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.

[1] See Diane McWhorter, “Killing by N.Y. Police Raises Ghosts of Past,” USA Today, Mar. 29, 1999. “Many criminal justice experts long have been skeptical about the aggressive ‘quality of life’ policing (‘zero tolerance’ for even petty crime) pioneered by the New York Police Department in 1994 and exported vigorously around the country.” Alexandra Marks, “Trust in Police Has Slipped,” The Christian Science Monitor, Mar. 15, 2000, p. 1. Professor Richard Fox of Union College in Schenectady, New York, conducted a survey of Bronx, NY, residents on their confidence in interacting with police. Eleven percent of the respondents felt that the police treated community residents fairly, and 16 percent were comfortable about dealing with the police. Eight percent of the respondents felt that police treated people respectfully. Ibid. But see New York City Police Department, New York City Response to the Draft Report of the United States Commission on Civil Rights—Police Practices and Civil Rights in New York City, May 16, 2000 (page numbers omitted)  (hereafter cited as NYPD Response). The NYPD maintains that several criminal justice experts consider the department as an example of proper policing.

[2] See, e.g., Leslie Casimir et al., “Blacks, Latinos: Cops Harass Us,” N.Y. Daily News Online, Mar. 26, 1999. The perception of racial profiling appears widespread in New York City at this time. There have been numerous articles by the New York City newspapers interviewing residents of the five boroughs to determine whether they have been stopped and frisked. In particular, young black and Latino males increasingly perceive themselves as being unfairly targeted by NYPD officers for pretextual stops and frisks on the basis of their race. Of the 100 males interviewed by the New York Daily News for the Mar. 26, 1999, article, 81 said they had been stopped and frisked by a police officer. Sixty-six percent believed that police officers viewed them with suspicion because of their racial background.

[3] U.S. Const. amend. IV (emphasis added).

[4] Union Pac. R.R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

[5] Camara v. Municipal Court, 387 U.S. 523, 528 (1967).

[6] 392 U.S. 1 (1968).

[7] Id. at 20–22.

[8] 392 U.S. at 21, 27 (emphasis added).

[9] Id. at 26.

[10] Id. at 27. See Sibron v. New York, 392 U.S. 40 (1968). Sibron was a companion case to Terry, which began to define the scope of Terry’s stop and frisk guidelines. According to the Court, “[t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron, 392 U.S. at 64; Chimel v. California, 395 U.S. 752 (1969). The scope of the search is restricted to the alleged suspect’s person, and to the area within his or her immediate control. Chimel, 395 U.S. at 762.

See also Brown v. Texas, 443 U.S. 47 (1979). The Court in Brown concluded that a person’s presence in a neighborhood that was frequented by drug users was an insufficient basis for determining that the individual was engaged in criminal activity. Hence, Terry’s “reasonable suspicion” prerequisite was not satisfied for the stop and frisk that occurred in this case. Id. at 52–53. But see New York v. Belton, 453 U.S. 454 (1981). In Belton, police officers searched the interior of a suspect’s vehicle, although the driver and the car’s occupants were away from the vehicle and were unable to reach inside of it. Nevertheless, the Court permitted this search and interpreted it as being incident to a lawful arrest. Id. at 456, 457–58, 462–63.

[11] Terry, 392 U.S. at 30.

[12] Id.

[13] Florida v. Royer, 460 U.S. 491, 497 (1983). See also id. at 497 (citing Terry, 392 U.S. at 32–34; United States v. Mendenhall, 446 U.S. 544, 556 (1980)). Further, constitutional protections are not violated when the individual’s voluntary responses to these inquiries are used as evidence in a subsequent criminal prosecution. Id. at 497 (citing Dunaway v. New York 442 U.S. 200, 210, n. 12 (1979)).

[14] 460 U.S. at 497–98.

[15] David A. Harris, “Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked,” Indiana Law Journal, vol. 69 (1994), p. 665 (hereafter cited as Harris, “Factors”).

[16] 449 U.S. 411 (1981).

[17] Harris, “Factors,” p. 665.

[18] Cortez, 449 U.S. at 418. See also Reid v. Georgia, 448 U.S. 438 (1980). In Reid, the Court ruled that petitioner’s stop and seizure was improper when a law enforcement officer based it on his observation of the individual engaging in separate acts of innocent activity. However, the opinion indicated that the court would have supported the petitioner’s seizure, if there were additional evidence of suspicious activity. Id. at 441; Harris, “Factors,” p. 667.

[19] 490 U.S. 1 (1989). Drug Enforcement Administration (DEA) agents stopped the defendant, Andrew Sokolow, when he arrived at Honolulu International Airport. The agents ultimately uncovered 1,063 grams of cocaine in his carry-on luggage. When the stop was made, “the agents knew . . . that (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) he checked none of his luggage.” Id. at 3; see Harris, “Factors,” p. 667.

[20] Sokolow, 490 U.S. at 9–10. “A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a ‘profile’ does not somehow detract from their evidentiary significance as seen by a trained agent.” Id. at 10.

[21] 496 U.S. 444 (1990).

[22] Id. at 448. During the 75 minutes that the checkpoint was in operation, 126 drivers were stopped and questioned, and two arrests were made. Id.

[23] Sitz, 496 U.S. at 451–52. See id. at 451. The Court relied upon their prior decisions in Treasury Employees v. Von Raab, 489 U.S. 656 (1989); and United States v. Martinez-Fuerte, 428 U.S. 543 (1976), a case that dealt with highway checkpoints established for detecting illegal aliens. “[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” Sitz, 496 U.S. at 450–51 (citing Treasury Employees, 489 U.S. at 665–66).

[24] Sitz, 496 U.S. at 453 (citing Martinez-Fuerte, 428 U.S. at 558).

[25] 496 U.S. at 453, 455.

[26] 499 U.S. 621 (1991).

[27] See id. at 627–28 (citing Mendenhall, 446 U.S. at 553).

[28] Hodari, 499 U.S. at 628. See also Whren v. United States, 517 U.S. 806 (1996). In Whren, the Court confirmed that it is reasonable for a police officer to stop a motorist when the officer has probable cause to believe that the civilian has committed a traffic violation. Hence, there is no Fourth Amendment violation of unreasonable searches and seizures. Id. at 809–10.

[29] See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873 (1975). The Court determined that the appearance of Mexican ancestry does not furnish reasonable belief for questioning the occupants of a car in search of illegal aliens. United States v. Avery, 137 F.3d 343 (6th Cir. 1997). Police would violate the Equal Protection Clause if they investigated a suspect on suspicion of drug trafficking solely on the basis of race. People v. Johnson, 102 A.D.2d 616, 622, 478 N.Y.S.2d 987, 993 (N.Y. App. Div. 1984). In Johnson, the Court found that the “color of a person’s skin . . . cannot serve as the sole basis for suspicion.” But cf. NYPD Response. The NYPD maintains that the Equal Protection Clause has no bearing on the Terry analysis. Ibid.

[30] Avery, 137 F.3d at 355.

[31] 195 F.3d 111 (2d Cir. 1999), reh’g denied, 203 F.3d 153 (2d Cir. 1999).

[32] Id. at 116.

[33] Id.

[34] Id. at 119.

[35] Id.

[36] “Developments in the Law—Race and the Criminal Process, Section III: Racial Discrimination on the Beat: Extending the Racial Critique to Police Conduct,” Harvard Law Review, vol. 101, no. 7 (1988), pp. 1472, 1505; Emily J. Sack, “Police Approaches and Inquiries on the Streets of New York: The Aftermath of People v. De Bour,” New York University Law Review, vol. 66 (1991), pp. 512, 539 (hereafter cited as Sack, “Police Approaches”). “[W]hen the suspect is described as a minority, the police often lower their standards of investigation . . . thus intruding upon a greater number of individuals who meet the racial description than if the suspect had been described as white.’’ Ibid.

[37] 426 U.S. 229 (1976).

[38] Davis, 426 U.S. at 242.

[39] N.Y. Crim. Proc. Law § 140.50(1) (Consol. 1999).

[40] Id. at § 140.50(3).

[41] N.Y. Const., art. I, § 12. See Robert M. Pitler, “Inde­pendent State Search and Seizure Constitutionalism: The New York State Court of Appeals’ Quest for Principled Decisionmaking,” Brooklyn Law Review, vol. 62 (1996), pp. 1, 13. The second paragraph, directed at wiretapping, was expressly intended to reject the view of the United States Supreme Court that nontrespassory wiretapping was neither a search nor a seizure within the meaning of the Fourth Amendment.

[42] See e.g., People v. De Bour, 40 N.Y.2d 210, 352 N.E.2d 562, 386 N.Y.S.2d 375 (N.Y. 1976).

[43] 74 N.Y.2d 224, 230, 543 N.E.2d 61, 65, 544 N.Y.S.2d 796, 800 (N.Y. 1989).

[44] Id. at 228.

[45] See Douglas Holden Wigdor, “What’s in a Word? A Comparative Analysis of Article I, § 12 of the New York State Constitution and the Fourth Amendment to the United States Constitution As Interpreted by the New York Court of Appeals and the United States Supreme Court,” Touro Law Review, vol. 14 (1998), pp. 757, 759. The court noted that New York police officers operate under a different set of rules than officers bound only to follow the Supreme Court’s holding in Terry.

[46] But see NYPD Response; “The Governor’s Attack on the Judges,” The New York Times, Feb. 3, 1996, p. 22; Steven Duke, “Crime and Punishment,” The New York Times, Mar. 31, 1996, p. 8. The NYPD maintains that a higher standard does not necessarily indicate that the legal guidelines are clear. Some authorities, such as New York Governor George Pataki and former New York Supreme Court Judge Harold Rothwax, have considered stop and frisk law ambiguous. Cf. Editor’s Note. The latest United States Supreme Court decision on the stop and frisk doctrine was unanimous, and not indicative of an unclear doctrine (citing Florida v. J.L., 120 S. Ct. 1375 (2000)).

[47] 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976).

[48] 40 N.Y.2d at 213. In this case, two uniformed police officers observed Louis De Bour walking alone in their direction at 12:15 a.m. in an area of Brooklyn with a high incidence of drug traffic. When De Bour came within 30 or 40 feet of the officers, he crossed the street, and the two policemen followed suit. When he reached the officers, one of officers asked him what he was doing in the neighborhood. De Bour replied that he had just parked his car and was going to a friend’s house. One of the officers then asked De Bour for identification. As he was answering that he had none, the officer noticed a bulge in De Bour’s coat and asked him to “unzipper” the coat. When De Bour complied with this request, the officer observed a revolver protruding from his waistband and arrested De Bour for gun possession. Id. at 213–14.

[49] Id. at 223 (emphasis added).

[50] Id. at 217.

[51] Id. at 223.

[52] Id.

[53] Id. “[V]arious intensities of police action are justifiable as the precipitating and attendant factors increase in weight and competence.” Id.

[54] Id. at 222.

[55] See Sack, “Police Approaches,” pp. 512, 527. 

[56] Howard Safir, New York police commissioner, statement to the New York City Council Public Safety Committee, New York, NY, Apr. 19, 1999, p. 10 (hereafter cited as Safir Statement to Public Safety Committee); State of New York, Office of the Attorney General, Civil Rights Bureau, The New York City Police Department’s “Stop & Frisk” Practices: A Report to the People of the State of New York from the Office of the Attorney General,” 1999, p. 64 (hereafter cited as OAG, Stop & Frisk Report). “The overall purpose of the UF-250 is several-fold: In addition to informing the court what circumstances led the officer to believe that a stop was necessary, the report also serves to protect the officer and the Department from allegations of police misconduct which may sometimes arise from the proper performance of police duty.” Ibid.

[57] Patrol Guide, pp. 116–33; see Safir Statement to Public Safety Committee, p. 10. See also NYPD Response. The NYPD’s policy for completing stop and frisk reports is above the constitutional requirement. Ibid.

[58] Safir Statement to Public Safety Committee, p. 10.

[59] Patrol Guide, pp. 116–33; OAG, Stop & Frisk Report, p. 63.

[60] Patrol Guide, pp. 116–33.

[61] Ibid.

[62] OAG, Stop & Frisk Report, p. 65; see Editor’s Note. The earliest written reference that the Commission has found regarding this form is 1986. But see NYPD Response. The department has asserted that the UF-250 form has been mandatory since 1964 and was amended in 1973.

[63] Memorandum from Director Central Records Division to Executive Director Support Services Bureau, Apr. 5, 1999, p. 1. The numbers of UF-250s for the intervening years are as follows: 1990—41,438; 1991—44,209; 1992—46,371; 1993—43,014; 1994—47,665; 1995—44,654; 1996—56,353; 1997—85,768; see Editor’s Note. These figures are the only source of data covering the entire 10-year period. Although the NYPD database indicates that the number of stop and frisk incidents for 1998 is greater than what is stated in the Apr. 5, 1999, memorandum, the memorandum’s total is used to more accurately show the annual trend in stop and frisk incidents.

[64] Ibid.

[65] New York City Police Department, “NYPD Strategy ‘97: Goal-Oriented Neighborhood Policing” (hereafter cited as “Strategy ‘97”).

[66] Ibid., p. 6.

[67] Ibid., p. 7.

[68] Ibid.

[69] OAG, Stop & Frisk Report, pp. 71–72. “Among the officers interviewed by the OAG . . . there was no clear consensus about the degree to which ‘stop’ encounters are underrreported, or why. . . . [O]ne former supervisor of a specialized unit reported that, in his experience, UF-250 forms were completed ‘fairly regularly,’ but not always. The supervisor stated that a ‘stop’ which leads to an arrest is most likely to be the kind of ‘stop’ for which no UF-250 is completed. In an arrest situation, the supervisor explained, the arresting officer must complete an on-line booking sheet, a property voucher, and other paperwork to process the prisoner; ‘[UF-] 250’s are just excess Rosario material’—that is, material that defense lawyers can use to cross-examine the officer at trial.

On the other hand, other officers stated their belief that, routinely, ‘stops’ are not reflected in completed UF-250’s forms. Some estimated that only one in three ‘stops’ is documented; others said only one in five. The reasons for this (perceived) failure to adhere to the rules were varied: considerations of time, convenience, and necessity were frequently cited. Notably, the general consensus was that officers were more likely to complete the forms and document a ‘stop’ where there was the possibility that a civilian might later complain about the officer’s conduct.” Ibid.

See Editor’s Note, “Unreported stops” are defined as those for which UF-250 forms should have been filed according to NYPD guidelines but were not. But see NYPD Response. “[T]here is no legal or Department requirement for officers to fill out a stop and frisk form for many stops. Additionally, at least some of the stop and frisk reports that were actually recorded need not have been prepared given the NYPD’s policy.” Ibid.

[70] Eric Adams, testimony before the U.S. Commission on Civil Rights on Police Practices and Civil Rights in New York City, hearing, New York, NY, May 26, 1999, transcript, p. 306 (hereafter cited as New York Hearing Transcript). But see NYPD Response. The NYPD contends that there is no evidence to support the testimony of this witness. The department indicates that the Commission should have surveyed a random sample of police officers.

[71] Adams Testimony, New York Hearing Transcript, p. 310.

[72] Miranda Testimony, New York Hearing Transcript, p. 311.

[73] Spitzer Testimony, New York Hearing Transcript, pp. 242–43. The results of the OAG comparison between the Stop and Frisk Information Collection Forms and UF-250s have yet to be published.

[74] Safir Statement to Public Safety Committee, p. 12; OAG, Stop & Frisk Report, p. xiv. The OAG Stop & Frisk Report found that in “one out of every seven ‘stops’ . . . the facts that the officer provided as a basis for ‘stopping’ the individual did not meet the legal test of ‘reasonable suspicion.’ ” Ibid.

[75] See Rocco Parascandola and Larry Celona, “Case Prompts Probe Into Unit’s Gun Use,” New York Post, Feb. 14, 1999, p. 3; Cynthia Cotts, “Deconstructing Diallo’s Death,” Village Voice, Feb. 24–Mar. 2, 1999, issue, at Press Clips Column; Jodi Wilgoren, “Police Profiling Debate: Acting on Experience, or on Bias,” The New York Times, Apr. 9, 1999, Metro Section; Cynthia Cotts, “By the Numbers,” Village Voice, Apr. 14–20, 1999, issue, at Press Clips Column; Nat Hentoff, “Lawless Arrests Under Giuliani,” Village Voice, Oct. 27–Nov. 2, 1999, issue; William K. Rashbaum, “Police Demote Commanders of 2 Precincts,” The New York Times, Jan. 8, 2000, Metro Section; Kevin Flynn, “Ranking Officers Retiring as Opportunities Call and Pressures Mount,” The New York Times, Jan. 16, 2000, Metro Section; Dan Barry, “One Legacy of a 41-Bullet Barrage Is a Hard Look at Aggressive Tactics on the Street,” The New York Times, Feb. 27, 2000, Metro Section. But see NYPD Response. Data extracted from UF-250 forms may be inadequate for purposes other than those originally intended.

[76] Officer Hiram Monserrate, NYPD, second vice president, Latino Officers Association, Testimony, New York Hearing Transcript, p. 292.

[77] Sergeant Noel Leader, NYPD, member of 100 Blacks in Law Enforcement Who Care, Testimony, New York Hearing Transcript, p. 326.

[78] See NYPD Response. The NYPD contends that it does not maintain formal or informal quotas on the filing of UF-250 forms.

[79] See Memorandum from Deputy Commissioner, Policy and Planning, to Chief of Department et al., re: Follow up to UF-250 Process Meeting Held Mar. 22, 1999 (Mar. 22, 1999), pp. 1–3. But see NYPD Response (citing NYPD, Operations Order 30, 2000). “Reports are to be filled out in units and sent to the precinct for processing. Supervisors are required to sign the report. Copies may be made for local use by outside units. Since copies go to the precinct and then to Central Records Division (including those in specialized units) a uniform procedure for collecting and numbering the reports is in place. A new procedure is now in effect in which a Stop and Frisk Log is to be maintained in commands that fill out the report and photocopies of each report are also maintained in this log.” Ibid.

Cf. Editor’s Note. The procedure for processing UF-250 forms was changed on May 4, 2000, after the draft version of this report was submitted. The new procedure requires the forms to be completed in units and sent to the precinct for processing. Nonpatrol precinct commands submit forms through the precincts concerned.

[80] Memorandum from Commanding Officer Street Crime Unit, Follow-up to UF-250 Meeting Held on Mar. 25, 1999 (Mar. 25, 1999), NYP 008870. Members of the Street Crime Unit prepared 19,821 UF-250s in 1997; 27,061 in 1998; and 3,863 in 1999 as of Mar. 25, 1999. Ibid. Memorandum from Chief Organized Crime Control Bureau re: Accountability of the UF-250 Process (Apr. 1, 1999), p. 1. Officers assigned to (1) Narcotics completed 1884 UF-250s in 1997 and 1,396 in 1998; (2) Vice completed 18 in 1997 and 10 in 1998; (3) OCID completed 47 in 1997 and 38 in 1998. The Auto Crime Division, although it does not maintain a log separate from those maintained in the precinct of occurrence, noted however that “due to the covert nature of this assignment it is estimated that less than 50 reports were prepared during the last five years.” Ibid. But see NYPD Response. The number of stop and frisk reports for the Street Crime Unit is incorrect. Correct figures are available through the UF-250 database. Cf. Editor’s Note. The UF-250 database breaks down filings into precincts, but does not allow for the screening of Street Crime Unit filings from other filings within a precinct.

[81] See Memorandum from Commanding Officer, Homeless Outreach Unit, Follow up to 250 Process Meeting Held on Mar. 22, 1999 (Mar. 25, 1999), NYP 008871; Memorandum from Commanding Officer Harbor Unit, Follow Up to UF-250 Process Meeting Held on Mar. 22, 1999 (Mar. 24, 1999), NYP 008872; Memorandum from Commanding Officer, Emergency Service Unit, Follow Up to UF-250 Process Meeting Held on Mar. 22, 1999 (Mar. 25, 1999), NYP 008874. Homeless Outreach, Harbor, Anti-Graffiti/Vandalism and Emergency Services Unit do not maintain independent records of the number of UF-250s prepared by officers assigned to those units. Ibid. Memorandum from Commanding Officer, School Safety Division, UF-250 Processing (Mar. 26, 1999), p. 4. School safety agents are not authorized to perform stop and frisks under New York law. Ibid.

[82] But see NYPD Response. All stop and frisk reports are processed through the precinct of occurrence, regardless of the particular unit. Cf. Editor’s Note. The NYPD’s process has now been changed to uniformly process filings through the precinct of occurrence, but this change did not take place until May 4, 2000.

[83] Memorandum from Commanding Officer, Patrol Borough Manhattan North, to Chief of Patrol, UF-250 Survey (Mar. 26, 1999), pp. 1–2. Patrol Borough Manhattan North non-precinct units, which include Manhattan North Task Force, Northern Manhattan Initiative, Central Harlem Initiative, and East Harlem Initiative, process UF-250s similarly; however, no individual units retain records of the UF-250s issued. Ibid.

[84] Memorandum from Commanding Officer, Manhattan South Task Force, to Commanding Officer, Patrol Borough Manhattan South, Processing of Stop and Frisk Reports (Mar. 25, 1999), p. 1. These units include the Manhattan South Task Force, Peddler Task Force, and Grand Larceny Task Force. Patrol Borough Manhattan South has maintained its own log since June 6, 1995. As of Dec. 17, 1998, Patrol Borough Manhattan South prepared 1,589 UF-250 reports. Ibid.

[85] See Memorandum from Commanding Officer, Patrol Borough Bronx, re: Processing and Forwarding UF-250 Reports (Mar. 26, 1999), p. 1. The non-precinct units comprising the Patrol Borough Bronx and the number of 250s they prepared are as follows: Bronx Rape Apprehension Team—5,594; Bronx Task Force—4,300; Bronx Zoo Detail—11. Yankee Stadium Detail forwards UF-250s immediately to the 44th Precinct. Bronx Warrant Module was not in service until 1999.

[86] See Memorandum from Commanding Officer, Patrol Borough Brooklyn South, UF-250 Records (Mar. 26, 1999), p. 1. For example, in 1998 the Brooklyn South Task Force recorded 345 UF-250s, Brooklyn South Gang Unit reported 100, and the Brooklyn South Corridor Unit recorded 74. The numbers for the previous year were 370, 30, and 53, respectively.

[87] Memorandum from Commanding Officer, SATcom Brooklyn North, Follow-up to UF-250 Process Meeting (Mar. 26, 1999), p. 1.

[88] Memorandum from Commanding Officer, Patrol Borough Queens North (Mar. 25, 1999), pp. 1–2. For 1998, each unit’s UF-250s, respectively, were 44, 234, and 1,117. Patrol Borough Queens North’s non-precinct units also retain copies of UF-250 forms: Queens North Task Force—440 forms; Auto Larceny Unit—805 forms; and the B.R.A.V.E. Unit formerly known as Robbery Task Force.

[89] See Memorandum from Commanding Officer, Patrol Borough Staten Island (Mar. 25, 1999), pp. 1–2. Staten Island included records of individual units, with the exceptions of the TRACER units, which processed UF-250s through the precinct of occurrence. TRACER units maintained their own records which reveal that 477 UF-250 reports were prepared for the period of July 1998 through December 1998.

[90] Memorandum from Chief of Housing Bureau to Deputy Commissioner, Policy and Planning, pp. 1–2. Uniform units assigned under the Housing Bureau special services to the PSA where the stop occurred.

[91] Memo from Commanding Officer, Special Investigations Unit, to Commanding Officer, Transit Division (Mar. 25, 1999), p. 1. The total number of UF-250s filed by Transit Police for 1994–1998 was 10,085. The Transit Police Department was merged into the NYPD on Apr. 2, 1995. Prior to the merger, Transit Police completed a similar stop and frisk form entitled a TP-65. All records of Transit Department’s TP-65s filed before the merger have been destroyed. Ibid.

[92] See NYPD Response. The units had the appropriate forms and used them as intended.

[93] But see NYPD Response. The department maintains that the Commission has all UF-250 data, and did not properly analyze it. Cf. Editor’s Note. The arrest data are sporadic and incomplete. Many of the arrest fields of the database were left blank, which made an accurate determination of arrests impossible.

[94] But see NYPD Response. The NYPD asserts that the Commission’s subsequent analyses of UF-250 data citywide and by borough are misleading. “[K]ey information regarding critical crime complaint data supplied by crime victims is ignored.” Ibid. Cf. Editor’s Note. The Commission was unable to confirm whether stop and frisk incidents were predicated on victim identifications, since the NYPD did not provide the necessary information. The precinct demographics cited were those provided to us by the NYPD, which characterized the census data as precinct information and not boroughwide census data.

[95] But see NYPD Response. The NYPD indicates that the Commission did not use UF-250 tabulations from their comprehensive computerized stop and frisk database, which are more accurate than the April 1999 memorandum from the Central Records Division. Cf. Editor’s Note. The use of the NYPD’s suggested information does not change the fact of an increase in UF-250 filings. The source of the NYPD data is unclear since the database contained only information for 1998. The database also uses a different system of tabulation than the data previously used. This makes a 10-year study inaccurate, as 1997 to 1998 would show an increase that is due to methodology change. The number used in the following graphs may contain duplicate filings, as no system was in place before 1998 to determine duplicative findings.

[96] See Editor’s Note. This number of stop and frisk incidents for 1998 and all subsequent borough and precinct information, with the exception of data for the Street Crime Unit, is derived from the NYPD database. The NYPD has suggested a procedure for screening the database for duplicate records, which we have followed to the fullest extent possible. But see NYPD Response. The department contends there were 138,872 UF-250 reports filed in 1998, due to the erroneous inclusion of duplicate reports.

[97] U.S. Bureau of the Census, “Index of Population/Estimates/County” <http://www.census.gov/population/estimates/county>.

[98] Ibid.

[99] Ibid.

[100] Ibid.

[101] Ibid.

[102] Ibid.

[103] But see NYPD Response. The correct number of stop and frisk incidents in 1998 was 138,872. “The more accurate number of stop and frisk reports prepared by the Street Crime Unit is contained in the database (subtracting out any duplicates that are in the data base itself). Specifically, the data base documents that the Street Crime Unit made 15,324 unique stop and frisk reports in 1998.” Ibid. Cf. Editor’s Note. The trend of the numbers is substantially increasing, regardless of whether database numbers are used or not.

[104] Memorandum from Commanding Officer, Street Crime Unit, Follow-up to UF-250 Meeting Held on Mar. 25, 1999 (Mar. 25, 1999), NYP 008870; see Editor’s Note. Stop and frisk reports for the Street Crime Unit cannot be determined in the database since that unit files UF-250 forms through the precinct of the incident’s occurrence. Therefore other sources must be used for information on Street Crime Unit data.

[105] New York, NY, City Council, hearing, “Stop & Frisk Report: Preliminary Crosstabs, Tabulations for April 19, 1999” (May 25, 1999), p. 6. The preliminary tabulation statistics include all 121,339 UF-250s that were entered into the NYPD’s computer system as of 5:00 p.m. on Apr. 15, 1999. Of these, 13,436 were excluded since they were from other years, duplicate serial numbers, or did not reflect the major racial or ethnic groups. This resulted in a raw file of 107,993 that served as the basis for the NYPD’s analysis. But see NYPD Response. “[T]his was a preliminary figure [8,722] because the complete database was not finished when the April hearing was conducted (the Department was still in the process of entering stop and frisk reports into the computer). Therefore, the 8,722 figure is only a partial figure.” Ibid.

[106] See NYPD List of Top Twenty-Five Precincts in Which SCU was Deployed, 1998, p. 1 (hereafter cited as “Top 25 Precinct Data”). As noted earlier, the SCU, like many other non-precinct units, reports its UF-250s through the precinct of occurrence. As a result, the data supplied by the department, describing the number of stop and frisk reports for the top 25 precincts in which the SCU was deployed, are only provided on a precinctwide basis. Since the SCU likely contributed to a marked increase in the number of UF-250s completed within each precinct in which they are deployed, it is probable that the precinct data can be readily interpreted as a proxy for the number of UF-250s completed by the SCU. But see NYPD Response. The database should have been used for the 1998 stop and frisk figures, instead of employing data from the top 25 precincts in which the Street Crime Unit was deployed. There were 15,324 stop and frisk reports prepared by the SCU in 1998. Ibid. Cf. Editor’s Note. According to the NYPD’s policy, this unit should submit reports to the precinct in which the encounter occurred; the stops of the unit could not be separated from those of the precinct in the database provided to the Commission. The NYPD provides figures that show 9,004 stops by the SCU occurred in 1997, and 15,324 stops in 1998. Even if these numbers are accepted, a sharp increase can be seen.

[107] But see NYPD Response. The Street Crime Unit was deployed to minority neighborhoods, due to the higher rates of crime in those communities. Ibid.

[108] “Top 25 Precinct Data,” p. 9. The SCU was deployed in the Sixth Precinct for 28 weeks.

[109] Ibid., p. 11. The SCU was deployed in the 104th Precinct for 20 weeks.

[110] Ibid., p. 5. The SCU was deployed in the 110th Precinct and 115th Precinct for 38 and 41 weeks, respectively.

[111] See NYPD, “Patrol Services Bureau—the 40th Precinct” (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/html/nypd/html/pct/pct040.html>.

[112] Ibid.

[113] See NYPD, “Patrol Services Bureau—the 120th Precinct” (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/html/nypd/html/pct/pct120.html>.

[114] Ibid.

[115] Ibid.

[116] “Top 25 Precinct Data,” p. 12.

[117] See NYPD, “Patrol Services Bureau—the 47th Precinct” (visited Apr. 12, 2000) <http:/www.ci.nyc.ny.us/ html/nypd/html/pct/pct047.html>.

[118] Ibid.

[119] See also NYPD Response.  On a number of occasions, the Police Commission has acknowledged that blacks and Hispanics are stopped in numbers greater than their proportion to the population. “A more plausible interpretation is that officers are stopping individuals based on descriptions given by current victims as well as descriptions collected from continuing crime patterns (e.g., rape pattern, robbery pattern) in the area being policed. Those individuals who fit these pattern descriptions (from either immediate incidents or continuing patterns) along with those who officers actually observe committing crimes or violations are those most likely to be stopped by police. . . . [C]omplaint data is a very strong indicator of the demographics of the individuals committing actions that would lead an officer to develop the reasonable suspicion necessary to conduct a street stop.” Ibid. But see Editor’s Note. The use of the term “pattern descriptions” appears to indicate the use of profiling.

[120] See National Congress for Puerto Rican Rights v. City of New York, 191 F.R.D.52, 1999 U.S. Dist. LEXIS 19244 (S.D.N.Y. 1999). The plaintiffs in this case are six New York City Latino and African American men from the boroughs of the Bronx and Brooklyn. Each plaintiff alleges that he has been stopped and frisked without the prerequisite standard of reasonable suspicion. They assert that NYPD officers, who were thought to be from the Street Crime Unit, conducted these acts based upon each plaintiff’s race and national origin. As a result of these incidents, the plaintiffs maintain that they have been injured and they are apprehensive about the possibility of future stop and frisk incidents. Id. at 53. See also Michael A. Riccardi, “Suit That Alleges Racial Profiling in Stops Revived,” New York Law Journal, Dec. 16, 1999, p. 1; Adam Nagourney, “Giuliani’s Ratings Drop Over Actions in Dorismond Case,” The New York Times, Apr. 7, 2000, p. A1. New York City residents who responded to an April 2000 New York Times/CBS News poll believed that the NYPD was “more likely to use deadly force against black suspects than white ones, and that brutality against minorities was widespread.” Ibid.

[121] But see NYPD Response. The Commission included anecdotal evidence from witnesses who had negative contact with police officers. Instead, statements from a random sample of New York City residents should have been used. Cf. Editor’s Note. The Commission received testimony from numerous persons who were not pre-selected by the Commission, but who volunteered to testify under oath about their relevant experiences involving the department.

[122] Mims Testimony, New York Hearing Transcript, pp. 544–45; Fersedy Miorcea Testimony, New York Hearing Transcript, pp. 512–16. The witness provided testimony of alleged incidents of police brutality toward him and his family members from officers of the 114th Precinct. Ibid. See Carmen Torres Testimony, New York Hearing Transcript, pp. 534–38. Ms. Torres testified about the death of her cousin, Yvette Marin Kessler, who died while in police custody in Central Booking in September of 1998. Ms. Kessler’s body and face were allegedly badly beaten. The family was informed that Ms. Kessler died from a drug overdose, although there was no evidence of drugs in her system. Ibid.

[123] Rivera Testimony, New York Hearing Transcript, pp. 542–43. See Councilman William Perkins, New York City Council, Testimony, New York Hearing Transcript, pp. 578–79. A Central Harlem constituent testified at a hearing that community members did not want to contact the NYPD to remove a mentally ill person from their neighborhood, due to their fear that the police would harm the individual. Ibid.

See also Councilwoman Margarita Lopez, District 2 of Manhattan, Testimony, New York Hearing Transcript, pp. 561–64. “In 1993, June 22, I was participating [as] . . . a community borough member, in community borough three, in which I was appointed by [former] Manhattan borough president . . . Ruth Messinger. . . . [A] situation erupted in that meeting, where the police [were] . . . ordered to arrest citizens that were asking to speak, and to allow to speak in the public session that that community board, by mandate, had to allow. The chairman of the community board did not wish to let these people speak, because they were speaking against certain positions that he had, and ordered the police to begin arresting the people who were ready to speak, called prior by himself, to the microphone. At that moment the police came down, and began arresting people. One of the individuals who was arrested was thrown on the floor by one police officer. This police officer began beating up this man, and some point this man began bleeding. I was sitting in the front row of the seats in that place, at the time, and when I saw the bleeding coming out of the head of this man, I stood up from my chair, and I yelled at the police officer, “He is bleeding, don’t do that, don’t beat him up, he is bleeding.” At that moment the chairman of the board saw me, and immediately stood up and ordered the captain of the precinct to move forward and arrest me. The captain of the precinct, together with other four police officers surrounded me, arrested me, put handcuffs behind my back, dragged me to the front of the dais in the area where we were, throw me in the floor, kick me and beat me.

By the end of that process I was taken to the precinct, the Seventh Precinct. I was retained in the Seventh Precinct until 2 o’clock in the morning. Another community board member was arrested with me when she tried to explain to the police officers that I was a community board member. Just for that reason she was also arrested, and the same fate happened to her. At 2 o’clock in the morning I was let go from the precinct. . . . I was let go with pretty much the following charges: resisting arrest, impairing police business, and inciting to riot. But before I was let go I asked why I was arrested, what was the reason, who was the officer arresting me, please indicate to me my charges. Can I call a lawyer, can I please get to phone? None of these things were allowed for me. . . . [A]t some point I was transported from the cage in which I was put to a closet, a broom closet, a janitor closet. And in that janitor closet a police officer strip searched me, made me take my clothing off, and I was naked, and I was strip searched.” Ibid.

[124] Lee Testimony, New York Hearing Transcript, p. 353. See also ibid., pp. 357–58. “Immigrants who work 12-hour days in public or semi-public spaces and, therefore, frequently interact with the general public as well as the police, such as cab drivers, dollar van drivers, street vendors, food delivery people, and small shop keepers, are subject to routine police abuse and harassment. For a food vendor in Chinatown, for every action from where she sets up her display to the size of her display, where she keeps her cardboard boxes, to how she keeps her fingernails is regulated and policed. . . . Having to pay a heavy fine for the smallest violation has become so routine that it is figured into her monthly operating cost. . . . Paying the fine turns out to be less expensive than closing up shop for the day. Such vigilant policing has resulted in a dramatic decline in the number of street vendors in Chinatown from 300 to 60 in the last 5 years.” Ibid.

Payne Testimony, New York Hearing Transcript, p. 439. Police officers ask minority youth to show their identification to prove that they live in their neighborhoods, and then ask them how their parents could afford their homes. Ibid.

Adams Testimony, New York Hearing Transcript, pp. 307–08. “If you will only examine the total number of new arrests, first-time arrests, by African American and Latino youth in this city, it would be mind-boggling how under this administration they are now being arrested for riding their bicycles on the sidewalk. They are . . . spen[ding] 2 days in jail for not having a bell on their bicycle. They are being arrested for not having identification, for having an open can of beer in their hand, normal summonses offenses that are normally dealt with without penalizing someone’s record. I had a male in the prison cell the other night. He lost his job merely because he was—he had to stay overnight for only having an open container of alcohol in his hand. We should not be incarcerating people in this city merely for having an open container of alcohol.” Ibid.

See Sarah Francis, Testimony, New York Hearing Transcript, pp. 587–88. Ms. Francis maintained that her son was beaten and choked while he was handcuffed in police custody. As a result, her son still suffers ill effects. Ibid.

[125] “Top 25 Precinct Data,” p. 1.

[126] Giuliani Testimony, New York Hearing Transcript, p. 49.

[127] Safir Testimony, New York Hearing Transcript, p. 165.

[128] See David Kocieniewski, “Success of Elite Police Unit Exacts a Toll on the Streets,” The New York Times, Feb. 15, 1999, p. A1 (hereafter cited as Kocieniewski, “Success”). In 1999, police officers in the Street Crime Unit made up less than 2 percent of the NYPD, but confiscated 40 percent of all illegal guns that were seized in New York City; Rose Marie Arce, “Queens: Our Future—Chapter 5: 21st Century Government, On Guard—Surveillance and DNA Testing are Among the Latest Police Weapons; But How will We Balance Fighting Crime and Preserving Civil Rights?” Newsday, May 30, 1999, p. A17. “Another anti-crime tactic being used increasingly is so-called suspect profiling, where police use just a rough description of the race, territory and habits of a suspect to aggressively stop and frisk people who match the profile, searching for illegal guns. . . . The strategy has also exacerbated racial tensions because it is most often used in tandem with another police tactic: mapping out areas of particular criminal activity and dispatching units to target them. The . . . Street Crimes Unit, known for using this strategy most aggressively, is 82 percent white, while the people the officers stop and treat as potential suspects are virtually all black or Latino. In response to the Diallo shooting, [Police Commissioner] Safir has put the plainclothes unit’s officers back in uniform and reserved 50 new slots for minority officers.” Ibid.

[129] Spitzer Testimony, New York Hearing Transcript, p. 249; see Kocieniewski, “Success.” “[The Street Crime Unit’s] success, even their lives, depend on the ability to spot and seize a handgun before a suspect can use it. So street crimes officers pride themselves on the ability to read the walk, mannerisms and subtle movements of someone carrying a concealed weapon.” Ibid. But see NYPD Response. The Commission does not understand the nature of police work, since officers make stops based upon observations, “known patterns” and crime problems. Officers who observe quality of life violations have reasonable suspicion for a stop and frisk. Cf. Editor’s Note. The use of the term, “known patterns” again may be indicative of profiling. Stops or arrests for quality of life violations may show discriminatory enforcement if not uniformly applied to the population.

[130] Leader Testimony, New York Hearing Transcript, p. 314. Kocieniewski, “Success.” “Some street crime officers also said they felt pressured by the department’s emphasis on crime statistics, and that they are forced to adhere to an unwritten quota system that demands that each officer seize at least one gun a month.” Ibid. But see ibid., p. A1. During a February 1999 news conference, the mayor indicated that the Street Crime Unit was not forced to reduce crime rates. “They are under tremendous pressure from supervisors to keep the city safe, and many of them put that pressure on themselves. . . . But that’s no different than being in the narcotics unit and being under tremendous pressure to arrest narcotics dealers, or being a homicide detective and being under tremendous pressure to investigate homicides. . . . Police work is highly pressured work. It’s very intense.” Ibid.

[131] Strategy ‘97, p. 7.

[132] Adams Testimony, New York Hearing Transcript, p. 307.

[133] The Commission did not have access to any existing NYPD records or radio report transcripts that provided victim identifications, which could account for the disproportionate stop and frisk practices.

[134] “Racial profiling” may be defined as the detention, interdiction, or other disparate treatment of an individual based upon racial or ethnic stereotypes and that has the effect of treating persons of color differently from other persons. See P. Verniero, Attorney General of New Jersey, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, April 1999, p. 8 (hereafter cited as Verniero, Report on Racial Profiling).

[135] U.S. Const. amend. IV.

[136] Safir Testimony, New York Hearing Transcript, p. 165 (emphasis added).

[137] Terry, 392 U.S. at 21. But see NYPD Response. Standards for a warrant search requiring a description with particularity do not apply to stop and frisk encounters.

[138] But see NYPD Response. This report does not include sufficient evidence that the department engages in racial profiling. “The Commission has not examined the demographics of suspect descriptions provided by victims, has not determined what proportion of stops were self-initiated by officers, and has not concluded what percentage of stops were legally justified.” Ibid. Cf. Editor’s Note. The Commission subpoenaed the NYPD for information on the details of victims’ accounts. None was provided. However, the department now criticizes the Commission’s report on the issue of victims’ identification data, without noting the source of this new information. Secondly, the NYPD denounces the report’s concluding line of the paragraph that mentions “historic crime data,” when the department itself must use such data to create the “crime patterns” mentioned in its response.

[139] Verniero, Report on Racial Profiling, p. 61.

[140] But see NYPD Response. The department objects to the assertion that increased demands for arrests may result in officers using racial profiling taught to them through cultural training classes.

[141] But see NYPD Response. The department contends that this assertion is erroneous. Other causes may contribute to declined prosecutions, such as various factors controlled by each district attorney (i.e., policies, staffing, etc.); noncooperative victims and witnesses; the increased number of cases eligible for prosecution that are generated from quality of life initiatives; and new domestic violence laws and policies that require the police to make an arrest for misdemeanor cases and violations. Moreover, the department’s Interim Order 67 works to address declining prosecutions in each borough by working with the district attorney’s offices.

[142] See Ford Fessenden and David Rhode, “Dismissed Before Reaching Court, Flawed Arrests Rise in New York,” The New York Times, Abstracts, Aug. 23, 1999.

[143] See Nat Hentoff, “The Big Apple’s Rotten Policing,” The Washington Post, Sept. 4, 1999, p. A29.

[144] Rocco Parascandola and Larry Celona, “Case Prompts Probe Into Unit’s Gun Use,” New York Post, Feb. 14, 1999, p. 3. But see NYPD Response. The NYPD indicates that this anecdotal statement is unsubstantiated, and should not be included in this report.

[145] Florida v. J.L., 120 S. Ct. 1375 (2000).

[146] Timothy Lynch, “We Own the Night: Amadou Diallo’s Deadly Encounter with New York City’s Street Crimes (sic) Unit,” Cato Institute, Mar. 31, 2000, p. 8.