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Regulating New York City Stop-&-Frisk: Putting an End to Race-Based Stops

Imagine you decide to help your friend move from his grandmother’s house.  You are standing outside of his apartment building, an officer pulls up to the curb, points a gun at you, and yells “[g]et on the ground! Now!”  You lie face down on the ground while two more officers approach you with their guns drawn.  The officer who initially pointed his gun at you says, “[w]e heard someone on this street has a gun.”  They proceed to search you while you continue to lie faced down on the ground.  After finding no weapons, the officers ask you for identification, write down your name and then walk away in silence.  This is an example of the treatment experienced by New York City (NYC) residents, particularly African-Americans and Latinos, who are stopped by New York City Police Department (NYPD) officers on a daily basis.

The New York Civil Liberties Union’s 2011 stop-and-frisk report indicates that even when African-Americans and Latinos did not constitute a majority of residents in a particular neighborhood, they were still two or three times more likely to be stopped by the police than Whites.  Even more troubling is that the overwhelming majority of those stops did not lead to an arrest and only 1.9 percent of frisks led to the recovery of a weapon.  Therefore, most of the people of color were innocently living their lives when stopped.  Rather than fighting crime, NYC’s stop-and-frisk policy effectively makes innocent African-Americans and Latinos feel harassed, creating resentment and distrust among these communities.  Due to the lack of accountability placed on officers and the disparate effect of stop-and-frisk on African-Americans and Latinos, this author suggests that New York City: (1) implement the reforms established in the recent federal court decision Floyd v. City of New York; (2) grant civil rights groups that represent victims of illegal stops and frisks access to the NYPD’s UF-250 electronic database; (3) eliminate “furtive movement” and any other similar term as justifications for stops and frisks; and (4) establish an outside body to discipline officers who conduct illegal stops and frisks.

Stop-and-Frisk Procedure

Officers may legally stop and question a person if they have reasonable suspicion to believe that a person has committed or is about to commit a crime and if an individual is armed or presently dangerous.  Officers may conduct frisks on people they have reasonable suspicion to believe are armed or presently dangerous.  In conducting stops and frisks, officers are required to complete a form called “Unified Form 250” (“UF-250”).  The officer completes this form and selects from a menu of justifications for his/her stop including, “fits the description,” exhibiting actions indicative of casing a victim or location, and exhibiting “furtive movement.”  For frisks, justifications include “possibly” concealing a weapon, making verbal threats of violence, and having a “suspicious” bulge or object.

Racial Disparity in New York City Stop-and-Frisk

The racial disparity in NYC’s stop-and-frisk policy is best seen in its statistics.  In 2011, the NYPD made 685,724 stops, a more than 600 percent increase since Mayor Michael Bloomberg took office.  Of those stops, 86.6 percent were of African-Americans and Latinos, who, according to the latest U.S. Census Bureau, comprise only 54.1 percent of NYC’s population.  Some may argue that this disparity reflects the NYPD’s presence in “high crime” areas, which are sometimes populated with African-American and Latino residents.  However, in seventy out of the NYPD’s seventy-six precincts African-Americans and Latinos made up more than 50 percent of stops and, in thirty-three precincts they accounted for more than 90 percent of stops.  Furthermore, African-Americans and Latinos accounted for more than 70 percent of stops in six of the ten precincts where their populations were at their lowest.  These numbers are substantial because African-Americans and Latinos were often stopped on multiple occasions. Moreover, though they constitute only 4.7 percent of NYC’s population, African-American and Latino males ages fourteen to twenty-four made up 41.6 percent of stops.  Conversely, White males ages fourteen to twenty-four made up 2 percent of the City’s population and only 3.8 percent of stops.

A racial disparity also exists in frisks conducted.  In 2011, the NYPD conducted frisks in 55.7 percent of stops.  Although officers need reasonable suspicion that a person is armed or presently dangerous to conduct a frisk, only 1.9 percent of frisks conducted by the NYPD in 2011 turned up a weapon.  This suggests officers are conducting frisks with less than reasonable suspicion.  Statistics also indicated African-Americans and Latinos were more likely to be frisked than Whites.  Of African-American and Latinos who were stopped, 57.5 percent were frisked, while 44.2 percent of Whites who were stopped were frisked.  However, only 1.8 percent of African-Americans and Latinos frisked were found in possession of a weapon, as compared to 3.8 percent of Whites frisked were found in possession of a weapon.  These disparities are strong indications that race is a factor when officers determine whether they should conduct a frisk.

Despite the clear racial disparity in stops and frisks, some argue that these tactics are justified by the crimes prevented.  However, in 2011, weapons were found in less than 2 percent of stops.  Of the 685,724 people stopped, 88.3 percent were innocent, evidenced by the fact that they were neither issued a summons nor arrested.  Of the 574,483 African-Americans and Latinos stopped, 88.4 percent were not found to be committing any crime.  Moreover, as a result of much scrutiny, stops decreased by 30 percent in 2012.  Nevertheless, NYPD data indicate that this decrease has not increased crime.  In fact, NYC’s murder rate is at an all-time low since the 1960s, when the rate first started being tabulated, and its shootings are down by 8.5 percent from 2011.  These numbers are a strong suggestion that excessive stops and frisks, unjustifiably targeting African-Americans and Latinos, are not eliminating crime.  Instead, they are leading African-Americans and Latinos throughout the City to feel harassed and degraded.

Floyd v. City of New York

In a recently decided federal class-action suit, Floyd v. City of New York, several African-American and Latino plaintiffs sued the City and the NYPD, alleging that the stop-and-frisk policy violated their rights under the Fourth and Fourteenth Amendments.  Based on expert testimony of statistical findings that African-Americans and Latinos were disproportionately stopped and frisked by NYPD officers and institutional evidence of the City’s and the NYPD’s indifference to such findings, Judge Shira A. Scheindlin, of the Southern District of New York, held that the City’s stop-and-frisk policy violated the Fourth and Fourteenth Amendments.  Judge Scheindlin declared that plaintiffs showed that the City and the NYPD were deliberately indifferent to the intentionally discriminatory application of stop and frisk at the managerial and officer levels, that practices resulting in unconstitutional stops and frisks were sufficiently widespread and had the force of law and that the policy indirectly racially profiled based on local criminal suspect data.

As a result of her holding, Judge Scheindlin wrote a separate remedies opinion, ordering a reform of the stop-and-frisk policy. To ensure her reforms are properly carried out and to ensure the City’s and the NYPD’s compliance, Judge Scheindlin appointed an independent monitor to oversee the reform process.  As part of her reform of the stop-and-frisk policy Judge Scheindlin ordered: 1) the policies and training materials related to the stop-and-frisk policy and racial profiling be revised to prevent such racial profiling; 2) UF-250 be changed so that officers write a narrative explaining the basis for their stops, write a separate explanation of why a frisk was performed, provide the individual stopped with a tear-off portion stating the reason for the stop and have a simplified and improved checkbox system used to indicate common stop justifications; 3) uniformed officers provide narrative descriptions of stops in their activity logs whenever a UF-250 is prepared to keep further record of their stops; 4) changes to supervision, monitoring, and discipline such as direct supervision and review of stop documentation by sergeants, indirect supervision and review by more senior supervisors and managers, improved citizen complaint procedures, improved disciplinary procedures, department-wide audits, and an early intervention system based on a centralized source of information regarding officer misconduct; 5) the creation of a joint remedial process that allows all parties to the litigation develop remedial measures to improve stop-and-frisk; and 6) the use of body-worn cameras by one officer in one precinct of each borough for a probationary period to monitor how stops and frisks are carried out.  These reforms are intended to prevent officers from making unconstitutional stops and frisks, involve the community in the reform of the stop-and-frisk policy, and to monitor stops and frisks.

Improving New York City Stop-and-Frisk

New York City should adopt Judge Scheindlin’s plan for reform and incorporate a plan recently created by the city of Philadelphia to eliminate similar problems it had with its stop-and-frisk policy.  In addition to implementing Judge Sheindlin’s reforms, NYC’s plan should:

  1. Grant civil rights groups that represent victims of illegal stops and frisks access to the NYPD’s UF-250 electronic database.  This access should allow these organizations to determine why people were stopped, in which precinct they were stopped, who stopped them, and any other pertinent information that will allow them to determine whether stop-and-frisk is being carried out constitutionally.
  2. Create an outside disciplinary body to discipline officers who are carrying out stops and frisks with less than reasonable suspicion or their superiors who are not correcting this behavior.

This proposal to improve New York City’s stop-and-frisk policy will curtail those stops and frisks, which are discriminatory in nature.  Moreover, this change in policy will help to restore the confidence of African-American and Latino communities in the criminal justice system and the New York Police Department.

Banner image modified from photo taken by Michael Cory. Modified and licensed under Creative Commons Attribution 2.0 Generic.

Edwar Estrada is the Associate Managing Editor of the Journal of Civil Rights and Economic Development and a member of the Moot Court Honor Society. His experience includes internships with Mendes & Mount LLP, the Honorable Harold Baer, Jr. of the United States District Court for the Southern District of New York, Morris Duffy Alonso & Faley and the New York City Law Department.