and “conflates the legal standards required for stops reasonable suspicion] and arrests lie., probable cause].”
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.”
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 qual*286 ified 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.
[1-4] 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.”
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.
B. Expert Evidence Regarding Mixed Questions of Fact and Law
As a general matter, experts may not testify as to conclusions of law.
C. Reasonable Suspicion to Conduct A Stop
“ ‘[T]he police can stop and briefly detain a person for investigative
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.”
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,
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
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.
Defendants point to Wards Cove Packing Co. v. Atonio
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.
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 patrol strength; and (3) Blacks and Hispanics 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.
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*291 based on a single form cannot be done in the aggregate, 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.
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 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 help the jury to evaluate the parties’ claims and defenses.
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.
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 and in any other pretrial instructions that I give to the parties.
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
Defendants cite to Cameron v. City of New York, in which the Second 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.”
b. Use of the Terms “Justified” and “Unjustified”
For the reasons discussed in Part IV.B.l above, Fagan’s use of the 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 hmiting 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
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.
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.
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.
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 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,
In short, the narratives accompanying the “Other” stop circumstance are extremely difficult to summarize and Profes
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.”
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 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 com
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.
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 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) plaintiffs proximity to the individual identified as involved in the sale of narcotics; and (3) plaintiffs effort to walk away from the commotion as soon as it broke out.”
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.
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.
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.
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 reason why categorization of these stops is difficult. One narrative reads “dismatling [sic] 95 Honda DLJ6727.”
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 “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.
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 ad
e. Forms Containing Only One “Conditionally Justified” Factor
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.
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 ease, they argue, even if the officer did not check off “High Crime Area” on the worksheet.
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 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.
3. Fagan’s Opinions Regarding the Results of the Stop-and-Frisk 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 assess
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.
Defendants also object to Fagan’s reliance on “hit rates.” He calculates that “5.37 percent of all stops result in an arrest,” that [sjummonses are issued at a slightly higher rate: “6.26 percent overall,” and that “[seizures 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.”
Defendants argue that Fagan “conflates the legal standards required for stops [ie., reasonable suspicion] and arrests [ie., probable cause].”
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.
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 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.
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.
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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
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
. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Terry, 392 U.S. at 9, 88 S.Ct. 1868.
. Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35 L.Ed. 734 (1891).
. Yick Wo v. Hopkins, 118 U.S. 356, 367, 6 S.Ct. 1064, 30 L.Ed. 220 (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
. As the Supreme Court has explained, being stopped and frisked “must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 392 U.S. at 25, 88 S.Ct. 1868.
. See Report of Jeffrey Fagan ("Report”) and Supplemental Report of Jeffrey Fagan ("Supp. Rep.”) [Docket No. 132],
. See Memorandum of Law in Support of Defendants' Motion to Exclude Plaintiffs' Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan ("Def. Mem.”).
. 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.
. 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 16-23.
. 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).
. Fagan Decl. ¶ 6.
. See Ex. 117 to Declaration of Darius Charney, plaintiffs' counsel, in Opposition to Defendants’ Motion for Summary Judgment.
. See Def. Mem. at 2 n. 5.
. See CV at 1.
. Def. Mem. at 2 n. 5.
. 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 New York, 99 Civ. 1695, a class action similar to this one that was litigated by some of the same attorneys.
. See Report at 6.
. Id.
. Id. at 7.
. See id. at 7-9.
. Id. at 9.
. See id. at 10-11.
. See id. at 12.
. 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.
. Id. at 15.
. Id. at 16.
. See id. at 18.
. Fagan Decl. ¶ 23.
. id.h 4(a)-(d).
. Def. Mem. at 12.
. 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.
. See Reply Declaration of Robert Smith ("Smith Reply Decl.”) ¶ 23 (pointing out that Fagan used arrest data to assess racial discrimination in his article in the Journal of the American Statistical Association and in the Attorney General’s report).
. See 3/8/12 Hearing Transcript ("Tr.”) at 72-73.
. Id. at 90:8-9.
. See id. 74-77.
. 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 5-6; Fagan Decl. ¶ 17.
. See Def. Mem. at 2-7.
. See Report at 52-55; Fagan Decl. ¶ 19. The parties have generally referred to this factor as "High Crime Area” and I do the
. See Supp. Rep. at 41.
. See Report at 52.
. 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.
. 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.
. Def. Mem. at 9.
. Id. at 8.
. Id. at 7.
. Id. at 10.
. 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 v. Merrell Dow Pharm., 509 U.S. 579, 592, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
. 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 Notes to the 2000 Amendment to Fed.R.Evid. 702.
. United States v. Wexler, 522 F.3d 194, 204 (2d Cir.2008).
. See United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir.1991).
. See United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999).
. "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).
. United States v. Scop, 846 F.2d 135, 139 (2d Cir.1988), rev’d in part on other grounds, 856F.2d5 (2d Cir.1988).
. Fiataruolo v. United States, 8 F.3d 930, 941 (2d Cir.1993).
. Id. at 942.
. See id.
. United States v. Swindle, 407 F.3d 562, 566 (2d Cir.2005) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct 1581, 104 L.Ed.2d 1 (1989)). Under New York law, the justifications required for different levels of police intrusion were established in People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976).
. See Terry, 392 U.S. 1, 88 S.Ct. 1868.
. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581).
. United States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000).
. Terry, 392 U.S. at 22, 88 S.Ct. 1868.
. Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).
. Id.
. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotation marks and citation omitted).
. United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990).
. Def. Mem. at 11.
. Bazemore v. Friday, 478 U.S. 385, 400 & n. 10, 106 S.Ct. 3000, 92 L.Ed.2d 315 (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”).
. 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, consideration in assessing the scientific validity of a particular technique or methodology.” 509 U.S. at 594, 113 S.Ct. 2786.
. Fagan Deck ¶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.
. Id. ¶23.
. 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989).
. Def. Mem. at 12.
. 490 U.S. at 650, 109 S.Ct. 2115.
. Id.
. 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.
. 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, 109 S.Ct. 2115. 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, 185-87, 129 S.Ct. 2343, 2356, 174 L.Ed.2d 119 (2009) (Stevens, J„ dissenting).
. See Fagan Deck ¶ 4(a)-(d).
. Defendants’ 3/14/12 Letter at 3.
. See Lloyd v. City of New York, 11 Civ. 756, 2/8/12 Transcript at 19:1-9 [Docket No. 36],
. 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.
. 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 PI. SJ Mem. at 12-13. Plaintiffs intend to produce audio recordings and testimony from commanders and supervisors from multiple precincts and boroughs to support these claims. See id.
. Federal Rule of Evidence 102.
. See Def. Mem. at 2-3.
. 926 F.2d at 1294 (quotation and citation omitted).
. 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).
. 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.”)).
. 598 F.3d 50, 54, 65 (2d Cir.2010).
. 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.
. See Fagan Decl. ¶ 4(f).
. 3/14/12 Letter at 1.
. Tr. at 62:11-13.
. 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.
. Tr. at 61:15-62:8.
. Fagan Decl. ¶ 13.
. See Fagan Supplemental Declaration, Ex. A ("Narrative List”).
. 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.
. 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.)
. 3/14/12 Letter at 2 n. 3.
. No. 05 Cr. 78, 2006 WL 1582086, at *4 (S.D.N.Y. June 6, 2006).
. Id. (emphasis added).
. See, e.g., Church of the Am. Knights of the Ku 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).
. 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, 282 N.Y.S.2d 739, 229 N.E.2d 426 (1967). See also Michelle Alexander, The New Jim Crow (2010) at 28-32 (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).
. Fagan Decl. ¶ 4(f).
. Narrative List at 2.
. 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.
. Fagan Deck ¶ 4(g). See First Amended Complaint ¶¶ 97-107.
. Def. Mem. at 5.
. See Defendants' Case Summaries, Ex. A to Declaration of Heidi Grossman (“Gross-man Decl.”), defendants’ counsel, in Support of Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 10-14.
. 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, 615 N.Y.S.2d 310, 638 N.E.2d 955 (1994) (police saw defendant engaged in actions indicative of a drug transaction).
. 464 F.3d 192 (2d Cir.2006).
. 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.
. See Report at 52.
. "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 ’starting] 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.).
. No. 05 Civ. 1215, 2007 WL 1456222, at *7 (E.D.N.Y. May 16, 2007).
. See Wardlow, 528 U.S. at 124, 120 S.Ct. 673.
. See Fagan Report at 51.
. 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 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.
. See PL Mem. at 7-8 and Defendants’ 3/14/12 Letter.
. Pl. Mem. at 7.
. Narrative List at 1.
. “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.
. "Changing Direction” was checked off in 24.7% of stops. See id.
. 2006 WL 1582086, at *4.
. See PL Case Summaries at 1-3, responding to the cases in Defendants’ Case Summaries at 1-5.
. 16 N.Y.3d 596, 925 N.Y.S.2d 393, 949 N.E.2d 484 (2011). See PL Mem. at 8.
. 16 N.Y.3d at 599, 925 N.Y.S.2d 393, 949 N.E.2d 484.
. See Def. Mem. at 4.
. 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.
. Tr. at 82:18-83:7.
. "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).
. See Defendants’ 3/14/12 Letter at 2.
. 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.
. Def. Mem. at 8-9.
. PL Mem. at 11.
. 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.
. 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)).
. Def. Mem. at 9-10 (quoting In re Rezulin Prods. Liab. Litig., 309 F.Supp.2d 531, 541 (S.D.N.Y.2004)).
. See Rezulin, 309 F.Supp.2d at 543.
. See id. at 545-46.
. 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.
. 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.
. Def. Mem. at 9.
. Wardlow, 528 U.S. at 123, 120 S.Ct. 673.
. 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 suspicion-less roadblocks in Edmond ”). See also City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000); Edmond v. Goldsmith, 183 F.3d 659, 666 (7th Cir.1999).
. Def. Mem. at 9 & n. 16.
. See Brown v. Texas, 443 U.S. 47, 52, 99 S.Ct. 2637, 61 L.Ed.2d 357 (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.”).
. Affidavit of Eric Adams, Ex. 10 to Declaration of Darius Charney in Support of Plaintiffs' Motion for Class Certification, ¶ 5.
. 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.