Racially Motivated Unlawful Detention (Stop-and-Frisk) Allegedly Continue in New York City Law Enforcement

© 2010 Peter Free

 

26 October 2010

 

A class action law suit, supported by study data, alleges racial profiling and unconstitutional seizures by NYPD

 

In 2001, I wrote about overly aggressive un-Constitutional stop-and-frisk practices by the New York City Police Department (NYPD).  The pattern appears not to have changed.

 

In a legal document released yesterday, expert witness Columbia University law professor, Jeffrey Fagan, reported his analysis of 2,805,721 police stops made from 2004 through 2009 (as reported on NYPD’s UF-250 forms).

 

The case involved is a federal class action suit alleging racial profiling and illegal stop-and-frisks by the police department.

 

Professor Fagan found that:

 

(a) NYPD concentrates its enforcement in precincts with high concentrations of Black and Hispanic residents, even though crime rates, socioeconomic variables, and police resources don’t justify it.

 

(Note that the report appears not to assess the overall relative risk of being stopped if one is Black or Hispanic.)

 

(b) The Department stops “Black and Hispanic” people more frequently than “Whites,” even though crime data don’t support the disparity.

 

(Here, too, Professor Fagan does not provide a relative risk overview to support the racial profiling allegation.)

 

(c) “Blacks and Latinos” are stopped more frequently than Whites in mixed neighborhoods.

 

(No relative risk figure is provided.)

 

(d) Almost 150,000 of the surveyed stops (6.71 percent) lacked constitutional justification.

 

(e) Nearly a quarter of stops (24.3 percent or 544,252) lack enough documentation to assess their legality.

 

(f) Police use constitutionally problematic reasoning in nearly one-half of the stops, when they use “furtive movements” or proximity to high crime areas as justifications.

 

(g) Actual arrests are made in less than 6 percent of all stops, a rate that is lower than those made in random checkpoints.

 

(h) Black people are more likely than Whites to be arrested.

 

“Among those receiving any sanction, Blacks were 31.4 percent more likely than White suspects to be arrested versus summonsed, and the result was statistically significant.  There was no significant difference for Hispanics or Other Race suspects as compared to Whites.”  (Report at page 66.)

 

(i) Black and Hispanic people are more likely to be subjected to forceful arrest.

 

“Force was 14 percent more likely to be used in stops of Blacks compared to White suspects, and 9.3 percent more likely for Hispanics.”  (Report at page 66.)

 

(j) The gun seizure rate is nearly zero (0.15 percent).

 

Citation

 

Floyd v. City of New York, No. 08 Civ 01034 (SAS), Report of Jeffrey Fagan (S.D.N.Y.)

 

Summary quantifications for the overall relative risks for being stopped are missing from the report

 

As a career-long critic of race-based police work, I’m reluctant to mention the obvious.  Yet, one is analytically compelled to notice that Professor’s Fagan’s report is apparently missing an attempt to quantify the relative size of the disparities in NYPD law enforcement practices that he finds.

 

Saying that African American or Hispanic people are more likely to be stopped is not as helpful as saying they are XX percent more likely to be stopped.

 

I don’t understand Professor Fagan’s apparent unwillingness to do this math.  The necessary statistical data is presumably already in his report.  In fairness, given the confounding variables that the study faced, the oversight is perhaps not methodologically surprising.

 

Nevertheless, in making the claim of discrimination that the class action complaint makes (and using a quantitatively-based study to do it), not providing an estimated relative risk of being stopped (because one is Black or Hispanic) is not especially persuasive.

 

Perhaps in the plaintiffs’ lawyers’ minds, why quantify a figure when your opponent will say, “That’s all?”

 

An example of the problem with numbers in this kind of a discrimination study

 

The “that’s all?” problem is demonstrated in Fagan’s critique of NYPD’s alleged Fourth Amendment violations.

 

If only 6.7 percent of total detentions were illegal, then most rational courts are going to have difficulty saying that NYPD is engaging in a pattern and practice of illegal detention.  This is especially true if the illegal arrests cannot be correlated to race or culture.  As apparently the report makes no meaningful effort to do. 

 

The sub-seven percent number is low enough to attribute to inexperienced officers, pressured situations, and statistically normal problems with effective supervision.  In other words, most experienced people do not expect perfection in an organization of NYPD’s size.

 

Similarly, the near one-quarter of total stops for which documentation was inadequate to assess legality does not necessarily support the plaintiffs’ Fourth Amendment claims.

 

There is no constitutional provision that says documentation of police stops is required.  The Fourth Amendment merely says that seizures cannot be unreasonable.  In sad practice, enforcement of the Fourth Amendment constraint on government behavior usually falls on the shoulders of the people illegally detained.  Their recourse is to the courts on an individualized, and therefore socially ineffective, basis.

 

Worse, these same people are almost always too poor to afford the legal representation necessary to make their cases.  Hence, the desirability of class actions.

 

Given that cops are action oriented and generally don’t like to write, I would be surprised if the allegedly inadequate documentation on NYPD’s UF-250 forms was largely due to bigotry.  Laziness, “I don’t see the point,” and poor training are more likely explanations.

 

But the plaintiffs do have a good argument in their favor

 

The poor training explanation is certainly supported by the astonishing fact that nearly half the stops were documented with near-idiotic police explanations of “furtive movement” and “proximity” to high crime areas.

 

Any reasonably trained officer in today’s police world knows better.

 

The fact that this huge proportion of stops was justified with constitutionally lame explanations is enough to demonstrate that NYPD probably has a serious Fourth Amendment problem.

 

Were I a federal judge, that alone would get my rapt attention.

 

If one combines the unlawful seizure data with strong but unquantified hints of racial profiling, one can only conclude that (a) huge numbers of Black and Hispanic people are being detained illegally and (b) and too many of those arrested are being subjected to physical force.

 

Whether the force is used because the arrestee is more hostile than comparison groups is irrelevant.

 

I would be hostile, too, if I recognized that my race or culture had been the sole justification for my illegal detention.

 

Stop-and-frisk creates more problems than it solves.  Police supervisors should recognize that provocative law enforcement actions trample people’s constitutional rights and increase the number of instances of the unjustified use of deadly force.

 

Bigotry and Constitution-flouting are bad

 

I’m an ex career cop.  I remain as angry about law enforcement prejudice and illegalities, as I was in 2001, when I wrote about NYPD’s stop-and-frisk tactics and Amadou Diallo’s death.

 

The fact that stop-and-frisk is still going on more than 10 years after Mr. Diallo was killed says nothing favorable about NYPD’s leadership or its commitment to the United States Constitution.