New York Stop and Frisk Laws

Paul Sloderbeck

Racist Stop and Frisks: New York Police Department Ordered to Change Their Ways

 

            A Federal Judge recently ruled that New York’s Stop and Frisk policy has violated the civil rights of racial minorities.[1] The Plaintiffs brought claims under the 4th and 14th Amendments. In a 195 page decision, Judge Shira Scheindlin examined a statistical analysis of the database of forms made after each stop, known as the UF-250, in the New York Police Department. The court also tried the Constitutionality of nineteen individual stops, and found that nine of the stop and frisks were unconstitutional.          

            A body of law developed after the landmark case of Terry v. Ohio allows police officers who have reasonable suspicion that criminal activity “may be afoot” to stop and detain a person for investigative purposes.[2] A stop has occurred if a reasonable person would not feel free to leave the encounter.[3] In order to move from a stop to a frisk, the officer must “reasonably suspect that the person stopped is armed and dangerous.”[4] Between 2004 and 2012, the NYPD conducted 4.4 million such Terry stops, and over 80% of those stopped were Black or Hispanic.[5]

            The statistician for the plaintiffs, Dr. Fagan, examined the database of UF-250 and categorized each stop as “apparently justified,” “apparently unjustified,” and “ungeneralizable.” Although he characterized only 6%, or approximately 200,000, of the 4.4 million stops as “apparently unjustified,” the judge took this as a bare minimum. One large problem in the UF-250 form is the vagueness of the terms which provide explanation for each stop. For example, officers interpreted “furtive movements” to mean almost anything, including being “very fidgety,”: “looking over their shoulder,” “getting a little nervous, maybe shaking,” or “hanging out in front of [a] building, sitting on benches or something like that.”[6] One telling statistic showed that officers checked this box in 48% of stops involving blacks, 45% of stops involving Hispanics, and in only 40% of stops involving whites.[7] The two most commonly checked boxes between 2004 and 2009 were “Furtive Movements” and “High Crime Area.”[8] Dr. Fagan found evidence of “scripting” among some police officers, or checking the same boxes to justify the stop regardless of circumstances.[9]Based on Dr. Fagan’s analysis, the judge determined that even when controlling for other variable, then NYPD makes more stops of blacks and Hispanics. In other words, the best predictor of the number of stops is the racial composition of a neighborhood, and not the higher crime rate.[10] Furthermore, regardless of racial composition in an area, blacks and Hispanics were more likely to be stopped than whites.[11]

            The court found the municipality vicariously liable for the actions of its police officers through a finding of municipal policy or custom based on “deliberate indifference.”[12] The City had been on early notice. A 1999 study of 175,000 UF-250’s, the first of its kind in evaluating pedestrian stop and frisk practice, put the city on notice that even after controlling for other relevant variables and racial composition of areas, blacks and Hispanics were being stopped at much higher rate than whites.[13] The report called for a conference on these issues, but it never occurred.  There was evidence of increasing pressure on officers to increase their quotas, including use of these stops, regardless of reasonable suspicion. Recordings of a roll call in the 81st precinct in the Bedford Stuyvesant area of Brooklyn showed evidence of this practice. Deputy Inspector Mauriello said at a November 8, 2008 roll call, “Their bandanas—if they’re walking down the street and they’ve got a bandana sticking out their ass, coming out there—they’ve got to be stopped. A 250 at least.  At least.”[14] Such police tactics, although they may be effective, are not constitutional, because wearing a bandana is not a crime. A 2010 Quota Law prohibited retaliation against police officers for failing to reach a certain number of stops, tickets, or summonses. However, this pressure for increased stops seemed to continue.

            Judge Scheindlin did not order an end to stop and frisk, but did appoint a monitor to oversee a reform of the system: Peter Zimroth, a partner in the New York office of Arnold & Porter, LLP and  the former Chief Assistant District Attorney of New York County.[15] The immediate reforms include designing a plan  for avoiding stops with an unconstitutional basis. This requires individualized objective suspicion, and not simply “Furtive Movements” in a “High Crime Area.”[16] The plan also includes long term goals for remedy in the Department’s pedestrian stop and frisk practices.

            With this new judicial pressure and the appointment of a monitor, one hopes that NYPD can improve its relationship with minority residents of the city, and begin to carry out pedestrian stop and frisks in a more race-neutral way. Stop and frisks may be effective in reducing crime, but we cannot sacrifice our civil rights and equality in the name of crime reduction.

 


[1] Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Aug. 12, 2013).

[2] United States v. Sokolow, 490 U.S. 1, 7 (1989)

[3] Florida v. Bostick, 501 U.S. 429 (1991)

[4] Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)

[5] Floyd at 1

[6] Id. at 11-12

[7] Id.  at 45

[8] Id. at 34

[9] Id. at 46-47

[10] Id.  at 59

[11] Id.

[12] Id. at 16

[13] Id. at 62-63

[14] Id. at 75

[15] Floyd, Remedies Opinion at 9

[16] Id. at 15-16

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