5/20/13: We rest our case
A full – last – day in court today consisted of the closing arguments on both sides.The city, the defendants in this case, presented their closing first. They began with a defense of “productivity goals” and their insistence that these are different than quotas. They once again framed them in labor-management terms, saying the goals are needed to make sure “officers are out there doing what they’re paid to do.” The city noted that we had produced only one officer in the entire police force who claims that officers are adversely affected if they don’t make numbers. The judge countered that the tapes introduced into evidence points to something more – “the tape says what it says,” she said, and it includes direct numbers that officers were told by supervisors to meet.The city’s attorneys walked through each of the individual stops that CCR had presented witnesses about and threw a variety of criticisms at them – from challenging the credibility of our witnesses to claiming there was reasonable suspicion to claiming the stops weren’t stops in the legal understanding at that term. “Jaywalking is indicative of flight,” we learned in this recitation; that was said in reference to the stop of 13-year Devon Almonor.The judge peppered the city’s lawyers with many questions during their presentation, and later she also asked the plaintiffs’ lawyers questions, though fewer. She asked about the “hit rate” – the fact that in 90% of cases there’s no arrest, no summons – and expressed concern that that’s “a high error rate” and a high percentage of times that officers’ suspicions turned out to be wrong.The statistical evidence was once again debated, with arguments over the benchmarks being repeated. The city showed a scatter plot that demonstrated a correlation between crime suspect data (its preferred benchmark, which we’ve argued is problematic) and stops, that is, that the percentages by race of the two variables correlate. The judge questioned the city’s interpretation of the correlation – that it proves there is no racial bias – noting that it could also be evidence of exactly the opposite conclusion, that officers profile people based on the suspect data. CCR’s Darius Charney returned to this point in the plaintiffs’ closing as well.Plaintiffs’ closing began with Gretchen Hoff-Varner from Covington & Burling, who provided an introduction and a point-by-point counter-narrative on the 19 stops that individual witnesses had testified to. In several instances, she showed how officers “stopped first and then invented reasons later.” She talked about the “policy, pattern and practice of stops made without reasonable suspicion”; about the how the department’s incredibly low gun seizure rate “means clearly the NYPD isn’t stopping the right people to get guns off the street”; and how “the NYPD has laid siege to Black and Latino neighborhoods, tossing constitutional requirements out the window.”Charney, the lead attorney, reviewed the statistical data and also reviewed what our police practices expert had described as the big gap between written policy and operational policy at the NYPD. He talked about shortcomings in training, the failures of supervision and the “deliberate indifference” of the city’s disciplinary response.Jonathan Moore, co-counsel form Beldock, Levine & Hoffman, wrapped up the plaintiffs’ closing. He talked about how the city has not righted the problem despite knowing about it since 1999. He quoted the folk definition of insanity: doing the same thing over and over again and expecting different results. The NYPD can’t fix it on their own he argued.On the subject of quotas, Moore noted that even if supervisors didn’t use the word, officers understood that they were being asked to make numbers. But more than quotas, he identified the problem as one of pressure on officers. He also noted that Commissioner Ray Kelly had recently commented, on the subject of stop and frisk, the NYPD needs to be “preventers” rather than “first responders” – a pronouncement that doesn’t seem to bode well for department righting itself and stopping people based on reasonable, articulable suspicion.On the question of remedies, the city’s main argument is that the NYPD is fixing itself and so oversight and remedies are not needed. It’s a “big ship, slowly turning,” as one attorney put it, citing testimony from NYPD officials during the trial. A monitor would be “burdensome, expensive and get in the way of policing,” they said. Moore argued persuasively that this was not the case. In the plaintiffs’ remedy summation, the key point was that the process needs to be one where community groups come to the table to help craft a holistic remedy.Ten weeks after the historic Floyd v. City of New York started, it was finally over. The judge promised “a prompt decision,” though she added she wasn’t sure exactly what “prompt” would mean.
5/17/13: NYPD officers are "not William Shakespeare"
- James Stewart, whose testimony began yesterday, was the last witness on the last day of testimony in the historic Floyd v. City of New York trial. Stewart is the city’s expert for the remedies portion of this case. Yesterday he said that he thought the recommendations of CCR’s remedies expert were “unnecessary and inappropriate” and that he felt the NYPD has a “robust supervisory system” in place. He based his assessment on ride-alongs that he did with officers. He was asked today if his presence on these occasions could influence officers’ behavior, and he admitted that yes it could. He witnessed two stops, as noted, both of which ended in arrest – making his direct experience with stop and frisk highly anomalous. Six percent of all stops result in arrests, while 100% of the stops he saw did. He said he was “impressed with what seems to be the routine of things.”
On the subject of UF 250 forms and whether he thought it was a good idea that they include a narrative portion (as they used to, and as a March 5 memo directed that they have again, one day after CCR’s remedies brief in this case called for this same change). “They’re not William Shakespeare” he said in answering in the negative. He also said he thought that the narrative addition would mean it would take sergeants too long to determine the constitutionality of stops. He went on to say that sergeants should sit down with officers on a regular basis to determine constitutionality.Stewart opined that the NYPD is making extraordinary progress on three fronts: its policy; its meetings with community members; and its training. A court-appointed monitor, he said, was unnecessary because of this, and would be “premature and inappropriate.” He cited resistance to change as an indicator of when a monitor would be necessary. On cross examination by lead attorney Darius Charney, he was asked if he was aware that the NYPD was opposing legislative efforts to appoint an inspector general.Inside change is better than outside change, he said, and cited an example from his experience in Las Vegas, where a collaborative process brought together community groups and the police department. It was an example that might well have come from the plaintiffs. He agreed that community input was integral to the remedies process.On Monday, closing arguments will begin at 9:45 with the city’s closing. The plaintiffs closing argument will be in the afternoon. The Floyd case remedies are being combined with the remedies for the Ligon v. City of New York case (NYCLU, Latino Justice and Bronx Defenders) and therefore there will be a portion of closing arguments in the middle of the day that will address that case specifically.Ligon challenged “trespass” stops outside certain privately owned buildings in the Bronx (under NYC’s “Trespass Affadavit Program,” formerly and better known as “Operation Clean Halls”). In January, Judge Scheinlin granted the plaintiffs in Ligon a preliminary injunction, making a preliminary finding that the trespass stops policy is unconstitutional and ordering the NYPD to cease them. She withheld ordering additional relief until the conclusion of the bigger Floyd trial with an eye toward crafting a comprehensive remedy that addresses all the components of stop and frisk that are before her.
CCR’s remedies expert, Sam Walker, was the first witness of the day. Under questioning by Sunita Patel, he talked about his assessment of the city’s reviews of stop and frisk activity and the criteria he argued were essential for a robust review system.In analyzing more than 200 monthly reviews, Walker found that “reviews are superficial,” and that “performance [is] reduced to numbers.” He also testified that he saw repeated criticism of officers on the basis of insufficient numbers. He argued that what was needed was a qualitative review system rather than a quantitative one. Walker also spoke about the need for an early intervention system, being able to ID and flag officers whose stops were problematic. The NYPD already has many databases in place and a better, more efficient system could build on largely existing infrastructure.Walker elucidated the role of a court-appointed monitor: to oversee implementation of the remedies ordered by the judge; to report progress back to the court; to offer technical assistance to the department; and to establish procedures for community input into remedies.Jonathan Moore’s cross of Chief Hall followed the completion of Walker’s testimony. Moore covered a number of topics, including the March 5 memo Chief Hall issued requiring all officers filling out UF 250 forms to include an elaboration of the circumstances and factors involved in a stop, in addition to the check-off boxes of reasons. As it happens, this was the day after CCR filed its remedies brief in the case, which includes exactly this suggested revision of the UF 250 in its list of injunctive reliefs sought. Today Hall said that the timing was coincidence.The day, which ran an hour and a half longer than usual, ended with the first part of James Stewart’s testimony. Stewart is the city’s remedy expert and in direct examination he said he thought Walker’s remedy suggestions were “unnecessary and inappropriate.” He testified that he thought there already was a “robust supervisory system” in place. He based that assessment on personal observation of two interactions between an officer and a supervisor. The judge asked whether he felt he could make an assessment of the entire department based on observing two interactions, and he said he could.The last day of testimony will be tomorrow, a half day that will consist of the conclusion of Stewart’s testimony. Closing arguments will be on Monday.
The conclusion of Michael Farrell’s testimony took up the first part of the day. There was further discussion of appropriate benchmarks for statistical analysis, discussion of some of the RAND report findings and discussion of how audits of stops and frisks are conducted. Even as the topic at hand was the data and analysis in the RAND report, Farrell testified that he felt further data analysis was needed in order to take steps to address racial discrepancies in stops.On another topic, Farrell admitted that he was aware that debate around racial profiling has been going on within communities for several years. Asked by the judge if that included criticism of the NYPD, he said that it did. Farrell’s admission that he was aware of community criticism of the NYPD for racial profiling, while not directly contradicting the testimony of other commanding officers who have all said that complaints from the community never mentioned racial profiling, paints a different picture, one where at least one high-ranking police official knew that this was a concern.Farrell was followed by Chief of Patrol James Hall, whose direct testimony was far longer and more expansive than anticipated. Over four hours, Jonathan Moore and other plaintiff lawyers repeatedly objected as the defense pursued a line of questioning that had not been proffered to plaintiffs before hand, as required. The defense introduced new exhibits and tried to question Hall about them. Given the unexpected scope of the testimony, Moore requested a chance to review the transcript before beginning his cross examination. The judge agreed and Hall’s cross will be tomorrow.In the meantime, the plaintiff’s remedies expert took the stand for the last hour of the day. Sam Walker has 39 years experience as an expert in policing and police accountability issues. He presented an overview of the points of his testimony: that there must be a comprehensive accountability system to prevent unconstitutional policing; that there is a need for a court-appointed monitor to oversee the remedies; and that must be community input into the remedies. He began to go into some specifics before the day was out, and the judge asked some questions about how the implementation of a monitor would work, which Walker broke down in detail.The court was packed today with students from the Bronx School of Law and Finance. Meanwhile, outside the court, the city’s bad behavior in what CCR said “appears to be an unseemly attempt at judicial intimidation during trial” was taken to task after the city leaked an internal report critical of Judge Scheindlin. In a strongly worded statement, CCR condemned the attack on the judge as “outrageous.”
The day began with the continuation and conclusion of Christopher McCormack’s testimony. McCormack was pressed by co-counsel Jonathan Moore about his description, overhead on the tapes Pedro Serrano had recorded, of the “right people” to stop. Specifically, Moore wanted to know if McCormack gave his officers anything more descriptive than the description male Blacks ages 14 to 20 or 21. McCormack said he offered a more specific location and time for the origin of the broad description. But in terms of describing the people his officers should look for, he admitted that, no, he did not provide a description beyond race and age. Asked if he was concerned that this might lead officers to profile people, he said no.Inspector Kenneth Lehr was recalled to the stand after McCormack, discussing some additional data about complaints in his precinct, the 67th.The bulk of the day was spent on direct and cross examination of the NYPD Commissioner of Strategic Initiatives, Michael Farrell. The testimony focused on the RAND report, which Farrell had commissioned. Under questioning by Darius Charney, he testified about some of the language changes the NYPD requested in the report, methodology critiques concerning the report’s benchmarks and the department’s response to the report’s recommendations.The draft language in the report asked at one point, “Is the value of one arrest worth the cost of nine stops of innocent pedestrians?” At the department’s request, the word “innocent” was dropped and the final language reads, “Is the value of one arrest worth the cost of nine stops of suspects who have committed no crime and are not arrested?” Elsewhere a reference to “disturbing evidence” of racial profiling became “some evidence” of profiling.McCormack also testified to concerns that external reviewers had about the report’s benchmarking methodology. An email from the report’s author to Farrell indicated, “Two of three reviewers strongly indicated that the report gave too much credence to the external benchmarks.” Those two were mainly concerned with suspect description as a benchmark. The draft report said it couldn’t “claim the superiority” of any of the external benchmarks, but in the final report gives credence to crime-suspect descriptions as “more promising,” though it still admits it has pitfalls.The RAND report’s recommendations include, “The NYPD Should Review the Boroughs with the Largest Racial Disparities in Stop Outcomes.” Asked what he, the commissioner of strategic initiatives with oversight responsibility for multiple NYPD offices, did to implement that recommendation, Farrell testified that he looked at two data tables in the report (tables 5.2 and 5.3).Farrell’s testimony will conclude tomorrow and he will be followed by the city’s last witness in the liability phase, Chief of Patrol James Hall. After that, CCR’s expert witness for the remedies phase will take the stand, Sam Walker. His testimony will be followed by the city’s expert, James Stewart, who is expected to conclude Thursday. He will be the last witness before Monday’s closing arguments.
This morning began Round 3 of experts versus experts. CCR’s expert witness, Professor Jeffrey Fagan, and one of the city’s experts, Robert Purtell, made appearances to duke it out over statistical methods. In addition to direct and cross examinations by attorneys, Judge Scheindlin herself had many questions for the two experts. This very technical testimony goes to the heart of the case: what accounts for the undeniably disproportionate NYPD stops of Blacks and Latinos?
Next up was Deputy Inspector Christopher McCormack of the 40th Precinct in the Bronx. McCormack is probably best known for appearing on recordings made by whistleblower officer Pedro Serrano. When Serrano pressed McCormack about who he (Serrano) should be stopping, McCormack replied, “And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21.”
Today, plaintiff’s attorney Jonathan Moore, asked McCormack whether he had indeed given the same description Serrano had recorded – male Blacks, 14 to 21 – to all officers at roll call, and McCormack said yes. He did not seem shy about admitting this. Moore then asked him whether he had any concerns about such a limited description of a criminal suspect, and McCormack said no, he had no concerns.
When discussing Serrano’s stops (in the conversation that Serrano secretly recorded), Serrano talked with McCormack about how he would sometimes give a “warning and admonish,” in which he would approach a group of people and tell them they needed to move along, but he would not stop and frisk or arrest them. McCormack interpreted this to mean that Serrano does not know how to conduct stops, and that he needed to be retrained, as if not stopping and frisking everyone you talk to is somehow not doing your job correctly.
McCormack was asked about Officer Serrano, and said that he questioned Serrano’s leadership ability. This assessment was at odds with those of other supervisors, who gave several positive comments on evaluation forms shown in court, such as that Serrano had good ethics and the ability to be a leader.
McCormack’s testimony near the end of the day included a discussion about when a verbal command from an officer constituted a forcible stop. The discussion focused in part on the tone of voice an officer uses when stopping someone—whether he or she, for example yells “Hey! Stop!” or approaches the person and asks “Hey, could I talk to you a minute?” After, trying to understand what words and tone McCormack believes constitute a forcible stop, Moore said to McCormack, “So I guess you have to be there?” “Yeah,” replied McCormack, “I guess you have to be there.” This seems to leave what constitutes a forcible stop open to an officer’s interpretation.
Tomorrow, McCormack will finish testifying. Then Deputy Commissioner Michael Farrell and Chief of Patrol James Hall will testify.
5/10/13: "Performance goals" are not "quotas," they just happen to meet the same "productivity standards"
Today, cross examination of Chief William Morris from Patrol Borough Manhattan North, continued. Yesterday, Morris asserted that he had never received complaints about racial profiling. Today, however, he testified that he has heard numerous complaints from pedestrians of color who have said that they believed they had been stopped for no legitimate reason. When asked, Chief Morris testified that such complaints did not raise concerns for him that the stops may have been a result of racial profiling.After Morris, Captain Martine Materasso took the stand. Materasso was brought to testify in relation to the allegations Pedro Serrano made earlier in the trial, where tapes he made of rolls calls and other precinct conversations supported his and others’ claims that officers were expected to meet quotas for stops. Materasso was responsible for reviewing the appeal Serrano filed after receiving a negative performance review by a supervisor based on his stop-and-frisk activity. In the appeal, Serrano described the pressure he felt to stop people to meet a number. Materasso determined the evaluation of Serrano’s performance was conducted fairly. When questioned by co-counsel Jonathan Moore (Beldock, Levine & Hoffman) about how she arrived to that conclusion, Materasso admitted she based her determination on Serrano’s low numbers –the very criteria Serrano was calling into question in his appeal.In the afternoon, Officer Angel Herran was called to the stand. Herran, a union delegate, was taped by Officer Polanco telling officers that in their contract they had agreed to a quota of 20 summons and one arrest per month. During cross-examination by CCR’s Darius Charney, Herran explained that he was referring to the quota system in place prior to the law that abolished it in 2010. Charney asked Herran to clarify how the current “performance goals” articulated in Operations Order 52 differed from the now unlawful quota system he had referenced. Here’s the exchange:Charney: “I just want to make sure I have the terminology right. When you were referring to the 20 and 1, is it correct that that is a performance goal that is set for officers?”Herran: “Correct.”Charney: “Is another term for that a productivity goal?”Herran: “You call it productivity goal, performance goal.”Charney: “Are you familiar with Operations Order 52, speaking of performance goals?”Herran: “Yes.”Charney: “Are you aware that they use the term performance goal in Operations Order 52?”Herran: Yes.Charney: “Based on what you think a performance goal is, would you believe that the 20 and 1 would be an example of a performance goal that would be permitted under Operations Order 52?”Herran: “I would say yes.”The current “performance goals” are not quotas according to the NYPD. But according to Herran the “20 to 1” is a “productivity goal” that is a “performance goal” that is an example of what Operations Order 52 requires…At the conclusion of the day, a summary of stipulations was entered into the record. These are facts relevant to the case that both parties are in agreement about. Worth highlighting here is the fact that according to the stipulation, there was only one burglary reported in the vicinity of Plaintiff David Floyd’s home in the two months preceding his stop-and-frisk encounter on February 27, 2008. Since one of the two reasons the officers gave for the stop was a supposed “burglary pattern” in the neighborhood, this now-undisputed fact calls into serious question the legal basis for the stop.We expect the city to finish the presentation of its case in the liability portion of the trial mid-week next week. After that, a brief remedies phase will hear witnesses from both sides. Closing arguments are currently scheduled for May 20.
Today began with Kha Dang, one of the city’s “overstopper” officers. Under cross examination from Bruce Corey, he confirmed what his supervisor, Sergeant Joseph Marino, had said last week in court – namely, that his superiors were unconcerned with Dang’s stops. Dang testified that he never had any discussions with supervisors about the fact that 127 stops in one quarter resulted in only six arrests. No supervisor ever probed why 127 of the 127 stops were of people of color. Nor did any supervisor ask about the fact that 75 frisks resulted in zero weapons confiscations.Inspector Juanita Holmes, from the 81st Precinct, testified as other commanding officers have, that no one from the community had ever complained about racial profiling. In her case, Holmes qualified that by saying that City Council Member Leticia James did complain about racial profiling; but no one else.Chief William Morris from Patrol Borough Manhattan North, whose testimony began today and will continue tomorrow, made a similar assertion: that he had never received complaints about racial profiling.In addition to Morris, tomorrow’s schedule is expected to include Captain Martine Materasso, related to Pedro Serrano’s testimony, and Inspector Kevin Catalina, the commanding officer of the 44th Precinct.
After yesterday’s expert testimony, today returned to discussions of what happened at the precinct level – officers who made stops and supervisors of stopping officers.Detective Benjamin White, involved in one of the stops of CCR witness Nicholas Peart and questioned by CCR Legal Director Baher Azmy, today said that he had seen a “suspicious bulge” before jumping out of his car, gun drawn. In the CCRB investigation of the stop, though, he did not mention that, nor did he mention it in his deposition in this case. He had previously said that once Peart was on the ground on his stomach, he saw something that might have been a suspicious bulge but turned out to be a cell phone.Lieutenant Stacey Barrett, who worked in the same precinct with Pedro Serrano, was asked by co-counsel Jonathan Moore (Beldock, Levine & Hoffman) about a comment she is overheard making on one of the tapes Serrano made of precinct roll calls. “Go crazy in there,” she says on the tape, and explained today she said frequently in a way meant to encourage officers to vigorously pursue enforcement activity. The implication was that it was akin to a locker room pep talk. Barrett also talked about “performance goals.” She was asked if she thought officer could interpret them as quotas. She said no.The longest testimony of the day came from Lieutenant Charlton Telford, the supervisor of two of the city’s top “overstoppers,” Edgar Gonzalez and Michael Naboa. Telford testified that he did not know that they were overstoppers. Most of the questioning, conducted by co-counsel Casey Martini from Covington & Burling, concerned Gonzalez’s stops, and focused particularly on the third quarter of 2009. A disturbing picture emerged: Gonzalez stopped 134 people. In 132 cases, he checked off “fits description” and “high crime area” and “time of day” on the UF 250 form. The judge asked Telford whether he was concerned that 98% of the people stopped somehow “fit the description?” He said no. And while virtually every person allegedly fit a description, in zero cases did Gonzalez indicate that the stop was related to an “ongoing investigation.” Moreover, there were only four arrests resulting from those 134 stops, which see like pretty low odds if they all “fit the description.” Here, too, the judge asked if Telford was concerned. Once again, he was not. There were also zero weapons confiscations. Telford further testified that in general, most stops were self-initiated, which is hard to reconcile with the possibility that 98% of stops in a particular quarter fit a description.Telford was followed by Officer Anthony Navaretta, questioned about stops he made in the 28th Precinct.The last witness of the day was the much-anticipated Officer Kha Dang, the overstopper from the 88th Precinct whose supervisor testified last week. Dang took the stand late in the day, and on direct questioning started to discuss some of the stops he had made. The defense tried to bring in background information, which led to objections from the plaintiffs and then a three-way conversation about past rulings the judge had made about admissible testimony. The day ended there.There is no court tomorrow. Officer Dang will resume his testimony on Thursday. Also expected on the stand Thursday are Inspector Juanita Holmes from the 81st Precinct, Joseph Pfister from the Internal Affairs Bureau and Chief William Morris, the commanding officer of Patrol Bureau Manhattan North.
Today’s proceedings consisted of testimony from CCR’s expert witness in the case, Jeffrey Fagan, and the city’s experts Robert Purtell and Dennis Smith. During the first half of the day, Fagan had a chance to rebut some of the claims Purtell made last Friday, then Purtell was called to the stand to respond.Last week, Purtell took issue with one of the data tables Fagan used to show that, after controlling for crime and other variables, the racial composition of a neighborhood is the main statistical predictor of stop-and-frisk rates—meaning that, the higher the percentage of Blacks and Latinos in a neighborhood, the more stops will take place there. Purtell’s argument is that this increase in likelihood, although statistically significant, is not so as a practical matter, that is, it does not have a significant real-world impact. To show this, Purtell ran the data through a different mathematical function and based his conclusion on an average of 1 percent increases in percent black population in census tracts across the city. Fagan rebutted by arguing that in the real world, the black population does not increase by 1 percent but by much large numbers (20-30%) when you move from one census tract to another, so that the real world impact of a change in the racial composition of an area is a large increase in the number stops in that area.Fagan and Purtell will be called later in the week to continue their testimony on this subject.Following this, the City’s police Policy and Practice expert, NYU professor Dennis Smith, was called to the stand. Smith was questioned by city attorney Brenda Cooke and CCR’s Darius Charney.During questioning by Cooke, Smith postulated that by reading Fagan’s reports and analysis, or reading about their coverage in the media, people of color in NYC might be convinced they are being racially profiled even though they aren’t. One of his central critiques of Fagan was that one of the statistical benchmarks he used in his report – population – was flawed. According to Smith, Fagan should not have used census data in his analysis because census data doesn’t represent the types of people who might be in neighborhoods at different times of day. Smith’s argument was that populations in a city like NYC are constantly in flux since there are lots of tourists, social events, people who commute from various parts of the city… and “farmers markets.”Charney challenged this argument by asking Smith how many tourists are hanging out in Brownsville and East New York, especially at night or in the early morning when most stops take place. City data shows that most stops don’t take place in areas where the population is constantly changing (like Times Square). They take place in residential areas where racial composition is fairly constant.Charney also questioned Smith about whether “known crime suspects” was the “best proxy” he could find for the population of people who exhibit the “suspicious” behaviors which lead to police stops. After all, suspect race is missing in almost 40 percent of the NYPD’s reported crime data, and in at least 88 percent of stop-and-frisks there are no arrests or summonses, which means officers rarely stop people who are engaging in criminal activity. Smith didn’t give a straight answer, but did question whether those stopped and not arrested/summonsed are “utterly innocent.” “How do we know that they are utterly innocent?” Smith asked.Smith also critiqued how Fagan categorized violent crime data but the argument basically disintegrated when Charney revealed that Fagan had used the same categorization as the FBI does. Lastly, Smith was questioned by Charney about his other numerous critiques of Fagan’s report and conclusions. Smith admitted near the end of testimony that many of these critiques would not have significantly changed the outcomes of Fagan’s analysis.At the end of today, the Judge announced an order by the Magistrate Judge, Judge Pitman, that precluded the majority of the testimony to be offered by the City’s remedies expert James “Chips” Stewart, finding that the report did not address remedy but was mostly about liability, an issue which Defendants should have but failed to identify an expert witness to testify about years ago. At least for the moment, this is a big victory for the Plaintiffs. It means that the city’s remedy expert, James Stewart, will be extremely limited in what he can testify about. While the city may try to appeal, for the moment it looks like almost the entire report is precluded.
The bulk of today’s court session was taken up with the cross examination of Robert Purtell, the first of the city’s two experts. Purtell’s mission was, at noted yesterday, to criticize CCR’s expert report by Jeffrey Fagan. The day turned into a three-part debate about appropriate statistical methodology, with lead attorney Darius Charney dissecting Purtell’s critiques one by one and the judge weighing in frequently with questions and requests. A silent fourth partner in this drama was Fagan himself, who was in court and was occasionally consulted by Charney.Much of the questioning and the testimony was very technical and at times challenging to keep up with. But invariably questions about a particular point of data or methodology led to a larger point that went to the heart of the case, predominantly questions about the role that race plays (or doesn’t, in the city’s view) in stops and frisks.Purtell, who had been critical of Fagan’s omission of a particular variable in his analysis, admitted first that he had left out variables found to be significant by Fagan, and then that their omission undermined the validity of his results. He clearly didn’t want to say that, but eventually gave “a conditional yes” to repeated questions on this point.One point of what seemed like particularly esoteric statistical hairsplitting concerned Purtell’s claim that Fagan’s analysis didn’t account for trends. He made this claim even though the analysis was based on monthly data, which captures changing patterns, and included what’s called autoregression control, which prevents data from earlier periods from skewing analysis of later periods. But then Purtell insisted that while there was autoregression control, Fagan didn’t do it right; he should have used a time quadratic variable, Purtell claimed. Charney countered that by pointing out that that kind of variable is appropriate for data that conforms to a certain pattern, which the data in this case does not. Under repeated questioning, Purtell then admitted that he knew of no other study about racial disparity in policing that used a time quadratic variable.But the kicker was when Purtell was asked if he had ever run a time quadratic analysis of the Fagan data to see if it changed the outcomes. He had not. The same was true in several other instances, where Purtell maintained that Fagan should have done something differently but then had to admit he himself had not analyzed the data in the way he was saying it should be analyzed.Piece by piece, Charney’s questioning took apart Purtell’s objections to Fagan’s analysis and conclusions.Most revealing was a discussion of so-called zero-count monthly census tract data. Such zero-count instances are ones where in a specific census tract there were zero stops in a given month. Purtell was asked if he had done any analysis of the zero-counts . He had not. “Are you concerned,” Charney then asked, “that you could have introduced bias” if there were a significant difference in the characteristics of the zero-counts and the non-zero-counts. For instance, what if it turned out that zero-count census tracts were whiter demographically speaking that other tracts? It’s a question you have to work hard not to ask yourself given all the evidence in this trial. Yet some of the analysis that Purtell did excludes all the zero-counts, clearly potentially biasing the results.There were many other points of data and analysis argued throughout the day.When Purtell was done – and after the judge had asked Purtell and the defense to produce a set of statistical errors needed to calculate a set of T values that would allow her and others to compare Purtell’s analysis to Fagan’s – Phil McGuire from the Office of Management Analysis and Planning was recalled. The judge had wanted corrected data for the error identified last week in 2005 and 2006 data given to RAND for its report. Instead, the defense tried to introduce a new piece of evidence with a different analysis. The judge rejected it and asked that the original table in which the errors appear simply be updated with correct data. There was an extensive debate about how much the error might have affected RAND’s conclusions.After that, the defense tried to introduce, also unsuccessfully, another new piece of evidence with data based on the controversial “merged file,” already discussed earlier (see our update from 4/22/13). How that data set was constructed was interrogated by both the plaintiffs and the judge.Dennis Smith, the city’s other expert, who was expected to testify today, will instead take the stand first thing Monday morning.
CCR’s Darius Charney continued his cross-examination of NYPD Deputy Inspector Stephen Cirabisi today. Cirabisi had been the commanding officer of the 107th Precinct in Queens where one of plaintiff David Ourlicht’s stops took place. Cirabisi oversaw the supervisor of the officer who stopped Ourlicht. Charney noted that after Ourlicht’s mother filed a complaint with the NYPD regarding her son’s stop, the same supervisor who reviewed and signed off on Ourlicht’s stop investigated the complaint and determined it was “unfounded.” Charney asked Cirabisi whether he thought this situation presented a potential conflict of interest. Cirabisi said he did not think so.Cirabisi, who regularly attended COMPSTAT meetings (high level management meetings of the NYPD), was asked by both Charney and the Judge whether the fact that Blacks and Latinos made up 80 percent of NYPD stops consistently for several years was ever discussed in the context of possible racial profiling concerns. Cirabisi said no.Charney then proceeded to show Cirabisi a demonstrative exhibit created by the City that broke down certain data for 2011 in Cirabisi’s current precinct, the 114th. The data showed discrepancies between the stops of Blacks and Hispanics versus the stops of Whites in relation to the race of “known crime suspects.” Despite making up over 25% of all “known crime suspects,” Whites made up only 18.6% of all stops in the 114th. However, the opposite was true for Blacks and Latinos – together they made up around 75% of all stops despite being only around 67% of criminal suspects. Adding more issues to the mix, the population of the 114th precinct is majority white. Charney asked Cirabisi whether this data gave him any concerns that racial profiling could be happening in his precinct. Cirabisi said no.After the court’s morning recess, Robert Purtell, one of the City’s expert witnesses, was called to the stand. Purtell attempted a rereading of Prof. Fagan’s expert report, disputing some of Fagan’s conclusions and analysis. The Judge stopped Purtell several times to get a clearer answer on his critiques, and sustained several objections from Charney when Purtell attempted to testify on issues outside the purview of his expert report.Charney began his cross-examination of Purtell in the late afternoon, drawing out the fact that Purtell has no background in analyzing studies of racial bias in policing before this case. Cross will continue tomorrow morning.
Cross examination of Sergeant Marino continued today, a half day in court. Marino testified today as he did yesterday to a lack of concern about the stops that Officer Kha Dang conducted. We heard yesterday that he was unconcerned that 90% of Dang’s stops in the third quarter of 2009 were of Blacks, even though the neighborhood is only 43% Black. Today we heard that he was not bothered by Dang’s lack of weapons recovery (zero in the aforementioned quarter, when he made 127 stops) or by Dang’s noting in 41 of his UF 250s that one of the reasons for the stops was that they occurred between 11am and 8:45pm. Marino said this made sense because there are burglaries during those times.One incident that co-counsel Bruce Corey asked Marino about involved the stop of nine Black people, and Dang marked “furtive movements” on the UF 250 forms for all of them. He was asked, “So all nine were making furtive movements, or only one?” and then, “They were all making the same furtive movement?” Marino indicated he did not believe it was all the same movement.Marino was followed by Stephen Cirabisi, who was the commanding officer of the 107th when named plaintiff David Ourlicht was stopped. CCR lead attorney Darius Charney’s cross examination of Cirabisi had barely started when the abbreviated day ended. The 107th received the lowest possible score for 2007 and 2008 in the Quality Assurance Division’s audits for its memo book documentation, and under repeated questioning, Cirabisi conceded that he never directly instructed officers to put more information in their memo books than on their UF 250s. Cross examination will continue tomorrow.Also expected in court tomorrow is Phil McGuire, from the NYPD Office of Management Analysis and Planning. He is being recalled to testify further. McGuire will be followed by Stacey Barrett, in regard to Pedro Serrano’s allegations, and then the first of the city’s expert witnesses, Robert Purtell.
- Testimony today covered a range of witnesses and topics. Inspector Lehr, from the troubled 67th Precinct, when asked about complaints he received from the community, said that no community member had ever mentioned racial profiling in complaining about police stops. Under questioning from co-counsel Gretchen Hoff Varner from Covington & Burling, he acknowledged that people complained about the way they were stopped, but insisted that racial profiling was never part of their complaints. He even said that Council Member Jumaane Williams, a leading critic of the NYPD’s stop-and-frisk practices, while an “outspoken critic,” also didn’t complain about racial profiling.
Detective Santos Albino and Sergeant Justin Dengler were cross-examined by CCR’s Sunita Patel about their work in investigating stops that had no officer IDs. At issue for the plaintiffs was some of the methodology they use, including the way that photo arrays are set up for identifications.Jenn Borchetta, co-counsel from Beldock, Levine & Hoffman, questioned Michele Hawkins, one of the officers involved in stopping Kristiana Acevedo. Her cross-examination revealed, among other things, that while Hawkins had a substantiated CCRB complaint against her stemming from inadequate memo book documentation in this case, no one ever reviewed or discussed the findings with her, forfeiting a chance to help make sure it was done properly in the future.The most striking testimony today concerned Officer Kha Dang, one of the identified “overstoppers,” from his supervisor, Sergeant Joseph Marino. In one quarter alone (third quarter 2009), Dang stopped 127 people in the 88th Precinct – and not a single one of them was white. To be exact, 115 of them were Black, seven were white Hispanic and five were Black Hispanic; zero weapons were found, one piece of contraband was found. The 127 stops results in six arrests and one summons.The Fort Greene neighborhood that the 88th Precinct covers is a racially diverse one, with 43% of residents being Black. Asked by Bruce Corey from Covington if the extreme discrepancy between the percentage of Blacks in the neighborhood and the percentage of Dang’s stops that were of Blacks concerned him, Marino said no.Community members from central Brooklyn were among those who packed the court today.Tomorrow’s schedule is the conclusion of Marino’s cross-examination, followed by testimony from Stephen Cirabisi, the commanding officer of the 107th Precinct, and time permitting, Lieutenant Stacey Barrett, who will testify in relation to Pedro Serrano’s allegations.
Today was the first full day of city witnesses testifying in the Floyd trial. Chief Shea, former head of the Police Academy, finished his testimony. He was followed by Detective Damian Vizcarrondo, one of the officers who stopped our witness Kristiana Acevedo, and then three police supervisors who testified in relation to Pedro Serrano’s testimony earlier (Serrano, regular readers may recall, testified about the pressure to make quotas, and recorded precinct conversations that document his claim.)Vizcarrando gave conflicting answers as to why he stopped Acevedo, who was walking down an empty street in an isolated area. First he said it was because she looked upset and worried and he wanted to help her. Later he described the stop as an opportunity to gather intelligence (he was a narcotics officer at the time).Lieutenant Dewkomar Mohan, Sergeant Eduardo Silva and Sergeant Stephen Monroe each addressed Serrano’s testimony about quotas. Mohan and Monroe both said flat out that they never heard anyone discussing numbers of stops that were expected. Silva, by contrast, said numbers were mentioned, but noted that officers were never mandated to do certain numbers of stops. “Performance goals” were acknowledged to exist, and Silva at one point was asked if he was aware that a precinct commander had said that 60% of officers’ evaluations were based one “performance goals.” He testified that he was aware that a bad evaluation could have adverse employment impacts.Afternoon testimony included Inspector Kenneth Lehr, from the 67th Precinct, a precinct that has one of the highest number of stops and a tense history with the community, most recently embodied in the police killing of Kimani Gray and the community protests that the killing sparked.
That witness was James McCarthy, the special operations lieutenant in the 107th Precinct when named plaintiff David Ourlicht was stopped. McCarthy supervised the sergeants, who supervise beat cops. He made a couple of statements that underscore once again that apparent lack of interest throughout the NYPD in ascertaining whether stops are conducted in compliance with the Constitution. As of his deposition in 2009, he said no sergeant had ever discussed a UF 250 with him. And he said he’d never discussed the NYPD’s racial profiling policy with anyone under his supervision.The city’s first witness as they began their case was Chief James Shea. Until mid-2012, he was the head of the Police Academy and he testified today about the department’s training of officers as it related to giving direction about what constitutes reasonable suspicion and about conducting frisks. A training video and Power Point presentation were shared with the court. The video, which was titled "On Recognizing Characteristics of Armed Suspects" and which depicted only one white person as a suspect, listed a number of signs to watch out for. These included carrying a tilted shopping bag, carrying an elongated package, having one’s hands in one’s pockets and walking away as an officer approaches. Shea indicated that a single factor could not be taken as reasonable suspicion and that officers needed to assess a situation overall.Shea’s direct testimony was extensive and his cross examination by CCR began late in the day. It will continue on Monday. One point in the cross examination that was covered today inquired into the NYPD’s updated training materials, which include a refinement of four delineated levels of interaction the police have with the public. Level three in this schema is the one that requires reasonable suspicion and requires the completion of a UF 250. Level two is one where a person is free to walk away from the interaction. However, spelled out in the actions an officer may take at level two – without the need for reasonable suspicion – is that an officer “may place hand on holstered firearm” and “may ask individual to remove his/her hands from pockets, direct and individual to remove an item held in his/her hand, may forcibly remove individual’s hand from pocket.” How many New Yorkers would avail themselves of the right to walk away from an officer with his or her hand on a holstered firearm was a question not addressed.A change in the trial’s schedule was announced today: there will be no court tomorrow, Friday. Testimony will resume on Monday.
- More than five weeks into the historic Floyd v. City of New trial the plaintiffs called their last witness for this part of the trial and the defense began putting on its case. CCR and its co-counsel will call other witnesses during the remedies phase, but for now, we concluded with one last witness for the liability phase.
Mary Cronin, head of the NYPD’s Quality Assurance Division (QAD), continued her testimony this morning. Among many things, the QAD audits officers’ documentation of stop-and-frisk incidents. CCR’s Darius Charney questioned Cronin about the “fail” scores her division gave to almost all NYPD precincts in 2009-2011 for recording stop-and-frisks inadequately. Note that without proper records, supervisors can’t really evaluate the lawfulness of stops.Cronin testified that, since 2008, she has been notifying NYPD precincts of deficiencies in how officers record stop-and-frisks. Upon QAD notification, precincts are supposed to report back on the steps they will take to address deficiencies. Scores for 2009-2011 speak for themselves about the steps taken: All but one precinct kept getting a “fail” grade after the problem was brought to their attention, with the Bronx consistently getting one of the lowest scores. Cronin also noted whereas the QAD interviews and speaks to individuals during an audit of crime complaints, it only looks at paperwork during its audits of stops-and-frisks practices.After Cronin, Lou Reiter, the plaintiffs’ police practice expert, took the stand. Reiter has been a police practices expert for over 30 years, was an LAPD officer during the 60s and 70s, and has worked as a consultant auditing police practices for departments across the country.Reiter noted that when he was in the LAPD – before and after Terry v. Ohio – officers were required to provide full written narratives explaining each stop they performed. Upon reviewing the evidence presented in this case, Reiter found “systematic failures” in supervision within the NYPD, something that can create an “operational policy” that is quite different from the official, written policies and procedures of the department. According to Reiter this gap is what opens the door for police misconduct such as unlawful stop and frisks.Reiter was also shown a summary of QAD results for the auditing of memo book entries for the years 2003-2012 for the Patrol Services Bureau of the NYPD. Echoing Cronin’s testimony, he observed that the results show officers were consistently failing to document stop-and-frisk activity in their memo books and that reviews of the memo books by supervisors were inconsistent and, if performed, often insufficient. In regards to the lack of stop-and-frisk supervision within the NYPD at multiple ranks, he commented “It’s like everybody sticks their head in the sand.”When it was the defendant’s turn to examine Reiter’s testimony, the City’s lawyers spent more time challenging his credentials and methodology than questioning him about the evidence he reviewed. Speaking of credentials, we forgot to mention that Reiter was also been hired as a consultant by the NYPD in the past. Tomorrow, defendants will begin presenting their witnesses.
Today’s proceedings consisted of testimony from two NYPD officials who head departments responsible for oversight of officer conduct: the conclusion of testimony from Julie Schwartz, the Deputy Commissioner of the NYPD’s Department Advocates Office, and the beginning of testimony from Mary Cronin, head of the NYPD’s Quality Assurance Division.The Department Advocates Office recommends what disciplinary action, if any, the NYPD should take against officers involved in substantiated complaints. Yesterday, Schwartz testified that that the level of discipline recommended a majority of the time for substantiated CCRB complaints was the lowest level of discipline available, “recommend instruction.” Asked today if the Advocates Office had ever done a study to see if receiving such instruction worked to deter future incidents, Schwartz said no.Cronin testified about the stop and frisk audits the Quality Assurance Division does, audits that the settlement in Floyd’s predecessor case, Daniels v. City of New York, mandated to assess the presence of absence of reasonable suspicion of stops. The audit form, however, despite a plethora of categories, has no category for “reasonable suspicion.” When questioned about this, Cronin opined that reasonable suspicion could be assessed through two other categories on the form, one that indicated the circumstances of a stop and one that indicated whether the person stopped was a crime suspect.Cronin also testified about a survey that was put in place after the RAND report, essentially a spot check for three precincts that had had higher stop-and-frisk numbers than the previous year and had been flagged by QAD. They pulled samples of radio runs and followed up with an examination of stops that resulted from these radio runs. But as CCR’s Darius Charney pointed out, only one third of stops were in response to radio runs. QAD’s review looked at the UF 250s from these stops along with the activity logs, and if the circumstances checked off there corresponded with the reported crime, they considered that satisfactory evidence of reasonable suspicion. Left unexamined in this process were stops that were self-initiated by officers, not in response to specific reports of a crime, which one might reasonably (no pun intended) assume were more likely to be problematic.Cronin will continue testifying tomorrow, and Lou Reiter, the plaintiffs’ police practice expert, is also expected to be on the stand.
The day began with the answer to the question on everybody’s mind from Friday’s dramatic decision by the judge to recall James Mahoney and Scott Giacona, the officers involved in stopping Leroy Downs. Last week they had testified that it wasn’t them who stopped Downs. Today, the judge asked them if they recognized Downs, who was sitting in court, and they said no. In turn, she asked Downs if he recognized them, and he affirmed unequivocally that these were the officers that stopped, pushed, frisked and searched him. It was an emotionally powerful moment, embodying in one instance the hope of thousands that there can and will be accountability for the unjust way they were treated by the NYPD.Testimony from the rest of the day was often dry and at times steeped in the details of data sets and appropriate methods for analyzing data. But some of the content of the testimony was remarkable, even if it wasn’t riveting. Phil McGuire, from the NYPD Office of Management Analysis and Planning, continued his testimony from Friday about the department’s commissioned report from the RAND Corporation on racial profiling. The most significant admission there was that there was a serious flaw in the data provided by the city to RAND for the study: 40% of violent crime suspects were mislabeled in the data as Black when instead their race was unknown.The city introduced another report, also flawed in its methodology, into evidence today. The “Reasonable Suspicion Stops Report,” which the city only began issuing once the Floyd trial had been scheduled, relies on a merged data set that incorporates a questionable assumption, namely those arrested for a crime actually committed it, and therefore that the race of someone who was suspected of the crime can be deduced from the arrest data.McGuire’s testimony was followed by that of Julie Schwartz, the Deputy Commissioner of the NYPD’s Department Advocates Office, the office that recommends what disciplinary action, if any, the department should take against officers involved in substantiated complaints. The court learned that in 2010 and 2011 that the level of discipline recommended a majority of the time for substantiated CCRB complaints was the lowest level of discipline available, “recommend instruction.” Moreover, there was a marked increase in the recommendation for this lowest level of discipline over the previous three years.Schwartz will conclude her testimony tomorrow, when the court will also hear from Mary Cronin, head of the NYPD’s Quality Assurance Division; James McCarthy, the supervisor of Christopher Moran, who stopped David Ourlicht; and Lou Reiter, the plaintiffs’ police practices expert.
- The court heard today from the final two witnesses that CCR has called to testify about their experiences being stopped, Leroy Downs and David Ourlicht.
In his testimony, Leroy Downs recounted how he was sitting on the stoop outside his home, talking on the phone using an ear piece. An unmarked police car drove by and at the end of block, went in reserve. Downs figured the black Crowne Victoria to be a police vehicle and was standing when the officers jumped out of the car and demanded, “You smoking weed?” He answered no. They pushed him against the fence, frisked him and searched him. And found no weed or anything else on him.Downs asked for their badge numbers, which they refused to give him. After the encounter, he went down to the precinct, where he saw the officers again and asked the sergeant for their badge numbers. The sergeant refused, telling Downs to get them himself.Yesterday, the two officers who stopped Downs, James Mahoney and Scott Giacona, testified that it wasn’t them who made the stop. Upon hearing Downs’s testimony this morning, the judge ordered the two to appear in the afternoon so Downs could indicate whether or not it was them. This led to a dramatic, tense moment in the afternoon when two new attorneys, representing the two officers separately from the city, appeared and declined initially to produce the officers on the grounds that they might incriminate themselves. In the end the judge decided to recall the witnesses for further questioning in light of today’s testimony. They and Downs will be in court on Monday, making today a bit of a cliffhanger.David Ourlicht, a named plaintiff in the case, testified after Downs. He described three separate stops, including one in which he and a friend he had stepped out to join on a smoke break were stopped by officers with guns drawn. On a separate occasion he and a white friend were stopped and frisked. The officers found weed on his friend, and gave it back to him; and went on to frisk, search and threaten to arrest Ourlicht. They found nothing on him.The last person to testify today was Phil McGuire, an assistant commissioner and the head of the NYPD Office of Management Analysis and Planning that released the RAND report discussed yesterday. McGuire was asked about the report’s reliance on crime suspect data as a benchmark, as Terry Riley had been yesterday. The questioning zeroed in on the problem of relying on violent crime suspect data, as the report does, when race was unknown in 50% of that data and, critically, when only 15% of stops were based on suspicion of violent crime. In other words, the violent crime suspect data is a poor measure to try to discern what role racial profiling played in stops.McGuire, too, will be back in court on Monday, along with Downs and, Mahoney and Giacona.
The focus of much of the morning’s testimony was a report commissioned by the NYPD from the RAND Corporation. Terry Riley, from the department’s Officer of Management Analysis and Planning, answered questions about the 2007 report, “Analysis of Racial Disparities in the New York Police Department’s Stop, Question and Frisk Practices.”Riley’s testimony offered a number of revealing insights into the report and the process that generated it. He confirmed that there were some language changes made, at the request of police officials, between the draft version sent to the NYPD for review and the final version. Of these, the most remarkable was the deletion of the adjective “disturbing” to describe RAND’s finding of evidence of racial disparities in how stops were carried out.The final report acknowledges that there are disparities and explains the selection of “benchmarks” to try to measure whether the “large racial disparities” of the raw numbers genuinely reflect racial bias. Riley acknowledged on the stand today that one of the independent experts who reviewed the report had argued that a valid benchmark must include a measure of crime as well as a measure of the population in the area (a criticism relayed to the NYPD by the report’s author at the time). Such a two-part critique is actually what Prof. Jeffrey Fagan used in his report, which he testified about extensively earlier in the trial and which finds a much more pronounced racial bias.Turning to the RAND report’s recommendations, the morning’s questions revealed that they went largely unimplemented: Reviews of stops and frisks in places with large disparities did not happen, individual “over-stoppers” were not identified, and communication and negotiation with the community – which RAND said was “most important” – did not happen to the recollection of Riley.Helen McAleer, who is the commanding officer of Investigation Review for the NYPD, testified that her office received very few racial profiling complaints, but also that neither racial profiling complaints nor complaints about stops and frisks had a dedicated code in their system; both get categorized under “general dissatisfaction.” She also explained that her office’s review of an investigated complaint consists solely of a review of the forms filed (“disposition sheets”) documenting the investigation, without follow up to see if the investigation was sufficient. This testimony was reminiscent of precinct supervisors who testified that their only review of stops was a look at UF 250 forms.In the afternoon, the court heard from two officers who were involved in one of the stops of Clive Lino (Mohammed Hassan and Jose Colon). These were the city’s witnesses, not the plaintiffs, reflecting some schedule juggling that is going on. It also heard from Christopher Moran, a stopping officer of David Ourlicht’s. The latter was called by CCR, not the city.Ourlicht, a named plaintiff in the case, will testify tomorrow about his experiences being stopped and frisked, as will Leroy Downs. The court will also hear from Phil McGuire, an assistant commissioner and the head of the NYPD Office of Management Analysis and Planning that released the RAND report. It may possibly also hear from another city witness, Detective Viscarando.The courtroom and the overflow room were packed today by lawyers, specifically Legal Aid, 5 Boro Defenders and others whose clients are among the NYPD’s primary targets in stop and frisk.
The day started with testimony from Lt. Cosmo Palmieri, former Integrity Control Officer of the 43rd Precinct where our lead plaintiff David Floyd was stopped. Judge Scheindlin asked Palmieri whether when reviewing officers’ UF-250s he had ever found one that was improperly filled out. “Never,” responded Palmieri. He also admitted he never discussed racial profiling with anyone at his precinct.After Palmieri, class member Cornelio McDonald from Fresh Meadows, Queens, took the stand. As McDonald was crossing the street walking home one night after leaving his mother’s house, an unmarked van pulled up in front of him, and a group of officers got out and stopped and frisked him. The only things the officers found were his keys and his cell phone. “I felt embarrassed, ashamed, no reason to stop me, I didn’t do anything,” McDonald said.Officer Edward French, one of the officers who conducted McDonald’s stop, was questioned next. According to French, he stopped and frisked McDonald because he had his hands in his pocket and there was a “suspicious bulge.”“Cold that night – wasn’t it?” asked the Judge, referring to why McDonald’s hands would be in his pockets. “Yes,” French replied. The audience laughed.The “suspicious bulge” in McDonald’s pocket turned out to be a cell phone. That’s the “reason for stop” checked off on the UF-250 form French filled out for the stop.After French, his supervisor, Sgt. Michael Loria, took the stand. Between his deposition three months ago and today, Loria gave conflicting answers regarding his review of UF-250s for reasonable suspicion, making corrections to his deposition transcript where several times he changed an answer from “no” to “yes” when explaining whether a “suspicious bulge” on its own was enough of a reason to conduct a stop.The final testimony of the day was from Officers Scott Giacona and James Mahoney who stopped Leroy Downs, a class member witness from Staten Island. Both officers testified that they did not recall the stop. The Civilian Complaint Review Board, however, identified them as the stopping officers based on the description Downs provided. There is no UF-250 record of Down’s stop. He is expected to testify on Friday.Giacona’s testimony will continue tomorrow. The court will then hear from Helen McAleer, Commanding Officer of Investigation Review for NYPD, and Terry Riley of the NYPD’s Office of Management Analysis and Planning.Social workers from across the city packed the courtroom today. During recess, they spoke outside at a press conference calling for an end to discriminatory policing practices and describing the lingering trauma experienced by communities who are aggressively stopped and frisked.
The court heard today from two officers involved in the stops of witnesses who testified earlier in the trial, and two precinct officials with oversight in the cases of several witness stops. The most stunning testimony of these came from Edward Arias, whose account of the circumstances that led him to stop Clive Lino encapsulated virtually everything that CCR attorneys have been saying is wrong with the NYPD’s stop-and-frisk policy.Arias testified that Lino’s stop took place in the context of a report on a robbery pattern and that Lino fit the description of a suspect who was Black between the ages of 25 and 30 and approximately between 5’6” and 6’ tall (the age range is what Arias remembers now). The judge responded by pointing out that the height range encompasses virtually all Black men in the city.Arias said that he and his partner saw Lino and another man standing on the street corner and after they drove around the block, they were still standing on the corner! Then came what Arias considered the “furtive movement” (an official category on the UF 250 form where officers check off why they stopped people): Lino went into the Chinese restaurant behind him. The officers responded by stopping and frisking both of them. They found nothing, made no arrest and issued no summons.This story resonates for countless New Yorkers because it exemplifies the problems of stop and frisk. Two friends standing waiting for their take-out order outside a restaurant is a completely unremarkable scene in the life of a city. But in the eyes of officers working for a “performance goals-”obsessed NYPD and armed with a “description” that included just about every young Black New Yorker, Clive Lino and his friend became suspects.In the afternoon, the court heard from the integrity control officers at the 28th Precinct (Enno Peters) and the 107th Precinct (Carlo Barelli), the precincts in which Deon Dennis and David Ourlicht, respectively, were stopped. Both precincts have repeatedly failed audits for not documenting stops in officer memo books. Neither integrity control officer could demonstrate any real effort to ensure that stops were properly reviewed for their constitutionality. Peters, for instance, said he could not recall anything he had done to ensure that officers were complying with the law regarding racial profiling.Tomorrow the court will hear from one more integrity control officer, Cosmo Palmieri, of the 43rd Precinct, where David Floyd was stopped; from Cornelio McDonald, who was illegally stopped in Jamaica, Queens; and from Edward French, the officer who stopped McDonald, as well as Michael Loria, French’s supervisor.
The fifth week of the historic Floyd v. City of New York trial got underway with testimony form the head of the Civilian Complaint Review Board, as well as several other witnesses. As we reported last week, former NYPD Chief Joseph Esposito answered a reporter’s question about what he would say to the parents of kids who have been stopped repeatedly by saying, “File a complaint.” The existence of a review process is no excuse for unconstitutional policing, but a look at how that process works through today’s testimony was certainly illuminating.CCRB Executive Director Joan Thompson answered questions about how the CCRB works and the nature and results of the complaints it receives. Those in court – which today included community activists working on issues of mass incarceration – learned that a significant number of the substantiated complaints the CCRB reviews result from stops and frisks. Most are from Black New Yorkers. And a disturbing number of substantiated complaints do not result in any disciplinary action (30% in the first half of 2012).The inadequacy of the CCRB process for adjudicating complaints was also clear when Thompson testified that a majority of complaints are “truncated,” that is not fully investigated for any number of reasons.Also in the stand today was the NYPD deputy commissioner of labor relations, John Beirne, one of the architects of Operations Order 52. This is a crucial memo, sent to all supervisors throughout the NYPD, that talks about setting productivity goals. It is part of what created the numbers-driven working environment for officers. Beirne testified that he had no problem with “performance goals for employees” that were numerical.What Operations Order 52 does not require supervisors to do is review the constitutionality of stops. In combination with earlier testimony that made clear that in practice supervisors are checking properly completed UF 250s but not reviewing the constitutionality of stops, it seems clear that such review is simply not happening in any meaningful way.Today’s proceedings also included the conclusion of Donald McHugh’s testimony and a very few minutes of the beginning of Sean Gillespie’s. Gillespie was one of the officers involved in Dominique Sindayiganza’s stop. He will continue tomorrow. Next up will be Edward Arias, who was involved in Clive Lino’s stop. After that the court will hear from a series of precinct officials with oversight in the cases of several witness stops.
Former NYPD Chief Joseph Esposito took the stand for a second day. He stuck to his theme from yesterday, namely that racial profiling isn’t a problem at the NYPD. Yesterday, as reported, he said that if there’s reasonable suspicion, there can’t be racial profiling present, and that a properly completed UF 250 form satisfied him that there was reasonable suspicion. Today, he added that he had not gotten complaints about racial profiling from the community.
“I don’t have any electeds, community groups, no people in housing projects” making complaints, the chief asserted. The courtroom – which was coincidentally packed today with public housing residents and activists concerned about the impact of stop and frisk on NYCHA residents – reacted with incredulous laughter.
Judge Scheindlin had a similarly incredulous reaction, and asked Esposito, “You’ve never heard from any community groups?” at which point Esposito qualified his answer to say that he had heard from the Civil Liberties Union and Rev. Al Sharpton but clearly did not consider either part of the “community.”
Esposito also trotted out one of the NYPD’s talking points, that it is Black and Latino communities that benefit most from stop and frisk because crime is highest in Black and Latino neighborhoods. “Young men of color are doing these shootings of young men of color. I’m out there trying to keep the young men from being shot.” Apart from the fact that unconstitutional stops of innocent people aren’t making Black and Latino neighborhoods safer, it’s worth noting that no one ever refers to crimes like, say, yesterday’s stabbing rampage in Texas as “white-on-white crime.”
At lunch, a NY1 reporter asked Esposito what he would say to the parents of the kids who have been stopped so many times each. “File a complaint,” was his answer.
Two additional officers who were involved in the stops of witnesses in the case testified today as well. They were Brian Kovall (Clive Lino stop) and Luke White (Dominique Sandayiganza stop).
In the afternoon Donald McHugh, the commander of the 41st Precinct at the time the Officer Polanco taped roll call conversations there, testified. McHugh is one of the people heard on the Polanco tapes, though his most striking comment today was on another comment captured on tape. McHugh said he thought it “morally offensive to give a direct number” of stops an officer must make.
Community groups (Chief Esposito take note) in court today included Community Voices Heard, Mothers on the Move, Good Old Lower East Side, Families United for Racial & Economic Equality and the NAACP Legal Defense & Education Fund. As noted, a goal of today’s court presence, as well as an accompanying lunchtime press conference, was to draw attention to the impact of stop and frisk on public housing residents.
Court is in recess until Monday, April 15, and will resume with the continuation of McHugh’s testimony. In the meantime, check out today’s New York Times coverage of Esposito’s testimony yesterday, and this Wall Street Journal interview with NYPD Commissioner Ray Kelly that explains “Kelly and his officers” are “suddenly under ferocious political assault” for stop and frisk because (according to Kelly) Democratic campaign strategy is “You suck up to a special-interest advocacy group.” The Journal added, “One such group is the Center for Constitutional Rights, which is suing the NYPD in federal court to stop stop-and-frisk.”
Former NYPD Chief Joseph Esposito, the highest ranking uniformed officer in the department and the highest ranking officer to testify in the historic Floyd v. City of New York trial, took the stand today. He was questioned on a broad range of topics that relate to the department’s oversight of stop-and-frisk policies and its efforts to ensure that stops are constitutional.
Esposito admitted under oath that he never read the Attorney General’s report on racial profiling…that his deposition in this case was the first time he saw the stipulation in the prior Daniels case…that he did not recall whether or how various recommendations in the RAND report were implemented…
But the bulk of Esposito’s testimony centered on his contention that if there was reasonable suspicion, it meant that a stop couldn’t be based on racial profiling. It was the retired chief’s idea of what constituted reasonable suspicion, though, that was troubling. Asked at one point if one could tell solely by looking at a UF 250 form if there was racial profiling, he said yes. But for those in the courtroom – which was packed today by, among others, high school students from East Flatbush – who have listened to the testimony of officers about stops they made in which they contradicted themselves or each other, gave reasons like jay walking or looking repeatedly over one’s shoulder as a reason for a stop, and testified to details they never mentioned at the time, it was abundantly clear that a properly completed UF 250 form is anything but a guarantee that a stop was conducted with reasonable suspicion and without racial bias.
Asked, “if an officer checks off ‘furtive movements,’ that would be enough for you, correct?” Chief Esposito replied, “correct.” “Furtive movements” is the most frequently checked box on the UF 250 and is, according the Prof. Fagan’s testimony, is a weak indicator of a reasonable, articulable suspicion.
Esposito also testified that it is up to supervisors to ensure that officers are engaging in lawful stops. But here, too, those that have sat through three weeks of testimony in this case can point to example after example where supervisors failed to meaningfully review the constitutionality of stops conducted under their supervision. We have heard testimony that they look solely for a properly completed UF 250, don’t talk to officers for further investigation, or fail to look at officers’ memo books as required.
At lunch time there was a press conference in support of the Community Safety Act that included City Council Members Jumaane Williams, Brad Landers and others, as well as national NAACP chief Ben Jealous, local NAACP head Hazel Dukes and Rev. Al Sharpton. The effort to end discriminatory policing is being waged on multiple fronts, with the Floyd case and legislative efforts each being part of a comprehensive strategy for change.
The court heard from five witnesses today, two New Yorkers who were illegally stopped and three officers who were involved in the stops of witnesses who testified last week.
The two stop experiences were related by Dominique Sindayiganza and Lalit Clarkson. Clarkson is a named plaintiff in the case and said that he joined the suit that his experience and those of his friends led him to recognize “there are policies within the NYPD that need to be changed or addressed for police-community relationships.”
The experience he related underscored exactly why. He was on his lunch break, stopped outside a bodega after picking up a sandwich from Subway. He was a second grade teacher, dressed like a teacher, and remembered, “I was thinking, why did you stop me? I’m on my way back to school to teach my kids.”
The officers who testified were Louis DeMarco, involved in the stop of Kristianna Acevedo, and Daniel Leek and Edgar Figueroa, both involved in the stop of Clive Lino. Their stories contained some familiar elements that court observers have come to recognize over the last three weeks. DeMarco was inconsistent in the reason he cited for the stop. Interestingly, he maintained that the stop was not a stop, only an encounter, and explained that stops require reasonable suspicion.
Both Leek and Figueroa, meanwhile, admitted that they were subjected to “performance objectives” or “performance goals.”
Figueroa’s testimony will continue in the morning. It will be followed by testimony from Joseph Esposito, former NYPD Chief of Department, the highest-ranking police official to be a witness in the Floyd trial.
Expert testimony continued today, with the conclusion of Prof. Jeffrey Fagan’s testimony in the morning and the beginning of Prof. Eli Silverman’s testimony in the afternoon.
As it had yesterday, the city’s cross examination of Fagan failed to cast any doubt on his research findings. Whether it was his methodology or his data set that was questioned, Fagan confidently demonstrated the validity of his analysis. That analysis has been damning to the city’s case this week, quantitatively substantiating CCR’s claims that stop and frisk violates both the Fourth Amendment ban on unreasonable searches and seizures and the Fourteenth Amendment’s prohibition against racial discrimination.
Fagan’s research backed up the many stories we’ve heard from New Yorkers about being stopped for no reason, except that they were Black or Latino. In the same way, Silverman’s testimony supported the evidence introduced by whistleblower testimony and the tape recordings heard in court, demonstrating quantitatively the pressure felt by police officers to ‘get numbers.’
Silverman presented findings from two surveys he and Prof. John Eterno did of retired police officers, one in 2008 and one in 2012. In the surveys they asked whether officers had felt “high,” “medium” or “low” pressure to make arrests, issues summons and make stops. In all three categories, the percentage of officers reporting that they were highly pressured shot up dramatically during the Bloomberg/Kelly era. In the case of pressure to make stops, the proportion of cops that reported high pressure to make stops increased almost fourfold (from 9.1% for the pre-1995 era to 19.1% in the 1995-2001 era to 35.1% in the 2002-2012 era) while those reporting low pressure fell by more than half.
"The responses we got floored us....We didn't expect this level of pressure,” Silverman told the court.
Not surprisingly, the reported increased pressure to make stops paralleled the dramatic rise in actual stops that the NYPD made: from 115,000 in 2002 to a peak of 685,000 in 2011, and 533,042 in 2012.
One thing that Silverman and Eterno’s 2012 survey found that did go down was…pressure to obey constitutional rights. For the early era, 44.6% reported high pressure to obey the Constitution, and in the Bloomberg era, that number dropped to 35.7%.
In the courtroom today were CUNY students and faculty. CUNY students, the majority of whom are people of color, are among those targeted by the NYPD for stops and frisks and they held a midday press conference as well, sharing their experiences of beings stopped.
On Monday, Prof. Silverman will conclude his testimony, and the court will hear the stories of two more New Yorkers who were illegally stopped, Dominique Sindayiganza and Lalit Clarkson, one of the named plaintiffs. Also expected to testify are Louis DeMarco and Damian Vizcarrondo, two officers involved in the stop of Kristianna Acevedo.
4/4/13: Research shows what New Yorkers already know: Race is a "statistically significant predictor" of stops
Prof. Jeffrey Fagan continued his testimony today, covering some of the most important evidence in the entire trial. Yesterday Fagan discussed the conclusions of his analysis as they related to the lack of reasonable and articulable suspicion for stops and frisks, in other words as they speak to our case’s core claims of violating the Fourth Amendment. Today focused on what the data shows about race as a basis for stops, going to our central claims of Fourteenth Amendment violations.
At times the courtroom felt more like a classroom, a graduate-level statistics class. Prof. Fagan talked about the “negative binomial regression” method he used to evaluate the data. There were graphs and tables and at one point even a request from the judge that Prof. Fagan draw her a picture explaining the point he was making. Judge Scheindlin was very intent on the testimony and asked frequent clarifying questions.
But even though Fagan’s presentation was dry compared to some of the moving stories we heard earlier from New Yorkers who have been unjustly stopped, it was critically important to the case and, properly understood, just as disturbing.
What his thorough analysis of eight and a half years of UF 250 forms documenting stops and frisks shows is that, after controlling for crime and other variables, “racial composition of the neighborhood is a statistically significant predictor of stop rates.” (We also learned what “statistically significant” means, in essence that the results could not happen by chance, they are not a fluke.) In other words, the higher the percentage of Blacks and Latinos in a neighborhood, the more likely people are to be stopped there. Fagan went on to discuss analysis of stop data based on individuals’ race. Similar to the neighborhood factor, an individual’s race is a statistically significant predictor of how likely they are to be stopped, with Blacks and Latinos more likely to be stopped than whites.
Prof. Fagan spoke at length about the various ways he tested these conclusions, various factors he checked, and the methods he used. At one point he explained a set of tables as his own attempt to “poke holes” in his conclusion about the connection between race and stops. In essence, he was saying that he double-checked his own conclusions by testing other variables and those conclusions held up to the scrutiny.
Fagan’s research shows what millions of New Yorkers already know from personal experience – that people get stopped for no other reason than being black- or brown-skinned. But the fact that this can be proven through statistical analysis is critical to our case. It cannot be dismissed as merely “anecdotal.”
In the afternoon, the city’s attorneys cross-examined Fagan, but they were unable to put a dent in his conclusions because of the thoroughness of his research and methods.
Prof. Fagan’s testimony will continue and conclude tomorrow.
For years the NYPD was been selectively presenting its stop-and-frisk statistics to attempt to justify why it stops thousands of innocent New Yorkers every day. Today, one of our expert witnesses in the trial, Prof. Jeffrey Fagan, took to the stand to describe his analysis of a decade’s worth of stop-and-frisk data.
The day started with an overview of Fagan’s decades-long career researching and analyzing crime statistics in academia and for other police departments. Plaintiff’s attorneys then proceeded to question him about his findings and methodology.
For this case, Fagan was tasked with analyzing the information recorded by police officers in their stop and frisk reports (UF-250 forms) between 2004 and June 2012. Fagan’s reports can be found in the research section of the Floyd case page.
When asked by the plaintiffs’ attorneys how many arrests resulted from stops according to the NYPD’s own data, Fagan answered: “far less than you would achieve by chance.” The data shows that only around 5 percent of stops result in an arrest issued. Fagan compared the “hit rate” in NYPD stops to the case Indianapolis v. Edmund where random stops were made at check points by police. These random stops resulted in a higher arrest rate – 9% - than the NYPD’s stop and frisks.
Fagan noted that in total, only 11% of NYPD stops resulted in an arrest or summons. This sparked the judge’s interest and she asked: “so basically in 89% of all stops people just walk away?”
From the analysis Fagan also noted that over the years officers have increasingly been checking off the categories “furtive movements” and “high crime area” on the UF 250 forms. At one point the judge asked what the constant rise in these factors indicated to Fagan. He replied it might mean that for an officer it’s “a lot easier to follow a script than do the hard work of establishing reasonable suspicion.”
Fagan also stated that the data shows racial disparities both in terms of people stopped and comparative “harshness” of the stop, meaning that not only are Blacks and Latinos more likely to get stopped even after controlling for crime in the area and other factors, but they are also 14% more likely to have force used against them than whites.
Fagan’s testimony will continue tomorrow and Friday.
Also today, Sergeant Richard Hegney continued his testimony about the stop of plaintiff David Ourlicht. Hegney was in charge of reviewing a complaint against the officer who stopped Ourlicht and failed to act on discrepancies between the UF 250 form and information in the officer’s memo book about the reasons for Ourlicht’s stop.
In the afternoon, women activists and members of Street Wise and Safe, Black Women’s Blueprint, NYCLU, National Organization for Women, and Ms. Foundation, held a press conference outside the courthouse. They spoke about women’s experiences of stop-and-frisk and other forms of discriminatory policing and the fact that these go under-reported.
The morning focused on tapes recorded by Adrian Schoolcraft, who from 2008 to 2009 recorded hundreds of hours of precinct roll calls, conversations with supervisors and stationhouse small talk at the 81st Precinct in Bedford-Stuyvesant. The tapes and Schoolcraft’s story made a splash when the Village Voice published them in 2010. Of interest to lawyers in the Floyd case were those portions of the tapes that clearly reveal pressure officers faced to ‘get numbers.’
“We need 250s” one lieutenant says in a typical remark on the tapes, referring to the UF 250 forms officers fill out for stops and frisks.
In addition to ample evidence that supervisors pressured officers to “get out, get some activity,” as another typical exhortation caught on tape put it, there were other remarks that reflect troubling attitudes towards community members. “We have to get all the f—ing riff-raff on the corners,” as though standing on a street corner were inherently suspicious.
Another disturbing comment was, “they might live there, but we own the block.”
These comments echo what State Senator Eric Adams testified yesterday Police Commissioner Ray Kelly said to him about Blacks and Latinos: “he stated he targeted that group because he wanted to instill fear in them [that] every time they leave their home they could be stopped and frisked.”
The Schoolcraft tapes were followed by testimony from Steven Mauriello, the commanding officer of the 81st Precinct at the time. Mauriello answered questions carefully, dodging any outright admission that officers were pressured to produce numbers.
The testimony of Officer Richard Hegney, who stopped plaintiff David Ourlicht, was similar, denying the existence of quotas even while being played tapes that clearly indicate pressure to make certain numbers of stops.
Hegney’s testimony will continue tomorrow afternoon. In the morning, CCR’s expert witness in the case, Prof. Jeffrey Fagan will take the stand. Fagan’s testimony is expected to span several days. In two reports, one covering 2004-2009 and the other 2010-June 2012, Fagan’s analysis reveals that after controlling for crime, local social conditions and the concentration of police officers, Blacks and Latinos are significantly more likely to be stopped than whites. Reviewing UF 250s, Fagan’s analysis also shows that hundreds of thousands of stops lacked reasonable, articulable suspicion, thus violating the Fourth Amendment. Both reports and summaries thereof are in the research section of the Floyd case page.
As usual, the courtroom was packed, today with members from the Peoples’ Justice for Community Control & Police Accountability coalition, including Justice Committee, Malcolm X Grassroots Movement and CAAAV Organizing Asian Communities. They held a lunchtime press conference as well.
The morning began with the much-anticipated testimony of State Senator Eric Adams. Adams, a 22-year veteran of the NYPD before running for public office, testified about a conversation he had with Police Commissioner Ray Kelly in the context of a meeting with the governor that both men were a part of in July 2010. Kelly said that he “felt that it was a good deterrent,” Adams told the court today, referring to stop and frisk. The senator recalled raising the concern that the policy unfairly targeted Blacks and Latinos. In response, “he stated he targeted that group because he wanted to instill fear in them [that] every time they leave their home they could be stopped and frisked.”
Adams made clear that he is not opposed to constitutional stops and frisks – stops made with reasonable suspicion – but just as clear that unconstitutional stops are “terrible.” “The tool is great, if used correctly,” he said, but “nowhere are you allowed to use the tool to instill fear.”
He also noted that complaints about stops he receives from residents of neighborhoods he represents come largely from African Americans. He doesn’t get complaints from Park Slope, for instance, but does from Flatbush, and in Crown Heights the complaints come from Blacks but not from Hasidim.
Following Adams’ testimony, CCR called Lieutenant Fernando Guimares, the supervisor of the officers that stopped David Floyd, to the stand. Under questioning, he admitted that his review of officers’ stops was limited to checking to see if the UF 250 form was properly filled out. He never discussed the underlying circumstances of stops with the officers under his supervision, he said, nor reviewed their memo books to see if proper entries were made there as required. His reviews, in other words, made no effort to ascertain whether stops were constitutional.
In the afternoon, two witnesses talked about their experiences being stopped by the police. Kristianna Acevedo talked about the frightening experience of being stopped by two officers in an unmarked van. Clive Lino was stopped in the lobby of his apartment building. During the stop, the officer’s cell phone rang, with a 50 Cent ringtone. The officer remarked, “here’s little rap for you, it should calm you down.”
“That’s your problem, you’re stereotyping me,” Lino testified that he replied. “Rap’s not my number one genre of music.”
“Your attitude is the reason you got stopped,” the office replied, according to Lino.
The courtroom was packed, as usual, this time by young people, who also held a midday speak out and press conference. But at the very outset of the day, some of them were told by security guards at the courthouse that they would have to take off or wear inside out their t-shirts that said “I am more than a quota.” They said they were warned that if they put the shirts back on once they got upstairs, they would be arrested.
Tomorrow attorneys will play the tapes of Adrian Schoolcraft, the police officer that recorded hundreds of hours of precinct rolls calls, conversations with supervisors and street encounters, later given to the Village Voice, and who was checked into an emergency psychiatric ward against his will in retaliation. They reveal, among other things, pressure on officers to make stop-and-frisk quotas. Also on the stand will be Steven Mauriello, one of Schoolcraft’s superior officers.
The court was in session for only half the day today due to the holiday. Sergeant James Kelly’s testimony continued in the morning. Kelly was the supervisor present for the stop and frisk of David Floyd, our lead plaintiff.
CCR’s Darius Charney questioned Kelly to determine why Floyd was stopped and frisked in front of his home with a neighbor on February 27, 2008 while trying to open the door.
The officers at the time claimed there had been a string of burglaries in the vicinity. But Darius’s questioning revealed that the crime data for that area included no recorded burglary reports within the three weeks before Floyd’s stop. Prior to that, seven burglaries had been reported on the other side of the Bronx River Parkway, approximately a mile away. According to Kelly, this was still “within the vicinity” of Floyd’s home.
As for the reasonable individualized suspicion required to conduct the stop, when pressed by the Judge on whether he considered a large set of keys a “burglary tool,” Kelly answered yes. Yet Kelly also said that he could not actually see Floyd’s hands from the car when deciding to stop him and his neighbor.
The officers frisked Floyd to make sure he didn’t have any weapons, then, when Kelly was “satisfied” that Floyd lived there, he said “have a nice day” and let him go.
On the stand, Kelly was also asked if he had ever reviewed the NYPD’s racial profiling policy with his officers. His response? Since “a reasonable person isn’t going to racially profile, so it’s not something that’s discussed very often.” Maybe it should be?
Next up, the deposition of Assistant Chief Raymond Diaz was read into evidence. In addition to checking off categories on the UF 250 form listing the reasons for a stop (like the notorious “furtive movements,” or “inappropriate attire for season”), NYPD officers are required to write up details of the stops in their memo books. These detailed descriptions are a critical tool for supervisors to evaluate whether officers are conducting lawful stops. Diaz’s deposition showed that for several years, officers under his command failed to record specific details about the stops they were conducting yet faced no adverse consequences.
Here’s a nice bit from the deposition:
Q. [Plaintiffs’ Attorney] So that means that of all the stops and frisks, 90 percent does not lead to any kind of arrest activity, correct?
A. [DIAZ] Yes.
Q. [Plaintiffs’ Attorney] As a senior police officer in the police department, does that give you any cause for concern?
[MS. ROSSAN] Objection to form.
A. [DIAZ] No.
The day ended with the deposition of Dwayne Montgomery, a precinct commander under Diaz’s supervision, being read into evidence.
Interfaith leaders from the community packed the courtroom today and spoke outside at a press conference about the negative impact of stop and frisk on their communities.
The conclusion of Montgomery’s deposition will be read Monday morning, and then New York State Senator Eric Adams, a former NYPD sergeant, is scheduled to testify. This should be a big one.
Class member Kristianna Acevedo will also take the stand.
Student and youth activists will be joining us in court Monday. They will be doing a press conference at 1:00PM in Foley Square to discuss the impact of stop and frisk on young people, especially young people of color.
Today began with Officer Luis Pichardo continuing his testimony. Yesterday, Pichardo said that he was under direct pressure to make numbers – five summons per tour, and specific numbers of stops and arrests – at the time that he stopped Deon Dennis, one of the plaintiffs in Floyd. While several other cops have testified to the existence of quotas, Pichardo’s admission is particularly significant because he is a hostile witness.
At the conclusion of his testimony, the court heard from two officers involved in the stop of David Floyd (Cormac Joyce and Eric Hernandez) as well as their supervisor, Sergeant James Kelly. Both Joyce and Hernandez testified to details of the stop that they have never mentioned before, retroactively constructing rationales for a baseless stop. Joyce, for instance, today said that Floyd had a “suspicious bulge,” but the UF 250 that Joyce filled out at the time of the stop did not have the “suspicious bulge” box checked off.
Both Joyce and Hernandez have been the subjects of civilian complaints for stops they’ve made, multiple complaints in Hernandez’s case. When shown a photo of the Latino complainant in the complaint against Joyce, Joyce said, “That's half the Bronx.”
Meanwhile, LGBT groups turned out today to raise awareness about LGBT people being targets of stop and frisk, and particularly young LGBT people of color. In the courtroom and outside at a press conference were the New York City Anti-Violence Project, the Audre Lorde Project, FIERCE, Make the Road NY and Streetwise & Safe. Last week, on the first day of the trial, CCR Education and Outreach Director Annette Dickerson published this blog about the NYPD’s targeting of LGBT youth.
Tomorrow will start with the continuation of Kelly’s testimony and the reading of depositions from Raymond Diaz and Dwayne Montgomery; Montgomery was the commander of the 28th Precinct, where Deon Dennis was stopped, and Diaz was the borough commander of Patrol Borough Manhattan North, which includes the 28th Precinct. We’ve been told that State Senator Eric Adams is now expected to testify on Monday. Court will be in session for a half day tomorrow.
WBAI had a great piece on yesterday’s proceedings.
The most significant development in the case today actually centered on a piece of evidence that has not yet been formally introduced.
On March 5, the NYPD’s chief of patrol, James Hall, issued a memo, “effective immediately,” requiring all officers filling out UF 250 forms to include an elaboration of the circumstances and factors involved in a stop, in addition to the check-off boxes of reasons. As it happens, this was the day after CCR filed its remedies brief in the case, which includes exactly this suggested revision of the UF 250 in its list of injunctive reliefs sought. “Plaintiffs specifically request that the UFT-250 form should be modified to: (i) include a narrative portion for police officers to justify the basis for stop, frisks and searches…” (p. 17) it says.
Just last week, during the opening arguments in the trial, the city’s lawyer derided the idea of adding a narrative portion to the UF 250, saying “NYPD officers take the job to help people, not to be writers.” But now, it seems, the city wants to introduce the March 5 memo ordering officers to do just that into evidence in the trial. The judge indicated that the memo could not be introduced at this time because there was no officer present in court who could testify to it, but indicated that it would be in evidence once properly admitted.
The day’s actual proceedings began with testimony from the two officers who stopped and handcuffed 13-year old Devon Almonor. Inconsistencies in their stated reasons for stopping him were taken apart in what one observer called “a withering dissection” by co-counsel Jenn Borchetta from Beldock Levine & Hoffman LLP. Brian Dennis said Almonor was stopped because he looked over his shoulder and adjusted his waistband; Jonathan Korabel said he was stopped for jaywalking. (Check out the Daily News’s report on the officers’ testimony: “NYPD cop admits he taunted innocent 13-year-old boy during stop and frisk.”)
In the afternoon, Officer Luis Pichardo, one of the officers involved in Deon Dennis’s stop, testified, as did Sergeant Flavio Rodriguez, the sergeant who investigated Dennis’s civilian complaint and admitted that he spoke to Dennis about it for no more than two minutes. He also said that he had never in his career become aware of any officer having insufficient basis for a UF 250 stop. Pichardo, for his part, became the latest cop to admit on the stand that the NYPD had stop and frisk quotas, testifying that up until at least 2009, there were quotas the 28th Precinct.
The courtroom and two overflow rooms were packed today by members of the Muslim American Civil Liberties Coalition. Muslims are one of the communities targeted by the NYPD’s stop and frisk program, and have also been subjected to illegal surveillance by the NYPD (CCR together with Muslim Advocates has brought a case against the NYPD for spying on Muslim communities in New Jersey).
State Senator Eric Adams, who was scheduled to testify today, could not make it because of budget negotiations in Albany. We’ll let you know when his testimony is rescheduled. In the meantime, on deck for tomorrow are the conclusion of Pichardo’s testimony, and officers involved in David Floyd’s stop (Cormac Joyce, Eric Hernandez and James Kelly) as well as their supervisor, Lieutenant Fernando Guimares.
NYPD Deputy Chief Michael Marino took the stand today. Marino, the first hostile witness that CCR has called in the case, testified that he set stop and frisk, arrest and summons quotas for officers under his command while at the 75th Precinct. A state arbitrator ruled in 2006 that they were illegal quotas under the state’s labor law, but there were no disciplinary consequences.
Marino testified that he no longer sets quotas but he does have “performance goals.” To those in the courtroom, which was once again packed, it seemed like the classic distinction without a difference.
Lawyers also called as witnesses officers at various levels in the chain of command who were involved with the stop of named plaintiff Deon Dennis, who testified on Tuesday: Detective Angelica Salmeron, Sargent Julio Agron and Captain Rafael Mascol. In addition, the deposition of Raymond Diaz, who was the commanding officer at the Manhattan North Patrol Bureau at the time of the Dennis stop, was read.
Together, their testimony made clear that officials throughout the chain of command failed to meaningfully review stops and frisks and failed to make sure that stops were constitutional.
Meanwhile, the Bronx was in the (court) house! Members of Bronx Defenders, Picture the Homeless, Morris Justice Project of the Public Science Project, Justice Committee and New York Harm Reduction Educators also held a spirited midday press conference. "We recently 'celebrated' 5 million stops made by the NYPD. Isn't that obscene?'' Levele Pointer of NYHRE said. "NYPD shame on you, people of color have rights too!" the crowd of about 30 chanted.
Court will not be in session on Monday and Tuesday – and hence CCR will not send out daily reports on those days – and will resume Wednesday, March 27. In a much anticipated appearance, State Senator Eric Adams, who served in the NYPD for 22 years and co-founded 100 Blacks in Law Enforcement, will testify on Wednesday.
Floyd v. City of New York continues to draw significant media attention, including a front-page article in today’s New York Times and this NPR segment from yesterday. If you’re not already, follow trial updates on Twitter with #NYPDonTRIAL. Tomorrow, CCR Executive Director Vince Warren and Nicholas Peart, whose emotional testimony riveted the courtroom on Tuesday, will be on the Melissa Harris-Perry Show on MSNBC at 11:30am.
New Yorkers packed the courtroom and the overflow room again on Day 4 of the Floyd trial. Pedro Serrano, the second whistleblower officer to take the stand, continued his testimony on the pressure faced by officers to make a certain numbers of stops. Fearing disciplinary action for not complying with these “performance goals,” Serrano began recording his performance reviews with supervisors. The recordings were played for the court.
“I needed proof,” Serrano said, when asked why he recorded the conversations. “They are asking me to do something illegal, stopping people illegally.”
“What happens when you don’t?” He was asked.
"They throw the book at us," Serrano responded, referring to the myriad disciplinary actions an officer can face for not making a specific number of stops, or speaking out against the practice.
Serrano filed a complaint with the NYPD’s Internal Affairs Bureau regarding the pressure he felt to stop people to meet a number. A text message was shown in court today from a sergeant to Serrano that said “U Need to More 250.”
He described what it was like going back to work after he’d spoken out: “I felt I was in a shark tank with multiple stab wounds and they were circling.”
While he was on the stand, Serrano was shown NYPD “Operations Order 52,” which lays out police officer performance objectives, and asked to describe what it means to him. Serrano began reading, then stopped and just said: “What I see there is quota, quota, quota.”
The order explicitly says department managers “can and must set performance goals.”
Near the end of his testimony, Serrano choked up with tears when explaining why he was taking part in this lawsuit. He said “As a Hispanic, walking in the Bronx, I have been stopped many times. It's not a good feeling. I promised as an officer I would respect everyone to my abilities. I just want to do the right thing. That's all.”
The day’s arguments ended with CCR attorneys introducing more audio recordings by another officer as further evidence of the pressure by supervisors on NYPD officers to make stops. Today’s testimony shows that stop-and-frisk is a top-to-bottom problem and those brave enough to speak out about being forced to act illegally are retaliated against for failing to make the numbers and/or questioning the practice.
The day began with a whistleblower cop who spoke emotionally about not wanting his own kids to be shot by an officer fulfilling a stop-and-frisk requirement and ended with Jews and Arabs together celebrating a “Seder in the Streets” linking the Exodus story to the struggle against discriminatory policing and surveillance of Muslim communities. In the world of Floyd v. City of New York – where it’s the NYPD that has to account for its behavior – it was just another (extraordinary) day.
Officer Adhyl Polanco continued his testimony today and CCR lawyers also introduced tapes Polanco had made of precinct roll calls that further support his testimony that the NYPD “wants numbers at all costs.” Polanco asserted that the message officers received was that if they saw a group of Black or Latino kids on a corner they were to stop them and even if there were doing nothing wrong, “handcuff the kids anyway.”
“We are illegally stopping and illegally frisking young Black and Hispanic people,” Polanco said flatly.
It was an intense day for those in the court – which was packed by members of Jews for Racial and Economic Justice and the Arab American Association of New York, a powerful community presence – because for many it confirmed the reality of stop and frisk as they and their neighbors have experienced it.
Polanco was followed by a second whistleblower officer, Pedro Serrano, the majority of whose testimony the court will hear tomorrow. In the 40 minutes Serrano was in the stand, he described some of the retaliation he faced for speaking to the NYPD’s Internal Affairs Bureau. In one instance, he returned to the precinct to find his locker had been emptied and its contents replaced by stickers of rodents.
Serrrano’s testimony will continue tomorrow, and the Schoolcraft tapes we mentioned yesterday are also expected to be introduced.
Day 2 of the historic Floyd v. City of New York trial began with ongoing testimony from CCR witnesses who have been illegally stopped and frisked by the NYPD. These included Deon Dennis and Nicholas Peart.
Peart testified at length and was extensively and aggressively cross-examined by the city’s lawyer. He talked about numerous stops and their effect on him; about having the NYPD go through his pocket and then through his wallet; and about leaving the gym – the one thing he does for himself – and having the police stop him. He became teary-eyed at one point when recounting a stop during which the police went into his building with his keys and he was afraid for his younger siblings who were alone in the apartment, not sure what the police might do to them and unable to protect them in that moment. Peart has been the guardian of his three siblings since their mother’s death.
The city’s lawyer asked him if he felt like he lived in a high-crime neighborhood. “I don’t know,” Peart replied. “Compared to what?” He went on to observe that it seemed to him like the NYPD was in Harlem to protect rising housing values, not residents like him.
Peart was followed by the first of CCR’s NYPD witnesses, a whistleblower officer named Adhyl Polanco. Polanco testified about his experience of numbers-driven mandates from his superior officers. The NYPD cares only about how many arrests, how many summons and how many UF 250s officers made, he said (the UF 250 is the form police fill out after a stop and frisk). Polanco reported that officers were expected to make certain numbers of stops, summons and arrests per month, that those numbers were non-negotiable, and that there were significant consequences for not making the numbers. The consequences ranged from being denied overtime, having one’s tour (shift) changed, or being subjected to performance monitoring. He testified that if an officer’s numbers were too low, a sergeant would ride with him or her and point out people on the street and order the officer to stop them – for no other reason than to log a certain number of stops.
One supervisor told Polanco that if he didn’t make his numbers, “you’ll become a pizza delivery man.”
Community members packed the courtroom as on the first day, and New York Communities for Change and Voices of Community Activist and Leaders (VOCAL-NY) held a press conference in support. Press attention continued to be significant.
Officer Polanco will continue his testimony tomorrow, and a second whistleblower officer, Pedro Serrano, is also expected to be on the witness stand. In addition, CCR plans to introduce as evidence some of the tapes made by Adrian Schoolcraft, the police officer that recorded hundreds of hours of precinct rolls calls, conversations with supervisors and street encounters, later given to the Village Voice. They reveal, among other things, pressure on officers to make stop-and-frisk quotas.
The courtroom was packed and the overflow room was, well, overflowing. So much so that the court had to set up a second overflow room to accommodate the hundreds of New Yorkers who came down to the federal courthouse to see for themselves this day when the NYPD went on trial. “This trial is 14 years in the making,” said CCR’s Darius Charney, the lead attorney in the case, during his opening statement. “Plaintiffs are seeking at long last to hold the NYPD accountable” for years of illegal stops and frisks.
The morning consisted of each side’s opening argument. Charney laid out CCR’s case, giving an overview of how the stop-and-frisk program violates the Fourth Amendment, the Fourteenth Amendment and the Civil Rights Act. After that, two of the city’s lawyers presented their case.
At lunch, CCR Executive Director Vince Warren led off a press conference sponsored by the Communities United for Police Reform coalition that CCR is centrally involved in. Rev. Jesse Jackson, NYC Comptroller John Liu and a host of City Council members, including Jumaane Williams, Tish James, Robert Jackson, Melissa Mark Viverito and Brad Lander, were also on hand to lend their support to this “historic” case – perhaps the most frequently repeated word of the day.
Back in court in the afternoon, CCR’s first two witnesses took the stand. Devin Almonor was 13 when he was stopped and cried when he was handcuffed. “I don’t want anyone else to go through this,” he told the court. David Floyd relayed his experience: “I felt frustrated, humiliated. It was on my own block, I wasn’t doing anything, I was just heading home.”
Floyd will be in the witness stand again in the morning, on cross examination. Deon Dennis and Nicholas Peart are both expected to testify about their experiences of being stopped. And two whistleblower officers, Adhyl Polanco and Pedro Serrano, are scheduled to testify to the existence of stop-and-frisk quotas.