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.
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.
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 67 th .
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.
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 81 st 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 44 th 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 28 th Precinct.
The last witness of the day was the much-anticipated Officer Kha Dang, the overstopper from the 88 th 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 81 st Precinct, Joseph Pfister from the Internal Affairs Bureau and Chief William Morris, the commanding officer of Patrol Bureau Manhattan North.
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.
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 114 th . 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 114 th . 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 114 th 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 107 th 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 107 th 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.
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 88 th 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 88 th 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 107 th 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 67 th 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 107 th 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.
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.
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.
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.
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 28 th Precinct (Enno Peters) and the 107 th 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 43 rd 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.