Police Practices and Civil Rights in New York City

Chapter 5

Stop, Question, and Frisk

Each year in New York City, the NYPD stops and frisks thousands of individuals. During each of these stop and frisk encounters, the right of individuals to be free from arbitrary and unwarranted intrusions by government authorities coincides with the duty of those agents to prevent crime and apprehend criminals. Achieving an appropriate balance between the right and the duty presents a challenge for any metropolitan police force.

The current situation presents a formidable dilemma. On the one hand, it is well settled that individuals are entitled to be free from arbitrary police encroachments on their privacy. At the same time, effective law enforcement and maintenance of safe streets require that officers be granted some discretion to stop and question individuals whom they reasonably suspect to be engaging in criminal activity.

In recent years, there has been a growing perception that the NYPD has sacrificed the protection of individuals’ civil liberties in order to achieve quantifiable law enforcement gains.[1] The department’s stop and frisk practices are at the heart of this highly publicized debate.[2]

This chapter of the report begins by discussing the applicable federal and state legal standards governing the NYPD’s stop and frisk policies and practices. Next, there is an assessment of the NYPD’s principal training mechanisms for stop and frisk encounters. This chapter then includes an analysis of the NYPD’s “UF-250” stop and frisk data for the calendar year 1998. Lastly, the chapter concludes with findings and policy recommendations.

Legal Standards

The Fourth Amendment

The Fourth Amendment of the United States Constitution protects individuals against unreasonable searches and seizures by police officers. The Constitution provides that

[t]he right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[3]

The United States Supreme Court has recognized that “[n]o right is held more sacred . . . than the right of every individual to [be] . . . free from [the] restraint or interference of others, unless by clear and unquestionable authority of law.”[4] The framers of the United States Constitution specifically drafted the Fourth Amendment “to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”[5] The Fourth Amendment generally requires that all searches and seizures be made pursuant to a warrant based upon probable cause. Accordingly, on numerous occasions, the United States Supreme Court has examined a variety of stop, search, and frisk issues that are relevant to determining whether a Fourth Amendment violation exists.

In the landmark decision of Terry v. Ohio,[6] the Supreme Court confronted the issue of whether to create a narrow exception to the Fourth Amendment’s probable cause and warrant requirements to permit a police officer to briefly stop a citizen, question him, and frisk him to ascertain whether he possesses a weapon that could endanger the officer. In upholding the “stop and frisk” procedure employed by an Ohio police officer, the Court concluded that the appropriate constitutional standard should be “reasonable suspicion” rather than probable cause.[7]

To justify a stop under the Supreme Court’s Terry decision, a police officer must have “a reasonable suspicion” of some wrongdoing. In determining reasonableness, an officer “must be able to point to specific and articulable facts” that warrant the governmental intrusion; reliance on “inchoate and unparticularized suspicion or [a] ‘hunch’ ” is not permissible.[8] Furthermore, the scope of any resulting police search must be narrowly tailored to match the original reason for the stop. The Court emphasized that a search must always be “strictly circumscribed by the exigencies which justif[ied] its initiation.”[9] In Terry, the Court identified the police officer’s safety as the primary purpose for the search, and concluded that a frisk is permissible if “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”[10] However, this case established the legal precedent that police officers could draw conclusions based on their experiences to ascertain if an alleged suspect’s conduct is an indication of criminal activity.[11] If a police officer surmises that an individual’s conduct is ambiguous, then the officer can briefly detain the person and conduct a limited search for the safety of him/herself and others.[12]

Moreover, police officers do not infringe upon an individual’s constitutional rights if they approach alleged suspects in a public location, and inquire whether he or she would be willing to answer some questions.[13] However, the Court in Florida v. Royer further explained that

[t]he person approached . . . need not answer any question put to him; . . . he may decline to listen to the questions at all and may go on his way. . . . He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. . . . If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.[14]

In subsequent cases, most court rulings began to allow police officers’ interpretations of signs of alleged criminal activity as a foundation for the required degree of reasonable suspicion.[15] For example, in United States v. Cortez,[16] the United States Supreme Court granted more deference to a police officer’s perceptions of the totality of the circumstances involving an alleged suspect, when accessing whether the requisite degree of reasonable suspicion existed prior to the stop and frisk episode:[17]

The idea that an assessment of the whole picture must yield a particularized suspicion contains two elements, each of which must be present before a stop is permissible. First, the assessment must be based upon all of the circumstances. The analysis proceeds with various objective observations, information from police reports, . . . and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person. The process does not deal with hard certainties, but with probabilities. . . . Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. The second element contained in the idea that an assessment of the whole picture must yield a particularized suspicion is the concept that the process described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing.[18]

The Supreme Court granted a greater degree of reliance on police officers’ assessments of potential criminal activity in a drug courier profile case, United States v. Sokolow.[19] Here, the majority considered the defendant’s overall behavior and activities that preceded the stop and frisk. The Court concluded that law enforcement authorities satisfied Terry’s “reasonable suspicion” requirement, when the agents determined that the defendant’s actions corresponded to the Drug Enforcement Agency’s (DEA) drug courier profile.[20]

In 1990, the Court decided a sobriety checkpoint case, Michigan Department of State Police v. Sitz.[21] In this decision, the majority maintained that although the Saginaw County Sheriff’s Department had no overt evidence of drivers with impaired physical conditions, all motorists were required to stop as they approached the checkpoint.[22] A balancing test was used to compare the minimal nature of the intrusion of the stop and questioning imposed on the privacy of drivers, versus the seriousness of the drunken driving problem.[23] As a result, while relying upon its 1976 decision in the Martinez-Fuerte case, the Court reasoned that

the circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.[24]

Hence, the Sitz Court determined that the checkpoint stops were constitutionally “reasonable,” despite the lack of suspicion of drunken driving in relationship to any particular motorist.[25]

In California v. Hodari D.,[26] the Court examined when an individual has been “seized” pursuant to the parameters of the Fourth Amendment. The Hodari decision relied upon the Court’s observation in Mendenhall, which indicated that an individual has been constitutionally seized, “only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.”[27] As a result, the majority concluded that the objective test for establishing this “show of authority” is whether a reasonable person would have understood the police officer’s words and actions to mean that the citizen is being ordered to stop.[28]

Thus, citizens are generally not obligated to answer a police officer’s inquiries. However, although constitutional safeguards exist that generally protect individuals from unreasonable governmental searches and seizures, a police officer who has reasonable suspicion that persons are involved in existing criminal activity are legally permitted to approach them in public locations, detain and question them, and conduct limited searches for the officer’s safety. Furthermore, courts have relied upon a police officer’s assessment of existing criminal activity when evaluating whether the reasonable suspicion perquisite for stop and frisks has been met. This assessment of existing illegal activity now includes determining if alleged suspects’ actions and appearances correspond to criminal profiles.

The Equal Protection Clause and Race

Although neither the Fourth nor the Fourteenth Amendment prohibits the use of race when it must be employed and does not result in an unfair application of the laws, the Constitution forbids police officers from targeting individuals for investigation solely on the basis of their race.[29] Thus, if a law enforcement officer “adopts a policy, employs a practice, or in a given situation takes steps to initiate an investigation of a citizen based solely upon that citizen’s race, without more, then a violation of the Equal Protection Clause has occurred.”[30] Skin color does not justify heightened suspicion for all members of a particular race.

Nevertheless, this does not mean that where race is a part of the description of a particular suspect, it may not be used as a legitimate basis for questioning. In Brown v. Oneonta,[31] the Court of Appeals for the Second Circuit considered the extent to which police officers may rely on a physical description consisting primarily of a suspect’s race and gender in the investigation of a crime. In that case, an elderly woman in Oneonta, New York, reported being attacked by a young black male. She could not, however, identify her assailant’s face or provide a detailed physical description.[32] Fewer than 300 blacks live in Oneonta, and the police proceeded to conduct a “sweep” of the town, questioning more than 200 persons of color over the next several days.[33] In addressing the plaintiffs’ constitutional claims, the court concluded that the stops of black men in Oneonta were not based solely on race, but “on the altogether legitimate basis of a physical description given by the victim of a crime.”[34] In the Oneonta court’s estimation, the policy of the police “was race-neutral . . . [they] investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description.”[35] Accordingly, Oneonta grants police officers greater latitude to rely on race where it constitutes the principal element in a victim’s physical identification of a suspect.

While Oneonta permits police officers to use race as a factor in establishing reasonable suspicion, such reliance creates an opportunity for the abuse of police authority:

Although this permissible use of race as an identifying characteristic serves as a necessary and efficient means for police to narrow their investigative efforts, police often lower their standards of investigation when a suspect has been described as a minority, thus intruding upon a greater number of individuals who meet the racial description than if the suspect had been described as white.[36]

Often, it is difficult to evaluate the use of race by police officers during street encounters. Because of the multiplicity of race-neutral factors an officer may credibly use in order to establish the requisite degree of articulable suspicion, a discriminatory intent may only at times be inferred from the totality of relevant facts, including evidence of discriminatory impact. As the United States Supreme Court observed in Washington v. Davis,[37] “the discriminatory impact . . . may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.”[38] While police officers and courts infrequently cite race as an element in creating the suspicion necessary to justify police intrusions, evidence of strong disparate impact may indicate that race plays a more important role than may be conceded.

New York Law

New York’s Criminal Procedure Law (CPL) essentially codifies the United States Supreme Court’s holding in Terry, authorizing police officers to make limited intrusions upon the liberty of persons in public places for investigative purposes, when the attendant circumstances provide an articulable basis to suspect involvement in criminal activity. Section 140.50 of the CPL authorizes a police officer “to stop a person in a public place . . . when he reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor.”[39] Once such a stop has been made, New York law authorizes a frisk of the person only if the officer “reasonably suspects that he is in danger of physical injury.”[40] These provisions form the core of what is popularly referred to as New York’s “Stop and Frisk Act.”

While the CPL generally codifies the Terry standard, the New York Constitution, as interpreted and applied by New York courts, generally accords greater protection to individual liberty and privacy interests than does the federal Constitution. Article I, Section 12 of the New York Constitution provides that

[t]he right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The right of people to be secure against unreasonable interception of telephone and telegraph communication shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may thus be obtained . . .[41]

Despite the similarities between the New York and federal Constitutions, the New York courts have considerably broadened the scope of conduct that constitutes an impermissible search or seizure. New York courts, for example, have concluded that encounters between a police officer and a citizen must be scrutinized for reasonableness from their inception, and not just from the point where a seizure or forcible stop occurs.[42] In People v. Torres,[43] the New York Court of Appeals specifically stated that “this court has demonstrated its willingness to adopt more protective standards under the State Constitution [than those imposed under federal law] when doing so best promotes ‘predictability and precision in judicial review of search seizure cases and the protection of individual rights of our citizens.’ ”[44] Thus, a New York police officer who obeys the mandates of the U.S. Constitution’s Fourth Amendment may still be in violation of the New York State Constitution.[45] New York police officers are held to a higher standard with regard to the protection of individuals’ civil liberties.[46]

The leading New York case governing the actions of police officers during street encounters with private citizens is People v. De Bour.[47] In De Bour, the New York Court of Appeals addressed the question of when and under what circumstances a police officer, in the absence of any concrete indication of criminality, may approach a private citizen on the street for the purpose of requesting information.[48] The court held that the police officer’s conduct was justified at all stages of the encounter. However, in its opinion, the court articulated a four-tiered approach for evaluating the constitutionality of police encounters with the public. At the first or lowest level, the court concluded that police officers may approach individuals to request information “when there is some objective credible reason for that interference not necessarily indicative of criminality.”[49] In contrast, any police intrusion “undertaken with intent to harass or . . . based upon mere whim . . . or idle curiosity” violates the Constitution.[50] At the second level, the court held that police officers have a “common-law right to inquire” and to request “explanatory information” when there is “a founded suspicion that criminal activity is afoot.”[51] At the third level, police officers may conduct a forcible stop and seizure where there is “a reasonable suspicion that a particular person has committed, is committing or is about to commit a felony or a misdemeanor.” Finally, at the fourth level, the court held that police officers may arrest and detain individuals based on “probable cause.”[52]

De Bour essentially creates a sliding scale for assessing police conduct; New York police officers are only permitted to increase the intensity of their intrusions as the degree of articulable suspicion increases during the course of a street encounter.[53] Further, each successive governmental intrusion must be judged on its own merits to determine “whether or not it was reasonably related in scope to the circumstances which rendered its initiation permissible.”[54] By delineating multiple levels of intrusion and requiring a separate level of police justification for each, the court in De Bour expressed a heightened concern with “protecting citizens against . . . arbitrary and discriminatory government intrusions.”[55]

Stop and Frisk Practices

Stop and Frisk Reports: UF-250s

There is no legal requirement that NYPD officers record stop and frisk encounters with private citizens. Instead, documenting certain types of street encounters has been a longstanding NYPD practice “designed to provide protection to both the police and the public, so that full information is available should followup or investigation of the stop become necessary.”[56] Under NYPD policy, the completion of a “stop and frisk report”—(or UF-250 form) is only required under the following circumstances: (1) a person is stopped by use of force, (2) a person stopped is frisked or frisked and searched, (3) a person is arrested, or (4) a person stopped refuses to identify him or herself.[57] Accordingly, if a person is stopped and questioned without official use of force and gives his or her name, a UF-250 is not required, provided that the individual is neither frisked nor arrested by NYPD officers.[58]

The standard UF-250 form requires officers to document, among other things, the time, date, place, and precinct where the stop occurred; the name, address, age, gender, race, and physical description of the person stopped; factors that caused the officer to reasonably suspect the person stopped; the suspected crime that gave rise to the stop; the duration of the stop; whether the person stopped was frisked, searched or arrested; and the name, shield number, and command of the officer who performed the stop.[59] When a UF-250 is completed, the Patrol Guide Manual indicates that officers must submit the form to the desk officer in the precinct where the stop occurred.[60] The desk officer is then required to bring the report to the attention of the commanding officer.[61]

The number of UF-250 forms completed by NYPD officers has increased significantly over the past 10 years.[62] According to information received from the department, the number of UF-250s filed by officers increased from 42,805 in 1989 to 114,825 for 1998.[63]

In 1997, Police Commissioner Howard Safir initiated a policy to make the filing of UF-250 forms a “rigorously enforced” priority.[64] As figure 5.1 demonstrates, this policy change resulted in a noticeable increase in the number of stop and frisk encounters reported by NYPD officers between 1997 and 1998. The UF-250 policy modification also coincided with the establishment of the department’s initiatives to combat quality of life crimes.

In 1997, the NYPD announced “Strategy ‘97—Goal Oriented Neighborhood Policing.” Strategy ‘97 was an effort designed to address “concerns that have the most impact on New York City’s Neighborhoods,” including property crime, quality of life violations, illegal guns, and drugs.[65] As part of this initiative, the NYPD’s Street Crime Unit (SCU), a group of plainclothes officers assigned to apprehend violent criminals with guns, was augmented by 300 officers to a total complement of 438.[66] Concomitantly, the primary mission of the SCU was expanded to address “all forms of street level crime,” including drugs, robbery, and assorted quality of life violations.[67] The Street Crime Unit was also directed to commence efforts targeted at entrenched pockets of crime as identified by precinct borough commanders.[68]

Despite the recent marked increase in the filing of UF-250s, a significant number of stop and frisks may still remain unreported.[69] During the Commission’s May 1999 hearing on police practices in New York City, Lieutenant Eric Adams estimated that in “1 out of 30 [stop and frisks] . . . a UF-250 [is] prepared.”[70] Moreover, he testified that the UF-250s on file are “mere child’s play on the number of people who have been harassed by [the NYPD].”[71]

Another police officer, Sergeant Anthony Miranda, provided these comments: “[A] stop, question and frisk report . . . sometimes gets prepared and may not get prepared. . . . [t]hey do this randomly.”[72] New York State Attorney General Eliot Spitzer has also expressed skepticism regarding the adequacy of the pool of reported UF-250s. As a result, the Attorney General’s Civil Rights Bureau disseminated a “Stop and Frisk Information Collection Form,” that was designed to allow individual citizens to report stop and frisk encounters. State investigators would then “compare [these forms] to the 250s to see what the correlation might be between the 250s that . . . are within the city’s repository, which is claimed by the [NYPD] to be essentially the totality of the stop and frisk universe.”[73]

Legitimate questions may also be raised as to the reliability of reported UF-250 data. Because individual officers involved in street encounters are responsible for completing the actual UF-250 forms, the accuracy of critical data—such as the legal predicate for a stop and frisk—may be open to challenge. As Police Commissioner Safir acknowledged in his April 1999 statement before the New York City Council, “there is no foolproof way to conduct a paper audit to determine whether reasonable suspicion was present in a street encounter, since the [UF-250] forms are self-generated by the officer taking action.”[74]

Concerns about the reliability of the reported UF-250 data are exacerbated by claims that new quotas may have been instituted, both at the precinct level and within the specialized units, to produce suspects, summonses, guns, arrests, and stop and frisk reports.[75] Officer Hiram Monserrate provided the following testimony before the Commission:

These quotas vary from unit to unit, but precinct officers on patrol are given specific goals, like 25 summonses a month and at least 2 arrests per quarter. . . . [I]n the Street Crime Unit, 2 felony arrests and a 15 stop, question, and frisk report per quota are the mandate.[76]

Similarly, Sergeant Noel Leader testified before the Commission regarding the pressure on SCU and other NYPD officers “to just produce numbers.”[77] Although there is anecdotal testimony regarding quotas for UF-250s, it is unclear to what extent such quotas are in place and whether they are a meaningful indication of police effectiveness.[78]

Moreover, until recently, no uniform practice existed for non-precinct units to process and record UF-250s. Unlike officers assigned to precinct divisions who had detailed procedures concerning the processing and submission of UF-250s, there was no uniform procedure across non-precinct divisions as of March 1999.[79] Most UF-250s completed by officers in both city and boroughwide special units were reviewed by the unit supervisor and then forwarded to the precinct of occurrence for processing. The specialized divisions often did not retain any independent records. Furthermore, the SCU and Organized Crime Control Bureau, which includes the Narcotics, Organized Crime Investigation, and Auto Crime Divisions, were the only specialized units to maintain independent records of the number of UF-250s prepared.[80] Accordingly, there is no meaningful way to assess the stop and frisk activities of these other specialized units.[81]

Non-precinct units within the Patrol Services borough units maintained equally varied procedures.[82] For example, all non-precinct units in Patrol Borough Manhattan South and North,[83] except certain units within Patrol Borough Manhattan South,[84] independently process UF-250s. Similarly, all Bronx non-precinct units, except the Yankee Stadium detail, recorded the preparation of UF-250s in the unit, immediately forwarding them to the precinct of occurrence.[85] Brooklyn South non-precinct units, including Patrol Borough Brooklyn South units, forward UF-250s to the precinct of occurrence with each unit maintaining a record of the number of completed UF-250s.[86] Most Brooklyn North non-precinct units record UF-250s in the unit of occurrence, with only the Brooklyn North Narcotics and the Brooklyn North Task Force maintaining separate records of the number of UF-250s completed in 1998.[87] In the Borough of Queens, non-precinct units employed a myriad of approaches. Patrol Borough Queens South, including Queens South Task Force (and its former subunits Queens South Robbery Task Force and Auto Larceny Units), forward UF-250s to the precinct of occurrence but also retain independent records.[88] Lastly, Staten Island’s non-precinct units generally process UF-250s in the precinct of occurrence.[89]

The Housing and Transit Districts, which recently became a part of the NYPD, all maintained separate UF-250 statistics for uniform personnel assigned to the Housing Bureau.[90] The Transit Division, which recently came within NYPD, forwards completed UF-250s to the precinct of occurrence.[91]

Few, if any, of these units maintained adequate information to determine whether their stop and frisk practices disproportionately targeted particular racial or ethnic groups.[92]

Citywide Data

The department’s UF-250 data that was furnished to the U.S. Commission on Civil Rights lack certain fields or include particular codes which hinders us from providing a complete assessment of the NYPD’s stop and frisk practices.[93] For example, the NYPD’s UF-250 data do not contain sufficient detailed information to determine how many stops initiated by NYPD officers result in arrests. Further, the NYPD’s data do not provide the reasons police officers furnish in their UF-250 reports for stopping civilians. Nevertheless, our analysis should be considered in light of the following shortcomings:[94]

The Commission had access only to the department’s computerized UF-250 data for 1998.[95] This information demonstrated that during that year, NYPD officers completed 139,409 UF-250 forms.[96] Of these, 52.3 percent of the data subjects were identified as black, 32.9 percent Hispanic, 13.17 percent white, and 1.7 percent Asian. The population of New York City is approximately 31.7 percent black, 20.3 percent Hispanic, and 9.7 percent Asian.[97]

The Commission agreed to use the NYPD computations for the total number of unique UF-250 forms filed in 1998. The number of unique filings for 1998 is 138,872, out of a total of 147,787 UF-250 forms filed. For years prior to 1998, no means for screening duplicate reports exist. Therefore, in examining the data for the 10 years ending in 1998, the larger 147,787 figure for 1998 must be used in order to accurately display the growth trend in the filings. The borough and precinct data appearing in this report will be recalculated to screen out duplicate filings. These recalculations do not change any of the findings of this report.

The NYPD’s Brooklyn units logged the largest number (37,825, or approximately 27 percent) of stop and frisk reports in 1998. Of these reports, 64.6 percent were for black subjects, 22.7 percent were for Hispanics, 11.9 percent were for whites, and 0.7 percent were for Asians. Approximately 88 percent of all stop and frisk subjects in Brooklyn were members of ethnic minorities. The population of Brooklyn is approximately 41 percent black, 35 percent white, 17 percent Hispanic, and 6.7 percent Asian.[98]

Queens’ NYPD units generated 33,848 stop and frisk reports in 1998 (24.3 percent). Of these, 43.6 percent of the data subjects were described as black, 35 percent were Hispanic, and 17.8 percent were white. The population of Queens is approximately 41.3 percent white, 23.1 percent black, 18.5 percent Hispanic, and 16.6 percent Asian.[99]

The Bronx had the next largest number of stop and frisks reported at 30,519 (21.9 percent). Of these, 50.2 percent of the data subjects were identified as black, 42.6 percent were Hispanic, and 6.9 percent were white. The population of the Bronx is approximately 42.4 percent black, 34.2 percent Hispanic, 18.6 percent white, and 4 percent Asian.[100]

Manhattan’s NYPD units produced 28,359 (20.3 percent) stop and frisk reports in 1998. Of these, approximately 48.6 percent were classified as black, 37.4 percent as Hispanic, 11.6 percent as white, and 2 percent as Asian. The population of Manhattan is approximately 41.9 percent white, 26.7 percent black, 20.5 percent Hispanic, and 10.3 percent Asian.[101]

Finally, Staten Island had 6,090 (4.4 percent), which was the lowest number of stop and frisks reported for New York City’s boroughs in 1998. Approximately 51.6 percent of Staten Island UF-250 subjects were identified as black, 32.4 percent were classified as white, and 15.5 percent were described as Hispanic. The population of Staten Island is approximately 75.4 percent white, 9 percent black, 8.6 percent Hispanic, and 6.7 percent Asian.[102]

Street Crime Unit and Precinct-level Analysis

Nearly one-third of the 139,409 UF-250 reports filed by NYPD officers in 1998 were attributable to five units: the Street Crime Unit (SCU), the 40th Precinct, the 120th Precinct, the 43rd Precinct, and the 47th Precinct.[103] We provide a closer examination of the stop and frisk practices of the Street Crime Unit, as well as the precinct units that produced the greatest number of stops in 1998.

The Street Crime Unit

In 1998, the SCU filed 27,061 stop and frisk reports, which was the greatest number generated by any NYPD unit.[104] This figure represented a 37 percent increase over the SCU’s reported UF-250 figures for 1997. However, according to the NYPD’s preliminary tabulation that was prepared for the April 19, 1999, City Council hearing, the Street Crime Unit only produced 8,722 UF-250s in 1998. The demographics of UF-250s subjects were as follows: 64.5 percent black, 20.7 percent Hispanic, 6.3 percent white, and .5 percent Asian.[105]

The disproportionate nature of the SCU’s stop and frisk practices is portrayed in the UF-250 statistics for the top 25 precincts in which the SCU was deployed in 1998.[106] These figures reveal that the racial and ethnic composition of the communities surrounding these precincts in which the SCU was deployed most frequently in 1998 was approximately 45 percent black, 28 percent Hispanic, 22 percent white, and 4 percent Asian. Thus, the SCU was more commonly deployed in disproportionately African American and Hispanic neighborhoods.[107]

Specifically, 63 percent of the UF-250 forms filed by SCU officers from these precincts in 1998 involved African American civilians. Hispanic civilians were the subject of 30 percent of the filed UF-250s, while white civilians were mentioned in 6 percent of the forms, and Asians were involved in 1 percent of the stop and frisk incidents. Hence, SCU officers stopped blacks and Hispanics with a greater frequency than their actual presence in the predominately minority communities in which SCU officers typically operated in 1998. For example, the Street Crime Unit was deployed to the 71st Precinct in the southern end of the Crown Heights section of Brooklyn for 52 weeks in 1998. According to the 1990 census, 78.3 percent of the residents of the 71st Precinct were black, 10.7 percent white, 9.4 percent Hispanic, and 1.2 percent Asian. However, in 1998, 94.5 percent of all of the UF-250 subjects in that precinct were black, 1 percent were white, 4.1 percent were Hispanic, and .4 percent were Asian.

Moreover, within specific precincts, the NYPD’s data on the SCU’s stop and frisk practices reveal more pronounced racial disparities. For example, in the 6th Precinct, which covers West Greenwich Village, blacks composed 3.4 percent of the resident population. However, African Americans constituted 52.2 percent of the subjects in all UF-250 reports filed by SCU officers.[108] In the same precinct, Hispanics were 5.4 percent of the population, yet accounted for over 24 percent of UF-250 subjects. Similarly, in the 104th Precinct in northwest Queens, blacks were only .5 percent of the resident population, but accounted for 44 percent of UF-250 reports filed by SCU officers in 1998.[109] Data from the 110th and 115th Precincts in Queens also indicate significant disparities.[110] Hispanics made up 41.8 percent and 43 percent of the population in these precincts, and accounted for 75.8 percent and 70 percent of all UF-250 reports filed by SCU officers, respectively. In nearly all of the 25 precincts in which the SCU was deployed in 1998, SCU officers stopped either blacks or Hispanics, or both, well out of proportion to their presence in the relevant population.

The 40th Precinct

The unit filing the second largest number of UF-250s was the 40th Precinct, which registered approximately 5,058 stop and frisk reports in 1998 alone. The 40th Precinct encompasses an area of approximately 3 square miles in the South Bronx.[111] The command includes such neighborhoods as Port Morris (below East 138th Street), Mott Haven (roughly East 138th Street to East 149th Street), and Melrose (north of East 149th Street). The resident population of the 40th Precinct is approximately 77,000.[112]

Of the 5,058 reports filed in the 40th Precinct, 51.4 percent were recorded for Hispanic subjects, 45.4 percent for black subjects, and 1.8 percent for white subjects. Accordingly, nearly 95 percent of all subjects stopped in the 40th Precinct in 1998 were Hispanic or black. Although the NYPD did not submit population figures for this precinct by ethnicity, relevant figures for the Bronx provide an estimation for comparison (42 percent black, 34 percent Hispanic, 18 percent white).

The 120th Precinct

Police officers in the 120th Precinct generated 4,489 UF-250 reports in 1998. The 120th Precinct is located on the North Shore of Staten Island and encompasses all of the area north of the Staten Island Expressway.[113] The precinct services an area of approximately 14.1 square miles and a population of 141,500.

Of the 4,489 reports filed in the 120th Precinct, 64.4 percent were recorded for black subjects, 18.3 percent for white subjects, and 16.2 percent for Hispanic subjects. Although the NYPD did not submit population figures for this precinct by ethnicity, available population figures for Staten Island indicate that the population is 75 percent white, 9 percent black, 8 percent Hispanic, and 7 percent Asian.

The 43rd Precinct

Officers in the 43rd Precinct produced 4,176 UF-250 reports in 1998. The 43rd Precinct is situated in the southeast section of the Bronx.[114] It is primarily a residential and commercial area consisting of 20 housing developments, one- and two-family private homes, as well as numerous apartment buildings.[115] The 43rd Precinct encompasses an area of 4.3 square miles and includes a population of approximately 170,000.

Of the 4,176 reports from the 43rd Precinct, approximately 50.6 percent were filed for black subjects, 45.5 percent for Hispanic subjects, and about 2 percent for white subjects. According to NYPD data, the population of the 43rd Precinct is 31 percent black, 53 percent Hispanic, 11 percent white, and 3 percent Asian.[116]

The 47th Precinct

There were 4,196 UF-250 reports from the 47th Precinct filed in 1998. The 47th Precinct is located in the North Bronx and includes neighborhoods in Woodlawn, Wakefield, Williamsbridge, Baychester, Edenwald, Olinville, and Fishbay.[117] The precinct encompasses an area of 5.5 square miles and includes a population of approximately 130,000.[118]

Of the 4,196 UF-250 reports that were recorded in the 47th Precinct, 81.4 percent were filed for black subjects, 13.7 percent for Hispanic subjects, and 3.3 percent for white subjects. According to NYPD data, the population surrounding the 47th Precinct is 60 percent black, 19 percent white, and 18 percent Hispanic.

Analysis of UF-250 and Demographic Data

An examination of the UF-250 data indicates that NYPD officers routinely stop blacks and Hispanics out of proportion to their presence in the general population.[119] In many precincts, as noted above, significant disparities exist between the actual population of Hispanics and primarily African Americans within New York’s communities, and the racial distribution of UF-250 subjects reported by the NYPD. In addition, a number of minority New York City residents also contend that they are more likely to be stopped and frisked, as well as detained by the police.[120] During the Commission’s hearing on police practices in New York City, the testimonies of several community residents reflected a great deal of frustration with this situation.[121] For example, Arthur Mims, a New York City resident, stated that while on his way home one evening in November of 1997, he was stopped by police officers from the Midtown North precinct. “They came over to me and asked me what is in my “f-ing” bag, and they didn’t say “f-ing.” I said I work here. I went over to the door, rang the bell, co-workers came out and said he works here. And with that I was maced.”[122]

Similarly, Anthony Rivera, a corrections officer of the New York Department of Corrections, informed the Commission of another potentially serious incident that involved the Street Crime Unit:

I was also stopped by a fellow officer while picking up my daughter one day at school, by the Street Crimes Unit. They just came out of their vehicles, about three vehicles, like cowboys from the wild, wild west, with their guns drawn. Luckily I had a shield, and my friend, my fellow officer, had his shield. But if it was a regular Latino out there, we might have been a statistic that you talk about today, our brothers being shot without probable cause, or for any reason.[123]

Other witnesses maintained that minority youth in particular are especially likely to be stopped and frisked in New York City. According to Hyun Lee, program director of the Committee Against Anti-Asian Violence,

[y]outh of color who sit on their front stoops these days are routinely subjected to illegal stops and frisks during random neighborhood drug sweeps conducted by the NYPD. After illegally searching the youth and coming up with absolutely nothing, the police continue the process of detention and questioning for several hours, hoping to acquire leads on other cases. During the detention, the police officers also take illegal Polaroid snapshots of the youth. Although the youth has committed no crime and have no prior record, his or her face is now logged into the criminal justice system. These illegally acquired mug shots are later used to facilitate the selection of suspects when a crime is reported.[124]

The mayor’s office and NYPD officials interpret these differences in the racial distribution of those individuals who are recorded as UF-250 stop and frisk subjects as an indication of known crime suspects’ profiles, as reported by crime victims.[125] According to Mayor Giuliani, “[t]he stops the [NYPD] makes are largely driven by the victims’ description of the person who committed the crime.”[126] Echoing this perspective, Commissioner Safir commented:

We do not select our suspects, as they are identified not by us but by the victims. We deploy our officers where violent crime occurs, and we question individuals who fit the description of crime suspects. This is basically strategy implemented without regard to race or ethnicity but, rather, as a part of our commitment to eradicate crime in every neighborhood in our city.[127]

Further examination of the mayor’s and police commissioner’s explanations for the reason minorities are more frequently the focus of stop and frisk incidents yields another possible cause. Noel Leader testified that the NYPD selects its own UF-250 subjects without the assistance of victim identifications. The SCU and the other specialized units do not respond to radio calls providing physical descriptions drawn from victim identifications. Generally, he suggested that the mandate of these units is to root out crime by searching for individuals who may be engaged, or about to be engaged, in criminal activity (e.g., carrying an unlicensed gun).[128] Thus, in the case of the SCU, as Attorney General Spitzer observed, “it is the officer’s own observation that initiates the stop and frisk.”[129] Sergeant Noel Leader’s testimony confirmed this point:

Street Crime rides around the city. And they stop individuals with no complainant, with no victim. They arbitrarily of their own initiation stop individuals. . . . Street Crime . . . stops male black and Latinos randomly in the street without any victims.[130]

In addition, many stops conducted by both the specialized and nonspecialized units arise out of victimless crimes, including the assortment of quality of life violations that the NYPD has recently targeted as part of its Strategy ‘97 patrol initiative.[131] As Lieutenant Adams stated:

Look at the . . . complaints in UF-250s. Those are [largely] complaints that are generated not by the public but merely by police officers that are using . . . too many times their own biases on who they’re going to stop. Victimless crimes are our problems.[132]

Thus, it is probable that a significant proportion of the UF-250s that were filed by NYPD officers in 1998 did not originate from victim identifications.[133]

Racial Profiling in Stop and Frisks

The NYPD’s data strongly suggest that racial profiling plays some role in the stop and frisk practices of the overall department, and particularly in the SCU.[134] The department’s explanation that the ethnic breakdown of UF-250 subjects simply mirrors the racial breakdown of victim descriptions does not adequately account for the particularized suspicion required by the Constitution to effect a stop. The Fourth Amendment specifically mandates that the justification for a search be supported by a warrant “particularly describing . . . the persons or things to be seized.”[135] However, the mayor and the police commissioner indicate that racial disparities in UF-250 data may be explained by reference to precinct and citywide “profiles” of violent criminals. As Commissioner Safir testified, “the racial, ethnic distribution of the subjects . . . reflect the demographics of known violent crime suspects as reported by crime victims.”[136] As a result, this explanation may implicitly sanction racial profiling. Specifically, police officers are provided with this rationale as their basis for stopping a proportionate number of people who match a statistical profile of suspects that are based on victim descriptions.

Stopping an individual based on statistical probabilities or demographics is prohibited; individualized suspicion remains the relevant standard for initiating a legal stop. As the United States Supreme Court concluded in Terry, “[the] demand for specificity in the information upon which the police action is predicated is the central teaching of this Court’s fourth amendment jurisprudence.”[137] Accordingly, the premise that NYPD officers were justified in stopping a disproportionate number of minorities in 1998 because of historical crime data must be rejected.

Although it would be problematic to verify that the NYPD has racially biased motivations when initiating stop and frisk encounters with civilians, the department’s data demonstrate that the consequences of these police encounters are indications of racial profiling in New York City.[138] Moreover, the NYPD, as noted above, has not documented that a majority of UF-250 subjects are stopped on the basis of victim identifications. One of the real problems with many forms of “profiling” is that the characteristics that are typically compiled tend to describe a very large category of presumably innocent persons. This point was expressly recognized by the United States Supreme Court in Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam). Indeed, using profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or “hunches,” which is clearly not permitted under Fourth Amendment jurisprudence.[139]

In addition, it is possible that the intense demand for increased arrests may induce officers to search for perpetrators by using simple racial and ethnic stereotypes, unless the department’s cultural training practices are strengthened and complex police investigations are uniformly employed.[140] This may explain, at least in part, the growth of arrests that are not prosecuted because of insufficient evidence or an improper arrest.[141] For example, in 1998, 18,000 of 345,000 arrests failed to reach the arraignment phase of prosecution. The rate of these “pre-arraignment” arrests increased by 41 percent in the Bronx and 23 percent in Manhattan, compared with 1997 figures.[142] Moreover, 1998 marked the first time in NYPD’s history, that the arrest total surpassed the number of reported crimes.[143]

Even if the NYPD demonstrated that victim identifications led to a majority of stop and frisk encounters, the reliability of the calls themselves may be subject to question. Members of the Street Crime Unit have been quoted as stating that, if a person who was stopped complains, police officers would then

phone in a bogus 911 call of an armed man matching a description of the “perp” they just stopped, and then make sure the guy knew it, then they’d go on to say we’d fill out a stop and frisk report to cover ourselves. But we knew what we were doing.[144]

In March 2000, the United States Supreme Court, noting the unreliability and unaccountability of anonymous tips, held that an anonymous tip giving the race, gender, clothing, and location of an individual, absent other information, clearly was insufficient to provide reasonable suspicion to stop and search the individual.[145]

Findings and Recommendations: Chapter 5

Finding 5.1: Persons are afforded greater protections against intrusions on their individual liberty and privacy interests by law enforcement officials under New York law than under federal constitutional law, as interpreted by the Supreme Court.

The Cato Institute recently released a report in which it was concluded that in New York City “experience has shown that stop and frisk tactics unnecessarily endanger the police, the suspect, and bystanders. Policymakers in New York and elsewhere should discontinue the freewheeling stop-and-frisk searches and restore the constitutional standard of probable cause without delay.”[146]

Based on the analysis of UF-250 data submitted to the Commission, the department’s use of “pattern descriptions” of alleged suspects is a possible indicator of racial profiling. This practice apparently has been a factor in the stop and frisk practices of the NYPD, including its specialized units.

Testimony at the Commission’s hearing indicated that perhaps only 1 out of 30 stop and frisk encounters resulted in a filed UF-250 form. This criticism was echoed recently in a preliminary report by the CCRB, whose investigators have determined, based on a study of hundreds of instances in which people had been stopped and frisked, that NYPD officers routinely fail to file the required paperwork after stopping and frisking people on the streets of the city.

Therefore, the combination of the testimony and the analysis of the UF-250 data could lead a reasonable observer to conclude that racial profiling has been practiced by NYPD officers.

Recommendation 5.1: The NYPD should take steps to ensure that indicators of racial profiling do not occur. Racial profiling violates the law and undermines public confidence and respect for the police, which may cause deadly altercations.

These steps should include the immediate adoption and implementation of a written department policy that carefully defines, expressly prohibits, and stiffly penalizes racial profiling as the sole motivation in the stopping and searching of individuals. There should also be a departmental system of records established to permit the consistent collection and evaluation of data to determine whether racial profiling is occurring, and if so, when and why.

Secondly, the NYPD should use existing mechanisms (i.e., planning and community boards, churches, schools, local organizations, etc.) to begin or expand its efforts to inform local residents regarding what constitutes a legitimate stop, search, and frisk. Further, the department could also advise the public what civilians should and should not do during an encounter with police officers. These efforts may serve to help eliminate the public’s concerns about the possibility of being stopped by the police, particularly in minority communities.