NYT: “Judge Bars Testimony by Expert in Frisk Suit”

NYT: Judge Bars Testimony by Expert in Frisk Suit by Russ Buettner:

Mayor Michael R. Bloomberg has repeatedly said that the small number of guns found by police officers during stop-and-frisk encounters shows that the program is working as a deterrent, and not that the police are exercising poor judgment in deciding whom to stop, as critics have argued.

But a federal judge said on Friday said that the city had “no evidence” to make the deterrence claim, and called the argument “too speculative” to be admitted in court by New York City’s expert witness in a class-action lawsuit challenging the constitutionality of the city’s use of stop-and-frisk tactics.

The city’s expert appeared to be trying “to justify stops on the basis of their deterrent impact, regardless of their legality,” Judge Shira A. Scheindlin of Federal District Court in Manhattan wrote.

It’s a Daubert challenge. Floyd v. City of New York, 08 Civ. 1034 (SAS) (S.D.N.Y. August 17, 2012), at 14-15:

Plaintiffs argue that “Smith’s crime reduction opinions” should be excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?” Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of these programs “are indeed relevant, as they represent alternative, race-neutral explanations for the racial patterns in [stops and frisks] which Fagan failed to consider in his analysis of the data” and that “[e]xcluding Smith’s opinions would be highly prejudicial by forcing the jury to accept Fagan’s word unchallenged … when such strong evidence of methodological problems exists.”

Defendants are conflating two different aspects of Smith’s report: his benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and increase safety, particularly in minority neighborhoods. As I explained above, Smith’s benchmarking critique challenges Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher rates; it is a descriptive claim about the nature of racial disparities that is probative of the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore admissible.

However, Smith’s opinions about the deterrence and crime reduction impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime provides further evidence for his alternative hypothesis that [stops and frisks] are driven by where the crime occurs rather than by racial discrimination.” …

Floyd v. City of New York, 283 F.R.D. 153 (S.D. N.Y. May 16, 2012), granted in part, denied in part, 2012 U.S. Dist. LEXIS 116540 (S.D.N.Y. Aug. 17, 2012). See also Floyd v. City of New York, 861 F. Supp. 2d 274 (S.D. N.Y. 2012), Class certification granted 2012 U.S. Dist. LEXIS 68676 (S.D.N.Y., May 16, 2012).