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Dasha Kabakova
Reprinted from: Dasha Kabakova, The Lack of Accountability for the New York Police Department's Investigative Stops, 160 Cardozo Public Law, Policy and Ethics Journal 1631 (Summer 2012) (260 Footnotes Omitted) (Student Note)
Being stopped and frisked is a sufficiently unwelcome intrusion that the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases in which the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City's crime rate.
In the United States, when a police officer has specific and articulable facts that cause him to suspect that a person has committed, is committing, or is about to commit a crime, he may approach that person and ask investigatory questions. The person thus approached may not know why he is approached or whether he is free to leave. If the officer reasonably believes that the civilian has a weapon, he may frisk the civilian by patting his outer clothing to look for a concealed weapon. Such investigatory stops happen hundreds of times each day in New York City. For the most part, they are perfectly legal, but as many as 30% of these stops may be unsupported by reasonable suspicion.
The New York State law authorizing police officers to conduct investigative stops and frisks of civilians was upheld as constitutional by the United States Supreme Court in 1968. Nevertheless, the New York Police Department's (NYPD) policy of stopping and frisking civilians remains controversial. In the first six months of 2010, NYPD officers conducted 318,702 such stops. Many have argued that the NYPD's stop and frisks are racially biased, and there is statistical support for this argument.
When an individual is stopped and frisked by the police and believes that the stop was either baseless or based only on race, one would expect that the individual can take action in some form to receive judicial or administrative review of the officer's actions and a determination as to whether this stop was illegal. The very language of the Fourth Amendment seems to require this result: The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. In fact, such review of police action is largely out of reach for the average person who is stopped and frisked.
This Note provides an in-depth analysis of the NYPD's stop and frisk policy and demonstrates that the actions of police officers in stopping and frisking civilians are largely unreviewable, both judicially and administratively. In these instances, there is generally no arrest and thus no evidence to suppress, so the exclusionary remedy is largely irrelevant. Additionally, individual civil rights suits based on wrongful stops are mostly blocked by qualified immunity, and administrative review is largely ineffectual because of a lack of cooperation by the NYPD. As a result, for the vast majority of those stopped by police officers, the officers' actions remain unreviewable. Civil rights suits brought by groups to address racial disparities in the numbers of minorities stopped and frisked represent the best avenue for inspiring reform.
Part I of this Note discusses the history of the New York stop and frisk law and describes the NYPD's stop and frisk procedures. Part II addresses possible avenues for judicial and administrative review of the actions of individual officers in stopping people and argues that they are usually inapplicable or ineffective. Lastly, Part III describes the attempts to prove-- and disprove--racial bias or racial motives in the NYPD's stop and frisk policy.
I. Stop and Frisk in New York
A. Passage of the New York Stop and Frisk Law
New York's so-called stop and frisk law was first passed in 1964. Currently, the statute, titled Temporary questioning of persons in public places, reads:
1. In addition to the authority provided by this article for making an arrest without a warrant, a police officer may stop a person in a public place located within the geographical area of such officer's employment when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law, and may demand of him his name, address and an explanation of his conduct.
2. [applies to court officers only]
3. When upon stopping a person under circumstances prescribed in subdivisions one and two a police officer or court officer, as the case may be, reasonably suspects that he is in danger of physical injury, he may search such person for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. If he finds such a weapon or instrument, or any other property possession of which he reasonably believes may constitute the commission of a crime, he may take it and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.
4. [concerns maintenance of data obtained during such stops and is discussed infra.]
The 1964 bill was sponsored by Julius Volker, a Republican member of the New York State Assembly from Erie County. The reasons for passage of the measure were twofold.
First, courts were suppressing evidence of crimes where the initial stop of the suspect was on less than probable cause. In a 1962 decision, the New York Court of Appeals indicated that any change in this policy must come from the legislature. In response, on March 23, 1962, Governor Nelson A. Rockefeller sent a note to the legislature proposing that:
[T] he Code of Criminal Procedure be amended to enact in New York that part of the Uniform Arrest Act which permits a police officer to question for a limited time and to search, without arresting, suspicious persons who are abroad, where the officer has reasonable grounds to believe that such persons are committing, have committed or are about to commit a crime.
The governor's memo on the approved bill agreed that the main purpose of the bill was to remove the uncertainty which has attached in recent years to the admissibility of evidence obtained in these circumstances.
Second, the bill's sponsor presented the measure as necessary to prevent crime, noting, [t] he police are charged with the duty not only of arresting criminals, but, equally, if not more important, of preventing crime and preserving the peace. The latter purpose, however, formed only a small part of Representative Volker's analysis and was not mentioned in Governor Rockefeller's memo.
Anticipating charges that the legislation would violate the Fourth Amendment, Representative Volker argued that from a constitutional basis, the prohibition is against unreasonable search or seizure. What is contemplated in the proposed legislation is a reasonable-man test, viz., in all events the detaining, questioning, and search must be predicated on reasonable grounds. Representative Volker further minimized the intrusiveness of the stop and frisk procedure by noting that the contemplated average period of questioning a person would be no more than a few minutes. In other words, a relatively short period within which a police officer may satisfy himself that an otherwise suspiciously acting person is in reality a law-abiding citizen.
B. Upholding the New York Stop and Frisk Law as Constitutional
In 1968, the United States Supreme Court upheld New York's stop and frisk law as constitutional in Sibron v. New York, decided along with a companion case, Peters v. New York. The defendants in both cases challenged the constitutionality of the New York stop and frisk statute. Sibron was stopped after an officer observed him speaking to multiple known drug addicts over a period of several hours. Peters was stopped when an off-duty officer heard noise in the hallway of his apartment building and observed Peters and a companion tip-toeing through the hallway. Sibron was convicted of possessing heroin and Peters was convicted of possessing burglar's tools. The Supreme Court upheld both stops.
The Court, in an opinion by Justice Warren, refused to rule on the facial constitutionality of the stop and frisk law, writing:
We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of [the stop and frisk law] next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case.
In finding that the stops of Sibron and Peters did not violate their Fourth Amendment rights, the Court effectively ruled that the law is not facially unconstitutional while leaving room to find it unconstitutionally applied in individual instances.
C. Clarifying the Stop and Frisk Law
In 1976, the Court of Appeals of New York clarified the stop and frisk law, putting in place the four-level degree of suspicion framework used by NYPD officers today. In People v. De Bour, and the companion case, People v. La Pene, the court established a framework for determining whether an officer can detain a person against his will, ask accusatory questions, conduct a frisk, and make an arrest based on what the officer observed.
The first level is known as request for information and is based on what the court perceives as the need for the police to have wide latitude to approach individuals and request information as part of their public service functions. The court derived this right from a general right of people to approach any other person and attempt to strike up a conversation. Within this level, an approach of a person by an officer is permissible when there is some objectively credible reason for that interference not necessarily indicative of criminality.
The second level, known as the common-law right to inquire, was developed in a precursor to De Bour. At this level of suspicion, the police need a founded suspicion that criminal activity is present, which the court saw as something less than that required for reasonable suspicion. This contact, according to the court, does not constitute a seizure and the officer, without more, cannot frisk the person stopped. Under the second level of suspicion, a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure. The court saw this as an intermediate level, reflecting a necessary reality that officers need to be able to initiate encounters with people even if they are not able to seize them.
The court found the stop of De Bour by police officers to fall within this second level. The officers had observed De Bour walking alone in an area with a high level of drug activity and their suspicion was aroused when he crossed the street after observing them. They asked him what he was doing in the area and he replied that he was going to a friend's house. The officers then observed a bulge at De Bour's waist and asked him to unzip his coat. When he did so, they observed the butt of a pistol, which served as the basis for De Bour's arrest. At the time they stopped De Bour, the officers lacked not only probable cause to arrest him, but also the reasonable suspicion necessary to stop him under Terry and Sibron. However, the court-created second level of suspicion allowed the officers to question him and further observe his behavior without seizing him, even temporarily. The court stressed that [t] he encounter here was devoid of harassment or intimidation. . . . Significantly, the encounter did not subject De Bour to a loss of dignity, for where the police degrade and humiliate their behavior is to be condemned.
The third level is what we commonly know as a stop and frisk and is based on the New York stop and frisk statute. In People v. La Pene, officers received a radio message from central communications that there was a male Negro with a gun, wearing a red shirt, in a place called Jean's Bar, based on an anonymous telephone tip. Upon entering the bar, officers approached La Pene because he fit that description. The officers did nothing to verify the information contained in the tip. They did not observe any bulge on La Pene or suspicious behavior on his part, nor did they even look for other black men wearing red shirts in that bar. They immediately told La Pene to freeze and frisked him, recovering the gun for which he was ultimately charged. The court found that the anonymous tip, without more, was not enough to satisfy the reasonable suspicion standard and ordered the indictment dismissed. The fourth level is the power to arrest based on probable cause.
D. NYPD Officer Training in Stop and Frisks
NYPD officers are trained in conducting stop and frisks in an academic setting during their six months at the police academy.
[Stop and frisk] is presented in four 90-minute classroom lessons, as part of a larger discussion of Fourth Amendment and related legal concepts. The classroom training covers the basic legal rules surrounding stop & frisk (including a discussion of Terry v. Ohio) as well as the basic factors which can, and cannot, create reasonable suspicion sufficient to justify a stop. The NYPD's written objectives for recruit training list, as an objective, the ability to understand and articulate factors which may justify a stop or frisk.
The discussion includes use of hypothetical examples, and following the course, officers must pass multiple-choice exams assessing what they learned.
E. NYPD Documentation of Stop and Frisks
Subsequent to conducting a stop and frisk, officers are required to fill out a Stop, Question and Frisk Report Worksheet, known as a UF-250 form. The form includes fields describing the timing and location of the stop, descriptive and identifying characteristics of the person stopped, the reason for the stop, whether the person was frisked, and whether the person was issued a summons or arrested. After the form is filled out by the officer, it is reviewed by a supervisor, then entered into a log in the precinct station house and assigned a serial number. Later, the data from the form are entered into the computerized database by an officer assigned to administrative duties or by a civilian precinct employee.
The stop and frisk statute was amended in 2010 to prohibit the NYPD from maintaining a database of names and identifying information of people stopped. The New York Civil Liberties Union (NYCLU) had filed a lawsuit against the NYPD for maintaining this database and also lobbied for the law's passage. After passage of the amendment, the NYPD can still maintain generic information on persons stopped, such as that person's race and gender, as well as the location of the stop, but cannot keep records of identifying information of those stopped. The NYCLU stated that this non-identifying information is necessary, as it enables independent assessment of how the stop and frisk policy is being applied. The NYPD strongly opposed the law, arguing that the database was an important tool . . . to solve crimes and prevent others.
II. Judicial Review of Stop and Frisk Violations
Generally, violations of constitutional rights by the police are reviewable through a number of well-defined processes, such as the exclusionary rule. However, the unique characteristics of stop and frisks make substantial judicial review of police action in this context difficult and rare. The following sections examine three avenues of review of police action-- suppression of evidence in criminal proceedings, civil rights suits by individuals, and administrative review--and describe how each of these methods fail to provide redress in the majority of stop and frisk violations. Each section provides an example of a case that is an exception, which proves the rule that the majority of stop and frisks are unreviewable.
A. Exclusion of Evidence in Criminal Proceedings
The main remedy for most Fourth Amendment violations is the exclusion of evidence, and the exclusionary rule is a primary deterrent to police misconduct. About 90% of all stop and frisks, however, do not result in arrests and the exclusionary remedy is thus irrelevant. However, in those cases where contraband is recovered following a stop on less than probable cause, the review of police action can be quite robust.
For example, in People v. Lopez, the court suppressed a gun recovered following an illegal stop. The defendant was the passenger on a bicycle moving the wrong way on a one way street. When police officers moved to stop the bicycle, the defendant alighted from his perch on the back of the bike and ran away from the officers. The defendant dropped a gun in a backyard as he ran. The officers pursued the defendant and were able to cut him off and stop him.
The court, in examining the reasons for the stop, noted that the officers likely had other investigatory concerns in mind when they ordered the bicycle to stop, and that in this case their instincts' [sic] proved accurate. The court considered the testimony of the arresting officer in some detail and found it persuasive, but was unable to glean from it any reason for the stop of the defendant other than his flight. Citing ample precedent, the court concluded that because flight in the absence of more is insufficient to give rise to reasonable suspicion, the officer's stop of the defendant was improper. The court therefore suppressed the evidence.
Suppression of seized contraband is more common in cases involving anonymous tips. In 2000, the Supreme Court held in Florida v. J.L. that an anonymous tip providing only a description of a person and the assertion that this person has a gun is not enough to establish reasonable suspicion. Since that decision, New York courts have suppressed evidence, usually a gun, in cases where the stop and frisk was based on no more than such a tip. However, in cases where the anonymous tip was corroborated by a police officer's observations, or where the caller provided identifying information and complained of specific criminal conduct, suppression of evidence has been denied.
The defendants in these cases are unusual among those stopped and frisked in that they were arrested and tangible evidence was recovered. These factors alone gave them the opportunity to have a judge assess the conduct of the officers in stopping them.
B. Civil Rights Suits by Individuals
Individuals who are arrested and whose criminal charges are later dismissed, as well as those who are stopped but not arrested, can sue the NYPD under 42 U.S.C. 1983 for violations of their federal civil rights. These cases represent an alternate route to judicial review of police action. However, 1983 suits involving a stop but no arrest are few and far between because they are complicated by the doctrine of qualified immunity. Under this doctrine, police officers are immune from liability for money damages in suits brought against them in their individual capacities if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Furthermore, qualified immunity protects a government actor if it was objectively reasonable for him to believe that his actions were lawful at the time of the challenged act. Alternatively, an officer can show that officers of reasonable competence could disagree whether the action was lawful.
For example, in Allen v. New York City Police Department, the court used the doctrine of qualified immunity to dismiss most of the suit on summary judgment. Plaintiffs Allen and Walters filed suit pro se, alleging, among other things, that Allen was illegally stopped and searched and that Walters's home was illegally searched. The court's detailed factual analysis of Allen's case is illustrative of the difficulties faced by a plaintiff in 1983 litigation.
Allen's first main claim was that he was stopped and seized in violation of his constitutional rights. On the evening of June 1, 2007, Allen, a resident of the public housing development known as the Taft Houses, entered another building in the development through the unlocked front door. Allen went upstairs to the eighth floor, where his sister and Walters lived, then took the elevator down to the second floor, then took the stairs to the first floor. Three officers patrolling the building observed Allen enter the building, and upon his return to the first floor, stopped him. When he explained that he was visiting apartment 8-B (Walters's apartment), the officers accompanied him to that apartment to verify his account and determine whether he was a proper guest in the building.
The court concluded that the initial encounter was consensual and therefore not a seizure subject to Fourth Amendment protections. The court hesitated to conclude that Allen was seized for Fourth Amendment purposes when he accompanied the officers to the eighth floor, noting that Allen did not suggest that he was forced to accompany the officers and that he himself pressed the elevator button. However, taking the facts in the light most favorable to Allen, the court assumed that Allen was seized for Fourth Amendment purposes for the remainder of the analysis. The court found that such a seizure was justified under Terry because it was based on a reasonable suspicion that he was trespassing in the building and supported by articulable facts that criminal activity may have been afoot. The court cited the circumstances of Allen's entry into the building and his evasive answers to some of the questions posed by the officers as enough to establish reasonable suspicion. Thus, finding that the initial stop was justified, the court granted summary judgment to the defendants on Allen's first claim.
Allen's second main claim was that he was illegally searched. Once on the eighth floor, the officers knocked on the door of apartment 8-B but received no response. Officer Figuereo then frisked Allen, removing a set of keys from one of his pockets, while Officer Gonzalez looked in Allen's bag, which Allen had told him contained flyers to by [sic] food. Walters then arrived on the scene and explained that Allen was his brother-in-law, though he was unable to tell the officers Allen's name.
The court found that when no one responded at apartment 8-B, the officers had probable cause to arrest Allen for trespassing. Based on this finding, the court concluded that:
officers of reasonable competence could disagree as to whether the search occurred when the Officer Defendants merely had a reasonable suspicion that a crime was afoot or if the search occurred after the Defendants had probable cause that Allen was trespassing. . . . Because officers of reasonable competence could disagree as to the constitutionality of their actions, the Officer Defendants are entitled to qualified immunity with respect to the search of Allen's bag and pockets.
Based on this conclusion, the court dismissed Allen's only remaining claim that he was illegally searched.
The other plaintiff, Walters, claimed that officers illegally searched his apartment. After Walters arrived, Officer Gonzalez took one of the keys he had obtained from Allen and opened the door to apartment 8-B. The testimony conflicted as to whether he merely leaned into the apartment or stepped into it. He then closed the door and returned the keys to Allen and told him that he could go.
The court found that the search was not authorized by a warrant and did not fall under any exceptions to the search warrant requirement. The court then concluded that:
[b] ecause the firm line around the physical dimensions of one's home has been clearly established for decades, law enforcement officers of reasonable competence could not disagree as to the constitutionality of Officer Gonzalez's alleged warrantless entry into Walters'[s] apartment. Officer Gonzalez is therefore not entitled to qualified immunity with respect to the warrantless entry into Walters'[s] apartment.
Using the doctrine of qualified immunity, the court here was able to dismiss most of the claims against the officers and remove one of the plaintiffs. While Allen received some judicial review of the police officers' actions, one of his two claims was dismissed without a definitive conclusion as to the legality of the officers' actions. Through the disagreement of officers of reasonable confidence variant of the qualified immunity doctrine, courts can put a heavy thumb on the scale in favor of the police in borderline cases. Combined with instances where the police action was in fact constitutional, qualified immunity shields most police behavior from liability. Only in the rare case where the officers acted without even arguable legal justification will they be subject to potential liability under 1983.
This is not to say that qualified immunity is not an important or arguably necessary doctrine. The qualified immunity doctrine balances two important interests--the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. In striking that balance, we must realistically assess the doctrine's impact on the reviewability of certain constitutional claims.
C. Administrative Review
Individuals who are stopped and frisked can file a complaint about the incident and seek to have it administratively reviewed. Two administrative bodies review police action: 1) the Civilian Complaint Review Board (CCRB), an independent agency and 2) the Internal Affairs Bureau (IAB) of the NYPD. The two agencies have different jurisdiction. The CCRB investigates complaints of excessive or unnecessary use of force, abuse of authority, discourtesy, and offensive language, while IAB handles complaints of corruption. Stop and frisk complaints fall into the CCRB's jurisdiction and comprise approximately 30% of all complaints received by the agency.
The CCRB's investigations are handled by more than 140 civilian investigators and are reviewed by panels of a thirteen-member board comprised of mayoral designees, city council designees, and police commissioner designees. The investigative process includes gathering documentary evidence, such as stop and frisk reports, and interviews with the complainant, the witnesses, and the police officers. When the complainant refuses to speak to investigators or cannot be located, the investigation is closed without further action. Approximately 65% of all cases received by the CCRB are closed for this reason.
The CCRB substantiates approximately 10% of the cases that are fully investigated. Substantiated cases are then referred to the NYPD Commissioner, who has complete discretion over disciplinary matters, a power which the Center for Constitutional Rights has called an inherent problem with administrative review. The NYPD has long been criticized for failing to discipline officers after the CCRB substantiates cases. The rates for discipline have increased in recent years, with 87% of cases resulting in some disciplinary action in the first six months of 2010. However, about 50% of the cases referred during that period resulted in a discipline of instructions, which:
involve a subject officer's commanding officer instructing him or her on the proper procedures that should have been followed under the circumstances. They can also involve an officer being sent for in-service training or Police Academy presentations. Instructions are considered the least punitive measure because they do not result in formal proceedings.
The low substantiation rate has three main causes. First, in some cases the only probative evidence is the testimony of the complainant and the officers involved. Both parties are interested in the outcome of the complaint, so it is not possible to credit one over the other without additional evidence to corroborate what occurred. Because many stop and frisks occur in public places where the majority of the witnesses are passersby, it is often not realistic to track down witnesses. The fact that stop and frisk incidents are a normal fact of life in many neighborhoods only exacerbates this. Second, in some cases the stop and frisks are supported by reasonable suspicion and thus the officers are rightly exonerated. Lastly, although the CCRB provides no statistics to this effect, it is likely that in a non-negligible proportion of cases the officers simply do not remember the encounter and their version of the story cannot be assessed. Similarly, if the officers fail to prepare the required stop and frisk reports, there is a substantial chance that they will never be identified.
Because the investigations conducted by the CCRB are part of the subject police officer's personnel record, they are kept confidential. However, the CCRB's website describes several case profiles that illuminate the process.
One profile, based on a 2004 incident, illustrates how corroboration by an independent witness can result in the substantiation of a case. The complainant was walking home from a friend's home when he was approached by officers who said they wanted to search him because they believed he had a gun. The man argued with the officers about the propriety of the stop and was frisked, handcuffed, and taken to the precinct, from where he was released with a summons for disorderly conduct. The CCRB credited the complainant's account and substantiated several allegations against the officers, including improperly stopping and frisking the complainant.
The CCRB reviewed the summons and the stop and frisk report prepared by the officers, and interviewed both the complainant and the officers involved. These are typical steps taken in most investigations. What distinguishes this case from those that do not result in substantiations is that the CCRB was also able to locate an independent witness, a woman who observed the incident from her apartment window and responded to a letter posted in the lobby of the building by the investigator. With this witness's corroboration of the complainant's account, the CCRB was able to credit his statement and substantiate the allegations against the officers. The NYPD ordered the officers involved to receive instructions.
Another case profile reflects an instance where the stop and frisk was found by the CCRB to be justified. There, the officers received a radio report of a man threatening people with a firearm, described as a short Hispanic male with a goatee and a black jacket and red pullover sweatshirt. They stopped a complainant, a 5'10 white male with a goatee and a red jacket. Although the CCRB substantiated allegations against the officers regarding conduct that followed the stop, the CCRB concluded that the complainant matched the description sufficiently to exonerate the stop.
Complaints that are substantiated are referred to the NYPD for disposition. The NYPD is notorious for dismissing substantiated complaints without taking action; in 2009, the NYPD declined to prosecute 30% to 40% of cases referred to it as substantiated by the CCRB. Since then, the situation has somewhat improved. In the first half of 2011, the NYPD declined to prosecute 20% of the cases referred to it by the CCRB. The CCRB negotiated with the NYPD to create an Administrative Prosecutions Unit, staffed by attorneys from the CCRB, to prosecute a portion of substantiated CCRB complaints in NYPD administrative trials. However, this program has faced financing woes that almost caused its demise in late 2011, and a city-wide hiring freeze has prevented the replacement of the program's only attorney, who left for another job.
The result of this system is that a person who believes he was unlawfully stopped and frisked by the police has little hope of recourse through administrative review. The most likely outcome of his complaint is that the CCRB will not be able to determine whether the stop was lawful because the contradictory statements of the complainant and the officer will be uncorroborated by any independent witness or evidence. In the unlikely event that supporting evidence corroborates the complainant's account or that the officer fails to provide a legally adequate reason for the stop, the substantiated complaint still has a high likelihood of being dismissed by the NYPD. And, even if the complaint makes it through these hurdles, the most probable outcome is that the officer will receive the discipline of instructions, amounting to not much more than a stern conversation with a superior and a training session. Given these odds, it is hard to have faith in the civilian oversight system as providing meaningful review and recourse to those who believe they were illegally stopped and frisked.
III. Assessing the Stop and Frisk Policy for Racial Bias
The NYPD's stop and frisks did not garner significant attention until they became connected to the death of an innocent man. The shooting of Amadou Diallo in 1999 spurred inquiry into the NYPD's policies, including stop and frisk. Questions were raised about the disparate impact of these policies on minority groups and primarily minority neighborhoods. The answers are conflicting.
A. The Attorney General's 1999 Report
On February 5, 1999, the front page of the New York Times reported that on the previous day, an unarmed man in the Bronx was killed by police officers who had fired at him forty-one times. That first article reported that it was unclear why the police began shooting, but the story quickly became familiar to most New Yorkers. Diallo was an African immigrant, standing unarmed in front of the building where he lived. The four police officers, who were white and in plainclothes, approached him because they believed that he fit the description of a rapist. They began shooting because they believed that he was grabbing a gun, but it turned out to be his wallet.
The shooting drew attention not only from New Yorkers, but also from those in Washington, D.C., forcing the NYPD to reconsider its practices, including stop and frisk. After the four officers were acquitted of all criminal charges, the Bronx District Attorney, Robert Johnson, said: This case raises a lot of issues about police tactics.People in the Bronx have been trying to get the attention of the Police Department for some time . . . and this case will do it.
The NYPD responded by introducing new initiatives and reorganization. Then-Police Commissioner Howard Safir published an editorial in the New York Times, arguing that for most New Yorkers . . . the issue is civility, not brutality, and discussing the NYPD's new Courtesy, Professionalism and Respect initiative to encourage officers to be more polite to those whom they encounter. The Street Crimes Unit was reorganized, making the new, smaller units accountable to regional commanders, and making the unit uniformed rather than plainclothes, a move that was later reversed when gun arrests by the unit dropped by 40%.
In response to public pressure, then-Attorney General Eliot Spitzer opened an investigation into NYPD stop and frisk practices in the spring of 1999, within months of taking office. The resulting report discussed that even before the Amadou Diallo incident in February of 1999, Attorney General Spitzer heard complaints about stop and frisks, primarily from minorities. The report termed the Amadou Diallo incident as the defining moment of police-community relations in New York City. The incident exacerbated the already eroding public confidence in the police, especially among minorities, and prompted the Attorney General to conduct this study.
The study focused on the De Bour level three stop. It used data from approximately 175,000 documented stop and frisk encounters between January 1, 1998 and March 31, 1999, and compared the rates of stop and frisks for people from different racial groups and different locations with crime rate data. The report found a strong statistical correlation between race and likelihood of being stopped, and concluded that crime rate data does not adequately explain these differences, even in predominantly minority precincts.
The report also found that for every stop that led to an arrest, an additional nine stops occurred. The report explained that because an officer need only have reasonable suspicion to stop an individual[,] it is not surprising that, given this lower threshold, many such stops' should fail to result in an actual arrest. The report found further racial disparities in this statistic--for every one arrest, there were 9.5 stops of blacks, 8.8 stops of Hispanics, and 7.9 stops of whites.
In analyzing the stop data in reference to crime rate data, this report chose to rely on arrest statistics. Acknowledging the limitations of arrest statistics, the report nevertheless concluded that they are a more reliable measure than crime complaint data. Using regression analysis, the report found that blacks and Hispanics were significantly more likely than whites to be stopped after controlling for race-specific precinct crime rates and precinct population composition by race.
The report's most compelling statistical finding was that in precincts in which blacks are less than 10% of the population, blacks remained over two times (2.17) more likely to be stopped on suspicion of committing a violent crime than whites . . . [and] these differences are evident after controlling for race- and crime- specific arrest rates (within each precinct). The statistic was the same for stops under suspicion of weapons crimes. In contrast, blacks were half as likely as whites to be stopped under suspicion of property crimes in all precincts. More than anything else, it is this statistic that suggests that officers are specifically targeting blacks for stops.
In addition to the race factors, the report found significant problems with the reasons for the stops as marked on the stop and frisk forms. The study concluded that on approximately 15% of the forms, the officers did not provide any reason for the stop. On an additional 23% of the forms, the reasons noted by the officers for the stops were not sufficient for reasonable suspicion. The report hints that these problems should have been noticed by the supervisors reviewing the forms, but stops short of saying that all of these stops were legally insufficient, noting that some of the problems could be explained by clerical errors.
The report did not recommend specific steps that the NYPD take as a result of these findings. Instead, the conclusion of the report called on the NYPD, community leaders, and attorneys to consider the report in their discussions of change. The NYPD responded to the report negatively, criticizing the methodology and conclusions. Then-Commissioner Howard Safir criticized the report for misusing the stop and frisk forms:
What the attorney general fails to recognize is that stop and frisk reports are primarily administrative tools and are used to assist in investigations. . . . His attempts to conclusively evaluate the legality of a stop based solely on what the officer placed on this report is another serious flaw. . . . Clearly, in our look at the analysis . . . we don't see any validity to it.
B. The RAND Report
Eight years later, in 2007, the NYPD hired the RAND Corporation to analyze stop and frisk data in response to continuing controversy over racial bias (RAND Report). First and foremost, the RAND Report concluded that the raw statistics, while easy to compute, often exaggerate racial disparities. This conclusion was based on analysis of the over 500,000 stops that NYPD officers documented in 2006.
The raw numbers of stops that the report referred to show that minorities (blacks and Hispanics) were stopped far more often than whites. When examined based on the reason for the stop, the differences were even more exaggerated--the number of blacks stopped on suspicion of weapons crimes was twice that of Hispanics, and each number overwhelms that of whites. This was true for stops based on suspicion of robbery, trespassing, and drugs, though the rates evened out somewhat for burglary and auto theft.
The RAND Report analyzed stop and frisk data using several benchmarks: 2005 arrests, descriptions of suspects, and the census. The use of such benchmarks, while necessary, are still:
fraught with challenges [because] the method can either detect or hide racial bias due to unobserved or unmeasured factors that affect both the racial distribution that the benchmark establishes and the racial distribution of stops. For example, drug arrests take many forms, including complex buy-bust operations, complaints from residents, and direct observation by officers. Stops documented in UF-250s are generally only from the latter two situations, while the drug-arrest benchmark includes all of these arrests.
The report was most critical, however, of the use of the census as a benchmark, arguing that census benchmarks do now account for differential rates of crime participation by race or for differential exposure to the police. Comparisons to the residential census are not suitable for assessing racial bias.
The RAND Report compared the rates at which whites, blacks, and Hispanics were stopped against each of these types of benchmarks. The report concluded that while Hispanics were stopped at a rate proportional to their representation in the census, blacks were stopped at a rate 50% greater than their representation. On the other hand, blacks were stopped at a rate that is 20 to 30 percent lower than their representation in crime-suspect descriptions, while Hispanics were stopped five to ten percent more. Lastly, using the benchmarks of arrests, the report found that stops of blacks were proportional to their representation among those arrested while the stops of Hispanics were 6% higher.
Lastly, the report considered whether there were race based discrepancies in the manner the stop was conducted and in the outcome, and concluded that after adjustment for stop circumstances, we generally found small racial differences in the rates of frisk, search, use of force, and arrest.
The report's general conclusion was that the raw statistics . . . distort the magnitude, and, at times, the existence of racially biased policing. The report noted that a large scale overhaul of the stop and frisk policy was unnecessary, but nevertheless recommended several improvements. First, officers should clearly explain to pedestrians why they are being stopped. Second, the NYPD should improve training and assessment so that new officers [are] fully conversant with stop, question and frisk documentation policies. Third, the NYPD should improve auditing and oversight of stop and frisks and develop mechanisms to flag officers with out of the ordinary stop patterns.
C. Problems with Assessing the Stop and Frisk Policy
Why did the Attorney General Report and the RAND Report come to opposite conclusions? One explanation is that the studies were conducted almost a decade apart. Another explanation is that the reports were prepared under different political circumstances. Newly-elected Attorney General Spitzer had an incentive to appear tough on an issue important to many voters, while the NYPD hired the RAND Corporation with the hope of showing a lack of racial bias in its tactics.
Another possibility is that the data being assessed is far from perfect because not all stops are being documented. Like the Attorney General's report, the RAND Report focused on level three stop and frisks, which is the lowest level of intrusion at which the NYPD requires officers to document the interaction. Any interactions that, in the officer's view, do not rise to that standard do not require documentation. Although the RAND Report noted that officers have incentives to document all the stops they conduct in order to show their productivity and comply with performance standards, those officers who perform the most stops (and therefore have no reason to worry about their numbers) have no incentive to document at least some encounters. Furthermore, while precinct-level commanders have been documented to use stop and frisk data to assess officer performance, there is no evidence that commanders of specialized units, like anti-crime and narcotics units, do so as well. Officers in these units, who may perform many stops, may not have such incentive to record them. In 2009, the CCRB cited eighty officers for failing to prepare stop, question, and frisk reports. Howard Safir, the police commissioner at the time of the Diallo shooting, admitted that the number of reports filled out may not accurately represent the number of people stopped and frisked.
D. Civil Rights Suits by Groups
The Center for Constitutional Rights (CCR), a non-profit legal advocacy organization tracing its history to the civil rights movement, has filed two suits challenging the constitutionality of the NYPD's actions in implementing their stop and frisk policy. The first suit resulted in a settlement that serves as the basis for the second suit. That settlement mandated the creation of a racial profiling policy and training of officers on this policy. The second suit is ongoing, and represents some possibility of judicial review of the NYPD's practices.
Following the death of Amadou Diallo, the CCR filed a class action lawsuit alleging that the NYPD
implement[s] . . . a policy, practice and custom of unconstitutional stops and frisks of New York City residents by the Street Crimes Unit (SCU) . . . and SCU officers stopped individuals without reasonable suspicion required by the Constitution and often used race and/or national origin as the determinative factors in deciding to stop and frisk individuals, in violation of the Equal Protection Clause of the United States Constitution.
In the Settlement Stipulation, the City of New York continued to deny the allegations against it, but agreed to create and implement a written racial profiling policy that complies with the United States Constitution, to develop protocols to review stop and frisk activity, including whether officers are adequately preparing the necessary documentation and whether the stop and frisk activity is based on reasonable suspicion, and to provide annual in service training regarding the Racial Profiling Policy. The stipulation also generally required that the NYPD continue training officers on stop and frisk procedures and requiring that UF-250s be prepared.
The second suit, filed by the CCR in 2008, alleged that NYPD officers, in violation of the Equal Protection Clause of the Fourteenth Amendment, often have used, and continue to use, race and/or national origin--not reasonable suspicion--as the determinative factors in deciding to stop and frisk individuals. The complaint further alleges that NYPD Commissioner, Raymond Kelly, and Mayor Michael Bloomberg had devised, implemented and enforced policies and practices that lead to these stops, in part by putting pressure on precinct commanders, and through them, individual officers, to conduct more stop and frisks and prepare more UF-250s.
After describing two separate stop and frisk incidents involving the plaintiffs, the complaint recounts the history of alleged stop and frisk abuses by the NYPD, especially the Street Crimes Unit, and the results of the prior lawsuit. The complaint then described a report in the New York Daily News that a precinct captain told officers at a roll call to stop, question, and frisk all black males at a particular subway station in response to a pattern of robberies. The complaint goes on to allege that [d] efendants have applied a facially neutral policy, the anti-racial profiling policy, to Plaintiff, and similarly situated individuals, in an intentionally racially discriminatory manner.
The remedies sought by the complaint are as follows: 1) a declaration that the NYPD's policy, practice and/or custom of suspicionless stops and frisks challenged herein is unconstitutional; 2) injunctive relief enjoining the NYPD from continuing suspicionless and racially based stops and use of quotas; 3) improved training and supervision; 4) compensatory damages; and 5) attorney's fees and costs.
Shortly after filing suit, the plaintiffs moved for production of all the UF-250s filed by police officers since 1998. Defendants argued that portions of the data, including information about the location of the stop; the identity of the person stopped; identity of the reporting officer; and information about any subsequent arrest or summons, either were not relevant or were protected by the law enforcement privilege. If forced to produce it, the defendants insisted that the information should be under protective order to prevent public disclosure. The court agreed in part with the defendants and ordered that the names of the persons stopped and of the reporting officers be placed under a protective order, but granted the plaintiffs' motion for the remainder of the data. The court ordered that the same categories of information previously released to other entities, including the RAND Corporation, be released, and further held that the exact stop location (rather than merely the precinct) should be released because stops are routinely justifie[d] by noting that the suspect is in a high-crime area . . . and more specific information is needed to determine whether, as plaintiffs claim, high-crime area is used as a proxy for the race and ethnicity of the area's residents. The court also agreed that the plaintiffs need some way of identifying the officers conducting the stops in order to assess the defendants' theory that only certain specific officers are engaging in racially motivated stops, and to identify those officers they wish to depose. The court declined, however, to make available the names, addresses, and phone numbers of those stopped, stating that as no class has yet been certified, those individuals stopped are not yet parties to this litigation, and their privacy interests must be respected.
Two years later, plaintiffs learned that the IAB was conducting investigations into allegations by officers from three different commands that they were subjected to quotas, and moved for production by defendants of all the documents from the IAB investigations into these allegations. Defendants argued that these files are confidential, contain irrelevant information, and are protected by the law enforcement privilege. The court conducted an in camera inspection of the documents and concluded that the vast majority of documents in the IAB files are irrelevant to plaintiffs' claims. The court further found that although the defendants met their burden that the law enforcement privilege is applicable to these items, the plaintiffs have successfully rebutted the strong presumption against lifting the privilege. The court discussed the difficulty that plaintiffs had in proving their allegations of the existence of quotas and that the allegations made by officers of the existence of such quotas provides at least unexplored avenues of discovery. The court then weighed the interests involved and concluded that the information in the files that the court deemed relevant was to be disclosed, subject to a protective order.
In October 2010, the plaintiffs submitted their expert report prepared by Jeffrey Fagan, a law professor at Columbia University and a noted constitutional law scholar. Fagan criticized the RAND Report's methodology, especially its use of the race of suspects of violent crimes as a benchmark. He pointed out that violent crimes comprised fewer than ten percent of the crimes reported in the 2005-2006 period used in the study and that almost half the violent crime complaints did not report the race of the suspect.
Fagan assessed the UF-250 reports for stops between 2004 and 2009 provided to the plaintiffs as a result of the discovery order. He considered the plaintiffs' Fourteenth Amendment claim of disparate treatment and their Fourth Amendment claim that many stops lack legal justification. With regard to the first claim that NYPD officers use race as a factor in determining whether to stop and frisk an individual, Fagan found that:
The results show consistently, across the most policy-relevant and frequent crime categories, that racial composition predicts stop patterns over and above any predictions made by crime or other factors. In effect, overall stop patterns in the precincts were predicted more by the Percent Black [a variable indicating the percentage of the precinct population that is black] and Percent Hispanic (compared to Percent White) than by observed crime.
With regard to the second claim, that officers lack reasonable suspicion to effect many of the stops, Fagan examined both the prevalence of stops lacking reasonable suspicion and whether blacks and Hispanics were more likely to be stopped with inadequate reasonable suspicion. Fagan examined the forms to determine whether the stops were justified, unjustified, or of indeterminate legality. First, Fagan found:
furtive movements and high crime area are the two most common items checked off on the UF-250. . . . [T] hese two categories are notable in two ways: they both are subject to subjective and highly contextualized interpretation, and they both--either separately or in conjunction with one another--are legally insufficient to justify a stop.
Fagan also found that when furtive movements and high crime area were indicated on the form, the arrest rates were lower than when they were not indicated. Fagan concluded that these indicia seem[ ] to be invoked so often and in such disparate circumstances to suggest that [they are] almost meaningless.
Using the above criteria, Fagan found that 68.9% of all stops were justified, 24.4% were indeterminate, and 6.7% were unjustified. Fagan noted troubling patterns in stops for trespassing specifically, where 55.38% of stops (in non-radio run instances) were indeterminate, adding that this may result from the design of the stop factors, since other was checked off in 60% of the stops for this suspect crime. Additionally, Fagan found that:
The highest rate of unjustified stops was for weapons offenses. Nine percent of the radio runs and 12.3 percent of the non-radio runs were classified as unjustified. This results in large part from the extensive use of furtive movements as a stop justification for weapons offenses: 60 percent of stops where a weapons offense was suspected were justified in whole or part by furtive movement. Another legally indeterminate stop factor, suspicious bulge, was cited in 34.4 percent of weapons stops, and high crime area in nearly half the weapons stops.
Fagan then examined the hit rates of the stops, defined as whether a stop leads to an arrest of a suspect or a summons, and whether contraband is seized. Fagan found that 5.37% of all stops resulted in an arrest, while 6.26% resulted in the issuance of a summons. Guns were seized in 0.15% of all stops, and contraband of all types (including weapons, drugs, and stolen property) were seized in 1.75% of all cases. Fagan compared this to the rates in random checkpoint cases--an 8.96% arrest rate where officers were searching vehicles for drugs and a 1.6% rate when officers were searching for drunk drivers--and concluded that the NYPD stop and frisk tactics produce rates of seizures of guns or other contraband that are no greater than would be produced simply by chance.
Lastly, Fagan looked at racial disparities in stop outcomes. He found that blacks were significantly less likely to receive any sanction, but there was no statistically significant difference between Hispanics and whites. Furthermore, Fagan found that [a] mong those receiving any sanction, Blacks were 31.4% more likely than White suspects to be arrested versus summonsed, but [t] here was no significant difference for Hispanics or Other Race suspects compared to Whites.
Even with these findings, the defendants still moved for summary judgment on the overarching claims against the City of New York and the NYPD as well as on the claims of the named plaintiffs. The court found multiple triable issues of fact, allowing most of the case to proceed to the trial stage. First, the court found that there was significant conflicting evidence on the questions of whether the NYPD is providing adequate training to officers on the law of reasonable suspicion, the department's required documentation procedures, and the racial profiling policy. The court also denied summary judgment on the issue of whether or not the City has acquiesced in a widespread custom or practice of unconstitutional stops and frisks. Next, the court denied summary judgment on the issue of illegal quotas for stop and frisks imposed by the NYPD, finding that that the testimony of officers, the recordings of roll calls, and the findings of a labor arbitrator as to the existence of such quotas presented a stark contrast to the City's denial of their existence. Finally, the court found issues of material fact on whether race is the determinative factor in the decision to effect a stop and whether the NYPD's stop and frisk policies have had a disparate impact in the form of a widespread pattern of race-based stops, reflected in the differences between the RAND Report and Fagan's report.
The survival of this case past the summary judgment stage represents perhaps the best chance for substantial judicial review of the practices of the NYPD. In particular, the plaintiffs' focus on the issues of the training and supervision of officers as well as the use of quotas is most likely to lead to real change, as these represent the clearest avenues of reform within the NYPD.
Conclusion
Thousands of New Yorkers are stopped, questioned, and frisked every year. The majority of these stops are appropriate uses of police powers and are legal under federal and state law. But for those New Yorkers who believe that they were stopped improperly--on the basis of their race, or simply on the whim of a rogue officer--there are few avenues of legal recourse, and even those avenues are ineffective in most cases. Because most stops and frisks do not lead to arrest and the recovery of evidence, and because the qualified immunity doctrine shields most police action from scrutiny, few stops and frisks are ever reviewed by courts. Administrative review is also largely ineffectual because of the NYPD's lack of cooperation with the CCRB. The best hope for change comes from the NYPD itself; change in the way officers are trained in stop and frisk procedures, change in the performance criteria, quotas, and culture of the department itself. Additionally, departmental cooperation with administrative review by the CCRB, whether voluntary or imposed through political change, is necessary. Without these substantive changes within the NYPD, a large number of people stopped in violation of their constitutional rights will continue to have no recourse.
[a1] . Candidate for J.D., 2012, Benjamin N. Cardozo School of Law.; B.A., New York University, 2006.
