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Floyd v. City of New York

United States District Court, Second Circuit

August 12, 2013

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, individually and on behalf of a class of all others similarly situated, Plaintiffs,
v.
THE CITY OF NEW YORK, Defendant.

Darius Charney, Esq., Sunita Patel, Esq., Baher Azmy, Esq., Rachel Lopez, Esq., Ghita Schwarz, Esq., Chauniqua Young, Esq., Center for Constitutional Rights, New York, NY, Philip I. Irwin, Esq. Eric Hellerman, Esq., Gretchen Hoff Varner, Esq., Kasey Martini, Esq., Bruce Corey, Jr., Esq., Covington & Burling LLP, New York, NY, Jonathan Moore, Esq., Jenn Rolnick Brochetta, Esq., Beldock Levine & Hoffman LLP, New York, NY, for Plaintiffs.

Heidi Grossman, Brenda Cooke, Linda Donahue, Morgan Kunz, Joseph Marutollo, Suzanna Publicker, Lisa Richardson, Judson Vickers, Assistant Corporation Counsel, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
___ Railway Express Agency v. People of State of New York, 336 U.S. 106, 112-13 (1949) (Jackson, J., concurring)
It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a petty indignity.'
___ Terry v. Ohio, 392 U.S. 1, 16-17 (1968)
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.)

I. INTRODUCTION

New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist - indeed the Constitution mandates it.

This case is about the tension between liberty and public safety in the use of a proactive policing tool called "stop and frisk." The New York City Police Department ("NYPD") made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.

Plaintiffs - blacks and Hispanics who were stopped - argue that the NYPD's use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on "reasonable suspicion" as defined by the Supreme Court of the United States;[1] and second, that stops be conducted in a racially neutral manner.[2]

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime - preventive detention or coerced confessions, for example - but because they are unconstitutional they cannot be used, no matter how effective. "The enshrinement of constitutional rights necessarily takes certain policy choices off the table."[3]

This case is also not primarily about the nineteen individual stops that were the subject of testimony at trial.[4] Rather, this case is about whether the City has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.[5]

The Supreme Court has recognized that "the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security."[6] In light of the very active and public debate on the issues addressed in this Opinion - and the passionate positions taken by both sides - it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.

Plaintiffs requested that this case be tried to the Court without a jury. Because plaintiffs seek only injunctive relief, not damages, the City had no right to demand a jury. As a result, I must both find the facts and articulate the governing law. I have endeavored to exercise my judgment faithfully and impartially in making my findings of fact and conclusions of law based on the nine-week trial held from March through May of this year.

I begin with an Executive Summary of the most important points in the Opinion. Next, I address the legal standards governing the ability of police to conduct stops and frisks. I provide a statistical overview of the 4.4 million stops made between January 2004 and June 2012, followed by a discussion of the expert analyses of those stops. I then address the question of whether the City had notice of allegations of racial profiling in the conduct of stops and frisks, and the institutional response to that notice in terms of monitoring, supervision, training, and discipline. After addressing these big picture issues, I make findings of fact with respect to each of the nineteen stops of the twelve class members who provided testimony at trial.

Finally, I present my conclusions of law based on my findings of fact. I will address the question of remedies in a separate opinion, because the remedies overlap with a different case involving stop and frisk in which I have already found that preliminary injunctive relief is warranted.[7]

It is important that this Opinion be read synergistically. Each section of the Opinion is only a piece of the overall picture. Some will quarrel with the findings in one section or another. But, when read as a whole, with an understanding of the interplay between each section, I hope that this Opinion will bring more clarity and less disagreement to this complex and sensitive issue.

II. EXECUTIVE SUMMARY

Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs "must prove that action pursuant to official municipal policy' caused the alleged constitutional injury."[8] "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."[9]

The Fourth Amendment protects all individuals against unreasonable searches or seizures.[10] The Supreme Court has held that the Fourth Amendment permits the police to "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, ' even if the officer lacks probable cause."[11] Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant."[12] The test for whether a stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter.[13] "[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.'"[14]

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. "The impact of the official action - whether it bears more heavily on one race than another - may provide an important starting point.[15]

The following facts, discussed in greater detail below, are uncontested:[16]

• Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
• The number of stops per year rose sharply from 314, 000 in 2004 to a high of 686, 000 in 2011.
• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
• 8% of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
• In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
• In 2010, New York City's resident population was roughly 23% black, 29% Hispanic, and 33% white.
• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
• Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
• Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.
• Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

Both parties provided extensive expert submissions and testimony that is also discussed in detail below.[17] Based on that testimony and the uncontested facts, I have made the following findings with respect to the expert testimony.

With respect to plaintiffs' Fourth Amendment claim, [18] I begin by noting the inherent difficulty in making findings and conclusions regarding 4.4 million stops. Because it is impossible to individually analyze each of those stops, plaintiffs' case was based on the imperfect information contained in the NYPD's database of forms ("UF-250s") that officers are required to prepare after each stop. The central flaws in this database all skew toward underestimating the number of unconstitutional stops that occur: the database is incomplete, in that officers do not prepare a UF-250 for every stop they make; it is one-sided, in that the UF-250 only records the officer's version of the story; the UF-250 permits the officer to merely check a series of boxes, rather than requiring the officer to explain the basis for her suspicion; and many of the boxes on the form are inherently subjective and vague (such as "furtive movements"). Nonetheless, the analysis of the UF-250 database reveals that at least 200, 000 stops were made without reasonable suspicion.

The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as "apparently unjustified." For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as "apparently unjustified." The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked "other" on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as "ungeneralizable" rather than "apparently unjustified." (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). (4) "Furtive Movements, " "High Crime Area, " and "Suspicious Bulge" are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.

With respect to plaintiffs' Fourteenth Amendment claim, [19] I reject the testimony of the City's experts that the race of crime suspects is the appropriate benchmark for measuring racial bias in stops. The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this reasoning is flawed because the stopped population is overwhelmingly innocent - not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area. Instead, I conclude that the benchmark used by plaintiffs' expert - a combination of local population demographics and local crime rates (to account for police deployment) is the most sensible.

Based on the expert testimony I find the following: (1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate. (2) Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations. (3) For the period 2004 through 2009, when any law enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime. (4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely - and Hispanics 9% more likely - than whites to be subjected to the use of force. (5) For the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. Together, these results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.

With respect to both the Fourth and Fourteenth Amendment claims, one way to prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees - here, the NYPD. The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.[20]

As early as 1999, a report from New York's Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal.[21] Without a system to ensure that stops are justified, such pressure is a predictable formula for producing unconstitutional stops. As one high ranking police official noted in 2010, this pressure, without a comparable emphasis on ensuring that the activities are legally justified, "could result in an officer taking enforcement action for the purpose of meeting a quota rather than because a violation of the law has occurred."[22]

In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting "the right people" for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints.[23] This is a form of racial profiling. While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.

Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.

One example of poor training is particularly telling. Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept, " and could include a person "changing direction, " "walking in a certain way, " "[a]cting a little suspicious, " "making a movement that is not regular, " being "very fidgety, " "going in and out of his pocket, " "going in and out of a location, " "looking back and forth constantly, " "looking over their shoulder, " "adjusting their hip or their belt, " "moving in and out of a car too quickly, " "[t]urning a part of their body away from you, " "[g]rabbing at a certain pocket or something at their waist, " "getting a little nervous, maybe shaking, " and "stutter[ing]. "[24] Another officer explained that "usually" a furtive movement is someone "hanging out in front of [a] building, sitting on the benches or something like that" and then making a "quick movement, " such as "bending down and quickly standing back up, " "going inside the lobby... and then quickly coming back out, " or "all of a sudden becom[ing] very nervous, very aware."[25] If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.

I now summarize my findings with respect to the individual stops that were the subject of testimony at trial.[26] Twelve plaintiffs testified regarding nineteen stops. In twelve of those stops, both the plaintiffs and the officers testified. In seven stops no officer testified, either because the officers could not be identified or because the officers dispute that the stop ever occurred. I find that nine of the stops and frisks were unconstitutional - that is, they were not based on reasonable suspicion. I also find that while five other stops were constitutional, the frisks following those stops were unconstitutional. Finally, I find that plaintiffs have failed to prove an unconstitutional stop (or frisk) in five of the nineteen stops. The individual stop testimony corroborated much of the evidence about the NYPD's policies and practices with respect to carrying out and monitoring stops and frisks.

In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.[27]

In conclusion, I find that the City is liable for violating plaintiffs' Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City's highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting "the right people" is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason - in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the need for policing is greatest. But the police are not permitted to target people for stops based on their race. Some may worry about the implications of this decision. They may wonder: if the police believe that a particular group of people is disproportionately responsible for crime in one area, why should the police not target that group with increased stops? Why should it matter if the group is defined in part by race?[28] Indeed, there are contexts in which the Constitution permits considerations of race in law enforcement operations.[29] What is clear, however, is that the Equal Protection Clause prohibits the practices described in this case. A police department may not target a racially defined group for stops in general - that is, for stops based on suspicions of general criminal wrongdoing - simply because members of that group appear frequently in the police department's suspect data.[30] The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.

To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD's conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD's compliance with the ordered remedies.

III. APPLICABLE LAW

A. Monell Liability

Section 1983 of Title 42 of the United States Code ("section 1983") creates "a species of tort liability' for, among other things, certain violations of constitutional rights.[31] As the Supreme Court established in Monell v. New York City Department of Social Services, [32] in order to have recourse against a municipality or other local government under section 1983, plaintiffs "must prove that action pursuant to official municipal policy' caused the alleged constitutional injury."[33] "In other words, municipalities are responsible only for their own illegal acts, ' and cannot be held vicariously liable under § 1983 for their employees' actions.[34] In general, "[o]fficial municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."[35] Such policies "may be pronounced or tacit and reflected in either action or inaction."[36]

One way to establish the existence of a municipal policy or custom is through a showing of "deliberate indifference" by high-level officials. "[W]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.'"[37] Deliberate indifference requires "proof that a municipal actor disregarded a known or obvious consequence of his action.'"[38] Recognizing that deliberate indifference is "a stringent standard of fault, " the Second Circuit requires "that the policymaker's inaction was the result of conscious choice' and not mere negligence.'"[39]

A municipality may incur Monet! liability based on deliberate indifference through its training and supervision practices. "[D]eliberate indifference may be inferred where the need for more or better supervision to protect against constitutional violations was obvious, ' but the policymaker fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]'"[40] Although "[a] municipality's culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train, "[41] the Supreme Court has held that "[w]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens' constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program."[42]

In Walker v. City of New York , the Second Circuit framed the deliberate indifference inquiry in three parts:

(1) [the] policymaker knows "to a moral certainty" that its employees will confront a given situation; (2) either [the] situation presents employees with [a] difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling [the] situation; and (3) [a] wrong choice by employees will frequently cause [the] deprivation of constitutional rights.[43]

"Where the plaintiff establishes all three elements, then... the policymaker should have known that inadequate training or supervision was so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'"[44] "A pattern of similar constitutional violations by untrained employees is ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train."[45]

B. Stops, Frisks, and Searches Under the Fourth Amendment

The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, [46] states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."[47] The Supreme Court of the United States has repeatedly affirmed that "the ultimate touchstone of the Fourth Amendment is reasonableness.'"[48] The Supreme Court has held that under the Fourth Amendment, it is constitutionally reasonable for the police to "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, ' even if the officer lacks probable cause.'"[49] This form of investigative detention is now known as a Terry stop.[50]

1. The Definition of a Stop

As the Supreme Court reaffirmed in Florida v. Bostick , the test for determining whether a Terry stop is taking place "is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter."[51] Whether a stop has taken place depends on "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"[52]

While the Supreme Court explicitly refrained from determining whether a seizure occurred in Bostick, [53] it noted several types of police encounters that were not necessarily stops.[54] However, the Court confirmed that even in these cases, the "free to terminate the encounter" standard applies: "[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage - as long as the police do not convey a message that compliance with their requests is required. "[55] The Bostick majority emphasized that police officers may not "demand of passengers their voluntary' cooperation" through "an intimidating show of authority.'"[56]

The Second Circuit has held that the following factors are indicative of a "seizure, " a term that encompasses both Terry stops and arrests:

the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person's personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.[57]

The following summarizes two examples of police encounters that the Second Circuit held to be Terry stops, despite their arguably low level of coercion:

The Second Circuit has held... that a stop took place where an officer twice ordered a person to "hold on a second, " and after the second order the person stopped. The Second Circuit also held that a stop occurred where an officer pointing a spotlight at a person said, "What, are you stupid? Come here. I want to talk to you, " and then told the person to show his hands.[58]

By contrast, the Second Circuit held that no Terry stop took place "where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands."[59]

In sum, the test for whether a Terry stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter. The Second Circuit has further held: "[a] seizure occurs when (1) a person obeys a police officer's order to stop or (2) a person that does not submit to an officer's show of authority is physically restrained."[60]

2. Stops Must Be Based on Reasonable Suspicion

In order for a Terry stop to comply with the Fourth Amendment, it must be based on a reasonable suspicion that criminal activity "may be afoot.[61] That is, the police may make a Terry stop "when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity."[62] At minimum, "[t]he officer [making a Terry stop]... must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.'"[63] That is, "[p]olice must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion [on a citizen's liberty interest].'"[64] "Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant."[65]

In general, reasonable suspicion requires an individualized suspicion of wrongdoing.[66] While the Supreme Court has recognized certain narrow exceptions to this requirement, there is no exception for stops of pedestrians for the general purpose of controlling crime.[67]

Courts reviewing stops for reasonable suspicion "must look at the totality of the circumstances' of each case to see whether the detaining officer has a particularized and objective basis' for suspecting legal wrongdoing."[68] [T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing."[69] "While reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop."[70]

3. Protective Frisks for Weapons

The Supreme Court has recognized that a police officer making an investigatory stop "should not be denied the opportunity to protect himself from attack by a hostile suspect."[71] As a result, "a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted."[72] "[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.'"[73] The test is an objective rather than a subjective one, ... and thus it is not essential that the officer actually have been in fear."[74]

"The purpose of [a frisk for weapons] is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence."[75] Thus, the frisk must be "limited in scope to this protective purpose, "[76] and "strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby."[77] However, when an officer "lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity [as contraband] immediately apparent, " the officer may seize the contraband without a warrant.[78] In sum, "[n]othing in Terry can be understood to allow a generalized cursory search for weapons' or indeed, any search whatever for anything but weapons."[79]

4. Searching into Clothing for Weapons

Just as reasonableness is the touchstone for the Fourth Amendment generally, reasonable suspicion provides the standard at each stage of a Terry stop. Once an officer has lawfully stopped someone based on reasonable suspicion of criminal activity, the officer may lawfully frisk the stopped person based on reasonable suspicion that the person is armed and dangerous. If the frisk gives rise to reasonable suspicion that an object in the clothing of the stopped person is a weapon that could be used to harm the officer, then the officer may take whatever action is necessary to examine the object and protect himself - including removing the object from the clothing of the stopped person.[80]

5. De Bour and the Fourth Amendment

The NYPD's training materials place great importance on the New York state common law of stops, as articulated in People v. De Bour and its progeny.[81] Because De Bour and the Fourth Amendment draw the line between permissible and impermissible police encounters in different ways, De Bour is in some respects more protective of liberty from governmental intrusion than the Fourth Amendment, and in other respects less.[82] The Supreme Court has held that although states may impose greater restrictions on police conduct than those established by the Fourth Amendment, a state "may not... authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct."[83] Thus, even where a police encounter would be permissible under De Bour, it remains unlawful if it violates the Fourth Amendment.

C. Equal Protection Under the Fourteenth Amendment

The Fourteenth Amendment's Equal Protection Clause declares that "[n]o State shall... deny to any person within its jurisdiction the equal protection of the laws."[84] The Clause "is essentially a direction that all persons similarly situated should be treated alike."[85] It prohibits intentional discrimination on the basis of race, but not government action that merely has a disproportionate racial impact.[86]

The Second Circuit has outlined "several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause."[87] First, "[a] plaintiff could point to a law or policy that expressly classifies persons on the basis of race.'"[88] Second, "a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner."[89] Third, "[a] plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus."[90] In none of these three cases is a plaintiff "obligated to show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection."[91]

In order to show intentional discrimination under the second and third models of pleading above, plaintiffs need not prove that the challenged action rested solely on racially discriminatory purposes, '"[92] or even that a discriminatory purpose "was the dominant' or primary' one."[93] Rather, plaintiffs must prove that "a discriminatory purpose has been a motivating factor" in the challenged action.[94] That is, plaintiffs must show that those who carried out the challenged action "selected or reaffirmed a particular course of action at least in part because of, ' not merely in spite of, ' its adverse effects upon an identifiable group."[95] As the Supreme Court and the Second Circuit have explained:

Because discriminatory intent is rarely susceptible to direct proof, litigants may make "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action - whether it bears more heavily on one race than another - may provide an important starting point."[96]

The consequences of government action are sometimes evidence of the government's intent: "proof of discriminatory intent must necessarily usually rely on objective factors.... The inquiry is practical. What a legislature or any official entity is up to' may be plain from the results its actions achieve, or the results they avoid."[97] "Once it is shown that a decision was motivated at least in part by a racially discriminatory purpose, the burden shifts to the defendant to show that the same result would have been reached even without consideration of race.'"[98] "If the defendant comes forward with no such proof or if the trier of fact is unpersuaded that race did not contribute to the outcome of the decision, the equal protection claim is established.'"[99]

IV. FINDINGS OF FACT

A non-jury trial on liability and remedies was held between March 18 and May 20, 2013.[100] Based on the preponderance of the credible evidence, [101] as well as the parties' post-trial submissions, the following are my findings of fact pursuant to Federal Rule of Civil Procedure 52(a).[102]

A. Overview of Uncontested Statistics

Officers are required to complete a OF-250 form, also known as a "Stop, Question and Frisk Report Worksheet, " after each Terry stop. Each side of the form contains checkboxes and fields in which officers are required to indicate the nature of the stop and the circumstances that led to and justified the stop (the "stop factors"). A copy of a blank UF-250 appears as Appendix A to this Opinion.[103]

Plaintiffs' liability expert, Dr. Jeffrey Fagan, conducted various statistical analyses of UF-250s based on an electronic database containing the information on the forms.[104] The more complicated and contested statistical analyses will be discussed below.[105] In this section, I summarize the most relevant uncontested statistics culled from the UF-250 database:[106]

• Between January 2004 and June 2012, [107] the NYPD conducted over 4.4 million Terry stops.[108]
• The number of stops per year rose sharply from 314, 000 in 2004 to a high of 686, 000 in 2011.[109]
• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.[110]
• 8% of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.[111]
• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.[112]
• In 52% of the 4.4 million stops, the person stopped was black.[113]
• In 31% of the stops, the person stopped was Hispanic.[114]
• In 10% of the stops, the person stopped was white.[115]
• In 2010, New York City's resident population was roughly 23% black, 29% Hispanic, and 33% white.[116]
• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.[117]
• Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.[118]
• Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.[119]
• For the years 2004 to 2009, [120] the two most commonly checked boxes indicating the reasons for a stop were "Furtive Movements" and "Area Has Incidence Of Reported Offense Of Type Under Investigation" ("High Crime Area"). Setting aside stops based on radio runs, officers marked "Furtive Movements" as a basis for the stop on 42% of the forms, and "High Crime Area" on 55% of the forms. In 2009, officers indicated "Furtive Movements" as a basis for the stop nearly 60% of the time.[121]
• Both "Furtive Movements" and "High Crime Area" are weak indicators of criminal activity. For the years 2004 to 2009, stops were 22% more likely to result in arrest if "High Crime Area" was not checked, and 18% more likely to result in arrest if "Furtive Movements" was not checked.[122]
• Between 2004 and 2009, as the number of stops per year soared from 314, 000 to 576, 000, the percentage of UF-250s on which the officer failed to state a specific suspected crime rose from 1% to 36%.[123]

Finally, I note that the City's attempt to account for the low rate of arrests and summonses following stops was not persuasive. The City states that "[v]arious witnesses testified, including former Chief of Department Joseph Esposito, that many stops interrupt a crime from occurring, for example an individual casing a location or stalking an individual late at night."[124] No evidence was offered at trial, however, of a single stop that was: (1) based on reasonable suspicion, and (2) prevented the commission of a crime, but (3) did not result in probable cause for an arrest. While I have no doubt that such a stop has taken place at some time, it is highly implausible that successful "preventive" stops take place frequently enough to affect the conclusion that in at least 88% of the NYPD's 4.4 million stops between January 2004 and June 2012, the suspicion giving rise to the stop turned out to be misplaced.

Indeed, for several reasons, the 12% "hit rate" likely overstates the percentage of stops in which an officer's suspicions turn out to be well-founded. First, officers are trained to prepare OF-250s only for stops based on suspicion of a misdemeanor or felony. The UF-250 itself states: "Specify Which Felony/P.L. Misdemeanor Suspected."[125] By contrast, a summons may be issued for offenses less serious than a misdemeanor, such as violations.[126] Although the parties did not offer evidence on the types of summonses recorded in the UF-250 database, it is likely that many of these summonses were for violations rather than misdemeanors or felonies.[127] In these cases, the issuance of the summons provides no evidence that the suspicion giving rise to the stop was well-founded, because if the officer was following NYPD procedures, the stop cannot have been initiated based on suspicion of the summonsed offense. Similarly, when a stopped person provides identification and is then arrested for an unrelated open warrant, the arrest does not prove that the suspicion leading to the stop was well-founded.[128]

Second, the fact that many post-stop summonses are dismissed further undermines the reliability of the 6% post-stop summons rate as a true "hit rate, " that is, a measure of validated suspicions[129] The same argument applies to post-stop arrests that were not charged.[130]

Third, both summonses and arrests may be unrelated to the suspected crime for which a person was stopped. For example, it has been reported that the most common arrest after a stop is for marijuana possession.[131] The NYPD has recognized concerns that some marijuana arrests are based, improperly, on "occasions when the officers recover marihuana pursuant to a search of the subject's person or upon direction of the subject to surrender the contents of his/her pockets."[132] If it is true that officers sometimes carry out arrests for marijuana possession following stops that were based on suspicion of another crime, then these arrests do not provide evidence that the officers' initial suspicions were well-founded.[133]

B. Expert Testimony

Both parties offered expert testimony about whether the NYPD's stop and frisk practices violate the Constitution. After describing the qualifications of the competing experts and discussing their differing views on the central issues in dispute here, I first determine which expert I find more reliable and the basis for that decision. I then make certain findings based on the credible expert testimony with respect to both the Fourth and Fourteenth Amendment claims.

1. The Liability Experts

Dr. Fagan is a Professor of Law at Columbia Law School and Professor of Epidemiology at the Mailman School of Public Health at Columbia University. He has been studying the policies at issue in this case for over a decade.[134] Dr. Fagan's honors, academic and professional appointments, and publications, make him an expert in criminology, with special expertise in the statistical study of racial disparities in police enforcement activities.[135]

The City's liability experts are Dr. Dennis Smith, an Associate Professor of Public Administration at the Robert F. Wagner Graduate School of Public Service at New York University; and Dr. Robert Purtell, an Assistant Professor of Finance at the University of Albany's Nelson A. Rockefeller College of Public Affairs and Policy.[136] Dr. Smith has a Ph.D. in political science and is an expert at evaluating the effectiveness of police organizations. However, Dr. Smith is not a statistician. For this reason, Dr. Smith collaborated with Dr. Purtell, a statistical expert.[137] Dr. Purtell has a BS in Mathematics, an MBA with an emphasis on finance and economics, and a Ph.D. in Public Administration; began his career as a research mathematician writing code used to run regression analyses; spent over thirty years working in finance and management; and now teaches finance.[138] Dr. Purtell is not an expert in the study of policing, criminology, or racial discrimination.[139]

I find Dr. Fagan a more reliable expert than Drs. Smith and Purtell. While Dr. Smith's research makes him specially qualified to opine on the effectiveness of the NYPD's practices in controlling crime, the effectiveness of stop and frisk is not at issue in this case, as I have repeatedly explained. Unlike Dr. Fagan, Dr. Smith had never worked on a statistical study of racial disparities in any context until he became the City's expert.

In addition, while both parties' experts made errors in the course of their analyses that were later corrected, [140] one error by Dr. Purtell called into question the general reliability of his interpretations of Dr. Fagan's statistical analyses. Dr. Purtell conflated Tables 5 and 7 in Fagan's Reports, which are at the center of Dr. Fagan's conclusions regarding racial disparities in the NYPD's stop practices. Table 5 deals with the effect of the racial composition of a geographic area on the number of stops that take place there - without reference to the race of the individuals being stopped. Table 7 deals with the races of individuals who are stopped.[141] Yet, in his testimony, Dr. Purtell described how the numbers in Dr. Fagan's Table 5 "are comparing the probability of a black person being stopped to the chances of a white person being stopped, "[142] and persisted in defending that analysis even after plaintiffs' counsel explicitly pointed out the error.[143]

Finally, while the "battle of the experts" between Dr. Purtell and Dr. Fagan showed that Dr. Purtell has a sophisticated understanding of the purely mathematical aspects of statistics, Dr. Fagan has a deeper understanding of the practical, real-world meaning and implications of the statistical analyses in this case. Given a choice between relying on highly sophisticated mathematical analysis but limited practical understanding, or deep practical understanding informed by established statistical expertise, I favor the latter.

2. The Fourth Amendment Claim

a. Overview of Key Issues

Dr. Fagan performed an analysis of the NYPD's UF-250 database in order to evaluate how often the NYPD's stops lack reasonable suspicion. Before delving into Dr. Fagan's Fourth Amendment analysis and my findings, I highlight several general points.

First, it is impossible to assess individually whether each of the 4.4 million stops at issue in this case was based on an officer's reasonable articulable suspicion that criminal activity was afoot. It took weeks of testimony to try nineteen stops. It would take multiple lifetimes of many judges to try each of the 4.4 million stops.[144] The best available information for assessing those stops comes from the UF-250s prepared by officers shortly after the stops.

Second, while the UF-250 database is the best available source of information, it is highly flawed for the following reasons: (1) Officers do not always prepare a UF-250, either because the officer does not believe she made a Terry stop or because the officer failed to prepare the foam (2) A UF-250 is one-sided, in that the UF-250 only records the officer's version of the story. (3) Even NYPD commanders and supervisors have acknowledged that UF-250s do not provide enough information to determine whether reasonable suspicion existed for a stop.[145] (4) Many of the checkboxes on the UF-250 that officers use to indicate the basis for a stop are problematic. "Furtive Movements" is vague and subjective. In fact, an officer's impression of whether a movement was "furtive" may be affected by unconscious racial biases. "Fits Description" is a troubling basis for a stop if the description is so general that it fits a large portion of the population in the area, such as black males between the ages of 18 and 24. "High Crime Area" is also of questionable value when it encompasses a large area or an entire borough, such as Queens or Staten Island.

Third, Dr. Fagan was extremely conservative in characterizing stops as lacking reasonable suspicion. He categorized each stop as "apparently justified, " "apparently unjustified, " or "ungeneralizable." The City argued that because Dr. Fagan characterized only 6% of the stops as "apparently unjustified, " that is, lacking reasonable suspicion, the plaintiffs have failed to demonstrate that the City has a policy or custom of carrying out stops without reasonable suspicion. However, in light of Dr. Fagan's very generous assumptions in categorizing the stops, his analysis can best be understood as providing a very rough minimum number of unjustified stops. The actual number of unjustified stops was likely far higher. Moreover, even if I were to accept that Dr. Fagan's 6% figure accurately reflects the number of stops lacking reasonable suspicion - which I do not for the reasons stated here and below - that relatively small percentage still represents 200, 000 individuals who were stopped without reasonable suspicion. Even this number of wrongful stops produces a significant human toll.

b. Dr. Fagan's Method of Classifying Stops

Dr. Fagan estimated the number of stops apparently lacking reasonable suspicion by analyzing the UF-250 database. He began with the assumption that all the forms had been filled out accurately and completely, then distinguished the stop factors on Side 1 of the UF-250 from the stop factors on Side 2.[146] Dr. Fagan identified the following Side 1 boxes as providing a sufficient basis for a Terry stop, standing alone: (1) "Actions Indicative Of Casing' Victims Or Location" ("Casing"), (2) "Actions Indicative Of Engaging In Drug Transaction" ("Drug Transaction"), and (3) "Actions Indicative Of Engaging In Violent Crimes" ("Violent Crime"). Dr. Fagan defined the remaining Side 1 stop factors - except the "Other" box - as "conditionally justified, " that is, contributing to reasonable suspicion, but not generally providing an independently sufficient basis for a Terry stop: (4) "Carrying Objects In Plain View Used In Commission Of Crime e.g., Slim Jim/Pry Bar, etc., " (5) "Suspicious Bulge/Object (Describe), " (6) "Actions Indicative Of Acting As A Lookout, " (7) "Fits Description, " (8) "Furtive Movements, " and (9) "Wearing Clothes/Disguises Commonly Used In Commission Of Crime."[147]

Based on these classifications, Dr. Fagan categorized the stops recorded in the UF-250 database as (a) "apparently justified, " that is, based on reasonable suspicion; (b) "apparently unjustified, " that is, lacking reasonable suspicion; or (c) "ungeneralizable, " meaning that the UF-250 contains insufficient information to make a determination without further analysis.[148] All stops in which officers checked the "Other" box are categorized as either ungeneralizable or apparently justified.[149] A stop is "apparently unjustified" in Dr. Fagan's analysis if: (a) no Side 1 stop circumstances are indicated, and only one Side 2 additional circumstance is indicated - unless the Side 2 additional circumstance is "Other (Describe), " in which case the stop is ungeneralizable; or (b) only one Side 1 stop circumstance is indicated, that stop circumstance is only "conditionally justified, " and no Side 2 additional circumstances are indicated - unless the Side 1 stop circumstance is the "Other" box, in which case the stop is ungeneralizable.[150]

c. Unreliable Stop Factors

Dr. Fagan thoroughly undermined the assumption that the two most frequently checked stop factors provide a reliable basis for suspecting criminality: Furtive Movements on Side 1, and High Crime Area on Side 2.[151] Part of Dr. Fagan's argument against the reliability of these factors rested on the uncontested statistics cited above, [152] including that stops were more likely to result in arrest when Furtive Movements and High Crime Area were not checked than when they were. Courts have also recognized that furtive movements, standing alone, are a vague and unreliable indicator of criminality.[153] As Judge Richard Posner has stated in a related context: "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."[154] Recent psychological research has also provided evidence that officers may be more likely to perceive a movement as indicative of criminality if the officer has been primed to look for signs that "crime is afoot."[155] As I stated in Ligon, "[g]iven the nature of their work on patrol, officers may have a systematic tendency to see and report furtive movements where none objectively exist."[156]

Other recent psychological research has shown that unconscious racial bias continues to play an objectively measurable role in many people's decision processes.[157] It would not be surprising if many police officers share the latent biases that pervade our society.[158] If so, such biases could provide a further source of unreliability in officers' rapid, intuitive impressions of whether an individual's movements are furtive and indicate criminality. Unconscious bias could help explain the otherwise puzzling fact that NYPD officers check "Furtive Movements" in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the stops of whites.[159] There is no evidence that black people's movements are objectively more furtive than the movements of white people.

The High Crime Area stop factor is likewise problematic. Presence in an area with high rates of crime is not a sufficient basis for a stop, although it may contribute to reasonable suspicion.[160] Plaintiffs offered evidence that the High Crime Area checkbox has been interpreted so broadly by at least some officers that it would contribute very little to the justification for a stop.[161] In addition, Dr. Fagan has shown that the rate at which officers check High Crime Area in a precinct or census tract is roughly 55%, regardless of the amount of crime in the precinct or census tract as measured by crime complaints.[162]

Dr. Fagan also showed that over time, officers increasingly developed "scripts" for checking off stop factors.[163] Not only did the average number of stop factors checked on UF-250s increase, but this increase reflected a growing use of several of the more subjective stop factors, such as Furtive Movements, Evasive Response, High Crime Area, and "Actions Indicative Of Engaging In Violent Crimes."[164] There was also credible evidence of scripting in the UF-250s of officers who testified at trial. During a sample quarter in 2009, Officer Edgar Gonzalez - who carried out a notably high number of stops - checked the same four boxes on 99% of his UF-250s: Fits Description, Casing, High Crime Area, and Time of Day.[165] Officer Kha Dang - another aberrantly high stopper - checked an average of 4.2 boxes on the U250s he prepared during a sample quarter, and checked both High Crime Area and Time of Day on 75% of the forms, despite the stops being widely geographically and temporally dispersed.[166]

d. Quantifying the Magnitude of Apparently Unjustified Stops Based on UF-250 Stop Factors

Dr. Fagan's extremely conservative definition of "apparently unjustified" almost guarantees that the roughly 200, 000 stops he placed in that category underestimate the true number of stops lacking legal justification[167] For example, a UF-250 on which the officer checked only Furtive Movements on Side 1, and only High Crime Area on Side 2, is not classified as "apparently unjustified" according to Dr. Fagan's definition. Similarly, a UF-250 on which the officer checked only Furtive Movements and Suspicious Bulge on Side 1, and no boxes on Side 2, is not classified as "apparently unjustified." While some stops in which an officer checked only these factors might be based on reasonable suspicion, there is little doubt that many others would not be. In addition, any UF-250 on which an officer checked only the "Other" box on Side 1, or only the "other" additional circumstances box on Side 2, is not classified by Dr. Fagan as "apparently unjustified."

The finding that Dr. Fagan's stop factor analysis likely significantly undercounts the number of unjustified stops is corroborated by evidence in this case, as well as in Ligon, showing that officers sometimes fail to fill out UF-250s for stops that lack reasonable suspicion, or fail to fill out UF-250s because they misunderstand when an encounter evolves into a Terry stop, or fill out UF-250s inaccurately and in a way that increases the apparent justification for a stop.[168] In addition, several of the uncontested statistics suggest that far more than 6% of stops are "apparently unjustified, " including: the number of UF-250s that do not identify a suspected crime (36% of all forms in 2009), the fact that the two most commonly checked stop factors (Furtive Movements and High Crime Area) are negatively correlated with a summons or arrest, and the fact that only 12% of all stops result in an arrest or summons.[169]

The problems with Dr. Fagan's Fourth Amendment analysis of the UF-250s result not from analytical failures but from the inadequacy of the NYPD's systems for identifying unjustified stops when they occur. As a result, the magnitude of Fourth Amendment violations that have taken place in this case - beyond the rough minimum indicated by Dr. Fagan's statistics - will almost certainly never be known.

3. The Fourteenth Amendment Claim

a. Overview of Key Issues

The crux of plaintiffs' Fourteenth Amendment claim is that blacks and Hispanics are stopped more frequently than they would be if police officers did not discriminate based on race when deciding whom to stop. Assessing this claim required comparing statistics about rates of stops of blacks and Hispanics to "[a] standard, or point of reference, against which [those statistics] can be compared, assessed, measured or judged" - what is known in statistics as a "benchmark."[170] In this case, the benchmark was meant to capture "what the racial distribution of the stopped pedestrians would have been if officers' stop decisions had been racially unbiased."[171]

Conclusions regarding racial bias drawn from statistics "may vary drastically based on which benchmark is used."[172] As such, a central dispute between the experts regarding the Fourteenth Amendment claim was the appropriate benchmark for measuring racial bias in stops.

b. Competing Benchmarks

Each expert submitted voluminous reports and testified at trial in support of his choice of benchmark. Of necessity, I must simplify their very detailed and complex submissions and testimony to focus on the question at the heart of the parties' dispute: is there statistical evidence of racial discrimination in the NYPD's stop practices? With that caveat, I endeavor to summarize their differing benchmarks.

Dr. Fagan explained his choice of benchmark as follows:

[A] valid benchmark requires estimates of the supply of individuals of each racial or ethnic group who are engaged in the targeted behaviors and who are available to the police as potential targets for the exercise of their stop authority. Since police often target resources to the places where crime rates and risks are highest, and where populations are highest, some measure of population that is conditioned on crime rates is an optimal candidate for inclusion as a benchmark.[173]

Accordingly, Dr. Fagan's "analyses use both population and reported crime as benchmarks for understanding the racial distribution of police-citizen contacts."[174] While there is scholarly disagreement regarding the best benchmark to use in such measurements, none of the sources Drs. Smith and Purtell cited criticized the benchmark used by Dr. Fagan. In addition, at least one other study of a police department's stop patterns - a study of stop patterns in Los Angeles by Dr. Ian Ayres, the William K. Townsend Professor of Law at Yale Law School - used an "[a]lmost identical" benchmark to Dr. Fagan's.[175]

The City's experts, by contrast, used a benchmark consisting of the rates at which various races appear in suspect descriptions from crime victims - in other words, "suspect race description data."[176] The City's experts assumed that if officers' stop decisions were racially unbiased, then the racial distribution of stopped pedestrians would be the same as the racial distribution of the criminal suspects in the area.[177]

I conclude that Dr. Fagan's benchmark is the better choice. The reason is simple and reveals a serious flaw in the logic applied by the City's experts: there is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if. the people stopped are not criminals. The City defends the fact that blacks and Hispanics represent 87% of the persons stopped in 2011 and 2012 by noting that "approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were Black and Hispanic.[178] This might be a valid comparison if the people stopped were criminals, or if they were stopped based on fitting a specific suspect description. But there was insufficient evidence to support either conclusion. To the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest, [179] and only 13% of stops are based on fitting a specific suspect description.[180] There is no reason to believe that the nearly 90% of people who are stopped and then subject to no further enforcement action are criminals. As a result, there is no reason to believe that their racial distribution should resemble that of the local criminal population, as opposed to that of the local population in general. If the police are stopping people in a race-neutral way, then the racial composition of innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all other things being equal. Dr. Fagan's benchmark captures what the NYPD's stops would look like in the absence of racial discrimination: his use of local population data reflects who is available to be stopped in an area (assuming, as the evidence shows, that the overwhelming majority of stops are not of criminals), and his use of local crime rates reflects the fact that stops are more likely to take place in areas with higher crime rates.

By contrast, Dr. Smith rejected the assumption that 88% of those stopped were innocent. "[H]ow do we know... [i]f they were utterly innocent[?]" Dr. Smith asked at trial. He then proposed a "hypothetical" in which "the stop prevents a crime."[181] If one assumes that those stopped with no further enforcement action are nevertheless criminals, then it is natural to conclude, as Dr. Smith did, that a valid benchmark for measuring racial disparities in stops must "enable us to know who is committing the crime in [an] area."[182] Thus, he concludes that the best benchmark for the population of people who will be stopped in the absence of racial discrimination is the local criminal population. As Dr. Smith testified, "the best proxy for the share of the population by race engaged in the targeted behaviors that lead officers to make Terry stops" is the percentage of each racial category that appears in crime suspect data, or more precisely a combination of crime suspect data and arrestee data, because "[t]hat's what we know about who is committing crime."[183]

Based on this analysis, Dr. Smith concludes that the disproportionate stopping of black people can be explained by the disproportionately black composition of the pool of criminals.[184] But even if all stops by the NYPD were based on reasonable suspicion - which is highly unlikely for reasons already stated - the low hit rate would undermine the assumption that the stopped people were in fact engaged in criminal activity, and thus members of the criminal population. The City failed to establish that a significant number of the approximately 3.9 million stops that resulted in no further enforcement action were stops of people who were about to commit, but were prevented from committing, a crime.[185] Dr. Smith's theory that a significant number of these stops resulted in the prevention of the suspected crime is pure speculation and not reliable.

Crime suspect data may serve as a reliable proxy for the pool of criminals exhibiting suspicious behavior. But there is no reason to believe that crime suspect data provides a reliable proxy for the pool of non-criminals exhibiting suspicious behavior. Because the overwhelming majority of people stopped fell into the latter category, there is no support for the City's position that crime suspect data provides a reliable proxy for the pool of people exhibiting suspicious behavior. Moreover, given my finding that a significant number of stops were not based on reasonable suspicion - and thus were stops drawn from the pool of non- criminals not exhibiting suspicious behavior - the use of crime suspect data as a benchmark for the pool of people that would have been stopped in the absence of racial bias is even less appropriate.[186]

When confronted by plaintiffs' counsel with similar reasoning, Dr. Smith ultimately appeared willing to entertain the possibility that black people, even when they are law-abiding, might simply be more likely to engage in suspicious behavior than white people:

Q. So is it your testimony that law-abiding black people in New York City are more likely to engage in suspicious behavior than law-abiding white people?
A. I'm only saying that that's the evidence from the stop patterns, which we have said, according to Professor Fagan, are ninety percent apparently justified.[187]

Dr. Smith's position, while surprising, is not illogical once his premises are accepted. Dr. Smith apparently does not find it plausible that officers' decisions regarding whether to stop a person may be swayed by conscious or unconscious racial bias.[188] If a researcher begins with this premise, he will attempt to find a credible, race-neutral explanation for the NYPD's stopping of blacks and Hispanics out of proportion to their share of the population. For example, the researcher may seek to explain the disproportionate stopping of minorities as the result of the characteristics of the criminal population. However, as already explained, there is no evidence that 88% of the people stopped are, in fact, members of the criminal population. Next, the researcher may analyze the deployment of police to high crime areas or "hot spots." If these areas happen to be disproportionately minority, then heavy deployment to these areas will provide a race-neutral basis for the disproportionate stopping of minorities. But Dr. Fagan's "Table 5" analysis showed that blacks and Hispanics are overstopped even after controlling for police deployment to high crime areas.[189] In the end, if the researcher cannot think of any relevant race-neutral factors for which Dr. Fagan did not control, the only remaining race-neutral explanation for the NYPD's stop patterns may be that members of the overstopped racial groups have a greater tendency to appear suspicious than members of other racial groups, even when they are not breaking the law.

Rather than being a defense against the charge of racial profiling, however, this reasoning is a defense of racial profiling. To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation. This explanation is especially troubling because it echoes the stereotype that black men are more likely to engage in criminal conduct than others.[190] In a recent speech responding to the public controversy surrounding the shooting of a black teenager, President Obama noted his personal experience with this stereotype:

There are very few African-American men in this country who haven't had the experience of being followed when they were shopping in a department store. That includes me. There are very few African-American men who haven't had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me, at least before I was a senator. There are very few African-Americans who haven't had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.[191]

Another commentator observed in even starker terms:

What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin's hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.[192]

No doubt many people have heard similar fears and stereotypes expressed, whether intentionally or unintentionally. But race alone is not an objective basis for suspicion by the police. Because there is no evidence that law-abiding blacks or Hispanics are more likely to behave objectively more suspiciously than law-abiding whites, Dr. Smith's - and the City's - refuge in this unsupported notion is no refuge at all. It is effectively an admission that there is no explanation for the NYPD's disproportionate stopping of blacks and Hispanics other than the NYPD's stop practices having become infected, somewhere along the chain of command, by racial bias.

Why would the people stopped by the NYPD, both criminal and law-abiding, so closely resemble the criminal population - or, more precisely, the NYPD's understanding of the criminal population, based on its limited suspect data?[193] A simple explanation exists: the racial composition of the people stopped by the NYPD resembles what the NYPD perceives to be the racial composition of the criminal population because that is why they were stopped. Evidence discussed later in this Opinion shows that the NYPD has an unwritten policy of targeting racially defined groups for stops, based on the appearance of members of ...


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