Posts Tagged ‘racial profiling’

New York City will have a new mayor in 2014.  In my article “Ten Steps Bill de Blasio and Bill Bratton Should Take to Fix Stop-and-Frisk,” published in The Nation, I offer a way forward for Mr. de Blasio to start repairing the damage done by the Bloomberg-era policing of the last 12 years.

New York, and indeed the entire country, is waiting to see what the newly sworn-in Bill de Blasio will do the first week of January to fulfill his promise to reform stop-and-frisk.  His first step should be to drop the appeal of Floyd v. City of New York, a move he promised to make many times on the campaign trail….Once the stop-and-frisk appeal is dropped, here are the top ten steps de Blasio and Bratton should take as part of the Floyd remedies process to move forward with stop-and-frisk reform and end racial profiling.

Among the steps I recommend: allowing community stakeholders to be part of the reform process; setting up an independent monitor, and creation of an early warning system.  Many of what you’ll read echo what is in the court’s opinion setting out the remedies for the violations the evidence proved.

To get at least some sense of what Bratton’s approach may be, take a look at this article from the Wall Street Journal on December 20. Perhaps “collaborative policing” — Bratton’s most-frequently-used phrase so far — will include allowing stakeholder participation in the fashioning of reforms; it is too early to tell at this point.


On August 19, the New York Times published an op-ed piece on the stop and frisk case by John Timoney, former first deputy commissioner of the NYPD and former chief of police in Philadelphia and Miami.  Mr. Timoney is a respected figure in American policing; his article, “The Real Costs of Policing the Police,” was a direct shot at Judge Scheindlin’s decision that the NYPD must change how it conducts stops and frisks.  I won’t characterize or excerpt Mr. Timoney’s piece; it’s short and speaks for itself.  I urge you to go to the link and read it.  But it deserves a reply: Mr. Timoney gets important things wrong, and fails to reckon with costs he prefers to ignore.

Judge Sheindlin did not find that “the benefits of ending what she considers to be unconstitutional stops would far outweigh any administrative hardships.”  In fact, Sheindlin made sure she stuck to the one job a court has in such a case: assessing whether or not it is constitutional.   She explicitly, and properly, declined to weigh the costs and benefits of the program.   

Second, Mr. Timoney encourages skepticism of the court’s order to begin pilot programs using body-worn video (BWV), based on the reality show “Cops.” But instead of phony TV, examine the comprehensive field studies of BWV done in Britain.  Officers using BWV found it extremely beneficial for recording evidence, creating records, more rapidly resolving cases, reducing public order offenses, and promoting successful prosecution of domestic violence offenses.  The cameras also, of course, facilitated greater police accountability in the bargain. (My law review article on BWV in the Texas Tech Law Review can be downloaded here.)

Third, Mr. Timoney says that the problem would solve itself without court intervention.  Stops have come down considerably in recent months; officers “have gotten the message.” Maybe some have.  But the statements of the NYPD leadership both during and after the trial strongly supporting the program as it has operated over the past six years shows those leaders want the program maintained, not reformed.

Most importantly, Mr. Timoney bemoans the costs of implementing Judge Sheindlin’s orders, and those costs will be considerable.  But he fails to acknowledge the costs to the many New Yorkers over the years who were stopped, questioned and frisked without reasonable suspicion.  Apparently, Mr. Timoney believes that if the Police Department or the city don’t pay a cost, it doesn’t count.  The judge’s decision makes clear that this simply isn’t true: a huge cost has been paid all along.


The federal court decision in Floyd v. New York on August 12 that found the NYPD’s stop and frisk program unconstitutional has generated a huge amount of commentary.  I did posts here last week on what the decision really says, and the remedies the judge has required.  Today I’m going to talk about the likely national impact of the case.

First, an important preliminary question: will the case have a national impact?  Isn’t it just about the NYPD’s tactics?  Yes, the case is only about what the NYPD has done with stop and frisk, and it was tried in New York, before a federal judge with jurisdiction only in New York.  Therefore, it only has an impact on the NYPD, and the opinion only serves as precedent in New York.  But while that is the correct legal answer, I believe there is more to it.

To put it simply, the importance of the NYPD reaches far beyond New York.  Just think of all of the television programs, the movies, and the books  set in New York involving the NYPD: on TV, everything from NYPD Blue to Law and Order, to CSI; NY to Blue Bloods; the 87th Precinct novels, by Ed McBain; on the big screen, The Naked City, The French Connection, Serpico, and Brooklyn’s Finest.   The central cultural importance of the NYPD, alone, gives it an outsized place in the American imagination.

More importantly, the last twenty years have seen a burst of initiative and change in American policing, and much of that energy has come from the NYPD.  The changes in the NYPD with the advent of William Bratton’s time as Commissioner (for a little less than two years, beginning in 1994) brought innovations like Compstat, which focused precinct-level leadership relentlessly on results and outcomes, not on inputs, and held leaders accountable.  Compstat and many other NYPD innovations — and the basic idea that policing could actually make some difference in the fight against crime — have been widely imitated across the country, in small and large police departments alike.  Anything the NYPD does, successfully or not, is examined and either followed or rejected, as the fact warrant.  As an example, take a look at this story from Detroit: the police in that city have been receiving stop and frisk training to improve their crime fighting abilities from the very people who brought intensive stop and frisk tactics to New York.  Thus the court’s decision, declaring that intensive use of stop and frisk, without an adequate legal basis and with a disparate impact on people of color, will be read and contemplated by police departments everywhere in the U.S.  It will influence the course of policing, without a doubt, for better or for worse.

Last, the debate over the meaning of the court’s decision is well underway, and it will be a very public struggle over not just the court order, but the direction of American policing overall.  Witness an article by John Timoney, a former first deputy Police Commissioner in New York, and former chief of police in Philadelphia and Miami.  Mr. Timoney says the court’s order will involve costly and unnecessary changes, and is probably all for nothing: the problem is on the way to fixing itself.  (I disagree, and will have more to say about this in my next post.)  Heather Mac Donald of the Manhattan Institute says that the judge got the decision wrong altogether, by relying on the wrong statistical comparisons.  This type of argument will go on for a while, and  every law enforcement agency of any consequence in the U.S. will be watching and listening.

So the decision will have – in fact it is already having — a national impact.  Expect it to be a starting place on discussions of stop and frisk for a very long time.

In my last post, I discussed the legal basis for the court’s decision in Floyd v. New York City, in which the judge found that the NYPD’s stop and frisk program violated the Constitution.  In this post, I’ll discuss the remedies: the changes the judge has ordered the NYPD to make.  (All quotes are from the court’s separate “Remedies Opinion.”)

To start: the host of a public radio show I did on Tuesday asked whether the court has the power to order these changes.  The answer is yes.  Having found that the NYPD violated the Constitution, the court has the power to order the court to do what is necessary to fix its practices to eliminate the violation.  The judge was actually quite circumspect, carefully outlining the limits of her own reach.

So what remedies did she order?  Here are the most important ones.

First, she appointed an independent monitor to help create the changes in how officers use stops and frisks, and to oversee the implementation of these changes.  Independent monitors are common in negotiated settlements of police misconduct cases brought by the U.S. Dept. of Justice, and they are also used in some cases in which private plaintiffs have sued police departments (e.g., the Philadelphia case on stops and frisks).

Second, she mandated some of the areas that must be changed: “policies, training, supervision, monitoring, and discipline regarding stop and frisk.”  She was especially adamant that policies on certain particular matters undergo an overhaul:  training regarding what constitutes the necessary reasonable suspicion to perform a stop and frisk; the targeting of “the right people” for stops (which she said led to racial profiling); and the use of “performance goals.” She also ordered that the documentation and record keeping for stops and frisk must undergo specific changes.

Third, the judge ordered the Department to launch pilot programs for “body-worn cameras” that would record stop and frisk encounters.  This was a surprise to many, because the subject came up only peripherally in the trial and the technology involved is relatively new.  These video recording systems, which record an officer’s-eye view of the interaction between citizen and police officer, will create “a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct by supervisors and the courts.”  For those interested in this promising technology, take a look at my brief article, “Picture This:  Body Worn Video Devices (‘Head Cams’) as Tools for Ensuring Fourth Amendment Compliance by Police,” published in 2010 in volume 43, issue 1 of the Texas Tech Law Review.

Fourth, the judge prescribed a “joint remedial process” in which there would be “community input” into the remedies, modeled on the Collaborative Agreement used in Cincinnati.

Those are the general outlines.  The City and the NYPD have pledged to appeal, but it is questionable whether an appeal could even get started before Mayor Bloomberg leaves office, bringing new leadership to the city and very likely to the police department too.  Given the positions of the leading candidates on stop and frisk, the next mayor is likely to take a different approach to the issue, and thus to the court decision.

In a future post, I will offer some reflections on what the impact of the decision is likely to be beyond New York.


On August 12, a U.S. federal judge found that the New York Police Department  had systematically violated the U.S. Constitution in the way it performed stops and frisks.  Judge Shira Scheindlin’s 198-page opinion in the case, Floyd v. New York, is here.

I’ve discussed the case in earlier posts (here and here), so an explanation of the judge’s opinion is important.  Today, I’m going to talk about what the judge actually said in her opinion; there’s already a lot of misinformation out there.  Tomorrow, I’ll discuss the remedies the judge has required: the actions that NYPD will have to take to bring itself into compliance with the law.

First, the decision does not “outlaw” stop and frisk; it does not stop the NYPD from using this long-established tactic.  The judge said, correctly, that stop and frisk is a legal and constitutional tactic that police may use; the U.S. Supreme Court said so in 1968, in Terry v. Ohio.  But, the judge said, the police must obey some basic constitutional rules when they do so.   That, she said, was the problem: the NYPD was using stop and frisk unconstitutionally, in violation of the Fourth Amendment right against unreasonable searches and seizures, by stopping people without the required reasonable suspicion: a very small amount of fact-based evidence pertaining to the individual person, but something the police lacked in many tens of thousands of these encounters.  In that respect, the judge ruled, the NYPD “has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks” (p. 3).

Second, the judge made clear that she was not ruling on how effective the use of stop and frisk may or may not have been in fighting crime, either standing alone or in comparison with other police tactics for fighting crime.  (See, e.g.,  p. 2), Rather, she said, she was ruling on whether the way stop and frisk had been used squared with the Constitution.

Third, the judge found that the way that stop and frisk was practiced by the NYPD was racially skewed against Black and Latino New Yorkers, in violation of the Fourteenth Amendment’s Equal Protection Clause.  This finding has grabbed the most headlines, because the judge called it “a form of racial profiling.”  This led to outraged reaction by NYPD Commissioner Ray Kelly (transcript here), among others.  But the judge’s reasoning on this point, found in summary form on pp. 10 and 11 of the opinion, is not actually the stuff of controversy or bombshells; it comes directly from the testimony she heard:

…[T]he 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…While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.

In conclusion, the judge said, the NYPD violated the Fourth and Fourteenth Amendments to the Constitution not by doing stops and frisks, but by doing them in an unconstitutional manner over a period of years, despite being on notice that there were constitutional problems, and these practices “were sufficiently widespread as to have the force of law.”

That’s the legal and constitutional basis for the judge’s decision that the time has come to reform the use of stop and frisk in New York.  In my next post, I will discuss how the judge will require that reform to take place.


On Monday, May 20, Judge Shira Scheindlin of New York heard final arguments in a trial about stops and frisks by the New York Police Department (NYPD).  The Center for Constitutional Rights and a number of individuals has sued the NYPD.  They allege that the NYPD has used stops and frisks for the last ten years in violation of 1) the Fourth Amendment right against unreasonable searches and seizures,  and 2) the Fourteenth Amendment right to equal protection of the laws, because stops and frisks have overwhelmingly targeted racial minorities — chiefly black and Latino men.   The judge’s decision may not  come for some months.  I discussed the case on NPR’s Tell Me More on May 21 (here) along with Delores Jones-Brown of John Jay College of Criminal Justice.

Here’s a short course on stop and frisk in American law, codified by the U.S. Supreme Court’s case of Terry v. Ohio (1968).  Generally, an arrest or a search requires that police have probable cause to believe that the suspect is involved in a crime.  Probable cause is less evidence than “proof beyond a reasonable doubt,” and less evidence than “more probable than not” (the usual 50.1% of evidence required to win a civil case in the U.S.).  A stop and frisk is less intrusive than a traditional arrest or search: it is a temporary detention (stop) and a pat down of the outer clothing for weapons (frisk).  So it requires only reasonable, fact-based suspicion — an amount of evidence less than probable cause.  To use the Supreme Court’s terminology, an officer may perform a stop when he/she has reasonable suspicion that crime is afoot and that the suspect is or was involved; the officer may also perform a frisk when he/she has reasonable suspicion that the suspect is armed.  Reasonable suspicion is a very low standard of evidence, but it is enough for stop and frisk because the stop is supposed to be brief and temporary, and the frisk is cursory and only for weapons, not a general search for evidence.

In 2002, the NYPD’s own statistics showed that officers performed 97,000 stops and frisks; by 2011, the number had increased to about 700,000.  (You can access the NYPD’s  statistics here.) Crime was already at historic lows in 2002 and is even lower now.  The NYPD claims that the continued drop in crime shows the effectiveness of its intensive use of stops and frisks, even though only about ten percent of these actions yielded any contraband or resulted in an arrest.  Over the same period, roughly 88 percent of those stopped and frisked were black and Latino men, leading to charges that the NYPD stop and frisk program was a form of racial profiling.

Judge Scheindlin’s comments during the final arguments on May 20 lead me to think that she will decide that the stop and frisk activity of the NYPD violates the Fourth Amendment requirement of reasonable suspicion.  She said she thought that getting results in only about ten percent of the cases — and finding guns (the objective of the NYPD’s stop and frisk activity) in far fewer cases than that — showed that the police were acting without even enough evidence to meet the very low standard of reasonable suspicion.  “A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun…[T]he suspicion turns out to be wrong in most of the cases.”  Proving that the racial skew in the statistics is racial profiling is more difficult, requiring both convincing statistical evidence and evidence of actions by the NYPD that target racial or ethnic minorities.

What do you think?   I’ll be keeping you posted.

Less than a week after the New York Times first reported that TSA officers at Logan Airport in Boston had turned from their vaunted model program of behavior profiling to old-fashioned, ineffective and prohibited racial profiling, the TSA has announced a response: training that will tell agents they shouldn’t do what they’re doing.  According to the Times’s follow up story:

All officers at Boston Logan International Airport, where the profiling is said to have occurred, and managers of similar programs nationwide must attend a four-hour class on why racial profiling is not acceptable and why it is not an effective way to spot terrorists.  [TSA said] the class would include “a discussion on how terrorists in the United States do not match any racial or ethnic stereotype.”  Officers stationed at more than 100 airports will have to take an online “refresher course to reinforce that racial/ethnic profiling will not be tolerated,” the department said.

This is fine, as far as it goes.  But we know that these TSA agents were already trained in behavior profiling.  This must have included an explanation of its superiority over racial profiling.  Behavior profiling works, because it focuses agents on what matters: behavior related to terrorist activity; racial profiling fails to do this and introduces distractions.  Yet the message apparently didn’t “take.”  What assurance is there that this will be different?

The re-training solution also fails to get at what appeared to be two of the major issues behind this problem: 1) managers who do not understanding why profiling does not work (here’s my post on it) and 2) numbers-driven enforcement, in which managers want more activity and hits, to show their worth (here’s my post on that one).  The only real hope for change is to start by getting rid of supervisors who either encouraged or tolerated this activity.

There is one hopeful sign in the TSA announcement: Secretary of Homeland Security Janet Napolitano directed TSA “to improve the agency’s collection of data related to the program and to work with the department’s civil rights consultant to review program procedures.”  As I said in a third post on this, lack of data collection on the activity of agents means that the agency cannot possibly know what is going on, and there cannot be any true accountability.  This absolutely must change, so the Secretary’s announcement is a good sign.

I’ll be watching for further investigation and action.