SHIRA A. SCHEINDLIN, District Judge:
I. INTRODUCTION .............................................................556
II. EXECUTIVE SUMMARY ........................................................557III. APPLICABLE LAW ...........................................................563A. Monell Liability .....................................................563B. Stops, Frisks, and Searches Under the Fourth Amendment ...............5651. The Definition of a Stop .........................................5652. Stops Must Be Based on Reasonable Suspicion ......................5673. Protective Frisks for Weapons ....................................5684. Searching into Clothing for Weapons ..............................5695. De Bour and the Fourth Amendment .................................569C. Equal Protection Under the Fourteenth Amendment ......................570IV. FINDINGS OF FACT .........................................................572A. Overview of Uncontested Statistics ...................................572B. Expert Testimony .....................................................5761. The Liability Experts ............................................5762. The Fourth Amendment Claim .......................................578a. Overview of Key Issues .......................................578b. Dr. Fagan's Method of Classifying Stops ......................579c. Unreliable Stop Factors ......................................580d. Quantifying the Magnitude of Apparently Unjustified Stops Based on UF-250 Stop Factors ...............................5823. The Fourteenth Amendment Claim ...................................583a. Overview of Key Issues .......................................583b. Competing Benchmarks .........................................583c. Findings Based on Dr. Fagan's Analyses .......................588C. Institutional Evidence of Deliberate Indifference ....................5891. Early Notice: the 1999 AG Report .................................5902. Pressure to Increase Stops .......................................591a. Compstat: Pressure on Commanders .............................592b. Evidence of Pressure in Survey Data ..........................594c. Further Evidence of Pressure on Officers .....................596i. Pressure Before the 2010 Quota Law ......................596ii. Pressure After 2010 Quota Law ...........................600d. Conclusion ...................................................6023. Targeting "the Right People" .....................................6024. Inadequate Monitoring and Supervision ............................607a. Inadequate Documentation and Document Review .................607b. Inadequate Supervision .......................................6105. Partially Inadequate Training ....................................6136. Inadequate Discipline ............................................6177. Ongoing Notice of Constitutional Violations ......................620D. Individual Stops .....................................................6241. Unconstitutional Stop and Frisk ..................................625a. Leroy Downs ..................................................625i. Findings of Fact ........................................625ii. Mixed Findings of Fact and Law ..........................627b. Devin Almonor ................................................628i. Findings of Fact ........................................628ii. Mixed Findings of Fact and Law ..........................630c. Cornelio McDonald ............................................630i. Findings of Fact ........................................630ii. Mixed Findings of Fact and Law ..........................632d. Nicholas Peart — August 5, 2006 .............................633i. Findings of Fact ........................................633ii. Mixed Findings of Fact and Law ..........................635e. Nicholas Peart — April 13, 2011 Stop ........................635i. Findings of Fact ........................................636
ii. Mixed Findings of Fact and Law ..........................636h. Ian Provost ..................................................637i. Findings of Fact ........................................637ii. Mixed Findings of Fact and Law ..........................639g. David Ourlicht-January 30, 2008 Stop .........................640i. Findings of Fact ........................................640ii. Mixed Findings of Fact and Law ..........................641h. Clive Lino — February 5, 2008 Stop ..........................642i. Findings of Fact ........................................642ii. Mixed Findings of Fact and Law ..........................644i. Lalit Clarkson ...............................................645i. Findings of Fact ........................................645ii. Mixed Findings of Fact and Law ..........................6462. Unconstitutional Frisk Only ......................................646a. Dominique Sindayiganza .......................................646i. Findings of Fact ........................................646ii. Mixed Findings of Law and Fact ..........................648b. David Floyd — April 20, 2007 Stop ...........................649i. Findings of Fact ........................................649ii. Mixed Finding of Fact and Law ...........................650c. David Floyd — February 27, 2008 Stop ........................650i. Findings of Fact ........................................650ii. Mixed Findings of Fact and Law ..........................652d. Clive Lino — February 24, 2011 Stop .........................652i. Findings of Fact ........................................652ii. Mixed Findings of Fact and Law ..........................654e. Deon Dennis ..................................................655i. Findings of Fact ........................................655ii. Mixed Findings of Fact and Law ..........................6563. Failure of Proof ..................................................656a. John Doe Stops of Nicholas Peart in Spring 2008 and February 2010 and David Ourlicht in February and June 2008 ........................................................656b. Kristianna Acevedo Stop .......................................657c. Clive Lino — August 3, 2008 ..................................658V. CONCLUSIONS OF LAW .......................................................658A. The City Is Liable for Violations of Plaintiffs' Fourth Amendment Rights .............................................................6581. Deliberate Indifference ..........................................6582. Widespread Practice ..............................................659B. The City Is Liable for Violations of Plaintiffs' Fourteenth Amendment Rights ..............................................................6601. Policy of Indirect Racial Profiling ...............................660a. Intentionally Discriminatory Application of a Facially Neutral Policy ..............................................661b. Express Classification ........................................663c. Conclusion ....................................................6642. Deliberate Indifference ...........................................665VI. CONCLUSION ...............................................................667
New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.
This case is about the tension between liberty and public safety in the use of a proactive policing tool called "stop and frisk." The New York City Police Department ("NYPD") made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.
Plaintiffs — blacks and Hispanics who were stopped — argue that the NYPD's use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on "reasonable suspicion" as defined by the Supreme Court of the United States;
I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. "The enshrinement of constitutional rights necessarily takes certain policy choices off the table."
This case is also not primarily about the nineteen individual stops that were the subject of testimony at trial.
The Supreme Court has recognized that "the degree of community resentment
Plaintiffs requested that this case be tried to the Court without a jury. Because plaintiffs seek only injunctive relief, not damages, the City had no right to demand a jury. As a result, I must both find the facts and articulate the governing law. I have endeavored to exercise my judgment faithfully and impartially in making my findings of fact and conclusions of law based on the nine-week trial held from March through May of this year.
I begin with an Executive Summary of the most important points in the Opinion. Next, I address the legal standards governing the ability of police to conduct stops and frisks. I provide a statistical overview of the 4.4 million stops made between January 2004 and June 2012, followed by a discussion of the expert analyses of those stops. I then address the question of whether the City had notice of allegations of racial profiling in the conduct of stops and frisks, and the institutional response to that notice in terms of monitoring, supervision, training, and discipline. After addressing these big picture issues, I make findings of fact with respect to each of the nineteen stops of the twelve class members who provided testimony at trial.
Finally, I present my conclusions of law based on my findings of fact. I will address the question of remedies in a separate opinion, because the remedies overlap with a different case involving stop and frisk in which I have already found that preliminary injunctive relief is warranted.
It is important that this Opinion be read synergistically. Each section of the Opinion is only a piece of the overall picture. Some will quarrel with the findings in one section or another. But, when read as a whole, with an understanding of the interplay between each section, I hope that this Opinion will bring more clarity and less disagreement to this complex and sensitive issue.
Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs "must prove that `action pursuant to official municipal policy' caused the alleged constitutional injury."
The Fourth Amendment protects all individuals against unreasonable searches or seizures.
The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. "The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point."
The following facts, discussed in greater detail below, are uncontested:
Both parties provided extensive expert submissions and testimony that is also discussed in detail below.
With respect to plaintiffs' Fourth Amendment claim,
The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as "apparently unjustified." For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as "apparently unjustified." The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked "other" on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as "ungeneralizable" rather than "apparently unjustified." (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). (4) "Furtive Movements," "High Crime Area," and "Suspicious Bulge" are vague and subjective terms. Without an accompanying narrative explanation for the stop, these
With respect to plaintiffs' Fourteenth Amendment claim,
Based on the expert testimony I find the following: (1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate. (2) Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations. (3) For the period 2004 through 2009, when any law enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime. (4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely — and Hispanics 9% more likely — than whites to be subjected to the use of force. (5) For the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. Together, these results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.
With respect to both the Fourth and Fourteenth Amendment claims, one way to prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees — here, the NYPD. The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.
As early as 1999, a report from New York's Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal.
In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting "the right people" for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints.
Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.
One example of poor training is particularly telling. Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept," and could include a person "changing direction," "walking in a certain way," "[a]cting a little suspicious," "making a movement that is not regular," being "very fidgety," "going in and out of his pocket," "going in and out of a location," "looking back and forth constantly," "looking over their shoulder," "adjusting their hip or their belt," "moving in and out of a car too quickly," "[t]urning a part of their body away from you," "[g]rabbing at a certain pocket or something at their waist," "getting a little nervous, maybe shaking," and "stutter[ing]."
I now summarize my findings with respect to the individual stops that were the subject of testimony at trial.
In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.
In conclusion, I find that the City is liable for violating plaintiffs' Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City's highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting "the right people" is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.
I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the
To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD's conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD's compliance with the ordered remedies.
Section 1983 of Title 42 of the United States Code ("section 1983") creates "`a species of tort liability'" for, among other things, certain violations of constitutional rights.
One way to establish the existence of a municipal policy or custom is through a showing of "deliberate indifference" by high-level officials. "`[W]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.'"
A municipality may incur Monell liability based on deliberate indifference through its training and supervision practices. "[D]eliberate indifference may be inferred where `the need for more or better supervision to protect against constitutional violations was obvious,' but the policymaker `fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]'"
In Walker v. City of New York, the Second Circuit framed the deliberate indifference inquiry in three parts:
"Where the plaintiff establishes all three elements, then ... the policymaker should have known that inadequate training or supervision was `so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.'"
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment,
As the Supreme Court reaffirmed in Florida v. Bostick, the test for determining whether a Terry stop is taking place "is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter."
While the Supreme Court explicitly refrained from determining whether a seizure occurred in Bostick,
The Second Circuit has held that the following factors are indicative of a "seizure," a term that encompasses both Terry stops and arrests:
By contrast, the Second Circuit held that no Terry stop took place "where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands."
In sum, the test for whether a Terry stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter. The Second Circuit has further held: "[a] seizure occurs when (1) a person obeys a police officer's order to stop or (2) a person that does not submit to an officer's show of authority is physically restrained."
In order for a Terry stop to comply with the Fourth Amendment, it must be based on a reasonable suspicion that criminal activity "may be afoot."
Courts reviewing stops for reasonable suspicion "must look at `the totality of the circumstances' of each case to see whether the detaining officer has a `particularized and objective basis' for suspecting legal wrongdoing."
The Supreme Court has recognized that a police officer making an investigatory stop "should not be denied the opportunity to protect himself from attack by a hostile suspect."
Just as reasonableness is the touchstone for the Fourth Amendment generally, reasonable suspicion provides the standard at each stage of a Terry stop. Once an officer has lawfully stopped someone based on reasonable suspicion of criminal activity, the officer may lawfully frisk the stopped person based on reasonable suspicion that the person is armed and dangerous. If the frisk gives rise to reasonable suspicion that an object in the clothing of the stopped person is a weapon that could be used to harm the officer, then the officer may take whatever action is necessary to examine the object and protect himself — including removing the object from the clothing of the stopped person.
The NYPD's training materials place great importance on the New York state common law of stops, as articulated in People v. De Bour and its progeny.
The Fourteenth Amendment's Equal Protection Clause declares that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws."
The Second Circuit has outlined "several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause."
In order to show intentional discrimination under the second and third models of pleading above, plaintiffs need not prove that the "`challenged action rested solely on racially discriminatory purposes,'"
The consequences of government action are sometimes evidence of the government's intent: "proof of discriminatory intent must necessarily usually rely on objective factors.... The inquiry is practical. What a legislature or any official entity is `up to' may be plain from the results its
A non-jury trial on liability and remedies was held between March 18 and May 20, 2013.
Officers are required to complete a UF-250 form, also known as a "Stop, Question and Frisk Report Worksheet," after each Terry stop. Each side of the form contains checkboxes and fields in which officers are required to indicate the nature of the stop and the circumstances that led to and justified the stop (the "stop factors"). A copy of a blank UF-250 appears as Appendix A to this Opinion.
Plaintiffs' liability expert, Dr. Jeffrey Fagan, conducted various statistical analyses of UF-250s based on an electronic database containing the information on the forms.
Finally, I note that the City's attempt to account for the low rate of arrests and summonses following stops was not persuasive. The City states that "[v]arious witnesses testified, including former Chief of Department Joseph Esposito, that many stops interrupt a crime from occurring, for example an individual casing a location or stalking an individual late at night."
Indeed, for several reasons, the 12% "hit rate" likely overstates the percentage of stops in which an officer's suspicions turn out to be well-founded. First, officers are trained to prepare UF-250s only for stops based on suspicion of a misdemeanor or felony. The UF-250 itself states: "Specify Which Felony/P.L. Misdemeanor Suspected."
Second, the fact that many post-stop summonses are dismissed further undermines the reliability of the 6% post-stop summons rate as a true "hit rate," that is, a measure of validated suspicions.
Third, both summonses and arrests may be unrelated to the suspected crime for which a person was stopped. For example, it has been reported that the most common arrest after a stop is for marijuana possession.
Both parties offered expert testimony about whether the NYPD's stop and frisk practices violate the Constitution. After describing the qualifications of the competing experts and discussing their differing views on the central issues in dispute here, I first determine which expert I find more reliable and the basis for that decision. I then make certain findings based on the credible expert testimony with respect to both the Fourth and Fourteenth Amendment claims.
Dr. Fagan is a Professor of Law at Columbia Law School and Professor of Epidemiology at the Mailman School of Public Health at Columbia University. He has been studying the policies at issue in this case for over a decade.
The City's liability experts are Dr. Dennis Smith, an Associate Professor of Public Administration at the Robert F. Wagner Graduate School of Public Service at New York University; and Dr. Robert Purtell, an Assistant Professor of Finance at the University of Albany's Nelson A. Rockefeller College of Public Affairs and Policy.
I find Dr. Fagan a more reliable expert than Drs. Smith and Purtell. While Dr. Smith's research makes him specially qualified to opine on the effectiveness of the NYPD's practices in controlling crime, the effectiveness of stop and frisk is not at issue in this case, as I have repeatedly explained. Unlike Dr. Fagan, Dr. Smith had never worked on a statistical study of racial disparities in any context until he became the City's expert.
In addition, while both parties' experts made errors in the course of their analyses that were later corrected,
Finally, while the "battle of the experts" between Dr. Purtell and Dr. Fagan showed that Dr. Purtell has a sophisticated understanding of the purely mathematical aspects of statistics, Dr. Fagan has a deeper understanding of the practical, real-world meaning and implications of the statistical analyses in this case. Given a choice between relying on highly sophisticated mathematical analysis but limited practical understanding, or deep practical understanding informed by established statistical expertise, I favor the latter.
Dr. Fagan performed an analysis of the NYPD's UF-250 database in order to evaluate how often the NYPD's stops lack reasonable suspicion. Before delving into Dr. Fagan's Fourth Amendment analysis and my findings, I highlight several general points.
First, it is impossible to assess individually whether each of the 4.4 million stops at issue in this case was based on an officer's reasonable articulable suspicion that criminal activity was afoot. It took weeks of testimony to try nineteen stops. It would take multiple lifetimes of many judges to try each of the 4.4 million stops.
Second, while the UF-250 database is the best available source of information, it is highly flawed for the following reasons: (1) Officers do not always prepare a UF-250, either because the officer does not believe she made a Terry stop or because the officer failed to prepare the form. (2) A UF-250 is one-sided, in that the UF-250 only records the officer's version of the story. (3) Even NYPD commanders and supervisors have acknowledged that UF-250s do not provide enough information to determine whether reasonable suspicion existed for a stop.
Third, Dr. Fagan was extremely conservative in characterizing stops as lacking reasonable suspicion. He categorized each stop as "apparently justified," "apparently unjustified," or "ungeneralizable."
Dr. Fagan estimated the number of stops apparently lacking reasonable suspicion by analyzing the UF-250 database. He began with the assumption that all the forms had been filled out accurately and completely, then distinguished the stop factors on Side 1 of the UF-250 from the stop factors on Side 2.
Based on these classifications, Dr. Fagan categorized the stops recorded in the UF-250 database as (a) "apparently justified," that is, based on reasonable suspicion; (b) "apparently unjustified," that is, lacking reasonable suspicion; or (c) "ungeneralizable," meaning that the UF-250 contains insufficient information to make a determination without further analysis.
Dr. Fagan thoroughly undermined the assumption that the two most frequently checked stop factors provide a reliable basis for suspecting criminality: Furtive Movements on Side 1, and High Crime Area on Side 2.
Other recent psychological research has shown that unconscious racial bias continues to play an objectively measurable role in many people's decision processes.
The High Crime Area stop factor is likewise problematic. Presence in an area with high rates of crime is not a sufficient basis for a stop, although it may contribute to reasonable suspicion.
Dr. Fagan also showed that over time, officers increasingly developed "scripts" for checking off stop factors.
Dr. Fagan's extremely conservative definition of "apparently unjustified" almost guarantees that the roughly 200,000 stops he placed in that category underestimate the true number of stops lacking legal justification.
The finding that Dr. Fagan's stop factor analysis likely significantly undercounts the number of unjustified stops is corroborated by evidence in this case, as well as in Ligon, showing that officers sometimes fail to fill out UF-250s for stops that lack reasonable suspicion, or fail to fill out UF-250s because they misunderstand when an encounter evolves into a Terry stop, or fill out UF-250s inaccurately and in a way that increases the apparent justification for a stop.
The problems with Dr. Fagan's Fourth Amendment analysis of the UF-250s result not from analytical failures but from the inadequacy of the NYPD's systems for identifying unjustified stops when they occur. As a result, the magnitude of Fourth Amendment violations that have taken place in this case — beyond the rough minimum indicated by Dr. Fagan's statistics — will almost certainly never be known.
The crux of plaintiffs' Fourteenth Amendment claim is that blacks and Hispanics are stopped more frequently than they would be if police officers did not discriminate based on race when deciding whom to stop. Assessing this claim required comparing statistics about rates of stops of blacks and Hispanics to "[a] standard, or point of reference, against which [those statistics] can be compared, assessed, measured or judged" — what is known in statistics as a "benchmark."
Conclusions regarding racial bias drawn from statistics "may vary drastically based on which benchmark is used."
Each expert submitted voluminous reports and testified at trial in support of his choice of benchmark. Of necessity, I must simplify their very detailed and complex submissions and testimony to focus on the question at the heart of the parties' dispute: is there statistical evidence of racial discrimination in the NYPD's stop practices? With that caveat, I endeavor to summarize their differing benchmarks.
Dr. Fagan explained his choice of benchmark as follows:
Accordingly, Dr. Fagan's "analyses use both population and reported crime as benchmarks for understanding the racial distribution of police-citizen contacts."
The City's experts, by contrast, used a benchmark consisting of the rates at which various races appear in suspect descriptions from crime victims — in other words, "suspect race description data."
I conclude that Dr. Fagan's benchmark is the better choice. The reason is simple and reveals a serious flaw in the logic applied by the City's experts: there is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if the people stopped are not criminals. The City defends the fact that blacks and Hispanics represent 87% of the persons stopped in 2011 and 2012 by noting that "approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were Black and Hispanic."
By contrast, Dr. Smith rejected the assumption that 88% of those stopped were innocent. "[H]ow do we know ... [i]f they were utterly innocent[?]" Dr. Smith asked at trial. He then proposed a "hypothetical" in which "the stop prevents a crime."
Based on this analysis, Dr. Smith concludes that the disproportionate stopping of black people can be explained by the disproportionately black composition of the pool of criminals.
Crime suspect data may serve as a reliable proxy for the pool of criminals exhibiting suspicious behavior. But there is no reason to believe that crime suspect data provides a reliable proxy for the pool of non-criminals exhibiting suspicious behavior. Because the overwhelming majority of people stopped fell into the latter category, there is no support for the City's position that crime suspect data provides a reliable proxy for the pool of people exhibiting suspicious behavior. Moreover, given my finding that a significant number of stops were not based on reasonable suspicion — and thus were stops drawn from the pool of non criminals not exhibiting suspicious behavior — the use of crime suspect data as a benchmark for the pool of people that would have been stopped in the absence of racial bias is even less appropriate.
When confronted by plaintiffs' counsel with similar reasoning, Dr. Smith ultimately appeared willing to entertain the possibility that black people, even when they are law-abiding, might simply be more likely to engage in suspicious behavior than white people:
Dr. Smith's position, while surprising, is not illogical once his premises are accepted. Dr. Smith apparently does not find it plausible that officers' decisions regarding whether to stop a person may be swayed by conscious or unconscious racial bias.
Rather than being a defense against the charge of racial profiling, however, this reasoning is a defense of racial profiling. To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation. This explanation is especially troubling because it echoes the stereotype that black men are more likely to engage in criminal conduct than others.
Another commentator observed in even starker terms:
No doubt many people have heard similar fears and stereotypes expressed, whether intentionally or unintentionally. But race alone is not an objective basis for suspicion by the police. Because there is no evidence that law-abiding blacks or Hispanics are more likely to behave objectively more suspiciously than law-abiding whites, Dr. Smith's — and the City's — refuge in this unsupported notion is no refuge at all. It is effectively an admission that there is no explanation for the NYPD's disproportionate stopping of blacks and Hispanics other than the NYPD's stop practices having become infected, somewhere along the chain of command, by racial bias.
Why would the people stopped by the NYPD, both criminal and law-abiding, so closely resemble the criminal population — or, more precisely, the NYPD's understanding of the criminal population, based on its limited suspect data?
In short, the correlation highlighted by the City and its experts in their attempt to refute the allegation of racial profiling in fact provides evidence of racial profiling. Rather than revealing a valid race-neutral variable that explains the NYPD's disproportionate stopping of blacks and Hispanics, the correlation highlighted by the City's experts suggests how the racial disparities identified by Dr. Fagan might have come about — namely, through a widespread practice of racial profiling based on local criminal suspect data.
Because I accept Dr. Fagan's benchmark for measuring racial disparity and
First, as reflected in Dr. Fagan's Table 5, the NYPD carries out more stops in areas with more black and Hispanic residents, even when other relevant variables are held constant. The best predictor for the rate of stops in a geographic unit — be it precinct or census tract — is the racial composition of that unit rather than the known crime rate.
Second, as reflected in Dr. Fagan's Table 7, within any area, regardless of its racial composition, blacks and Hispanics are more likely to be stopped than whites. This is different from the first finding — that the best predictor for the stop rate in a geographic area is the racial composition of that area. Table 7, by contrast, shows that blacks and Hispanics are more likely to be stopped than whites within precincts and census tracts, even after controlling for the racial composition, crime rate, patrol strength, and various socioeconomic characteristics of the precincts or census tracts where the stops take place. These findings are also robust. They apply not only when the spatial and temporal units of the analysis are changed, but also when the analysis is limited to areas with low crime rates, racially heterogenous populations, or predominately white populations.
Third, for the period 2004 through 2009, blacks who were subject to law enforcement action following their stop were about 30% more likely than whites to be arrested (as opposed to receiving a summons) after a stop for the same suspected crime, even after controlling for other relevant variables.
Fourth, for the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely — and Hispanics 9% more likely — than whites to be subjected to the use of force.
Fifth, for the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. These results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.
The previous two sections addressed the statistical evidence of unconstitutional stops. This section addresses the evidence
The NYPD has known for more than a decade that its officers were conducting unjustified stops and frisks and were disproportionately stopping blacks and Hispanics. Despite this notice, the NYPD expanded its use of stop and frisk by seven-fold between 2002 and 2011. This increase was achieved by pressuring commanders at Compstat meetings to increase the numbers of stops. The commanders, in turn, pressured mid-level managers and line officers to increase stop activity by rewarding high stoppers and denigrating or punishing those with lower numbers of stops.
This pressure to increase the quantity of stops was not accompanied by attention to the constitutionality of the stops. No policies were implemented to ensure that officers were recording each stop with sufficient detail to permit an assessment of the constitutionality of the stops. Similarly, no study was done to ensure that officers were not reflexively creating a "script" of checkmarks — especially Furtive Movements and High Crime Area — by searching the UF-250 database to identify such patterns. No effort was made to identify outliers — meaning those officers with the highest stop numbers, officers who stopped only or almost only blacks or Hispanics, or officers who routinely checked the same boxes on the UF-250. No rewards or punishments turned on the quality of stops conducted. Indeed, when officers were found to have made "bad" stops, little or no discipline was imposed. The evidence showed that the NYPD turned a blind eye to its duty to monitor and supervise the constitutionality of the stops and frisks conducted by its officers.
In addition, I find that the NYPD instituted a policy of indirect racial profiling by directing its commanders and officers to focus their stop activity on "the right people" — the demographic groups that appear most often in a precinct's crime complaints. This policy led inevitably to impermissibly targeting blacks and Hispanics for stops and frisks at a higher rate than similarly situated whites.
In 1999, New York's Attorney General investigated the constitutionality of the NYPD's stop and frisk practices under the Fourth and Fourteenth Amendments. The investigation was prompted in part by the Attorney General's finding that despite a decade of falling crime rates, "the climate in many of New York's minority neighborhoods ... was one of resentment and distrust of the NYPD." Many of the complaints involved "lower-level police involvement in the everyday lives of minority residents," such as stop and frisk encounters.
The Attorney General sought the assistance of a team of researchers from Columbia University's Center for Violence Research and Prevention, led by Dr. Fagan. The researchers performed statistical
For their Fourth Amendment investigation, the researchers analyzed and grouped 15,000 UF-250s using a methodology that resolved "every ambiguity of factual or legal interpretation ... in favor of a determination that `reasonable suspicion' existed." Nevertheless, the researchers found that 15% of the UF-250s contained facts that did not meet the legal test for reasonable suspicion.
For their Fourteenth Amendment investigation, the researchers tested then-NYPD Commissioner Howard Safir's theory — which largely remains the City's theory in this case — that the apparently disproportionate stopping of blacks and Hispanics can be explained on race-neutral grounds by police deployment to high crime areas, and by racial differences in crime rates.
The Report called for a broad, public dialogue among the Office of the Attorney General, the NYPD, and members of the community.
Between 2002 and 2011, the number of stops increased from roughly 97,000 to
Based on numerous, mutually reinforcing sources of evidence at trial including live testimony, depositions, roll call recordings, internal NYPD documents, and survey results, the most plausible explanation is that NYPD officers prior to and during the class period experienced significant pressure to increase their stop activity.
Introduced in 1994, Compstat is the NYPD's statistics-based performance management system.
Chief Esposito, who chaired Compstat's meetings until his retirement earlier this year, and Assistant Chief Raymond Diaz testified that the amount of UF-250s that a unit has completed is a factor in evaluating the unit's performance.
Chief Esposito and other NYPD officials testified that the quality of UF-250s is also reviewed at Compstat meetings. Indeed, there was evidence that attention is paid at Compstat meetings to the quality of enforcement activity in the sense of its effectiveness.
Several NYPD officials conceded in testimony that Compstat focuses on effectiveness, not constitutionality. For example, Chief Esposito was asked to explain an excerpt from the Compstat meeting notes in which he is recorded as stating:
When asked by plaintiffs' lawyers whether "quality" in this passage could refer to whether stops were based on reasonable suspicion, Chief Esposito stated: "No. I think we talk more about where and when. Does it match up with the crime picture? That's what is paramount."
In sum, Compstat exists to measure the effectiveness of police enforcement activities, not their constitutionality.
The evidence discussed in the previous section shows that senior NYPD officials at Compstat meetings routinely place pressure on commanders to increase their enforcement activity, including their stop numbers. The survey evidence in this section shows that subordinate managers in the NYPD have communicated this pressure to the rank and file.
Dr. Eli Silverman and Dr. John Eterno, a retired NYPD captain, conducted two surveys of retired members of the NYPD, one in 2008 and the other in 2012.
The 2008 survey asked: "With respect to the following criteria and based on your personal experience, on a scale of 1 to 10 (with 1 being the least and 10 the most), how much pressure was there from management/supervisors
The responses to the 2008 survey show that mid-level managers in the NYPD who served during the Compstat era perceived significantly greater pressure to increase stops, arrests, and summons than those who retired prior to 1994. Specifically, when asked to rate the amount of pressure they perceived to increase stops, the mean response of Compstat era personnel was a statistically significant 2.2 points higher on the scale from 1 to 10 than pre-Compstat era personnel.
The 2012 survey began by stating: "For all questions, if you retired before 1994, base your answers on your overall impressions over your entire career; if you retired in 1994 or after, base your answers on experiences that occurred only in 1994 and after." The second set of questions presented a refinement of the question on the first page of the 2008 survey: "With respect to the following criteria and based on your personal experience/knowledge, on a scale of 1 to 10 (with 1 being the least and 10 the most), how much pressure did precinct (patrol) personnel receive from management/supervisors to ..." — followed by a list including "Increase summonses," "Increase stop and frisk," and "Increase arrests," as well as a new item: "Obey Legal/Constitutional Rules." The survey later asked respondents to state the year in which they retired.
Dr. Silverman divided the respondents to the 2012 survey into three categories: those who retired in 1994 or earlier (pre-Compstat), those who retired between 1995 and 2001, and those who retired after 2002 (the year of Mayor Bloomberg's arrival and his appointment of Commissioner Kelly). The responses showed that the percentage of NYPD personnel reporting high pressure to increase stops increased from 9% in the pre-Compstat era, to 19% in the Compstat era before Mayor Bloomberg, to 35% of all respondents who retired after 2002. The percentage of personnel reporting low pressure fell from 58% for pre-Compstat retirees to 37% for pre-Bloomberg retirees to 24% for post-Bloomberg retirees. The increases in reported pressure to raise summons and arrest numbers was similarly stark.
Finally, while the 2012 survey showed an increase from 35% to 42% in those reporting medium pressure to obey legal and constitutional rules, it also showed a significant post-2002 decrease in those reporting high pressure to do so. 45% of pre-Compstat
Although the City attempted to undercut the reliability of the 2008 and 2012 findings,
Additional anecdotal evidence supports plaintiffs' argument that the NYPD pressured officers to increase stops without due regard to the constitutionality of those stops. For convenience, I divide the evidence into two periods: before the enactment of New York's Quota Law in 2010, and after.
Before 2010, the NYPD had no written policy prohibiting quotas for stops, arrests, or other enforcement activities.
Officer Schoolcraft's recordings take place at the 81st Precinct in the Bedford Stuyvesant area of Brooklyn. Many of the recordings are of roll calls, the period before a tour when officers assemble to receive assignments and training.
Later, Lieutenant Delafuente states: "The XO was in the other day.... He actually laid down a number, all right?" Lieutenant Delafuente says, perhaps jokingly, that he is not going to quote the number, then proceeds to say that the Executive Officer "wants at least three seatbelts, one cellphone, and 11 others." He also suggests that he has criticized officers whose numbers were not high enough: "The CO gave me some names. I spoke to you. I'm not going to embarrass you in front of everyone."
The most striking aspect of the Schoolcraft recordings is the contempt and hostility of supervisors toward the local population. For example, at a roll call on November 8, 2008, Lieutenant Delafuente states:
Similarly, Lieutenant Delafuente reminds the officers at a roll call on November 1, 2008 that they are "not working in Midtown Manhattan where people are walking around smiling and happy. You're working in Bed-Stuy where everyone's probably got a warrant."
As further evidence of a culture of hostility in the 81st Precinct, Sergeant Raymond Stukes said the following at a roll call on March 13, 2009:
Similarly, Sergeant Stukes states at a roll call on November 23, 2008: "If they're on a corner, make them move. They don't want to move, you lock them up. Done deal. You can always articulate later."
In a speech at roll call on Halloween in 2008, Deputy Inspector Mauriello states:
When asked to explain what he meant in these remarks, Deputy Inspector Mauriello testified that throwing dice is a quality of life infraction.
In addition to revealing a virulent precinct culture that the NYPD failed to address until forced to do so by the publication of the recordings, some of the recorded statements are directly relevant to plaintiffs' claims. Sergeant Stukes' statements on more than one occasion that "you can always articulate" some basis for a stop after the fact encourages officers to stop first and develop a justification later.
Likewise, the following words by Deputy Inspector Mauriello at a roll call on November 8, 2008 provide evidence that the
Most significantly, Sergeant Stukes repeatedly instructs the officers that their careers depend on carrying out high levels of activity, and shows utter disregard for the requirement that a stop only be made based on a reasonable suspicion that crime is afoot. At a December 8, 2008 roll call, Sergeant Stukes explained:
Officer Polanco's recordings take place in 2009 at the 41st Precinct in the Bronx, and reveal similar pressure on officers to achieve enforcement activity numbers regardless of whether there is a reasonable suspicion of criminal activity. In one recording, Officer Polanco's union delegate, Officer Angel Herran, refers repeatedly to a requirement that officers complete "20 and 1," which Officer Polanco testified meant twenty summonses and one arrest per month.
Officer Serrano's recordings take place at the 40th Precinct in the Bronx, and also show the pressure for enforcement activity. During a roll call on June 30, 2010,
Beyond the recordings, many other officers offered credible, consistent testimony regarding the pressure to increase enforcement activity and the threat of adverse consequences for failing to achieve high enough numbers.
In 2010, after the Village Voice publicized Officer Schoolcraft's recordings,
Subsequently, Chief Hall sent a memo to the commanders of every patrol borough purporting to clarify the NYPD's position on performance quotas. The memo first clarifies that "a requirement that a specific number of summonses be issued or arrests be made over a specific period of time has always been prohibited." The memo then states that "[o]fficers who avoid engaging in enforcement activities ... can be subjected to adverse consequences."
In 2011, the NYPD introduced the "Quest for Excellence" program, a set of new policies for evaluating the performance of officers and encouraging the use of performance goals.
In addition, the form used to track officer performance reflects the NYPD's emphasis on enforcement activity numbers and effectiveness without attention to the constitutional justifications for enforcement. An officer is required to tally her activities each day on the Police Officer's Monthly Conditions Impact Measurement Report.
In contrast to this detailed review system for effectiveness, there is no process for evaluating whether enforcement activities are legally justified.
It is difficult to see any difference between a performance goal and a quota if "performance goals" operate as Deputy Commissioner Beirne testified.
The foregoing evidence shows that officers are routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops are constitutionally justified. Together with evidence described in the next section, this is a predictable formula for producing unjustified stops. To paraphrase a statement by Chief Hall from his 2010 memo, imposing numerical performance goals for enforcement activities, without providing effective safeguards to ensure the activities are legally justified, "could result in an officer taking enforcement action for the purpose of meeting a [performance goal] rather than because a violation of the law has occurred."
The role of race in stop and frisk has been a source of contention since the Supreme Court first sanctioned the practice in 1968. In Terry, the Supreme Court recognized that "`[i]n many communities, field interrogations are a major source of friction between the police and minority groups,'" and that friction "`increases as more police departments [encourage] officers... routinely to stop and question persons on the street.'"
The NYPD maintains two different policies related to racial profiling in the practice of stop and frisk: a written policy that prohibits racial profiling and requires reasonable suspicion for a stop
Based on the evidence summarized below, I find that the NYPD's policy of targeting "the right people" encourages the disproportionate stopping of the members of any racial group that is heavily represented in the NYPD's crime suspect data. This is an indirect form of racial profiling. In practice, it leads NYPD officers to stop blacks and Hispanics who would not have been stopped if they were white. There is no question that a person's race, like a person's height or weight, is a permissible consideration where a stop is based on a specific description of a suspect.
Chief Esposito, the highest ranking uniformed member of the NYPD throughout the class period and the chair at Compstat meetings, was especially frank about the NYPD's policy of targeting racially defined groups for stops, provided that reasonable suspicion is also present:
Chief Esposito conceded that not all stops are based on a specific suspect description from a crime complaint. In fact, officers check "Fits Description" on only 13% of UF-250s. Nevertheless, Esposito testified, the NYPD uses criminal suspect data to target certain individuals for stops even when there is no suspect description:
Thus, within the pool of people that an officer could reasonably suspect of criminal activity, the people who match the general demographics of the local criminal suspect data are "the right people" to be stopped.
Other evidence corroborates this interpretation of Chief Esposito's testimony. On one of the Serrano recordings, Deputy Inspector Christopher McCormack explained to Officer Serrano that stopping "the right people, [at] the right time, [in] the right location" meant not stopping "a 48-year-old lady [who] was walking through St. Mary's Park when it was closed."
Deputy Inspector McCormack testified that his statements in the recording were based on suspect descriptions from victims. But he also acknowledged that the descriptions of the suspects consisted only of the information stated here: males, black, between 14 and 21.
Earlier in the recording, when challenged by Officer Serrano, Deputy Inspector McCormack clarified that he does not believe "every black and Hispanic" is subject to being stopped based on the crime suspect data.
The stop of Cornelio McDonald illustrates the NYPD's policy of indirect racial profiling based on crime suspect data. Officer Edward French (now a detective) was aware of crime reports that a black male had been burglarizing residences in Queens, as well as reports of a black male committing armed robberies of commercial establishments in the borough. The only information known about the suspects in these robbery patterns was that they were male and black — a very general description that would not justify a stop based on "fits description."
The UF-250s prepared by Officer Gonzalez, one of the most aggressive stoppers in 2009, provide a different illustration of an officer responding to the NYPD's policy of indirect racial profiling based on crime suspect data. Officer Gonzalez checked "Fits Description" on 132 of his 134 UF-250s, although he also indicated that not a single one of those stops was based on an ongoing investigation, a report from a victim, or a radio run.
Perhaps as a result of Officer Gonzalez's reliance on this general suspect data, 128 of the 134 people he stopped were black or Hispanic.
New York State Senator Eric Adams' testimony provided further evidence of official acquiescence in racial profiling by NYPD leadership. Senator Adams, a former NYPD captain, testified about a small meeting he attended at the Governor's office in Manhattan in July 2010. Former New York Governor David Paterson, Senator Adams, another state senator, a state assemblyman, and Commissioner Kelly were all present to discuss a bill related to stop and frisk. Senator Adams raised his concern that a disproportionate number of blacks and Hispanics were being targeted for stops. Commissioner Kelly responded that he focused on young blacks and Hispanics "because he wanted to instill fear in them, every time they leave their home, they could be stopped by the police."
I find Senator Adams' testimony credible, especially in light of the Senator's former affiliation with the NYPD, Commissioner Kelly's decision not to appear at trial to rebut the testimony, the City's failure to offer any rebuttal evidence regarding Commissioner Kelly's statement at this meeting, and the other evidence of tolerance toward racial profiling at the NYPD. In fact, the substance of Commissioner Kelly's statement is not so distant from the City's publicly announced positions. Mayor Bloomberg stated in April that the NYPD's use of stop and frisk is necessary "to deter people from carrying guns. ... [I]f you end stops looking for guns, ... there will be more guns in the hands of young people and more people will be getting killed."
Previous sections have described the institutional pressure on NYPD officers to make more stops and the reward for high stop activity. The City argues that the NYPD has taken effective measures to counter the risk that this pressure will lead to legally unjustified stops. However, after nine weeks of trial, the City failed to establish that the NYPD has any effective mechanism for identifying or tracking unconstitutional stops.
The City concedes that a UF-250, standing alone, often provides inadequate information to indicate whether a stop was based on reasonable suspicion.
In practice, however, officers do not in fact record the factors justifying a stop in their memo books, and supervisors do not address this deficiency. Officer Dennis testified that "while it was suggested" that officers record the "time, date, location of the stop, name of the person stopped, crime suspected, and that a 250 was prepared," it was not "always" necessary and he did not always do so.
In fact, the NYPD has been aware for the last decade of a systematic failure by officers to record the justifications for stops in their memo books. Each month, every enforcement command is required to perform a self-inspection of a sample of twenty-five of its UF-250s and corresponding activity log entries. As part of the self-inspection, the reviewer is required to indicate whether, for each stop, the officer made an activity log entry detailing the circumstances of the stop.
According to QAD, which is responsible for ensuring that the NYPD as an organization complies with its written policies and procedures,
On March 5, 2013, five years after the commencement of this litigation and two weeks before the beginning of trial, Chief Hall circulated a memo requiring all patrol borough officers to include nine categories
An untested, last-minute adjustment — even if undertaken in good faith — cannot undo ten uninterrupted years of willful disregard. I take the March 5 memo neither as evidence that the NYPD has solved the problem of documenting stops, nor as evidence of the NYPD's commitment to finding a solution, but rather as a belated recognition of the obvious inadequacies of the existing system of documentation.
Finally, I note that the NYPD has no meaningful procedures for auditing stop paperwork to monitor the constitutionality of stops. The City agreed to conduct regular audits of whether stops recorded on UF-250s were based on reasonable suspicion when it executed the Stipulation of Settlement in Daniels v. City of New York on September 24, 2003.
Despite the obvious inadequacy of the QAD audits as a means to identify either unjustified stops or racial profiling,
As summarized above, the NYPD's documentation provides an inadequate basis for monitoring whether officers are conducting unconstitutional stops. Nevertheless, the City argues that in practice, the NYPD identifies unconstitutional stops through "a chain of command of supervisors, namely, sergeants, lieutenants, and precinct commanders."
The evidence showed that neither mechanism provides an effective means for
With regard to supervisors' review of stops after the fact, there are no written policies requiring supervisors to evaluate the constitutionality of stops. The section of the Patrol Guide containing the procedures for stops and frisks directs uniformed members of the service to "[i]nform [the] desk officer, [in the] precinct of occurrence, of [the] facts [of the stop]."
Alternately, the City suggests that Integrity Control Officers ("ICOs") are available to monitor the constitutionality of stops.
In sum, neither the NYPD's review of stop documentation nor its supervision of officers provides an adequate mechanism for identifying unconstitutional stops. Consequently, the NYPD is unable to hold officers accountable for those stops or prevent them from happening in the future. I also note that the failure of supervisors and ICOs to effectively supervise the constitutionality of stops is not the result of oversight by subordinates, but rather stems from the failure of senior NYPD managers and officials to direct supervisors and ICOs to perform this task.
The core constitutional standards governing stop and frisk are well established.
Nevertheless, plaintiffs accurately note several problematic and obvious omissions or errors in the NYPD's training programs.
First, the Police Student's Guide's training on reasonable suspicion explains "Furtive Behavior" as follows: "If an officer observes strange, suspicious, or evasive behavior, he or she may have reasonable suspicion. The officer's experience and/or expertise are often taken into account in
The danger of this inadequate training is illustrated by the testimony of Officer Christopher Moran, who stopped David Ourlicht for walking in a suspicious way with an ostensible bulge under his winter clothing.
Second, the NYPD's training on the identification of weapons invites unjustified stops based on "suspicious bulges" that are not in fact suspicious, and constitutionally unjustified frisks and searches based on objects that officers cannot reasonably suspect to be weapons. In particular, the training draws attention to several "unusual firearms," such as a gun shaped like a pen, a gun shaped like an old-model cell phone, and a folding gun that fits into a wallet.
Third, more generally, the NYPD's training materials fail to make clear the legal standard for when a frisk may be undertaken. Rather than simply stating that a frisk must be based on reasonable suspicion that a person is armed and dangerous,
Fourth, while the NYPD deserves praise for its use of scenarios and role playing in training on the legal justification for stops, plaintiffs correctly observe that these exercises are exclusively based on radio runs rather than self-initiated stops.
Fifth, the NYPD's training regarding racial profiling does not clearly define the difference between the constitutionally permissible use of race in a stop based on a specific, reliable suspect description, and the constitutionally impermissible targeting of racially defined groups for stops in general.
Sixth, I have already noted in another opinion the constitutional infirmities in the NYPD's stop and frisk refresher course at the Rodman's Neck training center in the Bronx, as well as other recently introduced materials.
As described in earlier sections, the NYPD has chosen to document, review, and supervise its officers' stops in such a way that unconstitutional stops are unlikely to be identified, and as a result the responsible officer cannot be held accountable. Moreover, when confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the evidence, refuses to impose meaningful discipline, and fails to effectively monitor the responsible officers for future misconduct.
Civilian complaints are one source of notice to the NYPD that an unconstitutional stop may have taken place. Anyone can make a complaint against an NYPD officer for misconduct through a variety of channels, including the CCRB, an all-civilian municipal agency tasked with investigating allegations against the NYPD of excessive force, abuse of authority, discourtesy, or offensive language (collectively referred to as "FADO");
The correct practice when the NYPD receives a complaint regarding a stop is to either forward the complaint to the CCRB, or, if the complaint falls outside of the FADO categories, to the Investigative Review Section of the Office of the Chief of Department ("OCD").
Once the CCRB receives a complaint of an unconstitutional stop, CCRB investigators will generally "interview complainants, witnesses, and officers and determine whether allegations are substantiated, unsubstantiated, exonerated, or unfounded."
It is at this stage that the CCRB complaint process founders. Rather than accepting the CCRB's findings, the DAO conducts its own review of the materials that the CCRB's three-member panel has just reviewed. Instead of applying the well-established "preponderance of the evidence" standard like the CCRB, the DAO applies its own evidentiary standards. Deputy Commissioner Julie Schwartz, an attorney who has lead the DAO since 2005, testified that if the CCRB bases its findings on a credibility determination in favor of a witness and against a police officer, the DAO will as a rule reject the CCRB's findings. In Deputy Commissioner Schwartz's words, it "doesn't matter" that the CCRB has seen and heard the witnesses, while the DAO has not, "[b]ecause if one witness says A happened and the other witness says B happened," the complaining witness cannot satisfy the preponderance of the evidence standard: "there is nothing that brings [the allegation] to 51 percent."
Deputy Commissioner Schwartz stated further that "in any stop-and-frisk case in which you only have the complainant's version and the officer's version, the department cannot pursue discipline."
Deputy Commissioner Schwartz also testified that the CCRB and the OCD apply the same evidentiary standard,
Because many of the complaints related to stop and frisk involve precisely the scenario
The relatively few stop complaints that pass through the OCD are no more likely to result in officer discipline than those processed by the CCRB and the DAO.
The 1999 AG Report put the NYPD on notice that its stop and frisk practices were resulting in constitutional violations. Despite that notice, senior NYPD officials significantly increased the risk of constitutional violations by applying pressure throughout the chain of command to raise the number of stops without imposing a countervailing pressure to ensure their constitutionality, and without instituting adequate supervisory, monitoring, or disciplinary procedures. This section describes the various ways the NYPD has continued to receive notice since 1999 of widespread constitutional violations in its practice of stop and frisk.
The NYPD has received thorough and consistent notice of constitutional problems in its stop practices from multiple sources, including the media, community members, community and legal organizations, individual police officers, and the class members and attorneys in this case. As Reiter testified, the prominent media coverage of complaints about baseless and racially motivated stops would have given "any reasonable police department" notice of the need "to take a look at" these issues.
In addition to receiving notice from the public and community organizations, the NYPD has been apprised of unconstitutional practices by some of its own officers. In 2009, Officer Polanco delivered an anonymous letter
In his letter, which he believed would be forwarded to IAB, Officer Polanco described the following incident, from 2009:
Officer Polanco also reported in the letter that on more than one occasion, he was required to drive on patrol with supervisors who directed him to stop individuals without what he believed to be reasonable suspicion. A supervisor would point to a "group of black kids or Hispanic kids on the corner, in the park, or anywhere," and direct Officer Polanco to "just go grab, go 250 them, go summons them. Sometimes they will ask me to summons them. We will ask the supervisor why. And they will say unlawful assembly or something like that ... [b]ecause there's more than three of them on the corner."
After his initial letter in 2009, Officer Polanco anonymously called IAB to express his concerns regarding the treatment of minority youths and the manipulation of crime statistics.
CCRB complaints regarding stop and frisk, discussed above, provided a further source of ongoing notice to the NYPD.
The City attempts to rebut evidence of notice by pointing to a 2007 report by the RAND Corporation that found little evidence of pervasive racial profiling in the NYPD's pedestrian stop and frisk activity.
Moreover, even if the NYPD did not question the Report's choice of benchmark, the Report concluded that "for some particular subsets of stops, there are racial disparities, and, in some boroughs for some outcomes, the disparities are fairly large" — such as in Staten Island for frisks
Plaintiffs offered evidence from twelve individuals regarding nineteen stops. In twelve of those stops the plaintiff testified as did some or all of the police officers involved in the stop. Evaluating whether these stops — and often frisks — complied with the Fourth Amendment turned, in large part, on the credibility of the witnesses. In some cases the testimony of the plaintiff and the officers was irreconcilable, and I was required to accept one version and disregard the other.
In the remaining seven stops, no officer testified — either because the officers involved in the stop could not be identified or, in one case, because the officers identified dispute that the stop ever occurred. In the majority of these cases the plaintiff's testimony was either not sufficiently credible or lacked sufficient detail to establish that the stop was unconstitutional. In others, I found the plaintiff's testimony sufficiently credible and sufficiently detailed to make a determination about the constitutionality of the stop. I recognize the dilemma posed by making findings based on only one side of the story, particularly given the NYPD's apparent good faith efforts to locate the officers involved. However, finding a failure of proof in all stops where no officer was identified would create a perverse incentive for officers not to record stops where the basis for those stops or the police conduct during the stop was clearly problematic, which would immunize the most egregious stops from scrutiny. This appears to be what happened in the stop of Leroy Downs, discussed below, and it was only through his extraordinary persistence that the officers involved were identified.
Evaluating the police conduct in each of these stops is an imperfect science. There is no objective contemporaneous recording of the stop — either audio or visual. I am relegated to finding facts based on the often conflicting testimony of eyewitnesses.
Leroy Downs is a black male resident of Staten Island in his mid-thirties.
Downs saw a black Crown Victoria drive past and recognized it as an unmarked police car. The car stopped, reversed, and double-parked in front of Downs's house, at which point Downs told his friend he would call back.
Downs explained that he was talking on his cell phone, not smoking marijuana, that he is a drug counselor, and that he knows the captain of the 120th Precinct. Without asking permission, the officers patted down the outside of his clothing around his legs and torso, reached into his front and back pants pockets and removed their contents: a wallet, keys, and a bag of cookies from a vending machine. The officers also searched his wallet.
After the officers failed to find any contraband, they started walking back to the car. Downs asked for their badge numbers. The officers "laughed [him] off" and said he was lucky they did not lock him up. Downs said he was going to file a complaint,
Downs told Officer Anthony Moon at the front desk that he wanted to make a complaint and described what had happened. Officer Moon said that he could not take the complaint because Downs did not have the officers' badge numbers, and that Downs should file a complaint with the CCRB. As Downs left the station he saw the two officers who stopped him driving out of the precinct in their Crown Victoria, and he wrote down its license plate number on his hand.
Downs then returned to the station. He tried to give Officer Moon the license plate information, but Officer Moon said that he should give the information to the CCRB instead. Downs waited at the station until he saw the two officers come through the back door with two young black male suspects.
Downs pointed out the two officers to Officer Moon and asked him, "Can you get their badge numbers?" Officer Moon talked to the officers and then told Downs "maybe you can ask them." At that point, Downs went outside again and took a picture of the license plate on the Crown Victoria, which was the same number he had written on his hand.
Eventually, Downs spoke with a supervisor, who said he would try to get the officers' badge numbers and then call Downs. The call never came. Having spent a few hours at the station, Downs went home.
The next day, Downs submitted a complaint to the CCRB. Five months later, Officers Mahoney and Giacona both testified under oath to the CCRB that they had no memory of stopping and frisking Downs — an assertion that was "not entirely credited" by the CCRB, because it is "unlikely that PO Giacona and PO Mahoney would not recall their actions immediately prior to effecting two arrests." The CCRB substantiated Downs's complaint that Officers Mahoney and Giacona failed to provide their badge numbers. The CCRB found the complaints that the officers stopped Downs without reasonable suspicion, and used profanity unsubtantiated. The CCRB found Downs's allegation of a search into his pants pockets "unfounded," based in part on Joseph's testimony that he did not witness a search. The CCRB substantiated the complaint against Officer Moon for failing to process Downs's complaint.
Neither Officer Mahoney nor Officer Giacona received any discipline as a result of the CCRB's recommendations. Instead, each lost five vacation days for failing to
Officers Mahoney and Giacona testified that they have no recollection of the Downs stop. Like the CCRB, I do not find their denials of recollection credible.
Downs testified that he has been stopped "[m]any times" other than the stop on August 20, 2008.
Downs was stopped when the officers told him to "get the [fuck] against the fence." The officers lacked reasonable suspicion to stop Downs. The officers seized Downs based on a glimpse of a small object in Downs's hand from the window of their passing car. The officers' hunch, unaided by any effort to confirm that what they glimpsed was contraband, was too unreliable, standing alone, to serve as a basis for a Terry stop.
Moreover, whatever legal justification the officers might have had for the stop dissipated shortly after they approached Downs. The absence of any physical evidence, smoke or marijuana smell, and Downs's explanation that he was talking on his mouthpiece, negated any ground for reasonable suspicion. Just as an officer may not reach into the pocket of a suspect after a frisk has negated the possibility that the pocket contains a dangerous weapon or immediately perceptible contraband,
The officers further violated the Fourth Amendment by frisking Downs without any objective basis for suspecting that he was armed and dangerous. Nothing about the suspected infraction — marijuana use — in combination with the facts summarized above provides reasonable suspicion that Downs was armed and dangerous.
The officers further violated Downs's Fourth Amendment rights by searching his pockets and wallet after the frisk. Such a search would only have been justified if the officers' frisk of the outer surfaces of Downs's pockets gave rise to reasonable suspicion that his pockets contained a dangerous weapon, or if the frisk made it immediately apparent that an object in his pockets was a form of contraband.
Devin Almonor is a sixteen-year-old black male high school student living in Manhattan. In 2010, Almonor was thirteen years old.
On March 20, 2010, a Saturday, around 8:45 p.m., Almonor left his house to walk his friend Levon Loggins to the bus stop at 145th Street and Amsterdam.
Around 10:00 p.m., Officer Brian Dennis and Sergeant Jonathan Korabel
The officers briefly observed Almonor and another individual walking on Hamilton Place in the direction from which the calls originated.
Together the officers handcuffed Almonor.
The officers did not ask Almonor his name until after he was handcuffed.
After Almonor was released, Officer Dennis completed a handwritten UF 250 form and a juvenile report.
Almonor was stopped when the officers approached him on the sidewalk, and Officer Dennis grabbed Almonor's arm and said: "Police." Even if credited, Almonor's alleged furtive movements — looking over his shoulder and jaywalking — in combination with the generic description of young black male does not establish the requisite individualized suspicion that Almonor was engaged in criminal activity.
Even if the officers had possessed the requisite basis to stop Almonor — which they did not — they had no basis to frisk him. While some of the 911 calls suggested that some youths involved in the fighting may have had weapons, that alone does not establish individualized suspicion that Almonor was armed and dangerous. No contemporaneous document indicates a suspicious bulge, and Almonor was not in possession of anything that would have created a suspicious bulge. Almonor's actions did not indicate that he was armed.
Finally, not only were Almonor's Fourth Amendment rights violated at the inception of both the stop and the frisk, but the officers made no effort to minimize the intrusion on his liberty. Instead, they used the most intrusive methods at their disposal, thereby exacerbating the violation of his rights.
Cornelio McDonald is a middle-aged black male who resides on Parsons Boulevard, in a private co-op apartment building in Queens.
On December 18, 2009, a Friday, McDonald spent approximately ten hours at his mother's house and left her building around 1:00 a.m.
McDonald had crossed the first lane of Parsons Boulevard and was standing between two parked cars on the far side of the island, getting ready to cross the second lane, when he saw an unmarked red van with plainclothes individuals inside make a u-turn and pull up in front of him, trapping him between two parked cars.
The driver rolled down the window and, without identifying himself as police, asked McDonald where he was coming from, to which McDonald responded, "Why you stopping me for?"
After conducting the frisk, which failed to produce any contraband, Officer French asked McDonald for ID. McDonald obliged and then asked for the officers' identification. Only Officer French identified himself and gave his shield number.
On the UF-250, Officer French listed McDonald's suspected crime as criminal
Officer French testified about three crime patterns. First, he made an arrest for armed robbery a month earlier in the general vicinity where he stopped McDonald. Second, he was aware of a robbery pattern somewhere in Queens on the night he stopped McDonald — specifically, a black male holding up commercial establishments. Third, he was aware that a black male had been burglarizing residential establishments in Queens, but could not be more specific about the location of the burglaries.
McDonald believes that he was stopped based on his race because other, non-black individuals — whites or Asians — were coming out of a bowling alley about twenty-five feet from where he was stopped, and none of them were stopped.
McDonald was stopped when two officers pulled up to him in a police van, trapped him between two cars, and proceeded to question him. The officers made a u-turn and specifically targeted him in a manner that would not have made a reasonable person feel free to simply walk away.
The only articulated bases for the stop were the existence of highly generalized crime patterns involving black males — a month-old armed robbery, a robbery pattern somewhere in Queens and a burglary pattern somewhere in Queens
I also find that McDonald was stopped because of his race. The only suspect description was "black male," the street was racially stratified, and other non-black individuals were present and presumably behaving no differently than McDonald — yet only McDonald was stopped. In sum, McDonald was stopped, in violation of the Fourth and Fourteenth Amendments, because he was a black man crossing the street late at night in Queens.
Nicholas Peart is a twenty-four-year-old black resident of Harlem. He is the legal guardian of three younger siblings and works for a non-profit organization as an after-school program facilitator.
Peart and his companions were standing in the median at 96th and Broadway when three marked police cars pulled up on 96th Street.
After frisking the men, Officer White told them to stand up and asked for ID.
Following the stop, Peart filed a complaint with the CCRB.
The officers who stopped Peart and his friends were responding to a radio run based on a report from an anonymous caller.
Officer White completed three UF-250s after the stop. He checked the boxes for "fits description" and "suspicious bulge."
Peart and his companions were stopped when the officers exited their car with guns drawn. Although it is a close call, I am constrained by controlling Supreme Court law to find that the officers lacked reasonable suspicion to forcibly stop the men. In Florida v. J.L., the Supreme Court held that "an anonymous caller['s report] that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun" did not establish reasonable suspicion for a stop and frisk.
The only additional factor cited as the basis for the stop was the bulges in the men's waistband area.
I do not find credible the assertion that the officers saw any suspicious bulges that would corroborate the anonymous caller's statement that the men stopped were armed. Rather, I find that they stopped the men solely on the basis of the description in the radio run. No other factor establishes reasonable suspicion for the highly intrusive stop. Because there was no legally sufficient justification for the stop, the frisk was also unconstitutional.
On April 13, 2011, around 11:00 p.m., Peart was walking on 144th Street between Lenox and Seventh Avenue — the block on which he resides — on his way to the corner store. Peart was wearing sneakers, jeans and a red hooded sweatshirt. He was sending a text message while walking when two uniformed officers appeared directly in front of him. One officer was white, shorter than Peart, and wore glasses ("Officer A"). The other officer was roughly Peart's height and had salt-and-pepper hair ("Officer B").
One of the officers took Peart's cell phone and instructed Peart to put his hands up against the wall of a church. Officer A patted Peart down outside his clothing over his entire body and put his hands in his pockets. Officer B also put his hands in Peart's pockets, removed Peart's keys and wallet, and searched the wallet for ID. Officer B did not ask permission to search the wallet and Peart did not consent.
Officer A then grabbed Peart's sweatshirt with his fist near Peart's chest area and handcuffed him.
While Officer B was in the building, Officer A, who was still holding Peart's sweatshirt, placed Peart, still handcuffed, in the back of an unmarked police vehicle parked in front of the church. Officer A removed Peart's sneakers, patted down his socks and asked Peart if he had weed on him. Peart said he did not.
Peart was stopped when the officers blocked his path and told him to put his arms against the wall. The stated reason for the stop was that he fit a suspect description of someone who was ringing doorbells in NYCHA housing. While I cannot know from Peart's testimony whether the description he allegedly fit
The officers violated Peart's Fourth Amendment rights by frisking him, going into his pockets and searching his wallet.
Ian Provost is a forty-two-year-old black male who currently resides in North Carolina but lived in Queens from 1978 to 2011.
Provost left his girlfriend's apartment around 2:15 p.m. to get food at a restaurant across the street on Belmont Avenue. He was wearing jeans, a hooded sweatshirt and a down jacket, which did not cover his back pockets, and was carrying the knife in his right back pocket.
Provost tried to use his cell phone and Officer Rothenberg commanded him not to. When Provost asked why, Officer Rothenberg said that he did not like people using their cell phones when he was talking to them.
After Provost was handcuffed, Officer Rothenberg frisked him.
When Sergeant Houlahan arrived, he felt it was unsafe to stay on the street where crowds sometimes gathered and became violent, so he instructed the officers to put Provost in his car and then drove him to the precinct.
Officer Rothenberg's memo book entry for the stop reflected that he had stopped Provost for possible criminal trespass, but did not include any information about the circumstances leading to the stop.
Provost filed a CCRB complaint after the incident and was interviewed. The complaint was not substantiated.
Provost was stopped when Officer Rothenberg informed him that he was being stopped on suspicion of criminal trespass, and possibly earlier. Whether the stop was unlawful turns on whether I credit Officer Rothenberg's testimony that he stopped Provost because he saw the knife in his right back pants pocket. I do not. While it is plausible that an officer would delay handcuffing and frisking an individual suspected of possessing a gravity knife, the testimony suggests that Officer Rothenberg had not, in fact, seen the knife when he first stopped Provost. In particular, the fact that Officer Rothenberg wrote in his memo book — the only contemporaneous record of the stop — that he stopped Provost for possible criminal trespass rather than not possession of a weapon, suggests that the knife was not the original reason for the stop.
In light of this conclusion, there was no basis to stop Provost on suspicion of criminal trespass. Going in and out of his girlfriend's building is not in and of itself suspicious behavior and, without more, does not rise to the level of reasonable suspicion. Handcuffing and then frisking Provost was also unreasonable. Although Officer Rothenberg's actions may have been influenced by the fact that he had been assaulted in the area on a prior occasion, nothing in Provost's actions — arguing about his right not to disclose where he was coming from, reaching for his cell phone while stating that he was reaching for his cell phone — suggested that he presented a sufficient threat to warrant handcuffing him. The frisk was unreasonable for the same reason, particularly in light of the fact that Provost was already handcuffed and could not have harmed Officer Rothenberg or anyone else.
David Ourlicht is a twenty-five-year-old male of mixed black and white heritage who grew up and currently lives in Manhattan. At the time of his testimony Ourlicht was applying for admission to law school.
As Ourlicht was walking up 164th Street, he saw a uniformed officer, Christopher Moran,
Officer Moran left the scooter and asked Ourlicht for ID, to which Ourlicht responded, "why are you stopping me?" Officer Moran asked whether Ourlicht went to school around there, and Ourlicht said, "why are you asking me this?" Officer Moran again asked for ID and Ourlicht asked, "why do you need to see ID? What did I do?" in an irritated way. Officer Moran responded that it looked like Ourlicht had a gun on him, and proceeded to pat down his waist area.
As soon as Officer Moran told Ourlicht he suspected him of having a gun, Ourlicht asked if he could give him his ID, and then reached into the inside breast pocket of his jacket and handed Officer Moran his passport and his St. John's student ID.
Officer Moran had radioed for backup and a patrol car pulled up.
Officer Moran returned and asked Ourlicht for his address, which Ourlicht provided, and Officer Moran accused him of lying. Ourlicht then provided his mailing address, which was different from his residence — a college dorm.
Officer Moran observed Ourlicht for no more than two minutes — as he approached Ourlicht on the scooter and after he passed him, from his rearview mirror.
Officer Moran completed a UF-250 in connection with the stop of Ourlicht. He checked the "suspicious bulge" box but did not identify what the bulge ultimately was.
Ourlicht was stopped when Officer Moran confronted him on the sidewalk and began questioning him — and certainly when the men began to argue about Officer Moran's authority to demand information about Ourlicht's comings and goings. The only articulated basis for the stop was the "blading." Even if Officer Moran saw Ourlicht walking strangely because he had a five-subject notebook in his pocket, that is insufficient to form a "reasonable, particularized suspicion that the
I also do not find that Officer Moran reasonably believed that Ourlicht was armed and dangerous. The five-subject notebook, the only item that could have been the object that supposedly caused Officer Moran to believe Ourlicht was armed, could not be confused for a gun, and, in fact, would be easily identifiable as a notebook.
Even if the first frisk were justified, the search when the other officers arrived was not justified because Moran had already frisked Ourlicht and found nothing. Nothing that Ourlicht did after the initial stop justified Moran's suspicion that Ourlicht was hiding "something," much less that he was hiding a weapon. Terry's authorization of "strictly circumscribed" protective searches contemplated that evidence of criminal conduct might be missed, but concluded that the Constitution did not permit a more intrusive search absent probable cause.
Clive Lino is a thirty-two-year-old black resident of the Bronx. He works as a social worker at a non-profit faith-based organization. Lino is about five foot ten and weighs about 175 pounds.
On February 5, Officer Brian Kovall, who is white, and Officer Edward Arias, who is black, learned during roll call of a robbery pattern involving two black males, one wearing a beige or yellow coat and the other wearing a blue or black coat, committing gunpoint robberies in the vicinity of a check-cashing location near 103rd Street and Lexington Avenue, a high crime area.
As Lino and James waited outside for their food, Officers Kovall and Arias approached and ordered Lino and James to take their hands out of their pockets, which they did after several requests.
The officers informed Lino and James that they were stopped because they fit the description of armed robbery suspects. Officer Arias stated that they had orders to stop anyone on that particular corner whenever they felt like it.
The officers called their supervising Lieutenant to come down and confirm whether these men were the robbery suspects, which took five to ten minutes.
After Lino returned with the food, Lieutenant Gaglio and two other officers arrived in plainclothes. Lino knew they were officers because "they spoke to the officers who were already there, and they were able to have access to us."
Following the stop, Lino filed a complaint with the CCRB, which was unsubstantiated.
The officers stopped the men because their coats matched the description in the robbery pattern — one light coat and one dark coat. In addition, the officers observed Lino and James standing outside on a cold night in the vicinity of the robberies, and they were still there after the officers circled the block and returned.
Officer Kovall filled out a UF-250 after stopping Lino. Under circumstances that led to the stop he checked "Fits Description"; "Area Has High Incidence Of Reported Offense Of Type Under Investigation"; and "Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity" because of "Ongoing Investigations, e.g. Robbery Pattern." As the reason for the frisk, Officer Kovall checked "Violent Crime Suspected" and "Knowledge Of Suspect's Prior Criminal Violent Behavior/Use of Force/Use of Weapon," to refer to the fact that he was looking for an armed robbery suspect. "Refusal To Comply With Officer's Directions" was also checked, in reference to Officer Kovall's initial instruction to Lino to remove his hands from his pockets.
Lino and James were stopped when the officers approached and told them to remove their hands from their pockets. Although it is a close question, I find that the officers lacked reasonable suspicion to forcibly stop Lino and James. The suspect description alone — two black men, of average height and weight, one wearing a light jacket and one wearing dark — is too generic to form the basis for reasonable suspicion, especially given the passage of time between the commission of the armed robberies and the stop of Lino and James.
The act of standing outside in the cold near the check-cashing location for the amount of time it took the officers to circle the block does not raise the totality of the circumstances to reasonable suspicion justifying a forcible stop of Lino and James.
I note that the officers could easily have observed for a few minutes longer to determine whether there was an innocent explanation for this conduct — namely obtaining the food — at no cost to their safety or law enforcement objectives.
Lalit Clarkson is a thirty-one-year-old black male who works as a union organizer and lives in New Jersey, but visits New York frequently.
As he was about to cross the street, he heard a voice say, "hey" and he turned around. The white officer said, "come over here, can I talk to you," and Clarkson went over. The officers showed their badges and identified themselves as police. The officers came closer to Clarkson so that eventually his back was against the bodega wall and the officers were standing between Clarkson and the street.
The officers told Clarkson they had seen him walk past a building down the block that they knew to be a drug building. Clarkson had walked past the building because it was on the route he took back to school, but had not stopped or spoken to anyone. The officers asked twice if Clarkson had any contraband on him, and he said he did not. Then they asked: "if I go in your pockets you don't have anything on you?" Again Clarkson said no. He did not consent to a search and the officers did not search him. The officers left after Clarkson said a third time that he had no contraband, and did not consent to be searched. The stop lasted a few minutes.
Clarkson was stopped when the officers called him over and surrounded him with his back against the wall. Although merely blocking a means of egress may not constitute a seizure where the police do not actually prevent a person from leaving,
Dominique Sindayiganza is a middle-aged, black male who resides in Queens with his wife and two daughters. In 2010, Sindayiganza worked at a non-profit organization in Manhattan.
Once outside, the officers surrounded Sindayiganza on the sidewalk and aggressively questioned him about what he was doing there, where he came from, and whether he was armed. The officers told him that a lady had identified him as the man who was following her and asking her for money.
Officer White asked Sindayiganza for ID and then went into Petco to see if the woman could identify Sindayiganza as the harasser. The other officers continued to aggressively question Sindayiganza.
Officer White went back inside Petco and conferred with the woman who said she wanted Sindayiganza arrested. Officer White then told Sindayiganza that he was going to teach him a lesson and told him to put his hands against the wall, made him take off his backpack, handcuffed him, and forced him to sit down on the sidewalk.
Officer White believed he had reasonable suspicion to stop Sindayiganza because he matched the woman's description — tall, light-skinned black male with dark hair, a big backpack, glasses, a green jacket, and green pants — and was in close proximity to the location of the incident.
Sindayiganza was stopped when the police surrounded him and escorted him outside. The police had reasonable suspicion to forcibly stop Sindayiganza for suspected harassment because he matched a specific description provided by an identified victim, and was in close proximity to the reported harassment just minutes after it allegedly occurred.
There was, however, no basis to frisk Sindayiganza. His stop was based on a woman's report that a man had been following her and asking her repeatedly for money, which caused her alarm.
The frisk cannot be justified as a search incident to arrest that preceded the arrest. As a preliminary matter, the officers almost certainly lacked probable cause under New York law to arrest Sindayiganza. Based on the woman's allegations, Officer White at most had reasonable suspicion that Sindayiganza had committed harassment in the second degree, a violation under New York law.
Even if probable cause for an arrest had existed, when Officer White frisked Sindayiganza he had no intention of arresting him; rather he planned to let Sindayiganza leave, as long as he walked north. A frisk cannot be justified after the fact as a search incident to arrest, where there is no intent to arrest at the time the frisk is conducted.
David Floyd is a thirty-three-year-old black male who lived in the Bronx from 2001 until 2010, when he left to attend medical school.
Three uniformed officers, one Latino male, one white male and one female, exited the vehicle and one asked Floyd for ID.
The frisk lasted about thirty seconds and then the officer holding Floyd's ID told him it was illegal for him not to have a New York City license — Floyd's ID was out-of-state. The officers then got back in the van. Floyd asked for names and badge numbers and two of the officers identified themselves as Rodriguez and Goodman and provided badge numbers. The officers then left.
Without testimony from the stopping officers, I have insufficient evidence to determine whether they had reasonable suspicion to approach Floyd and question him. However, I credit Floyd's testimony and find that there was no basis for the frisk. The officers did not appear to believe that Floyd was armed and dangerous when they approached him, because they did not immediately frisk him. Nothing in Floyd's behavior gave the officers reason to reconsider whether Floyd was "armed and dangerous." He reached for his cell phone and promptly identified it as such. The officer asked Floyd if he had a weapon and Floyd said he did not. I find that there was no credible basis for believing Floyd was armed and dangerous. Therefore, the frisk was unconstitutional.
On February 27, 2008, Floyd resided on Beach Avenue in a three-family home with a separate cottage. Floyd's Godmother owned the property and lived on the top floor, and tenants occupied the ground floor and the basement. Floyd lived in the cottage. Around 3:00 p.m., Floyd left the cottage carrying a backpack, with his wallet, cell phone, keys, and some change in his pocket. Before Floyd got to the street, the basement tenant, also a black male, told Floyd that he was locked out of his apartment and asked for Floyd's assistance because Floyd had access to the spare keys.
Floyd retrieved seven to ten keys on separate key rings from his Godmother's apartment and went to the door of the basement apartment with the tenant. Because the keys were not marked, both Floyd and the tenant tried five or six different keys for a minute or two.
After frisking the men, the officers remained calm throughout the encounter.
Earlier that day the officers had been patrolling Beach Avenue in response to reports of robberies and burglaries of private homes in the area — specifically the area of the 43rd Precinct near the Cross-Bronx Expressway. Proximity to the Cross-Bronx Expressway was significant because it provided easy access for a vehicle to get away from the area quickly.
The officers observed Floyd and the tenant for about two minutes before approaching them.
Officer Joyce filled out a UF-250 in connection with this stop. He checked the box for Furtive Movements based on the jostling of the doorknob and the keys.
Floyd was stopped when the officers told him to stop what he was doing and raise his hands. The totality of the circumstances established reasonable suspicion to stop Floyd and his neighbor. The officers observed the men jostling the door knob and trying numerous keys in the door, and also observed a backpack on the ground. Beach Avenue is near the Cross Bronx Expressway, which makes it a target for burglary. The officers also had knowledge of a specific burglary pattern in the area of Beach Avenue. Although the last reported burglary was over three weeks before Floyd was stopped, the totality of the circumstances just recounted justified the officers' belief that the men might be in the process of committing a daytime burglary.
Furthermore, because burglary is often a violent crime, the officers were justified in promptly telling the men to put their hands up and frisking their outer garments for weapons before further investigating.
On the night of February 24, 2011, Lino was at a party at his mother's apartment at 102nd Street and Third Avenue. He left the apartment to take the subway home, wearing a red leather Pelle Pelle brand jacket and carrying a white plastic grocery bag full of Tupperware containing leftover food.
Lino entered the subway at 103rd Street and Lexington Avenue and noticed two male police officers, since identified as Officer Daniel Leek, who is white, and Officer Edgar Figueroa, who is Hispanic.
Officer Figueroa immediately put his hand in Lino's right jacket pocket, and Lino pushed it away while stepping aside. Lino asked what the problem was, to
The officers told Lino to put the bag of food on the platform, which he refused to do because it was filthy. Officer Figueroa said "just put the [fuck]ing bag down" and reached for the bag. Lino placed the bag on the bench. The officers asked for ID, which Lino produced.
Officer Leek asked Lino if he had anything on him that he shouldn't have and Lino said no. Officer Leek then said, "Do you mind if we check?"
After frisking Lino, the officers forced Lino to go upstairs with them without explaining why. At no point was Lino free to walk away.
Lino never received a ticket or summons. The interaction lasted about twenty minutes.
The officers stopped Lino because he matched a description of a homicide suspect from a wanted poster given to them by their sergeant at the beginning of their tour that day. The poster stated that the crime occurred on February 10, 2011, two weeks earlier, at 108th Street and Madison Avenue, two avenues and five blocks away from where Lino was stopped. The poster described a black male approximately five foot nine to six feet tall and showed a security photo of the suspect leaving the shooting wearing a red leather Pelle Pelle jacket, and two stock photos of such a jacket.
Officer Leek believed that Lino's jacket, height and complexion matched the crime scene photo. In addition, he noticed that the jacket was loose-fitting and bulky.
Lino was stopped when the officers surrounded him on the subway platform. Although the murder was two weeks old, the distinctiveness of the red leather Pelle Pelle jacket, along with the three-inch height range — which was verifiable from the suspect photo — and the suspect's race, "afford[ed] a sufficient basis for `selective investigative procedures' vis-a-vis a universe made up of all [potential suspects] of the crime in question."
Murder is a violent crime that would justify a frisk. Although the crime was two weeks old, it was reasonable to believe that the suspect in a shooting might still be armed and, if approached and questioned about the murder, would pose a danger to the officers.
Although both the stop and the frisk were justified at their inception, the frisk was not "reasonably related in scope to the justification for [its] initiation."
Deon Dennis was raised in Harlem and resides in South Carolina, but visits New York frequently.
After Dennis finished his cigarette, an NYPD van pulled up and two uniformed officers, Angelica Salmeron and Luis Pichardo, both of whom are Hispanic, approached Dennis.
The officers asked Dennis for ID and he produced his driver's license from the wallet in his pocket. Officer Salmeron took Dennis's ID to the van while Officer Pichardo stayed and searched Dennis's jacket and pants pockets without consent. During the search, Dennis was standing with his wallet in his hand and his hands raised at chest level.
Officer Salmeron returned from the van having discovered an active warrant against Dennis. The officers then handcuffed Dennis and put him in the back of the van based on the open container violation and the active warrant.
Based on the conflicting testimony about what the officers saw when they approached Dennis, and because plaintiffs bear the burden of proof, I cannot find by a preponderance of the evidence that the officers lacked reasonable suspicion that Dennis was violating New York's open container law.
The officers acknowledge that when they took Dennis's ID to the van, they intended to issue him a summons, not to arrest him. Even assuming the officers were justified in issuing Dennis a summons for violating open container laws, and even with knowledge of an active warrant, there was no basis for Officer Pichardo to frisk, let alone search, Dennis.
In the John Doe stops discussed below, plaintiffs' testimony did not provide sufficiently detailed credible information for me to find, by a preponderance of the evidence, that the stop and, in some cases, frisk, lacked reasonable suspicion.
David Ourlicht testified that on February 21, 2008, he and a friend were stopped and frisked near the subway station at 168th Street in the Bronx.
Kristianna Acevedo is a thirty-year-old Hispanic female resident of Staten Island and works as a recruiter of home health aides. In 2007 she lived in Queens.
Acevedo stopped at a UPS truck parked up the block.
Acevedo called 911 to report what happened and filed a CCRB complaint.
Acevedo clearly felt free to leave when the detectives first spoke to her because she continued walking and eventually ran.
Lino testified about an August 3, 2008 interaction with Officers Jose Colon and Mohamed Hassan in the lobby of his apartment, a NYCHA building at 102nd Street and Third Avenue.
Plaintiffs established the City's liability for the NYPD's violation of their Fourth Amendment rights under two theories, either of which is adequate under Monell: first, plaintiffs showed that senior officials in the City and at the NYPD were deliberately indifferent to officers conducting unconstitutional stops and frisks; and second, plaintiffs showed that practices resulting in unconstitutional stops and frisks were sufficiently widespread that they had the force of law.
There is no dispute that the primary concern of a police department can and should be combating crime. At the same time, section 1983 limits the lack of concern that any municipal agency may show toward constitutional violations by its employees. The NYPD's senior officials have violated section 1983 through their deliberate indifference to unconstitutional stops, frisks, and searches. They have received both actual and constructive notice since at least 1999 of widespread Fourth Amendment violations occurring as a result of the NYPD's stop and frisk practices. Despite this notice, they deliberately maintained and even escalated policies and practices that predictably resulted
Further evidence of deliberate indifference is found in the City's current positions as expressed at trial. The City continues to argue that no plaintiff or class member was subjected to an unconstitutional stop or frisk — not Downs, Almonor, McDonald, Sindayiganza, or any of the other plaintiffs.
Throughout the class period, the need for better supervision, monitoring, training, and discipline to protect against constitutional violations was obvious, but senior officials at the NYPD "`fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs.'"
Despite the NYPD's deliberate failure to collect accurate data regarding stops that violate the Fourth Amendment, there is sufficient evidence of such stops to establish Monell liability based on "practices so persistent and widespread as to
Likewise, the pervasiveness of unconstitutional frisks was established by the uncontested fact that over half of all people stopped are frisked, while only 1.5% of frisks reveal a weapon, as well as the institutional evidence of inaccurate training regarding when to frisk, testimony by officers who did not know the constitutional standard for a frisk, and anecdotal evidence of routine unconstitutional frisks in this case. "The security of one's privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society."
Plaintiffs have established the City's liability for the NYPD's violation of plaintiffs' Fourteenth Amendment rights under two theories, either of which is adequate under Monell. First, plaintiffs showed that the City, through the NYPD, has a policy of indirect racial profiling based on local criminal suspect data. Second, plaintiffs showed that senior officials in the City and at the NYPD have been deliberately indifferent to the intentionally discriminatory application of stop and frisk at the managerial and officer levels.
Throughout this litigation the City has acknowledged and defended the NYPD's policy of conducting stops based in part on criminal suspect data, of which race is a primary factor. The NYPD implements this policy by emphasizing to officers the importance of stopping "the right people." In practice, officers are directed, sometimes expressly, to target certain racially defined groups for stops.
"The Constitution prohibits selective enforcement of the law based on considerations such as race."
In order to establish an equal protection violation based on an intentionally discriminatory application of a facially neutral policy, plaintiffs "must prove that the defendants' actions had a discriminatory effect and were motivated by a discriminatory purpose."
To establish discriminatory intent, plaintiffs must show that those responsible for the profiling did so "at least in part `because of,' not merely `in spite of,' its adverse effects upon" the profiled racial groups.
The NYPD has directed officers to target young black and Hispanic men because these groups are heavily represented in criminal suspect data — the reliability of which is questionable
The fact that the targeted racial groups were identified based on crime victim complaints does not eliminate the discriminatory intent. Just as it would be impermissible for a public housing agency to adopt a facially race-neutral policy of disfavoring applications from any group that is disproportionately subject to tenant complaints, and then apply this policy to disfavor applications from a racially defined group, so it is impermissible for a police department to target its general enforcement practices against racially defined groups based on crime suspect data.
Plaintiffs have readily established that the NYPD implements its policies regarding stop and frisk in a manner that intentionally discriminates based on race. While it is a closer call, I also conclude that the use of race is sufficiently integral to the policy of targeting "the right people" that the policy depends on express racial classifications. When an officer is directed to target "male blacks 14 to 21" for stops in general based on local crime suspect data — a practice that the City has defended throughout this litigation — the reference to "blacks" is an express racial classification subject to strict scrutiny.
This policy far exceeds the permissible use of race in stopping suspects as set forth in Brown v. City of Oneonta, New York. There, the Second Circuit held that when the police carry out stops as part of a "search[] for a particular perpetrator," the use of racial information from the victim's description of the suspect is not an express racial classification subject to strict scrutiny.
The NYPD's policy of targeting "the right people" for stops, by contrast, is not directed toward the identification of a specific perpetrator.
Whether through the use of a facially neutral policy applied in a discriminatory manner, or through express racial profiling, targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality. Two young men in the 81st Precinct who are similarly situated in every way, except that one is black and the other white, are similarly situated for the purposes of equal protection and must be treated alike. Brown establishes the common-sense principle that if a description of a specific criminal suspect includes the fact that the suspect is black, then the police need not focus equal attention on individuals of other races in pursuit of that suspect. But Brown specifically rejects the use of racial profiling as a basis for enforcement activity. The Equal Protection Clause does not sanction treating similarly situated members of different racial groups differently based on racial disparities in crime data. Indeed, such treatment would eviscerate the core guarantees of the Equal Protection Clause. If equal protection means anything, it means that individuals may not be punished or rewarded based on the government's views regarding their racial group, regardless of the source of those views.
In a case alleging that a municipality bears Monell liability based on senior officials' deliberate indifference to equal protection violations by subordinates, it is not necessary for plaintiffs to provide direct evidence that the senior officials were motivated by a discriminatory purpose. Rather, it is sufficient if plaintiffs show that: (1) subordinates followed a course of action in part because of its adverse effects on an identifiable group, and (2) senior officials were deliberately indifferent to those adverse effects in such a way that a reasonable inference can be drawn that those officials intended those adverse effects to occur.
Plaintiffs in this case did provide direct evidence of discriminatory intent, as discussed above. But plaintiffs also showed that senior officials in the City and at the NYPD have been deliberately indifferent to the discriminatory application of stop and frisk at the managerial and officer level such that a reasonable inference of discriminatory intent can be drawn. Despite frequent and ongoing notice of troubling racial disparities in stops,
The City and the NYPD's highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.
The Equal Protection Clause's prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.
For the foregoing reasons, the City is liable for the violation of plaintiffs' Fourth and Fourteenth Amendment rights. In a separate opinion, I will order remedies, including immediate changes to the NYPD's policies, a joint-remedial process to consider further reforms, and the appointment of an independent monitor to oversee compliance with the remedies ordered in this case. I conclude with a particularly apt quote: "The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and ... neighborhood watch — regardless of the collateral damage done to the majority of innocents. It's like burning down a house to rid it of mice."
Blank OF-250
I note that the New York stop and frisk statute authorizes an officer to conduct a frisk whenever, after a stop, he "reasonably suspects that he is in danger of physical injury." CPL § 140.50(3). This standard is not the constitutional standard. It would allow an officer to conduct a frisk even when she lacks reasonable suspicion that the stopped person is armed and dangerous. As the Supreme Court has made clear, New York "may not... authorize police conduct which trenches upon Fourth Amendment rights." Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The Fourth Amendment, and not New York law, establishes the requirements for a constitutional frisk in this case.
I also note that despite the occasional use of the terms "disparate treatment" and "disparate impact" by the parties' experts, see infra Part IV.B.3, these terms of art are generally applied to Title VII and other statutory claims, not equal protection claims. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 577, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) ("Title VII prohibits both intentional discrimination (known as `disparate treatment') as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as `disparate impact')."). The New York City Council recently passed a bill that would create a private right of action for claims of "bias-based profiling" based on discriminatory intent or disparate impact. See N.Y. City Council Introductory No. 1080 of 2013 § 2.
I also note that the number of stop factors indicated on UF-250s increased from 2004 to 2009. In 2004, the average was 1.01 factors on the front of the form ("What Were Circumstances Which Led To Stop?") and 1.53 factors on the back ("Additional Circumstances/Factors"). By 2009, the average was 1.47 factors on the front of the form and 1.93 factors on the back. "Furtive Movements" appears on the front, and "High Crime Area" on the back. See Fagan Supp. Rpt. at 40 tbl. S6; Blank UF-250.
In otherwise low-crime areas, there may be small areas of concentrated criminality where the NYPD often deploys officers. The City appropriately notes that a particular building where a stop takes place might have a high incidence of the suspected crime for which the stop is made. See 4/5 Tr. at 2359-2361. But, as Dr. Fagan noted at trial, see id. at 2360-2361, it is simply not plausible that 55% of all stops take place in an "area" whose particular crime characteristics objectively justified checking the High Crime Area box, regardless of the crime rate of the census tract or the precinct where the stop takes place. The unvarying rate of checking High Crime Area across locations and times is more likely a product of reflexive box-checking that is unrelated to any defined crime condition.
Smith Rpt. at 20. Accord id. at 14-15 (suggesting that criminal participation of various races must be incorporated into benchmark, because certain races may commit crimes at a higher rate than others, "and so are more likely to be observed by police engaging in suspicious activity that would justify a Terry stop" (emphasis added)).
For another example of Sergeant Stukes' directives at roll call, see PX 289T (1/7/08 at 6.58-8.00) ("Be an asshole. They going to do something, shine a light in their face whatever the occasion, inconvenience them."). When asked to explain Sergeant Stukes' statement "[b]e an asshole," Deputy Inspector Steven Mauriello offered the following interpretation: "It means be a police officer. You have a footpost. You walk your footpost. And be omnipresent." 4/2 Tr. at 1900.
4/9 Tr. at 2824. Of course, it is also erroneous to suggest that properly filling out a UF-250 necessarily establishes reasonable suspicion.
Sergeant Loria testified that during his twelve years as an anticrime sergeant, he was present "[v]ery frequently" for stops by his officers. 4/17 Tr. at 3755-3756, 3789-3792. Nevertheless, he testified that he had never told a single officer that a stop or frisk was improper. See id. at 3778. Sergeant Loria also testified at his deposition that as a sergeant, he did not review his officers' UF-250s for reasonable suspicion, and that he could not recall anyone in the NYPD ever telling him to do so. See id. at 3770; 4/8 Tr. at 2706 (Officer Leek testifying that his supervising Sergeant never exited the police van during the February 24, 2011 stop of Clive Lino). See infra Part IV.D.2.d.
I note that Officer Craig Matthews has alleged in another case that the NYPD retaliated against him for complaining to superiors about "`a system of quotas mandating numbers of arrests, summonses, and stop-and-frisks'" that was allegedly introduced in 2008. See Matthews v. City of New York, No. 12 Civ. 1354, 957 F.Supp.2d 442, 445-46, 2013 WL 3879891, at *1 (S.D.N.Y. July 29, 2013) (quoting Complaint ¶ 2). Officer Matthews' allegations of retaliation echo Officer Polanco's allegations. Compare 3/20 Tr. at 575-576 (Officer Polanco testifying that footpost assignment was punitive for someone with his seniority), and 3/21 Tr. at 727, 789 (Officer Serrano testifying to same), with Complaint ¶ 21, Matthews, 957 F.Supp.2d 442, 2013 WL 3879891 (describing footpost assignment as punitive). While recognizing that "as a matter of fact, Officer Matthews' speech had undeniable value to the public," the Court granted summary judgment to the City based on First Amendment grounds unrelated to the substance of Officer Matthews' allegations. Matthews, 957 F.Supp.2d at 465, 2013 WL 3879891 at *19.
Melendres, 2013 WL 2297173, at *69 (holding that the Maricopa County Sheriff's Office violated the Equal Protection Clause through its use of Hispanic ancestry or race as a factor in forming reasonable suspicion of violating immigration laws, despite express policy against racial profiling).
Id. at 339. As already noted, the Second Circuit has subsequently reiterated that it is concerned about allegations of racial profiling. See Davis, 11 Fed.Appx. at 18.
In addition, as has been widely reported, a teenager named Alvin Cruz has made public an audio recording of his stop in Harlem on June 3, 2011. It appears to be the only known recording of a stop by a civilian. In the recording, the officers verbally abuse Cruz, threaten to break his arm, and appear to physically abuse him. After an officer asks Cruz if he wants to go to jail, Cruz asks why the officers are threatening to arrest him, and one replies: "For being a fucking mutt! You know that?" Ross Tuttle & Rein Schneider, Stopped-and-Frisked: `For Being a F* *king Mutt' [VIDEO], THE NATION. Oct. 8, 2012; 1/11/13 Letter from Darius Charney, Counsel for Plaintiffs, to the Court ("1/11/13 Charney Letter") at 2. An amicus brief from a caucus of the New York City Council states that during three heavily attended public hearings in October 2012, several constituents who had been stopped "compared their own experiences of needlessly aggressive policing" to the Cruz recording. 3/4/13 Brief of Amicus Curi[a]e the Black, Latino, and Asian Caucus of the Council of the City of New York at 4. Plaintiffs requested on January 11, 2013 that they be allowed to add Cruz as a trial witness, after first contacting Cruz in December 2012. See 1/11/13 Charney Letter at 2. I denied the request on the basis of prior scheduling orders and the imminent trial date. See 1/17 Tr. at 4-5.
Similarly, Commissioner Kelly has embraced the use of violent crime suspect data as a benchmark, and on this basis has argued that "`really, African-Americans are being under-stopped.'" Lawrence Downes, What Ray Kelly Said About Stop-and-Frisk, TAKING NOTE: THE EDITORIAL PAGE EDITOR'S BLOG, N.Y. TIMES, May 3, 2013 (quoting May 1, 2013 interview with ABC News). Of course, using violent crime suspect data as a benchmark for measuring racial bias in the NYPD's stops is even less valid than using general crime suspect data as a benchmark. See supra Part IV.C.7 (discussing RAND Report's use of violent crime suspect data benchmark). I note that Commissioner Kelly has also promoted the use of a violent crime suspect benchmark for stops through yearly public reports released by the NYPD. See, e.g., KELLY, CRIME AND ENFORCEMENT ACTIVITY, at 15 (presenting, without explanation, racial composition of stop subjects alongside racial composition of violent crime suspects).
In addition, applying law enforcement tactics unequally between various racial groups is a recipe for abuse. "[N]othing opens the door to arbitrary action so effectively as to allow ... officials to pick and choose only a few to whom they will apply [the law] and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, 336 U.S. at 112, 69 S.Ct. 463 (Jackson, J., concurring). I note one poll shows that 76% of black voters disapprove of stop and frisk. See Quinnipiac University, New Yorkers Back Ban on Take-Out Foam More Than 2-1, at 8 (Feb. 28, 2013).
