Excerpted From: Garanique Williams, A Means to an End: a Way to Curb Bias-based Policing in New York City, 2023 Cardozo Law Review de novo 90 (2023) (250 Footnotes) (Full Document)


GaraniqueWilliamsConversations about destructive policing, violence, and questionable law enforcement practices have been a focus in social media in recent years. This may be for good reason since in 2020, Eyewitness News released evidence that racial disparities have grown larger in New York City over the past five years. Take Earl Sampson (a Miami Gardens resident):

[E]arl Sampson, ... has been stopped and questioned 258 times in four years, searched more than 100 times, and arrested and jailed 56 times ... He has been arrested, sometimes several times in one week, for loitering or trespassing at his workplace. And the cops know who he is and that he works there, because it is often the same cops who conduct the arrests--over and over again.

To help explain this bizarre, predatory behavior, one can look to the observations of academics. For example, intersectionality--a term developed by law professor and activist, Ms. Kimberlé Crenshaw, to explain how oppression can be amplified for a person with multiple marginalizable characteristics a reason police continue to disproportionately target and harass people of color. In simple terms, intersectionality may play a huge role in racial profiling, and in the lives of similarly situated individuals like Sampson.

Racial profiling is defined as “[t]he targeting of individuals as suspicious based on a set of characteristics they believe to be associated with crime, rather than credible evidence or information linking a specific type of person to a specific criminal incident ....” In addition to Sampson, another example of this behavior was provided by New York's own NYPD in 2019, when NYPD officers filed suit against their supervisor for pressuring them to arrest more Black and “Hispanic” people. Other examples include the fact that drug sales are similar across racial groups, but communities of color bear the brunt of policing because individuals in those communities are more likely to be sentenced to serve longer prison or jail time. In fact, one news article suggests that Black people are “eight times more likely to be stopped and frisked [than] white people since 2015.” Despite a sharp decline in some of the highest numbers of stop-and-frisks New York City has witnessed since Mayor Bloomberg left office at the end of 2013, racial disparities in who is targeted during those frisks reminds us that policing is not solely a numbers game. Race, sex, and other social identifiers can have a real impact on the way law enforcement engages with the community. Thus, it is prudent to remember those factors as this conversation switches its focus to another highly policed group--which often includes many of the same vulnerable racial groups mentioned above--the residents of the New York City Housing Authority (NYCHA).

Housing status is often a neglected, yet important, protected category that should be considered in the conversations about the impact race, class, socioeconomic status, and other factors, have on policing. NYCHA, also known as project housing or the “projects,” is a city-funded housing program that creates low-income and affordable housing options for over 350,000 New Yorkers in various boroughs, in addition to providing Section 8 and PACT/RAD housing. Currently, there are over 335 housing developments spread across New York, and NYCHA houses about one in every fifteen New Yorkers. Most of these New Yorkers are poor Black and Brown families. Unfortunately, NYCHA residents and their guests are frequently subjected to “voluntary” stops, frisks, and searches in their own “hallways, stairwells, courtyards, and other common spaces ....” For example, in Buffalo, New York, a complaint was filed against the Buffalo Police Department Housing Unit for conducting trespass “sweeps” and setting up unconstitutional checkpoints that resulted in unconstitutional arrests of citizens. It should also be noted that the Buffalo Police Housing Unit issues about one-third of the entire department's traffic tickets.

The hysteria around policing these “projects” comes partially from failed attempts by major cities to develop safety and accountability programs for the residents of public housing. In the 1990s, after public housing authorities became more aggressive in their attempt to maintain order, President Clinton ordered the Department of Housing and Urban Development and the Justice Department to create a better way to maintain order. Currently, the remnants of that attempt in New York is “hot spot policing,” where officers surveille and spend more time in small geographic areas like specific buildings or addresses of poor, marginalized groups. This work is done by a variety of different NYPD officers, but this note will focus on the impact of the officers in Police Service Areas or PSAs.

Police Service Areas function similarly to precincts, serving as a localized space for NYPD officers to carry out their duties, but with the specific focus of surveilling NYCHA's public housing developments. There are officially nine PSAs, but some PSAs have accompanying satellite offices. The specific locations, whether inside or outside of a residential NYCHA building, varies by location. For example, PSA 1, located in Brooklyn, New York, has two locations, one located outside of NYCHA property, and a satellite office located inside of a NYCHA building. PSA 3, also located in Brooklyn, follows the same pattern. In the Bronx, both PSA 8 branches, the main and satellite locations, are located within NYCHA buildings. Queens mirrors the Bronx in that all three PSA offices are located on NYCHA development property. Manhattan contains PSA 4, 5, and 6, none of which have accompanying satellite locations. Finally, Staten Island is home to one PSA location which is located on NYCHA property. Focusing on the housing status of many poor Black and Brown New Yorkers, in the context of the intersections of their other identities, creates an opportunity for a deeper level of analysis of targeted policing.

In this Note, I will argue that since the NYPD has found alternate, less invasive means of accomplishing their objectives, NYPD officers who operate in PSAs, that are located on NYCHA property, are in violation of New York City Administrative Code Section 14-151 for targeting NYCHA residents, based on housing status, and therefore should be removed. Part I of this Note begins with some background information, explaining the history and development of NYCHA housing and NYC's PSAs. Next, the problem is stated and supported using stop-and-frisk data from 2019 and 2020. Finally, Part I will discuss the protections offered to vulnerable populations, using Section 14-151 as a guide and contraposed against the United States Constitution and the New York State Constitution. Part II states why Section 14-151 of the New York City Administrative Code is the best way to frame a successful claim for bias-based profiling and suggests why some PSAs are currently in violation of Section 14-151. Part III proposes the removal of all PSAs from all NYCHA properties because of the unlikely success of a less invasive injunction and the heightened vulnerability of NYCHA residents due to their housing and economic status.

[. . .]

The usage of PSAs is likely creating a disparate impact on the residents of NYCHA housing, based on housing status, and thus allowing for officers to engage in bias-based profiling in violation of Section 14-151. Data suggests that PSA officers are over-policing New Yorkers, no matter the location of the PSAs, and are, therefore, able to conduct their duties sufficiently off of NYCHA property. More specifically, the data shows that PSA officers assigned to posts off of NYCHA property are still stopping and frisking New Yorkers at alarming rates. If the work of law enforcement is unaffected by the location of its PSAs, then the scale should tip in favor of protecting some of the most vulnerable groups of New Yorkers.

History has shown that less invasive injunctions do not sufficiently curb unwanted behavior related to racial inequity. In fact, Black and Latinx New Yorkers are still being stopped and frisked at much higher rates than their white counterparts. Thus, it is time for the courts to order a more nuclear option. By removing the PSAs from NYCHA property, law enforcement can continue to meet their safety goals while the new adjustment creates a buffer between some of New York City's most vulnerable populations and one of the most powerful organizations in the country. This can help remove skepticism about whether, in any given police encounter, bias-based profiling is controlling the interaction because of the proximity between PSAs and the residents they surveil. Instead of watching and waiting for a NYCHA resident to commit the smallest infraction, police officers will be more inclined to arrive when absolutely necessary and, therefore, can devote their time to more important work. Thus, PSAs should be removed from all NYCHA properties and placed in locations that suggest a compromise between public safety and “good faith” policing.

Cardozo Law Review (Vol. 43), B.A. Cornell University (2017).