JURIST Guest Columnist Edwar Estrada, St. John’s University School of Law Class of 2014, is the author of the third article in a 10-part series from the staffers of the Journal of Civil Rights and Economic Development. Estrada explores the implications of New York City’s stop and frisk practices and offers recommendations to improve them…

New York City (NYC) has eight million residents. Since Mayor Michael Bloomberg took office in 2002, the New York Police Department (NYPD) has stopped more than four million NYC residents. A substantially large number [PDF] of African-Americans and Latinos are stopped and frisked more frequently than whites. A stop is when a police officer temporarily detains an individual for questioning, and a frisk is a pat down of the outer clothing of an individual who has been stopped. The New York Civil Liberties Union’s 2011 stop-and-frisk report indicates that even when African-Americans and Latinos did not constitute a majority of residents in a particular neighborhood, they were still two or three times more likely to be stopped by the police than whites. Even more troubling is that 88.3 percent of stops did not lead to an arrest and only 0.5 percent of frisks led to the recovery of a weapon. Therefore, most of the people of color were innocently living their lives when stopped. Given the large number of stops and frisks of innocent African-Americans and Latinos, it makes members of these groups feel harassed, creating resentment and distrust among these communities.

Stop-and-Frisk Procedure

According to Terry v. Ohio, the seminal stop-and-frisk US Supreme Court case, officers may legally stop and question a person if they have reasonable suspicion to believe that person has committed or is about to commit a crime and if an individual is armed or presently dangerous. Under Terry, officers may conduct frisks on people they have reasonable suspicion to believe are armed or presently dangerous. Frisks require a different standard from stops because they are more intrusive, allowing officers to pat down an individual’s outer clothing. When conducting stops and frisks, NYPD officers are required to complete a form called Unified Form 250 [PDF] (UF-250). Officers use the list of justifications on the form to determine when a stop and frisk is justified. These justifications include, “fits the description,” exhibiting actions indicative of casing a victim or location and exhibiting “furtive movement.” For frisks, justifications include “possibly” concealing a weapon, making verbal threats of violence and having a “suspicious” bulge or object.

Floyd v. City of New York

In a recently decided federal class-action suit, Floyd v. City of New York, several African-American and Latino plaintiffs brought suit against the city and the NYPD, alleging that the stop-and-frisk policy violated their rights under the Fourth and Fourteenth Amendments. Based on expert testimony of statistical findings that African-Americans and Latinos are disproportionately stopped and frisked by NYPD officers and institutional evidence of the city’s and the NYPD’s indifference to such findings, Judge Shira A. Scheindlin of the US District Court for the Southern District of New York held that the city’s stop-and-frisk policy violated the Fourth and Fourteenth Amendments. As a result of this holding, Scheindlin ordered a reform of the policy.

In her separate remedies opinion [PDF], Scheindlin ordered several reforms be made to the stop-and-frisk policy. To ensure her reforms are properly carried out and to ensure the city’s and the NYPD’s compliance, Scheindlin appointed an independent monitor to oversee the reform process. As a part of her reform of the stop-and-frisk policy Scheindlin ordered:

1. the policies and training materials related to the stop-and-frisk policy and racial profiling be revised to prevent such racial profiling;
2. UF-250 be changed so that officers write a narrative explaining the basis for their stops, write a separate explanation of why a frisk was performed, provide the individual stopped with a tear-off portion stating the reason for the stop and have a simplified and improved checkbox system used to indicate common stop justifications;
3. uniformed officers provide narrative descriptions of stops in their activity logs whenever a UF-250 is prepared to keep further record of their stops;
4. changes to supervision, monitoring, and discipline to prevent citation and/or arrest quotas;
5. the creation of a joint remedial process that allows all parties to the litigation develop remedial measures to improve stop-and-frisk; and
6. the use of body-worn cameras by one officer in one precinct of each borough for a probationary period to monitor how stops and frisks are carried out.

These reforms were intended to prevent officers from making unconstitutional stops and frisks, involve the community in the reform of the stop-and-frisk policy and to monitor stops and frisks.

Making New York City Stop-and-Frisk Less Discriminatory

Although Scheindlin’s plan for reform appears to be a possible solution to the unconstitutional implementation of the stop-and-frisk policy, these reforms may never be carried out because City officials recently appealed Schiendlin’s decision. Regardless of the ultimate result of that appeal, NYC should adopt Scheindlin’s plan for reform and should incorporate a plan recently created by the city of Philadelphia to eliminate similar problems it had with its stop-and-frisk policy. NYC’s plan should:

1. Adopt all of Scheindlin’s reforms, including her appointment of an independent monitor to oversee the reform process.
2. Grant civil rights groups that represent victims of illegal stops and frisks access to the NYPD’s UF-250 electronic database. This access should give these organizations the ability to determine why people were stopped, in which precinct they were stopped, who stopped them, and any other pertinent information that will allow them to determine whether stop-and-frisk is being carried out constitutionally. This assures the affected communities that progress is being made.
3. Eliminate “furtive movement” and any other similar term on the UF-250 that does not clearly outline under what circumstances a stop or frisk may be conducted, as a circumstance that meets the standard of reasonable suspicion for both a stop and frisk.
4. Create an outside disciplinary body to discipline officers who are carrying out stops and frisks with less than reasonable suspicion or their superiors who are not correcting this behavior.

Implementing these steps will curtail NYPD’s discriminatory stop-and-frisk practices by ensuring that commanding officers are not implementing quotas and police officers conduct stops and frisks objectively. This may help mend the NYPD’s relationship with the African-American and Latino communities that, for the most part, have lost faith and respect for the NYPD.

Edwar Estrada is the Associate Managing Editor of the Journal of Civil Rights and Economic Development and a member of the Moot Court Honor Society. His experience includes internships with Mendes & Mount LLP, the Honorable Harold Baer, Jr. of the United States District Court for the Southern District of New York, Morris Duffy Alonso & Faley and the New York City Law Department.

Suggested citation: Edwar Estrada, Regulating New York City Stop-and-Frisk: Putting an End to Race-Based Stops JURIST – Dateline, Oct. 2, 2013, http://jurist.org/dateline/2013/10/edwar-estrada-nyc-discrimination.php.