On Monday, the New York Police Department’s aggressive approach to stop-and-frisks took a major blow, with federal judge Shira Scheindlin’s ruling that the Department engages in unconstitutional racial profiling. The decision by U.S. District Judge Shira Scheindlin incorporates statistics showing that 87 percent of those stopped in 2011 were black or Hispanic, and testimony from more than 100 witnesses in reaching a number of alarming factual and legal conclusions about the sweeping, discriminatory, and insidious nature of NYPD stop-and-frisks:
NYPD officers frequently classify black and Hispanic men ages 14 to 20 as “the right people” for the purpose of stop-and-frisk. In particularly candid testimony, Chief Esposito, a high-ranking NYPD official, answered questions about NYPD’s approach to stops that targets “the right people, the right place, the right time.” The exchange went this way:
Q. Quality stops are stops that are in the right place at the right time, correct?
Q. And targeting . . . the right people, correct?
A. Among other things.
Q. And the right people would be young black and Hispanic youths 14 to 20, correct?
A. At times. [pause] You failed to mention reasonable suspicion.
In later questioning, he explained why young minority men are sometimes targeted even in the absence of complaints from the public: “Well who is doing those shootings? Well, it’s young men of color in their late teens, early 20s.” Other officers corroborated Esposito’s testimony that, while suspicious behavior is a factor, “those who fit the general race, gender, and age profile of the criminal suspects in the area should be particularly targeted for stops.” In fact, a New York State senator testified that NYPD Commissioner Ray Kelly said he wanted to “instill fear” in young blacks and Hispanics. Scheindlin found this testimony credible, particularly given that Kelly declined to appear at trial to rebut the testimony, and that the city offered absolutely no evidence to rebut this claim.
De facto quota policies continue to fuel unjustified stops. In 2010, New York City passed a law that prohibited the enforcement of quotas for tickets, arrests, stops, or summonses. The NYPD has since said it has no numerical requirements that pressure officers to make stops regardless of the legal justification. But in 2011, NYPD instituted a performance review program that includes “goals” for meeting these metrics that Judge Scheindlin concluded are “sometimes nothing more than a euphemism for an acceptable number of stops, arrests, and summonses in targeted locations.” There is no assessment of whether these stops are legally justified and “[f]or the purposes of performance review, an unconstitutional stop is no less valuable than a constitutional one.” “It is difficult,” Scheindlin concluded, “to see any difference between a performance goal and a quota if ‘performance goals’ operate as Deputy Commissioner Beirne testified,” and so long as there are quotas with threat of punishment, there is an incentive to stop individuals to meet goals, rather than to enforce violations of the law.
The NYPD disproportionately stops blacks and Hispanics, even when accounting for the crime rate and other statistical data. The city, Mayor Bloomberg, and others have defended the high rate at which NYPD stops minorities by claiming that it matches the proportion of blacks and Hispanics who commit crimes. But as Judge Scheindlin points out, this argument does not extend to a population that is overwhelmingly innocent of any crime or offense — 88 percent of stops result in no arrest or summons, and the majority of those who are arrested facing charges only for marijuana. “There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area,” Scheindlin writes. But even by the city’s own faulty logic, stops of minorities are disproportionate, with the NYPD carrying out significantly more stops in high-minority areas regardless of the crime rates in those neighborhoods. “The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate,” she concludes. What’s more, she finds that blacks and Hispanics are more likely to be stopped in particular neighborhoods than whites in every neighborhood, even when controlling for all other variables. Officers were 14 percent more likely to use force against blacks, and stops of blacks were less likely to lead to a sanction or other enforcement action.
Even the NYPD’s exceedingly low stop-and-frisk “success rate” is likely inflated. Accepted stop-and-frisk metrics show that only 6 percent result in arrest, and another 6 percent in a summons. This and similar statistics are often cited to show that the vast majority (and an even larger percentage of minorities) are innocent. But Judge Scheindlin finds that the number of unfounded stops is likely even greater. For one thing, the most common arrest emerging from NYPD stops is for marijuana, and those stops are frequently based on the dubious tactic of frisking an individual pursuant to a stop, asking the suspect to take the marijuana out of his or her pocket, and then arresting that person for possession of marijuana in public view, even though it was not in public view before the police stop (other marijuana possession is decriminalized in New York City). What’s more, police can only frisk an individual on suspicion that they are armed and dangerous – not based on suspicion that they have marijuana in their pockets. “If it is true that officers sometimes carry out arrests for marijuana possession following stops that were based on suspicion of another crime, then these arrests do not provide evidence that the officers’ initial suspicions were well-founded,” Scheindlin writes. This is one of several ways in which the NYPD likely pads the number of “successful” stops, according to Scheindlin. Another is that officers are only supposed to stop individuals on suspicion that they are committing a misdemeanor, but many of the summonses issued are for violations, and thus do not justify the stop. And of the summonses issued during stops, most are ultimately dismissed.
Stop-and-frisks take a humiliating human toll. The city’s fundamental argument justifying its stop-and-frisks to its constituents is that, whatever the costs of police stops, they are minimal as compared to the gains to public safety. Data showing that the crime rate has continued to fall even as the NYPD curbed its stops in 2012 rebut this argument. But equally important is the cost of the program to the vast swaths of innocent young black and Latino men targeted by the program, and to the criminal justice system. Scheindlin explains:
In light of the very active and public debate on the issues addressed in this Opinion — and the passionate positions taken by both sides — it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.
Scheindlin elaborated on this point in another ruling finding that police stops in the Bronx for alleged trespassing are likely unconstitutional:
The stakes of “field interrogation” by the police have dramatically risen since Terry [v. Ohio, which established the legal standard for stop and frisks,] was decided in 1968. The use of incarceration has increased, sentences have grown, the threat of lengthy incarceration has created new incentives to plead guilty, and the collateral consequences of a conviction — on employment, housing, access to government programs, and even the right to vote or serve on a jury — have become more common and more severe. If an unjustified stop happens to lead to an unjustified arrest for trespassing … it is important to consider the potentially dire and long-lasting consequences that can follow from unconstitutional stops.