The Issue of Stop and Frisks in New York City

By   /   April 15, 2013 


The Issue of Stop and Frisks in New York City

United States District Court

Southern District of New York

Floyd v. New York1

Brittany Fiorenza


Case Summary

In Floyd v. New York, residents of New York City allege that the stop and frisk procedures used by the New York Police Department (“NYPD”) are unconstitutional.2  Specifically, residents claim that the police engage in racial profiling that targets minorities.3  It is well established that the Fourth Amendment protects individuals from “unreasonable searches and seizures.”4  It logically follows that the Equal Protection Clause of the Fourteenth Amendment is also applicable.5  However, in Terry v. Ohio,6 the Supreme Court held that police officers may stop an individual (provided they have reasonable articulable suspicion) and frisk him, to protect themselves from potential harm.7  Therefore, the issue in Floyd is “whether the New York City Police Department (“NYPD”) has complied with the laws and Constitutions of the United States and the State of New York” when engaging in such stop and frisks.8  Although, as of the writing of this article, Floyd is pending trial, the district court, in a Memorandum Opinion and Order, recently determined the admissibility of expert testimony anticipated at trial and found that “defendants’ motion [in opposition] is granted in part and denied in part.”9  This decision will greatly affect the outcome of the lawsuit, particularly because stop and frisks involve a great deal of professional judgment.10

The plaintiffs plan on calling Jeffrey Fagan11 as a witness to discuss his analysis of a database consisting of approximately 2.8 million “Stop, Question and Frisk Report Worksheet[s].”12  These worksheets provide a wealth of information regarding each stop and frisk conducted, including—but not limited to—demographic characteristics and suspected crime.13  From these worksheets “Fagan created a benchmark” that would indicate racial profiling.14  Fagan also “sought to determine whether reasonable suspicion existed in any given stop based on the boxes that were checked off on the worksheet.”15  Finally, Fagan analyzed the accuracy of the worksheets filled out as a result of any stop and frisk.16  Ultimately, with the information provided by the worksheets, Fagan evaluated whether the actual stop was “ ‘justified,’ ‘unjustified,’ or ‘indeterminate’ ” based on his understanding of relevant case law.17  Among many of their arguments in opposition, the defendants claim this portion of Fagan’s analysis “constitute[s] inadmissible legal conclusions.”18  The purpose of this article is to make note of recent developments in the case while addressing the overall public reaction to the issue of stop and frisks in New York City.


Case Precedent

a. Expert Testimony

In pertinent part, Rule 702 of the Federal Rules of Evidence states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.19

Although “the Federal Rules of Evidence favor the admissibility of expert testimony,”20 the court ultimately determines whether such testimony is admissible based on its reliability and relevance.21  In pertinent part, Rule 403 of the Federal Rules of Evidence states: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”22  This rule is particularly pertinent in the case of expert testimony due to the inherent “difficulty in evaluating it.”23  In its evaluation, the court is concerned with the process the expert employed in reaching his conclusions, rather than on the conclusions themselves.24  Ultimately, the court demands the same standards as would be required in the expert’s field.25  Although Daubert v. Merrell Dow Pharm., Inc.26 sets forth standards for the court’s consideration in determining the admissibility of expert testimony,27 these considerations are flexible and the admissibility of expert testimony is considered on a case by case basis.28

b. Expert Legal Opinions

It has been established that expert testimony is admissible regarding factual questions, and in some instances, “ ‘mixed questions of fact and law.’ ”29  However, generally, “experts may not testify as to conclusions of law.”30  In United States v. Bilzerian,31 the court cautioned against expert testimony “usurp[ing] either the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.”32  Ultimately, if an expert’s testimony consists of “detailed factual background and explanation” which supports a legal conclusion, it is likely admissible.33

c. Floyd v. New York

The utility of expert testimony in Floyd is logical due to the complexity of the information being presented to the jury: police conduct over the course of approximately five years during millions of stop and frisks.34  However, the defendants’ argument that such expert testimony proposes a risk for “an inadmissible legal conclusion” is also warranted in light of Fagan’s worksheet classification system.35  The court in Floyd, reconciled these two concerns by allowing the expert testimony, but with certain limitations.36

The court found that Fagan will “not usurp . . . the role of the trial judge”37 and reiterated that it would “instruct the jury on the law of reasonable suspicion.”38  However, the court did require certain modifications be made to Fagan’s findings.39  First, the court found that Fagan had “misinterpreted the relevant caselaw” and required that the correction be reflected in his findings.40  Second, the court stated that the term “indeterminate,” as originally utilized in Fagan’s analysis, would not be permissible at trial.41

The court found that Fagan “will not usurp the role of the jury,” since his testimony will not state an opinion regarding police misconduct.42  For instance, Fagan’s testimony will not assert the credibility, or lack thereof, of any witnesses and will not account for the lawfulness, or lack thereof, of the stop and frisks at issue.43  Therefore, Fagan’s testimony, although a combination of law and fact, is admissible, as a statistical analysis of stop and frisk documentation, with certain modifications.44

Fagan’s expert testimony in the upcoming trial will impact both the plaintiffs’ and defendants’ arguments.  Fagan’s statistical analysis of the stop and frisk worksheets will likely support the plaintiffs’ claims of unconstitutional police conduct by providing statistics illustrating the propensity to stop and frisk minorities.45  Although unfavorable to the defense, the admissibility of Fagan’s expert testimony will not preclude the defense from rebutting his findings and it is likely that the defense will continue to point out Fagan’s flaws.46  However, the impact of Fagan’s testimony at trial, regardless of how it is addressed by the skilled litigators on both sides, is merely a means to an end.


Competing Interests

The outcome of Floyd, whether in favor of the plaintiffs or the defendants, has a potential to greatly impact the NYPD’s stop and frisk policies.  This case is the result of the public’s frustration.  Therefore, it reaches beyond an isolated allegation of a constitutional violation to the overhaul of the NYPD’s standard stop and frisk policy.  This is a huge undertaking.  Accordingly, the issues of this case should be considered in the context not only of legality, but of the competing interests at issue: privacy versus purported safety.  This article does not seek to give weight to one interest over another, but merely seeks to point out that there is a large disconnect between law enforcement and the public.

The stop and frisk issue has gained substantial media attention, particularly over the past year.47  The New York Times’ “Times Topics” section breaks down the main issues of stop and frisk, notably the rate at which physical force is used during these stops, the effect such stops have on women and the public reaction to stop and frisk.48  Although there is growing frustration with the stop and frisk policy among New York City residents,49 Mayor Bloomberg maintains that the NYPD’s stop and frisk tactics are constitutional and effective in crime deterrence.50  Moreover, in response to the public’s criticism of the current stop and frisk policies, NYPD Commissioner Raymond W. Kelly pointed out that no alternative to crime deterrence has been suggested.51  From the media, it appears that all parties involved have valid arguments regarding the employment of stop and frisk policies in New York City.

There is a real issue surrounding the NYPD’s stop and frisk policies and it is likely that some degree of reform is necessary.  The court’s rulings leading up to trial, particularly the admissibility of expert testimony, has an important effect on the outcome of the trial.  Accordingly, the outcome of the trial has an important effect on instituting the reform of stop and frisk policies sought in New York City.  It is likely that the decision in Floyd, whether in favor of the plaintiffs or defendants, will at least call into question the issues raised by the public and the justifications raised by the NYPD and City.  Ultimately, it is apparent that some sort of compromise is necessary.



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  1. 861 F. Supp. 2d 274 (S.D.N.Y. 2012).
  2. Id. at 278; see Floyd, et al. v. City of New York, et al: Synopsis, Ctr. for Const. Rts., (last visited Apr. 13, 2013).
  3. Floyd, 861 F. Supp. 2d at 278.
  4. U.S. Const. amend. IV.
  5. U.S. Const. amend. XIV; Floyd, 861 F. Supp. 2d at 277 (“No less central to the courts’ role is ensuring that the administration of law comports with the Fourteenth Amendment . . . .”).
  6. 392 U.S. 1 (1968).
  7. Id. at 30.
  8. Floyd, 861 F. Supp. 2d at 278.
  9. Id. at 279, 304.
  10. Id. at 278(“[A] fill-in-the-blank document can never fully capture the nuances of a human interaction . . . .”).
  11. See id. at 279 (detailing Fagan’s qualifications).
  12. Id. at 280.
  13. Floyd, 861 F. Supp. 2d at 280.
  14. Id. at 281.  Fagan found such racial profiling “ ‘even after adjusting for local crime rates [and] racial composition’ ” among other factors.  Id. at 282 (quoting Declaration of Jeffrey Fagan in Support of Plaintiffs’ Opposition to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at ¶ 4(a)-(d), Floyd v. New York, 861 F. Supp. 2d 274 (S.D.N.Y. 2012) (No. 08 Civ. 1034(SAS)).  However, the defendants dispute Fagan’s results based on the claim “ ‘Blacks and Hispanics comprise a majority of violent crime suspects . . . .’ ”  Id. (quoting Declaration of Robert Smith at ¶ 13, Floyd v. New York, 861 F. Supp. 2d 274 (S.D.N.Y. 2012) (No. 08 Civ. 1034(SAS)).
  15. Id. at 283.
  16. Floyd, 861 F. Supp. 2d at 283.
  17. Id.
  18. Id. at 284.
  19. Fed. R. Evid. 702.
  20. Floyd, 861 F. Supp. 2d at 286 (quoting Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 562 (S.D.N.Y. 2007)).
  21. Id.
  22. Fed. R. Evid. 403.
  23. Floyd, 861 F. Supp. 2d at 287 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595 (1993)).
  24. Id. at 286.
  25. Id. (quoting Kumho Tire Co., Ltd., v. Carmichael, 526 U.S. 137, 152 (1999)) (“[The court must] make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”).
  26. 509 U.S. 579 (1993).
  27. Id. at 592-95.
  28. Floyd,  861 F. Supp. 2d at 286.
  29. Id. at 287 (quoting Fiataruolo v. United States, 8 F.3d 930, 941 (2d Cir. 1993)).
  30. Id. (citing United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991)).
  31. 926 F.2d 1285 (2d Cir. 1991).
  32. Id. at 1294.
  33. See Floyd, 861 F. Supp. 2d at 287 (referring to the permissible expert testimony regarding fact and law in Fiataruolo).
  34. Id. at 280; see Bilzerian, 926 F.2d at 1294 (stating that the complexity of the case warranted expert testimony).
  35. Floyd, 861 F. Supp. 2d at 292.
  36. Id. (“My conclusions require plaintiffs to make some limited modifications to the way that Fagan’s opinions are presented to the jury.”).
  37. Bilzerian, 926 F.2d at 1294.
  38. Floyd, 861 F. Supp. 2d at 292.
  39. Id.
  40. Id.
  41. Id.
  42. Id.
  43. Floyd, 861 F. Supp. 2d at 293; see also Cameron v. New York, 598 F.3d 50, 54 (2d Cir. 2010) (“These errors were not harmless, not least because they allowed ostensibly neutral government agents to speak directly to the two most hotly contested issues in this case: Ramos’s and Rivera’s credibility, and whether Ramos and Rivera had probable cause for their actions.”).
  44. Floyd, 861 F. Supp. 2d at 292.
  45. Id. at 282.
  46. Id. at 279.
  47. See, e.g.,  John Leland & Colin Moynihan, Thousands March Silently to Protest Stop-and-Frisk Policies, N.Y. Times (June 17, 2012), available at; Christopher Mathias, NYPD Stop And Frisks: 15 Shocking Facts About A Controversial Program, The Huffington Post (May 15, 2012), available at (reporting on the issue of stop and frisks in New York City); Stop-and-Frisk in New York City, N.Y. Times (Aug. 8, 2012), available at
  48. Times Topics: Stop and Frisk Policy – New York City Police Department, N.Y. Times, available at (updated Aug. 15, 2012).
  49. See Leland & Moynihan, supra note 47 (reporting on a protest that took place in reaction to the Stop and Frisk policies of New York City).
  50. Kate Taylor, Stop-and-Frisk Policy ‘Saves Lives,’ Mayor Tells Black Congregation, N.Y. Times (June 10, 2012), available at; see also,  Russ Buettner, Judge Bars Testimony by Expert in Frisk Suit, N.Y. Times, (Aug. 17, 2012), available at (reporting an update in Floyd, notably, that expert testimony regarding this theory of deterrence would be inadmissible at trial).
  51. James Forman, Jr. & Trevor Stutz, Beyond Stop-and-Frisk, N.Y. Times (Apr. 19, 2012), available at