Journal of Civil Rights and Economic Development Journal of Civil Rights and Economic Development
Volume 28, Spring 2016, Issue 3 Article 4
Regulating Stop and Frisk in New York City Regulating Stop and Frisk in New York City
Edwar Estrada
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REGULATING
STOP
AND
FRISK
IN
NEW
YORK
CITY
EDWAR
ESTRADA*
I.
INTRODUCTION
Imagine
you
are
a
college
student
and
decide
to
help
one
of
your
classmates
move
some
of
his
things
out
of
his
grandmother's
house.
As
you
are
standing
outside
of
the
apartment
building,
a
police officer pulls
up
to the
curb,
points
a
gun
in your
direction
and
that
of
three
other
people
on
the
sidewalk,
and
yells "get
on
the
ground!
Now!"
You
lie with
your
belly
on the
ground
while
two
other officers
approach
you
with
their
guns
drawn.
The
officer who
initially
pointed
the
gun
at
you
says
"[w]e
heard someone
has
a
gun;"
the
officers
proceed
to
search
you
and
the three
other people
as
you
all
continue
to
lie
face
down
on
the
ground.
After
finding
no
weapons,
the
officers
ask
everyone
for
identification,
write
down
everyone's
name,
and
then
walk away
without
saying
anything
else.'
This
is
a
typical example
of
a
stop
and
frisk conducted
by
New
York
City
police
officers
in
accordance
with
the New
York
City
Police
Department's
(NYPD)
stop-and-frisk
policy.
This
example
is
typical
of
the
denigration
experienced
by
New
York
City
residents who
are
stopped
by
the
police
on
a
daily
basis,
particularly
African-American
2
and Latino
males between
the
ages
of
fourteen
and
twenty-four.
3
The
NYPD
is
most
well
known
for
using
stop
and
frisk
because
in
the
early
1990s,
then-Mayor
of
New
York
City,
Rudolph
Giuliani
and
his
Police
Commissioner,
William
Bratton,
instituted
pro-active
patrolling
(also
known
as
a
"zero-
tolerance
policy")
where
police officers
were
to engage
persons who they
*
J.D.,
2014
St.
John's
University
School
of
Law.
1
Complaint
at
7-8,
Floyd
v.
City
of
New
York,
08 civ
01034
(SAS)
(S.D.N.Y
2008),
available
at
http://ccrjustice.org/files/FloydComplaint
08.01.31
.pdf
[hereinafter
Floyd
Complaint].
2
This
term
may
be limiting;
particularly
when
referring
to
"African-Americans"
in
New
York
City
because
there
is
such
a
diverse
population
of
individuals
who
are
of
African
descent
but
do
not define
themselves
as
African-Americans.
3
N.Y.
CIVIL
LIBERTIES
UNION,
STOP-AND-FRISK
REPORT
2011
2
(2012),
available
at
www.nyclu.org/files/publications/NYCLU
201
lStop-and-Frisk-Report.pdf
[hereinafter
2011
REPORT]
345
JOURNAL
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RIGHIS
&
ECONOACDEVELOPAENT
[Vol.
28:3
suspected
of
violating both
minor
and
serious crimes.
4
The
goal
was
to stop
as
many citizens
as
possible
for
minor
crimes
(i.e.
loitering,
public
drinking,
etc.),
with
the
hope
that
they
would
be
caught
committing
more
serious
crimes
(i.e.
possession
of
a
deadly
weapon,
possession
of
an
illegal
substance,
etc.)
while
being
frisked.
5
Additionally,
the
NYPD
started
a
data-driven
program called
Comparison
Statistics
("Compstat")
to
target
high
crime
areas.
Compstat
is
an electronic
computer
system
that
allows
the
NYPD
to map
its
weekly
crime
statistics.
6
Precinct
commanders
use
these crime
statistics
to
determine
which
areas
officers
are
assigned
to
patrol, often
times
placing
them
in
areas
with
large
populations
of
minorities.
This
led
to
widespread
racial
profiling,
which continues
to
exist
today.
A
recent
phenomenon
has
also
added
to
the
complexity
of
New
York
City's
stop-and-frisk
policy.
Several
NYPD
officers
have
claimed,
publicly
or
through
anonymity, they
are
under
daily
pressure
from
their
superior
officers
to
make
more
stops
and
meet
weekly
and/or
monthly
citation
quotas.
These officers
attribute
the
high
number
of
stops
and
frisks
to
this pressure.
However,
Mayor,
Michael
Bloomberg,
and
his
police
commissioner,
Ray
Kelly,
deny
the
existence
of
quotas.
Without
more
than
the
word
of
a
few
police
officers, it
is
difficult
to
determine
whether
such
quotas
exist
and
whether
they
are
contributing
to
racial
profiling.
Although
there
is
some
uncertainty
as
to why
the
number
of
stops
NYPD
officers
make
are
so
astronomical
(four
million
since
Mayor Bloomberg
took
office),
7
what
is
certain
is
that
a
substantially
large
number
of
African-
Americans
and
Latinos,
particularly
males between
the
ages
of
fourteen
and
twenty-four,
are
stopped
and
frisked
more
frequently
in
comparison
to
their
White
counterparts.
8
These
reports
indicate
that
even
when
African-
Americans
are
not
the
majority
population
in
a
particular
neighborhood,
4
Jeffrey
Fagan
and
Garth Davies,
Street
Stops
and
Broken
Windows:
Terry,
Race,
and
Disorder
in
New
York
City,
28
FORDHAM
URB.
L.J.
457,475
(2000).
5
Id.
at
476.
6
Id.
at
472
n.76.
7
See
N.Y.
CIVIL
LIBERTIES
UNION,
STOP-AND-FRISK
FACTS,
available
at
http://www.nyclu.org/node/1598
(last
visited
October
2,
2014).
8
See
generally
2011
REPORT,
supra
note
3
(reporting
on the
NYPD's
stop-and-frisk
program
in
the
year
2011,
including
all
stops,
frisks,
force,
race,
and
the
treatment
of
people
who
were
stopped);
see
CENTER
FOR
CONSTITUTIONAL
RIGHT,
RACIAL
DISPARITIES
IN
NYPD
STOPS-AND-FRISKS:
THE
CENTER
FOR
CONSTITUTIONAL
RIGHT'S
PRELIMINARY
REPORT
ON
UF-250
DATA
OBTAINED
FOR
2005
THROUGH
2008
(Jan.
15,
2009),
available at
http://ccrjustice.org/stopandfrisk
[hereinafter
RACIAL
DISPARITIES];
see
also
OFFICE
OF
THE
ATTORNEY GENERAL,
THE
NEW
YORK CITY
POLICE
DEPARTMENT'S STOP-AND-FRISK
PRACTICES:
A
REPORT
TO THE
PEOPLE
OF
THE
STATE
OF
NEW
YORK
FROM
THE
OFFICE
OF
TiE
ATTORNEY
GENERAL
(Dec.
1999),
available
at
http://www.oag.state.ny.us/sites/default/files/pdfs/bureaus/civil-rights/stpfrsk.pdf.
346
REGUTATNG
S70PAND
FRISKIN
NEW
YORK
CITY
they
are
still
two
or
three
times
more
likely
to
be stopped
by
the
police
than
Whites.
9
To
make
matters
worse,
most
of
these
stops
do
not
lead
to
an
arrest
and
only
a
very
small
percentage
of
frisks
lead
to
the
recovery
of
any
weapons.o
In
these
communities, many
African-Americans
and
Latinos
do
not
view
police
officers
as
enforcers
of
the
law
or
protectors
of
their
communities,
but
rather
as
agitators
and
abusers
of
the
law.11
In
a
recent
decision,
the
United
States
District
Court for
the Southern
District
of
New York
ordered several
reforms be
made
to
New
York
City's
stop-and-frisk
policy.
In
its
August
12,
2013
decision,
the Southern
District:
1)
appointed
a
monitor
to
oversee
the
reform process,
2)
ordered
a
revision
of
the
policies
and
training
materials
related
to
the
stop-and-frisk
policy
and
racial
profiling,
3)
ordered
changes to
critical
stop-and-frisk
documentation,
4)
required
changes
to
supervision,
monitoring,
and
discipline
of
officers,
5)
ordered
a
joint
remedial process
that
will
allow
all
parties
in the
litigation
to
develop
remedial measures
to
improve
stop-and
frisk,
and
6)
required
the use
of
a
body-worn
camera
by
one
officer
in
one
precinct
of
each
borough
for
a
period
of
one
year.1
2
Although
these
solutions
will
help
improve
the
stop-and-frisk policy,
more
is
required
to
ensure long-term improvements. Additionally,
due
to
a
recent
appeal
by
the
City,
13
these
reforms
may
never
be
implemented.
Although
New
York
City
is
best
known
for
its
use
of
the
stop-and-frisk
policy,
police
departments across
the
country
use
this
same
tactic.
However,
these
other
police
departments
do
not
have
the
high
volume
of
stops
and
frisks
New
York
City
has.
Nonetheless,
Philadelphia
is
a
city
that,
in
the
last
five
years,
received
media
attention
after
its
newly
elected
mayor,
Michael Nutter, adopted
the
high-volume
and
aggressive approach
as
seen
in
New York
City.
14
After
Mayor
Nutter
took
office,
stops nearly
doubled
to
more
than
200,000 from
2007
to
2008.1s
Similar
to
stops
made
in
New York
City,
Philadelphia
stops
were
thought
to
be
mostly
9
See
RACIAL
DISPARITIES,
supra
note
8.
10
Id.
11
See
NAACP,
CIVIL RIGHTS
LEADERS HOLD SILENT
MARCH
ON
FATHER'S
DAY
To
END
NYPD
STOP-AND-FRISK
POLICY
(June
17,
2012),
available
at
http://www.naacp.org/press/entry/civil-
rightsleaders-hold-silent-march-on-fathers-day-to-end-nyc-stop-and-fr.
12
Floyd
v.
City
of
New
York,
959
F.
Supp.
2d
668,
675-687
(S.D.N.Y.
2013).
13
NYC
files
notice
of
appeal
of
stop-and-frisk
ruling,
THE
WASHINGTON
POST
(Aug.
16
2013),
available
at
http://www.washingtonpost.coln/politics/2013/08/16/63f888d2-06c6-1
1e3-a07f-
49ddc7417125_story.html.
14
See
Colleen
Long,
Stop
and
Frisk
Police
Stop
More
Than
1
Million
People
On
Street,
HUFFINGTON
POST
(Mar.
18,
2010),
available
at
http://www.huffingtonpost.com/2009/10/08/stop-and-
frisk-police-sto_n_
314509.html.
15
Id.
2016]
347
JOURNAL
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[Vol.
28:3
determined
based
on
race.
In
2009,
72
percent
of
the
stops
made
in
Philadelphia
were
stops
of
African
Americans.
16
Nevertheless,
in
2011,
the
City
of
Philadelphia
and
the
Philadelphia
Police
Department
(PPD)
agreed
to
modify
Philadelphia's
stop-and-frisk
policy.
Several
plaintiffs, their
attorneys,
and
the
American
Civil
Liberties
Union
of
Pennsylvania
brought
a
class
action lawsuit
against
Philadelphia
and
its
police
department
in
Bailey
v.
Philadelphia,
alleging
violations
of
plaintiffs'
constitutional
rights
under
the Fourth
and
Fourteenth
Amendments.1
7
As
a
result
of
this
litigation,
the
City
of
Philadelphia
and
its
police
department
agreed
to
improve
stop
and
frisk practices
by:
(1)
eliminating
furtive
movement,
loitering,
acting
suspiciously,
and
being
in
a
high
crime
area
as
legally
permissible
reasons
to
make
a
stop,
(2)
implementing
periodic
reviews
of
stop-and-frisk
to
see
if
there
are
any
procedures
that
may
allow
stops
based
on
race,
(3)
creating
an
electronic
database
that
allows
the
City,
police
department, and
the
plaintiffs'
attorneys
to
monitor
any
racial discrepancies
in the
stops being
made
by
police
officers,
and
(4)
hiring
a
court-appointed
monitor
to
recommend
any
measures that
are
appropriate
or
necessary to ensure stop
and
frisk
practices
comply with
the
Fourth
and Fourteenth
Amendments
and
the
Pennsylvania
Constitution.
18
This
Note posits
that
the
NYPD
stop-and-frisk
policy
does
not
hold
police
officers
sufficiently
accountable
for
the
stops
and
frisks
they
make
and
that
the
policy
has
a
disparate
effect
on
African-American
and
Latinos
as
compared
to
Whites.
Therefore,
this
Note
proposes
that,
in
addition
to
adopting
the
reforms ordered
in
Floyd
v.
City
of
New
York,
New
York
City
and
the
NYPD
give
electronic
database
access
to
civil
rights groups
that
represent
victims
of
illegal
stops
and
frisks
to
ensure
stops
and
frisks
are
conducted
legally.
This
Note
also
proposes
the
City
create an
outside
disciplinary body
to regulate
officers
who
are
carrying
out
stops
and
frisks
with
less
than
reasonable
suspicion
or
to
discipline
commanding
officers
who
put
pressure
on
officers
to
make
more
stops.
Part
II
of
this Note
explains
New
York
City's
stop-and-frisk
policy
and
the
problems that
have arisen
as
a
result
of
it.
Part
III
analyzes
the
16
Robert
Moran,
N.Y
Mayor
Takes
Shot
at
Philly
Over
Stop-and-Frisk,
PHILADELPHIA
INQUIRER
(May
25,
2012),
available
at
http://articles.philly.com/2012-05-25/news/31839461_1_homicide-rate-
stop-and-frisk-program-homicide-count.
17
See
Complaint
at
2,
Bailey
v.
Philadelphia,
C.A.
No.
10-5952,
(E.D.
Pa.
2010),
available
at
http://www.aclupa.org/download
file/view
inline/669/198/.
18
Settlement
Agreement,
Class
Certification,
and
Consent
Decree
at
4-5,
Bailey
v.
Philadelphia,
C.A.
No.
10-5952
(E.D.
Pa.
2010),
available
at
http://www.aclupa.org/download-file/view-inline/744/198/
[hereinafter
Bailey
Decree]
348
JOURNAL
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[Vol.28:3
reasonable
suspicion
the
suspect
is
armed
or
dangerous.
Additionally,
NYPD
officers
also
use
Unified
Form
250
to
determine
when
to
carry out
frisks.
Unified
Form
250 lists
various
circumstances
where
police
officers
have
reasonable
suspicion to
make
a
frisk.
According
to
the
form,
an
officer
has
reasonable
suspicion
to
make
a
frisk
when
a
suspect:
(1)
is
wearing
inappropriate
attire
possibly
concealing
a
weapon,
(2)
makes
verbal
threats
of
violence,
(3)
has
prior
criminal
violent behavior
officers
are aware
of,
(4)
uses
force
or
weapon
against
police,
(5)
exhibits
furtive
movement,
(6)
exhibits
actions
indicative or
engaging
in
violent
crimes,
(7)
refuses
to
comply
with
officer's
directions
leading
to
reasonable
fear
for
safety,
(8)
is
suspected
of
a
violent
crime,
(9)
has
a
suspicious
bulge
or
object,
or
(10)
displays
any
other
reasonable suspicion
of
having
a
weapon.
2
3
The
officers'
reasonable
suspicion
that
any
of
these
situations
is
occurring
gives
them
authority
to
frisk
the
suspect
to
ensure
the
officers'
safety.
24
If
the
officers
ultimately
determine
a
crime
has
been
committed,
they
have
authority
to
carry
out
a
warrantless arrest.
25
B.
PROBLEMS
WITH
STOP-AND-FRISK
IN
NEW
YORK
CITY
The
problem
with
New
York
City's
stop-and-frisk
policy
is
best
illustrated
in
statistics.
In
2011,
the
NYPD
made
685,724 stops,
a
14
percent
increase from
2010
and
a
more
than
600
percent
increase
since
Mayor
Michael
Bloomberg
took
office
in
2002.26
Of
those
685,724
stops,
574,483
(86.6
percent)
were
of
African-Americans
and
Latinos,
who
according
to
the latest
U.S.
Census
Bureau
only
make
up
54.1
percent
of
New
York
City's
population.
27
Some
argue
that
these figures
reflect
the
NYPD's
presence
in
"high
crime"
areas,
which
are
mostly
populated
by
African-Americans
and
Latinos.
However,
in
70
out
of
the
NYPD's
76
precincts,
African-Americans
and
Latinos
made
up
more
than
50
percent
of
stops
and,
in
33
precincts
they
accounted
for
more
than
90
percent
of
stops.
28
Furthermore,
African-Americans
and Latinos
accounted
for
more
than
70
percent
of
stops in
6
of
the
10
precincts
where
their population
was
at
its
lowest.
29
The substantial
number
of
stops
made
of
African-Americans
23
Jeffrey
Fagan
Expert
Report,
supra
note
19.
24
N.Y.
CRIM.
PROC.
LAW
§
140.50
(McKinney
2013).
25
N.Y.
CRIM.
PROC.
LAW
§
140.05
(McKinney
2013).
26
2011
REPORT,
supra
note
3,
at
2-3.
27
See
id.
at
5;
see
also
U.S.
CENSUS
BUREAU,
STATE
AND
COUNTY
QUICKFACTS,
available
at
http://quickfacts.census.gov/qfd/states/36/3651000.htnl.
28
2011
REPORT,
supra
note
3
at
5.
29
Id.
at
5-6.
350
REGULATNG
STOPAND FRISK
IN
NEW
YORK
CITY
and
Latinos
is
possible because
African-Americans
and
Latinos
are
often
stopped
on
multiple
occasions;
in
fact,
African-Americans
and
Latinos
between
the
ages
of
fourteen
and
twenty-four
are
often
the
targets
of
a
hugely disproportionate
number
of
stops.
30
Though
they
constitute
only
4.7
percent
of
New
York
City's
population,
African-American and
Latino
males
between
the
ages
of
fourteen
and
twenty-four
made up
41.6
percent
of
stops.
31
On
the
other
hand,
White
males
between
the
ages
of
fourteen
and
twenty-four made
up
2
percent
of
the
City's
population and
only
3.8
percent
of
stops.
32
This
disproportionality
also
existed
in
frisks
conducted
by
officers
after
a
stop
was
made.
In
2011,
the
NYPD
conducted
frisks
in
381,704
stops or
in
55.7
percent
of
stops.
33
Under
Terry
v.
Ohio,
officers
need
reasonable
suspicion
that a
person
is
armed
or
presently
dangerous
to
frisk
him
or
her.
34
Yet,
only
1.9
percent
of
frisks
conducted
by
the
NYPD
in
2011
turned
up
a
weapon.
35
This suggests
officers
are
conducting
frisks
with
less
than
reasonable
suspicion.
Statistics
also
indicated African-Americans
and
Latinos
who
were
stopped
were more
likely
to
be
frisked
than
Whites
who
were
stopped.
36
Of African-American and
Latinos
who
were
stopped,
57.5
percent
were frisked,
while
only
44.2
percent
of
Whites
who
were stopped
were
frisked.37
However,
only
1.8
percent
of
African-Americans
and
Latinos frisked were found
in possession
of
a
weapon,
as
compared
to
3.8
percent
of
Whites
frisked
were
found
in
possession
of
a
weapon.
38
These
numbers
are
a
strong indication
that
race
is
a
factor
when
officers
are
determining whether
they
should conduct
a
frisk.
Despite
the
clear racial
disparity
in
stops
and
frisks,
some
argue
that
these
tactics
are
justified
by
the crimes
prevented.
However,
the
numbers
do
not
support
this
theory.
In 2011,
weapons
were
found
in
less
than
0.5
percent
of
stops.
39
Of
the
685,724
people
stopped,
605,328
people,
or
88.3
percent,
were
innocent,
as
evidenced
by
the
fact
that they were
neither
issued
a
summons
nor
arrested.
40
Of
the
574,483
African-Americans
and
30
Id.
at
7.
31
Id.
32
Id.
33
Id.
at
8.
34
See
generally
Terry
v.
Ohio,
392
U.S.
1
(1968).
35
2011
REPORT,
supra
note
3,
at
8.
36
Id.
at
10.
37
Id
38
Id
39
Id.
at
14.
40
2011
REPORT,
supra
note
3,
at
15.
20
16]
3
51
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Latinos
stopped,
507,641
people,
or
88.4
percent,
were
not
found
to
be
committing
any
crime.
4
1
Furthermore,
2012
NYPD
data
show
that
a
decrease
in
stops will
not
necessarily
lead
to
an
increase
in
crime.
New
York
City's
murder
rate
is
at
an
all-time
low
since
the
1960s
and
its
shootings
are
down
by
8.5
percent
from
2011,
all
while
30
percent
fewer
people
were
stopped.
42
These
numbers
are a
strong
suggestion that
excessive
stops
and
frisks,
unjustifiably
targeting
African-Americans
and Latinos,
are
not
leading to
the
recovery
of
more
weapons
or
to
more
arrests.
Instead,
these
stops
and
frisks
are
leading
to
the
large-scale
denigration
of
African-Americans
and
Latinos throughout
the City.
African-Americans
and
Latinos
experience belittling from
the
NYPD
on
a
daily
basis.
Some
are
stopped
in
their
neighborhood
and
questioned,
frisked,
humiliated,
and
disrespected
by
the
police.
43
Officers
will
often
require
citizens
to
place
their
hands
on
their
head, place
their hands
on
a
vehicle,
stand
against
a
wall,
or
lay
on
the
ground
as
they
conduct
a
search,
44
demeaning
African-Americans
and
Latinos
who
are
innocent
of
any
crime.
Police
also
commonly
use
force
during
these
stops.
45
In 2011,
far
more
African-Americans
and
Latinos
had
force
used against
them
than
did
Whites.
46
Force
usually
involves
a
police
officer placing
his
or
her
hands
on
a
suspect
to
restrain
him
or
her.
However,
force can
also
be
defined
as
the
use
of
a
weapon
against
a
suspect.
In
2011,
police
officers
used
force
against
African-Americans
and
Latinos
in
129,590 stops;
force
was
only
uses
in
9,765
stops
of
Whites.
47
The
victims
are
then
let go
with
no
explanation
of
why they
were
stopped
or
frisked.
48
Some are
stopped
in
41
Id
at
15,
17.
42
See
New
York
City
Murder
Rate
2012:
NYPD
Says
Number
of
Homicides
This
Year
on
Pace
To
Reach
Historic
Low,
HUFFINGTON
POST,
(Dec.
26,
2012,
5:43
PM),
http://www.buffingtonpost.com/2012/12/26/new-york-city-murder-rate-2012-nypd-homicides-historic-
low
n
2366852.html;
see
also
New
York
City
Gun
Violence
And
NYPD
Stop-And-Frisks
Both
See
Decline
In
2012,
HUFFINGTON
POST,
(Dec.
26,
2012,
12:02
PM),
http://www.huffingtonpost.com/2012/12/26/new-york-city-gun-violence-nypd-stop-and-
frisks
n_2364869.html?utm
hp
refnew-york.
43
See
Ross
Tuttle
&
Erin
Schneider,
The
Hunted and
the
Hated:
An
Inside
Look
at
the
NYPD
's
Stop-and-Frisk
Policy,
THE
NATION,
(Oct.
8,
2012),
http://www.thenation.com/article/170413/stopped-
and-frisked-being-fking-mutt-video.
44
See
Floyd
Complaint
at
17-23;
see
also
Complaint
at
12-18,
Davis
v.
City
of
New
York,
10
Civ
0699
(S.D.N.Y.
2010),
available
at
http://www.naacpldf.org/case/davis-vs-city-new-york.
45
See
2011
REPORT,
supra
note
3,
at
11;
see
also
Secret
Recording
of
Stop-and-Frisk
Makes
it
to
Federal
Court,
Francis
Reynolds,
THE
NATION,
(Aug.
13,
2012),
http://www.thenation.com/blog/l
75728/secret-recording-stop-and-frisk-makes-it-federal-court.
46
2011
REPORT,
supra
note
3,
at
12.
47
Id.
48
See
Tuttle
&
Schneider,
supra
note
43.
352
REGULATNG
STOPAND
FRISK
IN
NEW
YORKCITY
their
own
apartment buildings
and
asked
to show
identification,
often
multiple
times
in
one day.
49
Visiting
family
members
and
friends
are
stopped
in
apartment
building
lobbies,
asked
to
show
identification,
questioned about
their
presence
in
the building,
sometimes
frisked,
and
then
given
a
summons
for
trespassing.50
The
New York
City stop-and-frisk
policy
has
created
resentment
for
police
throughout
the
City,
particularly
in
African-American
and
Latino
communities.
51
Rather
than
embrace police
presence, these
communities
detest
it
and
often
times
fear
it.52
Another problem
with
New York
City's
stop-and-frisk
policy
is
ihat
Unified
Form
250
gives
officers
too
much
discretion
in
determining
when
it
is
appropriate
to
make
a
stop
or
frisk and
does
not
hold
them accountable
once
they
have
made
such
stops
or frisks.
Several
items
on the
250-form
are
vague
or
not
sufficiently
limiting. The
most
compelling
example
is the
use
of
the
term
"furtive
movement." According
to
the
250-form,
an
officer
has
reasonable
suspicion
to
stop
and/or frisk
someone
if
that person
exhibits
"furtive movement."
However,
the form
does
not
define
"furtive
movement."
Instead, officers
individually
determine
what
they
believe
to
be "furtive
movement."
This
lack
of
clarity
gives
officers
the authority
to
not only
to
define
"furtive
movement,"
but also
to
change
their
definition
based
on
the
circumstances;
furtive
movement
in
one
neighborhood
might
not
be
considered
furtive
movement
in
another neighborhood.
Officers
can
adjust their
definition
to
justify
illegal
stops
and
frisks.
In
2011,
furtive
movement
was the
most common reason identified
by
police
officers
for
making
a
stop,
appearing
in
351,739
out
of
the
658,724
(51.3%)
stops
made.
53
The
magnitude
of
these numbers
suggests
that
officers
find
"furtive
movement"
is
the
easiest
way
to
justify
more
than
half
the stops
they
make.
Without
any guidelines
of
what is
a
legal
stop
as
a
result
of
"furtive
movement,"
officers
can
continue to
make a
high
volume
of
stops
based
on
their own
definition
of
the
term.
The
250-form
is
also
problematic
because
officers
are
not
required
to
explain
every
stop
or
frisk
they
make.
The
250-form
requires
officers
only
49
See
generally
Complaint
at
7-30,
Ligon
v.
City
of
New York,
2012 WL
1031760
(S.D.N.Y).
50
See
id.
51
See
Stephon
Johnson,
More
NYers
Unhappy
with
Stop-and-Frisk,
N.Y.
AMSTERDAM
NEWS,
(Nov.
29,
2009),
http://www.maketheroad.org/article.php?ID=2536;
see
also
Chris
Meyer,
As
Stop-and-
Frisk
Anger
Grows,
Local
City
Council
Members
Step
Up,
COLUMBIA
DAILY
SPECTATOR
(Dec.
6,
2012),
http://www.columbiaspectator.com/2012/12/06/stop-and-frisk-anger-grows-local-city-council-
members-step.
52
See
Christie
Thompson,
Momentum
Builds
in
the
Fight
Against
Stop-and-Frisk,
THE
NATION
(Oct.
31, 2012),
http://www.thenation.com/article/170944/momentum-builds-fight-against-stop-and-
frisk#.
53
2011
REPORT,
supra
note
3,
at 4
(2012).
2016]
353
JOURNALOFCIVLRIGI7S&
ECONOMTCDEVELOPMENT
[Vol. 28:3
to
"(Describe)"
a
"Suspicious
Bulge/Object"
and
to "(Specify)"
when they
made
a
stop
or
frisk
based
on
"Other Reasonable
Suspicion
Of
Criminal
Activity."
54
In
every
other
instance,
officers
merely
have
to
check
off
a
box
without
any
explanation
of
why
that
box
was
checked
off.
5
5
In
turn,
officers
are
not
accountable
if
they
make
illegal
stops
or
frisks because
they
do not
have
to
explain
what
actions led
them
to
check
off
a
particular
circumstance.
Without
such
a
requirement,
officers
have the authority
to
stop
and
frisk
someone
for
legal
reasons,
discriminatory
reasons, or for
no
reason
at
all.
These
problems
have
led
many
citizens
and
civil
rights
groups
to
question
the constitutionality
of
the
stop-and-frisk
policy.
III.
CONSTITUTIONALITY
OF
STOP
AND
FRISK
A.
FOURTH
AMENDMENT
The
Fourth
Amendment
to
the
United
States
Constitution
states
that
the
right
of
the
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
and
affirmation,
and
particularly
describing
the place
to
be
searched,
and
the
persons
or
things
to
be
seized.
56
Analysis
of
the constitutionality
of
the
stop-and-frisk
policy
focuses
on
an
interpretation
of
the
first
clause
("reasonableness
clause")
of
the
Fourth
Amendment
because
the
policy
is
based
on
warrantless
searches
and
seizures.
57
The
second clause
("warrant
clause")
applies only
in
instances
where
officers
had
a
warrant
or
were
required
to
get
a
warrant.
The
essential
purpose
of
the
first
clause
is
to
"impose
a
standard
of
'reasonableness'
upon
the
exercise
of
discretion
by
government
officials,
including
law
enforcement
agents,
in
order
'to
safeguard
the privacy
and
security
of
individuals
against
arbitrary
invasions."'
58
The
Fourth
Amendment's
reasonableness
clause
is
intended
to
create
limitations
assuring
an
individual's
"reasonable
expectation
of
privacy
is
not
'subject
to
the
discretion
of
the
official
in
the
field."'
59
In
Terry
v.
Ohio,
Chief
Justice
Earl
Warren,
in
his
opinion
for
the Court,
set standards
of
54
Floyd
Complaint
at
27-28.
55
Id.
56
U.S.
CONST.
amend.
IV.
57
Terry
v.
Ohio,
392
U.S.
1,
20
(1968).
58
See
Delaware
v.
Prouse,
440
U.S.
648,
653-654
(1979);
see
also
Marshall
v.
Barlow's,
Inc.,
436
U.S.
307,
312
(1978)
(quoting
Camara
v.
Municipal
Court,
387
U.S.
523,
528
(1967)).
59
Prouse,
440
U.S.
at
655
(quoting
Camara
v. Municipal
Court,
387
U.S.
523,
532
(1967)).
354
REGULA7TNG
STOPAND
FRISKIN
NEW
YORKCITY
evaluating
stops
and
frisks
to ensure
that
officers
did
not
unreasonably
intrude
upon
citizens'
security
and
privacy.
60
1.
The
Establishment
of
Stop-and-Frisk
Under
the
Fourth
Amendment
Terry
was
the
first
Supreme
Court case
to
hold
that stops
and
frisks
were
subject
to
the
limitations
of
the
Fourth
Amendment's
reasonableness
clause.
A
"stop"
is
brief
and
serves
the
purpose
of
investigating
criminal
behavior,
61
while
a
"seizure"
requires
probable
cause
because
it
is
typically
an arrest.
62
A
"frisk"
is
a
limited search
of
the
outer
clothing
in
attempt
to
discover
weapons
that
might
be
used
to
assault
an officer,
63
while
a
"search"
requires
probable cause because
it is
more
intrusive.
64
Prior
to
Terry,
states
argued
that
the
smaller degree
of
intrusiveness
in
stops
and
frisks
as
compared
to
arrests
(or
seizures)
and
searches
meant
that
individuals
were
not
entitled
to
Fourth Amendment protection
when
subjected
to
stops
and
frisks.
65
However,
in
Terry,
Chief
Justice
Warren,
writing
for
the
Court,
eliminated
this
notion
by
holding
that
"whenever
a
police
officer
accosts
an
individual
and
restrains
his
freedom
to
walk
away,
he
has
'seized'
that
person."
66
Additionally,
Chief
Justice
Warren
failed to
see
why
a
"frisk"
would
not
receive
the same
Fourth
Amendment
protection
as
a
"search," asserting
that
a
frisk
was
a
"serious
intrusion
upon
the
sanctity
of
the
person,
which
may
inflict
great
indignity
and
arouse
strong
resentment,
and
it is
not
to
be
undertaken
lightly."
67
The
Court
held
that
the
distinctions
in
Fourth
Amendment
protection
made
between
"stop",
"seizure",
"frisk"
and
"search"
were
not
only incorrect
but
also
dangerous.
68
The
Court
declared
that
these
distinctions "isolate
from
constitutional scrutiny
the
initial stages
of
the
contact
between
the
policeman
and
the
citizen"
and
"obscure
the
utility
of
limitations upon
the
scope
...
of
police
action
as
a
means
of
constitutional
regulation."
6
9
Therefore,
the
Court
rejected
the
notion
that
the Fourth Amendment
is
not
applicable
to
a
"stop"
or
"frisk"
simply
because police
conduct
stops
"short
60
See
Terry,
392
U.S.
1.
61
Id.
at
22.
62
See
id
63
Id.
at
30.
6
See
id.
65
See
e.g.,
id
at
10;
see
also
People
v.
Rivera,
14
N.Y.2d
441
(1964).
66
Terry,
392
U.S.
at
16.
67
Id.
at
17.
68
Id
69
Id
2016]
355
JOURNAL
OF
CIVLRIGHTS&
ECONOMICDEVELOPAENT
[Vol.28:3
of
something
called
a
'technical arrest'
or
a
'full-blown'
search."
70
Although
the
Terry
court
held
that
individuals
were
entitled
to
Fourth
Amendment
protection
from
stops
and
frisks,
it
also
indicated
that
officers
were
permitted
to
make
stops
and
frisks
under
specific
circumstances.
Specifically,
the
Court
declared
that
the
general
interest
in effective
crime
prevention
and
detection
underlie
the
recognition
that
an
officer
can
make
a
stop
"for
purposes
of
investigating
possibly
criminal
behavior
even
though
there
is
no
probable
cause
to
make
an
arrest."
71
Moreover,
the
immediate
interest
of
police
officers
in taking
steps
to
assure that
the
person
they
are
dealing
with
is
not
armed
with
a
weapon
that
could
unexpectedly and
fatally
be
used against
them
is
sufficient
to
allow
officers
to
conduct
frisks.
72
However,
stops
and
frisks
must
still
be
reasonable
under
the
"reasonableness
clause"
of
the
Fourth
Amendment.
The Court
in
Terry
created
standards
under
which
the
reasonableness
of
stops
and frisks
should
be
evaluated. The
Court
did
not
create
limitations
for
stops
and
frisks,
but rather
stated
that
those
limitations would
have
to
be
developed
"in the
concrete
factual
circumstances
of
individual
cases."
73
In
determining whether
a
stop
or
frisk
is
unreasonable,
a
court's
inquiry
is
two-fold: "whether
the
officer's
action
was
justified
at
its
inception,
and
whether
it was
reasonably
related
in
scope to
the
circumstances
which
justified
the
interference
in the
first
place."
74
In
justifying
a
stop
or
frisk
under
the
Fourth
Amendment's
"reasonableness clause,"
an
officer
must
be
able
to
point
to "specific
and
articulable
facts
which,
taken
together
with
rational
inferences
from those
facts,
reasonably
warrant
that
intrusion."
75
Courts
must
use
an
objective
standard
to
determine
whether
"the
facts
available
to
the officer
at
the
moment
of
the
seizure
or
the
search 'warrant
a
man
of
reasonable
caution
in
the
belief
that
the
action
taken
was
appropriate?"
76
An
officer's
inarticulate
or
inchoate suspicions
or hunches
will
not suffice
to
meet
this
standard.77
Despite
the
court's
willingness
to
give
police
officers
the
constitutional
power
to
seize
and
search
citizens
with
less
than
probable
cause,
the Court
acknowledged
the
potential
negative effects. It
recognized
that
the
police
often
initiate
street
encounters
and
some
times
those
encounters
are
70
Id.
at
19.
71
Id.
at
22.
72
Terry,
392
U.S.
at
23.
73
Id.
at
29.
74
Id.
at
20.
75
Id.
at
21.
76
Id
at
21-22.
77
Terry,
392
U.S.
at
22,
27.
356
REGULATING
STOPANDFRISKNEWYORK
CITY
unrelated
to
a
desire to
prosecute
crime.
It
further
acknowledged
that
some
police
field interrogation
tactics
violate
the
Fourth
Amendment
and
are
used
to
harass
minority
groups,
particularly
"Negroes."
78
However,
Chief
Justice
Warren,
in
his
opinion,
stated
that
restricting
officers
from
using
the
stop-and-frisk
policy
would
"deter
invasions
of
constitutionally
guaranteed
rights
where
the
police
either
have
no
interest
in
prosecuting
or
are
willing
to
forgo
successful
prosecution
in
the
interest
of
serving
some
other
goal."
79
On
the
other
hand,
he stated
that
under
Terry
"courts
still
retain
their
traditional
responsibility
to
guard against
police
conduct
which
is
overbearing
or
harassing,
or
which
entrenches
upon
personal
security
without
the
objective
evidentiary
justification
which
the
Constitution
requires."
80
Although
Chief
Justice
Warren
understood
the
potential
ramifications
of
granting
police
officers
more
power
to
"harass"
individuals,
he
thought
the
governmental
interest
coupled
with
the
standards
set
for
stops
and frisks
outweighed
those
ramifications.
2.
Fourth
Amendment
Analysis
of
New
York
City's
Stop-and-Frisk
Policy
Due
to the fact-specific
nature
of
the
standard
set
by
Terry,
it
appears
that
New
York
City's
stop-and-frisk
policy
cannot,
on
its
face,
be
tested
for
its
constitutionality
under
the reasonableness
clause
of
the Fourth
Amendment.
According
to
Terry,
a
court
would
need
the specific
facts
of
a
stop
or
frisk
to
determine
whether
the
stop
or frisk
was
reasonable.
For
example,
Terry
requires
courts
to
decide
whether an
officer's
actions
were
justified
at
its
inception.
8
1
A
court
would not
be
able
to
determine
whether
an
officer's
actions
were
justified
simply
by
looking
at
the
New
York
State
statute
for
stop-and-frisk
(§140.50
of
the
Criminal
Procedure
Law
("CPL"))82
or
Unified
Form
250.
Neither
§
140.50
of
the
CPL
nor
the
250-
Form
provides
specific facts
that
would
assist
a
court
in
determining
if
an
officer
in
a
particular
stop
or
frisk
was
justified,
at
its
inception, in
making
that
specific
intrusion.
Therefore,
despite the
disparity
in
the
amount
of
stops
and
frisks,
it
appears
that
a
court
would
have
to do
a
case
by
case
analysis
to
determine
if
this
disparity
is
due
to
violations
of
rights
protected
78
Id.
at
13-15
(Terry
was
decided
in
1968,
during
an
era
when
the
term
"Negroes"
was
used when
referring
to
African-Americans.
The more
conventional
term in
2013
is
"African-Americans").
79
Id.
at
14.
80
Id.
at
15.
81
Id
at
20.
82
N.Y.
CRIM.
PROC.
LAW
§
140.50
(McKinney
2013)
(This
statute
guides
stop-and-frisk
policies
in
New York
State
while
Unified
Form
250
guides
the
NYPD's
stop-and-frisk
policy).
2016]
357
JOURNALOFCIVLRIGI7S
&
ECONOACDEVELOPMENT
[Vol.
28:3
by
the Fourth
Amendment.
However,
in
the
August
decision
Floyd
v.
City
of
New
York,
a
stop-and-
frisk
lawsuit
challenging
the
policy's
constitutionality,
the
United
States
District
Court
for
the Southern
District
of
New
York found
New
York
City's
stop-and-frisk
policy
unconstitutional
under
the
Fourth Amendment
based
on
the
disparities
of
stops
and
on
New
York
City's
and
the
NYPD's
indifference
to
those
disparities.
83
In
Floyd,
the
plaintiffs,
a
group
of
Blacks
and Latinos
who
were
stopped
by
the NYPD,
claimed
that
the
NYPD's
use
of
stop-and-frisk
violated
their constitutional
rights
under
the
Fourth
and Fourteenth
amendments.
84
From
the
outset
of
its
decision,
the
Floyd
Court
determined
that
this
case
was
"not primarily
about
the
nineteen
individual
stops
that were
the
subject
of
testimony
at
trial.
Rather,
this
case
is
about
whether
the
City
has
a
policy
or
custom
of
violating
the
Constitution
by
making
unlawful
stops
and
conducting unlawful
frisks."85
In
finding
that
New
York
City's
stop-and-frisk
policy
violated
the
Fourth
Amendment,
the
Floyd
Court
relied
on
the
expert
testimony
of
plaintiffs
expert,
Dr.
Fagan.
86
Dr.
Fagan
analyzed
the
NYPD's
250-Form
database
of
4.4
million
stops
to
evaluate
how
often
stops
lacked
reasonable
suspicion.
87
Based
on
Dr.
Fagan's
findings,
6
percent
of
stops,
approximately
200,000
stops,
lacked
reasonable
suspicion.
88
Dr.
Fagan's
results were
due
in
large
part
to
NYPD
officers'
use
of
"Furtive
Movement"
and "High Crime
Area"
as
stand-alone
justifications
for
carrying
out
stops.
89
Additionally,
statistics
demonstrated
that
stops made
due
to
"Furtive
Movement"
and
"High
Crime
Area"
frequently
did
not
result
in
a
summons
or
arrest.
90
The
Court
concluded
that
Dr.
Fagan
underestimated
the
number
of
unjustified
stops
and
the
NYPD's
250-Form
database
was
limiting
because
it
only provided
statistics
of
stops
recorded.
91
Although
the
Court
believed
Dr.
Fagan's
testimony
of
the
stop-and-frisk
statistics
demonstrated
that
the
policy
violated
the
Fourth
Amendment,
it
also
evaluated
institutional
evidence
of
intentional
indifference.
A 1999
Attorney
General
Report
highlighting
the
disparities
in
stops
and
a
variety
83
Floyd,
959
F.
Supp.
2d
at
557,
558
(2013
action).
84
Id.
at
556.
85
Id.
86
Id.
at
588-89.
87
Id.
at
578.
88
Id.
at
559,
579.
89
Id.
at
580.
90
Id
91
See
id.
at
560-561
(S.D.N.Y.
2013);
see
also
Floyd
v.
City
of
New
York,
861
F.
Supp.
2d
274,
278
(S.D.N.Y.
2012).
358
REGUATING
STOPAND
FRISK
IN
NEW
YORK
CITY
of
evidence
demonstrating
pressure
placed
on
officers
to
increase
stops
were
offered
by
the
plaintiffs
as
institutional
evidence
of
New
York
City's
and
the
NYPD's
intentional
indifference
to
Fourth
Amendment
violations.
92
The
Court
found
this evidence
to
be
persuasive
and
concluded
that
pressure
on
commanders
and
officers,
asking
officers
to
target
minorities,
inadequate
monitoring
and
supervision,
partially
inadequate
training,
and
inadequate
discipline,
led
to
an
increase
in
stops
without
reasonable
suspicion.
93
Therefore,
the
Court
found
the
City's
stop-and-frisk
policy
to
be
unconstitutional
under
the
Fourth
Amendment.
B.
FOURTEENTHAMENDMENT
1.
Opening
the
Door
for Race-Based
Discriminatory
Claims
Although
stop-and-frisk
is
typically
considered
a
Fourth
Amendment
issue,
the
Fourteenth
Amendment
is
also
applicable.
The
relevant
portion
of
the
Fourteenth
Amendment
as
discussed
in
this
section
states
that
"[n]o
State
shall
. .
.
deny
to
any
person
within
its
jurisdiction
the
equal
protection
of
the
laws."
94
Historically
this
has
meant
an
individual
may
not
be
denied
protection
under
the
law
based
on
his
or
her
race,
color,
religion,
sex,
or national
origin.
95
When
the
stop-and-frisk
policy
was
first
upheld
as
constitutional
in
Terry
v.
Ohio,
the
Court
expressed
some
concerns
of
"wholesale
harassment"
of
minority
groups
that
may
occur
as
a
result
of
the
policy.
96
However,
some
of
the
first
cases
to
analyze
race-based
discrimination
in
the
stop-and-frisk
policy
did
not
do
so
under
the
Fourteenth
Amendment.
Rather,
the
issue
was
analyzed
under
the
Fourth
Amendment's
reasonableness
standard.
Nevertheless,
these
Fourth
Amendment
cases
opened
the
door
for
Fourteenth
Amendment
challenges
of
the stop-and-frisk
policy
because
claimants
asserted
that
race
rather
than
reasonable
suspicion
was
the
reason
for
a stop
and/or
frisk.
In
1975,
United
States
v.
Brignoni-Ponce
was
one
of
the
first
cases
that
examined
the
use
of
race
as
a
justification
to
make
a
stop.
97
In
that
case,
two
Border
Patrol
officers
pulled
over
a
vehicle
on
the
highway
near
the
U.S.-Mexican
Border
with
three
occupants
that
appeared
to
be
of
Mexican
92
See
Floyd,
959
F.
Supp.
2d
at
560-61.
93
Id.
at
562.
94
U.S.
CONST.
amend.
XVI.
95
42
U.S.C.S.
§
2000h-2
(2013).
96
See
Terry,
392
U.S.
at
14-15
(1968).
97
See
United
States
v.
Brignoni-Ponce,
422
U.S.
873
(1975).
359
20
16]1
JOURNAL
OFCIVILRIGH7S
&
ECONOMICDEVELOPMENT
[Vol.
28:3
descent.
98
The
officers later
admitted they
pulled
over
the
vehicle
only
because
its
three
occupants
appeared
to
be
of
Mexican descent,
which led
the
officers
to believe
they
were
illegal
aliens.
99
After
questioning
the
three
occupants,
officers
learned
that
two
of
them
were
in
the
U.S.
illegally.oo
All
three men
were
arrested
and
the
respondent
was
charged
with
two
counts
of
knowingly
transporting
illegal
immigrants.101
In
determining
whether
the
stop
was
valid,
the
court
evaluated whether
the
officers
had
"reasonable
grounds
to
believe
that
the
three
occupants
were
aliens."1
02
The
Supreme
Court
concluded
that
the
stop
violated
the
Fourth
Amendment
because
the
officers
did
not
have
reasonable
suspicion
to
believe
that
"criminal
activity
may
be
afoot."1
03
Although
this
decision
did
not
allow
race
alone
to
meet
the
standard
of
reasonable suspicion
to
justify
a
stop,
it did
not exclude
race
as
a
factor.
In
fact,
the
Court
held
"Mexican
appearance"
could be
a
relevant
factor
where
a high
likelihood
exists
that
any
given
person
of
Mexican
Ancestry
is
an
alien.1
04
Another
significant
Supreme
Court
case
that analyzed
race-based
discrimination
in
the stop-and-frisk policy
under
the
Fourth
Amendment
was
Whren
v.
United States.
105
In
that
case,
plainclothes
officers
were
patrolling
a
"high
drug
area"
area
in
an
unmarked vehicle
when
a
dark
Pathfinder
truck
and
its
young occupants
caught
the
officers'
attention.
10
6
The truck remained
at
a
stop
sign
for
an
"unusual"
amount
of
time
as
the
driver
looked
down
at
the
lap of
the
passenger
in
the
front
seat.
107
When
the
officers
made
a
U-turn
to
head
back
toward
the
truck,
the
truck
turned
suddenly
to
its
right,
without
signaling, and
took
off
at an
"unreasonable"
speed.
08
The
officers
caught
the
Pathfinder
and
pulled
it
over.1
09
After
introducing
himself
and
asking
the
driver
to
place the
car
in
park, one
of
the
officers
immediately
observed
two plastic
bags
of
crack
cocaine
in
petitioner
Whren's
lap.110
Petitioners
were
arrested
and
several
drugs
were
98
Id.
at
875.
99
Id
100
Id
101
Id.
102
Id.
at
886.
103
See
Brignoni-Ponce,
422
U.S.
873;
see
also
Terry,
392
U.S.
at
30.
104
Brignoni-Ponce,
422
U.S.
at
887.
105
Whren
v.
United
States,
517
U.S.
806
(1996).
106
Id.
at
808.
107
Id
108
Id
109
Id
110
Id.
at
809.
360
REGULATING
STOPAND
FRISKIN
NEW
YORKCITY
found
in
the
vehicle.'
1
'
At
trial,
the
officers
testified
that
they stopped
the
vehicle
due
to
several
traffic
violations,
including
failure to
signal
and
speeding.112
The
petitioners
argued
the
officers did
not
have probable
cause
or
reasonable
suspicion
to
believe they
were
engaged
in
illegal-drug
activity
and the
"asserted
ground
for
approaching the
vehicle-to
give the
driver
a
warning
concerning
traffic
violations-was
pre-textual."ll
3
Petitioners
relied
on a
District
of
Columbia traffic regulation, which permits
plainclothes
officers
in
unmarked
vehicles
to make traffic stops
"'only
in
the
case
of
a
violation
that
is
so
grave
as
to
pose
an
immediate
threat
to
the
safety
of
others,"'
to
demonstrate that
a
reasonable
plainclothes
officer
would
not have
made
the
stop.114
Petitioners,
who
were
both
African-
American,
also
contended that
officers
should
not
have
the
power
to
select
who
to
stop
based
on
race,
and
the
traffic
stop
test
should
be
"whether
a
police
officer,
acting
reasonably,
would
have
made
the stop
for
the
reasons
given."s15
The
Court
disagreed
with the
petitioners,
holding
that
a traffic
violation
arrest
and
a
post-arrest
search
would
not be deemed
invalid
because
an
officer
had
an
ulterior
motive
to
make
the
traffic
stop.116
Furthermore,
the
Court
stated
"subjective
intent
alone
...
does
not
make
otherwise
lawful
conduct
illegal
or
unconstitutional."11
7
In
other
words,
simply
because
an
officer's
intent
did
not
have
legal
justification
for
his
actions
"does
not
invalidate
the
action
taken
as
long
as
the
circumstances,
viewed
objectively,
justify
that action."'
18
This
means
that
an
officer could
stop someone solely
because
of
his
or
her
race,
without
violating
the
person's
Fourth
Amendment
right
to
be
secure
from "unreasonable
search
and
seizures,"
as
long
as
the
officers
actions,
viewed objectively,
have
a
legal
justification.119
The
Court
went
on
to
say
that
the
"Constitution prohibits
selective
enforcement
of
the law
based
on
considerations
such
as
race"
and
objections
of
such
"discriminatory application
of
laws"
should
be
made
under
"the
Equal
Protection
Clause,
not
the
Fourth
Amendment."1
20
This
Ill
Whren,517U.S.at809.
112
Id.
at
810.
113
Id.
at
808.
114
Id.
at
815.
115
Id.
at
810.
116
Id.
at
813.
117
Whren,
517
U.S.
at
813.
118
Id.
119
U.S.
CONST.
amend.
IV.
120
Whren,
517
U.S.
at
813.
2016]
361
JOURAL
OF
CIVIL
RIGHIS
&
ECONOMCDEVELOPAENT
[Vol.28:3
decision
made
it
difficult
for
stops
and
frisks
to
be deemed
unconstitutional
under
the
Fourth
Amendment
based
on
race
but
opened
the
door
for
race-
based
discriminatory
claims
under
the
Fourteenth
Amendment.
Since
Whren,
many
federal courts, but
not
the
Supreme
Court,
have
reviewed
the
constitutionality
of
the
stop-and-frisk
policy
under
the
Fourteenth
Amendment.
These
federal
courts
have
not
deemed
the
stop-
and-frisk
policy
per
se
unconstitutional
under
the
Fourteenth
Amendment
but
have
found
that
a
state
or
city
may
violate
the Equal
Protection
Clause
of
the
Fourteenth
Amendment
by
using
race
as
the
sole reason
for
a
stop
or
frisk.
These
cases
have
provided
some
guidelines
for
determining
when
the
implementation
of
the
stop-and-frisk
policy
violates
citizens'
right to
Equal
Protection under
the
law.
2.
Equal
Protection
Clause
and
Stop-and-Frisk
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
prohibits
law
enforcement
officials from
targeting
certain groups when
conducting
stops
and
frisks.1
2 1
This
protection
starts
even
before
a
person
is
stopped
because
"a
law
enforcement
officer
would
be
acting
unconstitutionally
were
he
to
approach
and
consensually
interview
a
person
of
color
solely
because
of
that
person's
color,
absent
a
compelling
justification."
22
This
protection
also
prohibits
officers
from
investigating
a
person
based
solely
on
race.
123
These
limitations
make
the
courts
available
as
a
remedy
to
those
groups
that
may
be
targeted
by
law
enforcement.
To
succeed
in
litigation,
a
person
or
group, who
was
targeted
for
an
unreasonable
stop
and
frisk,
must
prove "that
the
defendants
'[or
government
official(s)]'
actions
had
a
discriminatory
effect and
were
motivated
by
a
discriminatory
purpose."1
24
The
burden
of
proof
is
on
the
party
that
suffered the
discriminatory
effect
to
prove
the
government
official(s)
were
motivated
by
a
discriminatory
purpose.1
25
Discriminatory
purpose
implies
that
"the
[decision maker]
...
selected
or reaffirmed
a
particular
course
of
action
at
least in
part
'because
of
.
. .
its
adverse
effects
upon
an
identifiable
group."1
26
A
person
or
group
targeted
by
such
discrimination
must
prove,
by
a
preponderance
of
the
evidence,
"that
a
police
officer
decided
to
approach
[or
pursue]
him
or
her
because
of
his
or
121
United
States
v.
Avery,
137
F.3d
343,
352-53
(6th
Cir.
1997).
122
Id.
at
353.
123
Id.
at
354.
124
Chavez
v.
Ill.
State
Police,
251
F.3d
612,
635-36
(7th
Cir.
2001).
125
Avery,
137
F.3d
at
356.
126
Chavez,
251
F.3d
at
645
(quoting
McCleskey
v.
Kemp,
481
U.S.
279,298
(1987)).
362
REGULATING
S7DPAND
FRISKlVNNEW
YORK
CITY
her
race."
127
To
prove
discrimination,
the
targeted
party
must demonstrate
that
he
or
she
is
a
member
"of
a
protected
class,
that
[he
or
she
is]
otherwise
similarly
situated
to
members
of
the
unprotected
class,
and
that
[he
or she
was]
treated
differently
from
members
of
the
unprotected
class."
1 28
Discrimination
can
be proven through direct evidence, inferences gathered
from
statistical
evidence
of
disparate
impact,
or
other
circumstantial
evidence.
129
However, statistical
evidence,
without
any
other
proof,
is
not
enough
to
prove
discrimination.1
30
Additionally, "statistics
proffered
must
address the
crucial
question
of
whether
one
class
is
being treated differently
from another
class
that
is
otherwise similarly
situated."131
Once
race
discrimination
has
been
proven
through
statistical
evidence,
the
government
would
then
have
to
provide
an
alternate
explanation
for
its
actions
or
a
compelling
governmental
reason
for
its
race-based
seizures.
132
Due to
the
high
volume
of
stops against African-Americans
and
Latinos
in
New
York
City,
it
is
critical to
evaluate
the
stop-and-frisk
policy under
the
rubric
of
the
Fourteenth
Amendment.
African-Americans
and
Latinos
are members
of
a
protected
class
that is treated differently
due
to the
color
of
their
skin.
African-Americans
and
Latinos
were
stopped
nine times
more
often
than
all
other
racial groups
in
New
York
City
in
2011.133
The
racial
disparity
of
stops
is
an
indication that
at
least
some
police
officers
are
racially
profiling.
It
is
highly
unlikely
that police
officers
are
not
racially
profiling
where
the
percentage
of
African-Americans and Latinos
stopped
is
much higher
than
the
percentage
of
African-Americans
and
Latinos
living
in
New
York
City.
The
existence
of
discrimination
becomes
more
apparent
when
looking
at
statistics
of
the
precincts with
the
highest
percentage
of
stops.
134
The
five
precincts
with
the
largest
percentage
of
stops
were
the
seventy-third, twenty-third, eighty-first, forty-first,
and
twenty-fifth
precinct,
respectively.1
35
The
population
of
African-Americans
and
Latinos
in
those
precincts
were
96.3
percent,
75.6
percent,
92.7
127
Avery,
137
F.3d
at
355
(quoting
United
States
v.
Travis,
62
F.3d
170,174
(6th
Cir.
1995)).
128
See
Chavez,
251
F.3d
at
636;
see
also
Greer
v.
Amesqua,
212
F.3d
358,
370
(7th
Cir.
2000),
cert.
denied,
531
U.S.
1012,
121
(2000);
see
also
Johnson
v.
City
of
Fort
Wayne,
Ind.,
91
F.3d
922,
944-45
(7th
Cir.
1996).
129
Avery,
137
F.3d
at
355.
130
Id.
at
356.
131
Chavez,
251
F.3d
at
638.
132
Avery,
137
F.3d
at
356.
133
2011
REPORT,
supra
note
3,
at
5.
134
Id.
at
4.
135
Id.
2016]
363
JOURNALOFCIVL
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ECONOMiCDEVELOPMENT
[Vol.28:3
percent,
96.9
percent,
and
87.8
percent, respectively.
136
Conversely,
the
precincts
with
the
lowest
percentage
of
stops were
the
nineteenth,
sixty-
second,
sixty-eighth,
one
hundred
twenty-third,
and
sixty-sixth,
respectively.1
37
The
percentage
of
African-Americans
and
Latinos
in
those
neighborhoods
were
9.0
percent,
14.1
percent,
15.8
percent,
9.4
percent,
and
15.3
percent.
138
Additionally, African-Americans
and
Latinos
accounted
for
more
than
70
percent
of
stops
in
six
of
the
ten
precincts
where
their population
was at
its
lowest.
139
These
statistics demonstrate
that
New
York
City's
stop-and-frisk
policy
targets African-Americans
and
Latinos
and
African-American
and
Latino
neighborhoods
for
most
of
its
stops. Furthermore,
the
majority
of
African-Americans
and
Latinos
(88.4
percent)
who
were
stopped
in
2011
were
innocent
of
any
crime,
140
and
only
1.8
percent
of
those
who were
frisked
were
rarely
found
in
possession
of
a
weapon.
14
1
As
a
result
of
the
astonishing
nature
of
these
statistics,
the
Court
in
Floyd
v.
City
of
New
York
held
that
the
New
York
City
stop-and-frisk
policy
violated
the
Fourteenth
Amendment.1
42
In
Floyd,
plaintiffs
claimed
that
African-Americans
and
Latinos
were stopped
more
frequently
than
they
would
be
if
police
officers
did
not
discriminate based
on
race
when
deciding
whom
to
stop.143
To
determine
the
validity
of
the
plaintiffs'
claims,
the court
compared
rates
of
African-American
and
Latino
stops
to
"a
standard,
or
point
of
reference,
against
which
those
statistics
can
be
compared,
assessed,
measured
or
judged,"
also
known
as
a
benchmark.1
44
The
court
chose
the
plaintiffs'
benchmark,
local
population
data and
local
crime
rates,
as
its
benchmark.
145
The
court
held
that
this
was
the
best
benchmark
because
local
population
data
reflected who
was available
for
officers
to
stop
and
local
crime
rates
reflect
the
fact
that
more
stops
are
likely
to
occur
in
high
crime
areas.
146
The
court,
in
turn,
rejected the
defendant's
benchmark
of
suspect
race
description data
because
it
was
based
on
the faulty
premise
that
officers'
decisions
to stop
individuals
136
Id.
at
20.
137
Id.
at
4.
138
Id.
at
20.
139
2011
REPORT,
supra
note
3,
at
5-7.
140
Id.
at
10.
141
Id
142
Floyd,
959
F.
Supp.
2d
at
562
(2013
action).
143
Id
at
583.
144
Id
145
See
id.
at
584-85.
146
Id
at
585.
364
REGULA7NG
STOPAND
FRISKIN
NEW
YORK
CITY
could not
be swayed
by
conscious
or
unconscious
racial
bias.1
47
Based
on
the
use
of
the
plaintiffs'
benchmark
to
analyze
the
data, the
court
concluded
that:
1)
the
NYPD carried out
more
stops
in
African-
American
and
Latino
neighborhoods,
2) regardless
of
the
racial
composition
of
an
area,
African-Americans
and
Latinos
were
more
likely
to
be
stopped
than
whites,
3)
"for
the period
2004
to
2009,
[African-
Americans]
who
were
subject
to
law
enforcement
action
following
their
stop
were
30
percent
more
likely
than whites
to
be
arrested
(as
opposed
to
receiving
a
summons) after
a
stop
for
the
same
suspected
crime,"
4)
"for
the period
2004
through
2009,
after
controlling
for
suspected
crime and
precinct
characteristics, [African-Americans]
who
were
stopped
were
about
14%
more
likely-and
[Latinos]
9%
more
likely-than
whites
to
be
subjected
to
the
use
of
force," and
5)
for
the
period
2004
through
2009,
the
odds
that
a
stop
will
result
in
further
enforcement
action
was
8
percent
lower
if
the
person
stopped
was
African-American
than
if
the
person
was
White.
148
The
court
ruled
that
these
statistical findings
and
the
institutional
evidence
of
defendants'
indifference
to
those
findings
were
sufficient
to
conclude that
New
York
City's
stop-and-frisk
policy violated
the
Fourteenth
Amendment.
14
9
IV.
PHILADELPHIA STOP-AND-FRISK
A.
STOP-AND-FRISK
PROCEDURES
Prior
to
a
2011
settlement agreement,
the
Philadelphia
stop-and-frisk
policy had
many
of
the
same
problems
as
the
New
York
City
policy.
Philadelphia
police
officers
were
required
to
complete
a
vehicle
or
pedestrian
incident
report
known
as
a
75-48a
form.
These
forms
were
meant
to
keep
track
of
all
stop
and
frisks
that
officers made
and
to help
guide
officers in
determining
when
they
had
reasonable
suspicion
to
make
a
stop
or
frisk.
Similar
to
NYPD's
Unified
250
form,
the
Philadelphia
Police
Department's
(PPD)
75-48a
form
allowed
officers
to
use
their
individual impressions
to
decide
whether
to make
a
stop.
Officers
were
allowed
to
make
stops
if
a
person
was
"loitering,"
engaged
in
"furtive
movement,"
acting
"suspiciously"
or
if
the
person
was
in
a
"high
crime"
area.
Once
an
officer
completed
the
75-48a
form
he
or
she
submitted
it
to
his
or
her
respective
district
to
be
uploaded
to
an
electronic
database.
The
147
See
id.
at
585-87.
148
Floyd,
959
F.
Supp.
2d
at
588-89
(2013
action).
149
Id.
at
667.
2016]
365
JOURNAL
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[Vol.
28:3
database
kept
track
of
all
75-48a
stops.
B.
PROBLEMS
WITH
STOP-AND-FRISK
IN
PHILADELPHIA
Although
Philadelphia's
stop-and-frisk
policy
had
problems since
the
late
1980s,
150
those
problems
were
exacerbated
with
the
election
of
Mayor
Michael
Nutter
in
2007. In
2008,
Mayor
Nutter
initiated
the
PPD's
"Crime
Fighting
Strategy."'51
His
crime
plan
was
to
use
criminal
statistics to
focus
resources
on
areas
where
the
most
crimes
were
being
committed.
152
The
plan
also
focused
on
preventing
crimes
from
occurring
by
using citywide
aggressive
tactics such
as
stop
and frisk.153
Mayor
Nutter's
plan
not
only
allowed
officers
to
make
more
stops
and
frisks
in
high-crime
areas,
but
also
allowed
officers to
stop
and
frisk
people
simply
for
being
in
a
high-crime
area.
A
year
after
Mayor Nutter's
plan
was
implemented,
there
were
253,333
stopS1
54
made
in
a
city
of
approximately
1.5
million
people.155
This
was
a
higher
person-to-stop
ratio
than New
York
City
had
in
2011.
Of
those
253,333
stops, over
183,000
or
72.2
percent
were
of
African-
Americans,
who
comprise
44
percent
of
Philadelphia's
population.
156
Of
the
stops
made,
only
8.4
percent
resulted
in
an
arrest.
157
Additionally,
a
significant
amount
of
the
arrests
carried
out
were
for
reasons
other
than
the
suspicion
that
the
stop
and
arrest
was
originally
made.1
58
A
majority
of
those
arrests
resulted
from
interactions
or
information discovered following
the
initial
stop
(i.e.,
disorderly
conduct,
outstanding
warrants).1
59
These
statistics
demonstrate
the
ineffectiveness
of
the
aggressive
stop-and-frisk
tactics
to
prevent
crime
from
occurring
and
their
discriminatory nature
in
stopping
a
disproportionate
amount
of
African-Americans.
Due to the
disparity
in the
stops
of
African-Americans,
it is
apparent
that
officers
in
Philadelphia
were
not
just
using
reasonable suspicion
to
make
stops
but
were
also
using
race
as
a
factor. If
race
were
not
a
factor
then
the
number
150
See
Complaint
at
19,
Bailey
v.
Philadelphia,
C.A.
No.
10-5952,
(E.D.
Pa.
2010),
available
at
http://www.aclupa.org/download
file/viewinline/669/198/
[hereinafter
Bailey
Complaint].
151
See
generally
PHILADELPHIA
POLICE
DEPARTMENT,
PHILADELPHIA
POLICE DEPARTMENT
CRIME
FIGHTING
STRATEGY
(2008),
available
at
http://www.youngphillypolitics.com/nuttercrime-Plan,
available
at
http://www.phila.gov/pdfs/CrimePlanFinal.pdf.
152
Id.
at
17-18.
153
Id.
at
11.
154
Bailey
Complaint
at
21.
155
QUICKFACTS,
supra
note
27.
156
Bailey
Complaint
at
154.
157
Id.
158
Id
159
Id
366
REGULATING
STOPAND
FRISK)N
NEW
YORKCITY
of
stops
should
at
least
be
slightly
relative
to
the
percentages
of
Philadelphia's
population.
However,
this
is
not
the
case.
160
C.
LITIGATIONAS
A
REMEDY
As
a
result
of
the
disparity
in
Philadelphia's
stop-and-frisk
policy,
citizens
of
Philadelphia
have
sought
relief
from
the
courts.
In
the
1980s
several
class
action suits
filed
in
the
federal
courts
prohibited stop-and-frisk
procedures because
they violated
the
Fourth
and
Fourteenth
Amendment
rights
of
African-Americans
and
Latinos
in
Philadelphia.
16
1
In
1996,
the
National Association
for
the
Advancement
of
Colored
People
(NAACP)
sued
the
City
of
Philadelphia
and
its
police department
for "the
unlawful
arrest,
search
and
prosecution
of
hundreds
of
persons
on false
or
otherwise
improper narcotics
charges,
virtually
all
of
whom
were
African-American
or
Latino."
162
Ultimately,
the
City
agreed
to
settle the
matter,
vacating
hundreds
of
convictions
and
agreeing
to
improve
its
stop-and-frisk
policy.
1
63
Under
the
1996
settlement
agreement,
Philadelphia
agreed
to:
(1)
require
its
officers to
fill out
a
75-48a
form
for every
stop they
made,
(2)
appoint
an
Integrity
and
Accountability
officer
responsible
for
ensuring
the
City's
compliance with
the
settlement
agreement
and
for
reviewing
the
stop-and-frisk
data
to
determine
if
any
racial
bias existed,
and
(3)
allow
the
plaintiffs
lawyers to
review
and
analyze
the
75-48a
data
"to
determine
whether
there
was
probable
cause
or
reasonable
suspicion
for
the
officers'
actions
and
whether the stops
and
investigations
of
persons
were
undertaken
in
a
racially
biased
manner."
1 64
Although the
City
complied
with
the
agreement,
the
agreement terminated
in
2005
without
any
long-
term
measure
in
place
to
stop
Mayor Nutter, elected
in
2008,
from
instituting
a
more
aggressive
stop-and-frisk
policy.
V.
CITY
OF
PHILADELPHIA
2011
SETTLEMENT
&
FLOYD
COURT'S
REFORMS
On November
4,
2010,
the American Civil
Liberties
Union
of
Pennsylvania
and
the
law
firm
of
Kairys, Rudovsky, and
Messing
&
Feinberg
filed
a
federal
class
action
suit against
the
City
of
Philadelphia
160
Id.
161
Id.
at
19.
162
Bailey
Complaint
at
19.
163
Id.
164
Id.
at
19-20.
2016]
367
JOURNAL
OF
CIVLRIGflS
&
ECONOMTCDEVELOPMENT
[Vol.
28:3
and
its
police
department
known
as
Bailey
v.
City
of
Philadelphia.165
The
suit
was
filed
on
behalf
of
eight
African-American
and
Latino
men
who
were
stopped
by
Philadelphia
police
officers
based
solely
on
their
race.
166
The
suit
alleged that
thousands
of
people were
stopped,
frisked,
and
detained
by
the
PPD
as
part
of
its
stop-and-frisk
policy
in
violation
of
plaintiffs'
Fourth
and Fourteenth
Amendment
rights.167
None
of
the
stops
or
frisks
led to the recovery
of
weapons
or
to
the
conviction
of
any
crime.
168
The
plaintiffs
sought
a
declaration
that
the
stop-and-frisk
policy
was
unconstitutional
as
well
as
injunctive
and
compensatory
relief.1
69
After
over
a
year
of
motions
and
negotiations,
the
parties
agreed
to
settle.
The
settlement
agreement
included certain
disclosure
and
monitoring
stipulations
and
changes
to
the
PPD's
stop-and-frisk
policy.
Under
the
agreement,
the
PPD
agreed
to
allow
plaintiffs
counsel
access
to
the
Department's
75-48a
forms
for
selected
two-week
periods
in
the
years
2006
to
2010.170
Although
plaintiffs'
counsel
may
not
sue
for
violations
taking
place
within
those
two-week
periods, they
do
get
to
analyze the
City's
stop-and-frisk
policy
by
examining
its
75-48a
forms.
The
City
of
Philadelphia
also
agreed
to
continue
to
input
all
75-48a
forms into
an
electronic
database
and
allow
the
plaintiffs'
counsel
to
have
access.171
This
access
would allow
plaintiffs'
counsel
to
monitor
any
disparity
of
stops
and
frisks.
Plaintiffs'
counsel
would
be
allowed
to
conduct
periodic reviews
of
stops
and frisks
to
determine
if
any
disciplinary
action needed
to
be
taken
against
an
officer,
commanding
officer,
or
the
PPD
as
a
whole.1
72
Changes
were
also
made
as
to
which
circumstances
on
the
75-48a
form
constitute
reasonable
suspicion.1
7
3
A
stop
and
frisk
due
to
furtive
movement,
"suspicious"
behavior,
loitering,
being
in
a
"high
crime" or
high
drug
area
is
no
longer
permissible.1
74
The
last
major
stipulation
of
the
agreement
was
the
appointment
of
Dean
Joanne
Epps
of
the
Temple
University
Beasley
School
of
Law
as
an
independent
outside
auditor who
will
conduct
analysis, audit
all
proposals
and
procedures,
and
will
have
the
authority
to
165
Bailey
v.
City
of
Philadelphia,
C.A.
No.
10-5952,
available
at
http://www.aclupa.org/download-file/view-inline/744/198/
(last
visited
Sept.
8
2014).
166
Id
167
Bailey
Complaint
at
7-16.
168
Id.
169
Id.
at
29-30.
170
Bailey
Decree
at
3.
171
Id
172
Id.
at
4.
173
Id
174
Id
368
REGULATING
STOPAND
FRISfK
IN
NEW
YORK
CITY
recommend
additional policies,
practices,
and procedures
to
ensure
compliance.
175
Turning
back to
New
York
City's
police, after
declaring
the
New
York
City
stop-and-frisk policy
unconstitutional
under
the
Fourth
and
Fourteenth
Amendments,
the
Floyd
Court
ordered
several
reforms
to the
policy.
176
Prior
to
listing
the
reforms,
the
Court appointed
an
independent
monitor
to
oversee
the
reform
process.
177
The
independent
monitor
is
responsible
for
assuring New York
City's
compliance
with
reforming
the
use
of
the
NYPD's
stop-and-frisk
policy.1
78
One
reform
the
Court
ordered
was
a
revision
of
the
policies
and
training
materials related
to
the
stop-and-frisk policy
and racial
profiling.
179
The
purpose
of
this reform
is
to
ensure
officers
are
trained
how
to
make
constitutional
stops
and
frisks.180
The
Court
also
ordered
a
change
to
stop-
and-frisk documentation.
181
The
first
document
the
Court
ordered
to
be
changed
is
the
UF-250-Form.1
82
The
Court
ordered
the
UF-250-form:
1)
include
a
narrative
section
where
the
officer
must
record,
in
her
own
words,
the
basis
for
the
stop,
2)
require
a
separate
explanation
of
why
a
pat-down,
frisk,
or
search was
performed,
3)
contain
a
tear-off
portion
stating
the
reason
for
the
stop,
which
can
be
given
to
each
stopped
person
at
the
end
of
the
encounter, and
4)
include
a
simplified and
improved
checkbox system
used
to
indicate
common
stop justification.1
83
Regarding stop-and-frisk
documentation, the
Court also required
all
uniformed officers
provide
narrative
descriptions
of
stops
in
their
activity
logs
whenever
a
250-Form
is
prepared.1
8
4
Other
reforms
the
Court
ordered
include
changes
to
supervision,
monitoring, and
discipline,
participation
in
a
joint
remedial process,
which
allows
all
parties
in
the
litigation
to develop remedial
measures
to
improve
stop-and
frisk,
and
the
use
of
body-worn cameras
by
one
officer
in
one
precinct
of
each
borough.
1
85
These
reforms
were
intended
to
prevent
officers
from
making unconstitutional
stops, involve the
community
in
the
175
See
Bailey
Decree
at
5,
8.
176
Floyd,
959
F.
Supp.
2d
at
671
(2013
action).
177
Id.
at
676.
178
Id.
at
677.
179
Id
at
679.
180
Id.
181
Id
at
681.
182
Floyd,
959
F.
Supp.
2d
at
681.
183
Id.
at
681-682.
184
Id.
at
682-683.
185
Id.
at
683-687.
2016]
369
JOURNAL
OFCIVILRIGHIS&
ECONOAICDEVELOPMENT
[Vol.
28:3
reform
of
stop-and-frisk,
and
to
monitor
how
stops
and
frisks
are
carried
out.
186
This
Note proposes
that
in
addition
to
the
reforms
ordered
by
the
Floyd
Court,
New
York City
should
also
adopt
two
critical
aspects
of
the
Philadelphia
settlement.
In
addition
to
the
reforms
ordered
by
the
Floyd
Court,
the
NYPD
should
also grant
civil
rights groups
that
represent
victims
of
illegal stops
and
frisks
access
to
its
Unified
Form
250
electronic
database.
This
access should
give these
organizations the ability
to
determine why
people
were
stopped,
in
which
precinct
they
were
stopped,
who
stopped them,
and
any
other
pertinent information
that
will
allow them
to determine
whether
stop-and-frisk
is
being
carried out constitutionally.
This
assures
the
affected
communities
that
progress
is
being
made.
The
NYPD
should
also
eliminate
"furtive
movement,"
"high crime
area,"
and
any
other similarly
vague
term
on
the
UF-250-form.
This
will
decrease
the
likelihood
that
an
officer
stops
someone
based
solely on
his
or
her
race.
One
suggestion
that
was not
considered in
the
Philadelphia
settlement
or
the
reforms
in
Floyd,
but
New
York
City
should
adopt,
is
the
creation
of
an
outside
disciplinary
body
to
deal
with
officers who
carry
out
stops and
frisks
with
less
than
reasonable
suspicion
or
to
deal
with
commanding
officers that
are
not
correcting
this
behavior.
Allowing
the
NYPD
to
continue
to
regulate
itself
allows
it
to
reward
officers who
violate
the
rights
of
African-Americans and
Latinos
on
a
daily
basis
and
to ostracize
those
officers who
follow
the
law.
VI.
CONCLUSION
Everyday
in
the
streets
of
New
York
City,
young
African-American
and
Latino
males
are
asked
to
prove
where
they
live
as
they
walk
down
the
very
same
street
where
they
have
lived
all
their
lives.
They
are
frisked and
searched
as
if
they
were
criminals
while
their
friends
and
neighbors watch.
They
are
too often
disrespected
and
belittled
if
they
question why
they
are
subjected
to
such treatment.
They
are
then
released
without
any
explanation
for
why they
were
stopped
in
the
first
place.
This treatment
disproportionately
affects
the
African-American
and
Latino community
of
New
York
City,
and
it
can
no
longer
be
justified
with
the claim
that
crimes
most
often
take
place
in
these
communities.
Statistics
compiled
by
the
New
York
Civil
Liberties
Union
and
by
the
NYPD
and
reviewed
by
the
Southern
District
in
Floyd
v.
City
of
New
York
have
proven that
stops
and
186
Id
370
REGULATING
STOPAND
FRISKIN
NEW
YORK
CITY
frisks
do
not
reduce
the
number
of
weapons
on
the
streets
and
do
not
significantly
reduce
crime.
187
Just
this
past
year,
the
number
of
homicides
in
New
York
City
dropped
to
an all-time low
since the
1960s
while
the
number
of
stops
dropped
by
30
percent
compared
to
2011.188
Furthermore,
88.3
percent
of
people
stopped
in
2011
had
not committed
any
crime.1
89
African-Americans
and Latinos
should
not
continue
to
be
harassed,
humiliated,
and
their
rights
violated
for
a
policy
that
has
not
proven
to
be
effective.
Although
Floyd
v.
City
of
New
York
appears to
be
the
solution
African-
Americans
and
Latinos
had
been
waiting
for,
the
City
will
not
go
down
without
a
fight.
In
fact, the City
recently
filing a
notice
of
appeal.1
90
Even
if
the
Floyd
decision
is
reversed,
New
York
City
should adopt the
reforms
suggested
in
the
district
court's
decision.
Additionally,
the
NYPD
should
be
regulated
by
an
outside
entity
that
can
evaluate
police
conduct
objectively. Racial profiling
and
excessive
stops
have
become
a
part
of
NYPD
culture
and
have
too
often been
rewarded rather
than
disciplined.
To
effectively
change
this
culture,
police
officers
need
to
be
held
accountable
for
violating the
rights
of
African-Americans
and
Latinos,
and
officers
who
follow
the
law
need
to
have
an
entity
they can
safely
reach
out
to
if
they
are
feeling
pressure
from
their
commanding
officers.
Finally,
civil
rights groups
that
represent victims
of
illegal stops
and
frisks
should
be
granted
access
to
the
NYPD's
Unified
Form
250
electronic database
so
they
can
monitor
the
policy's
progress.
These
modifications
will
prevent
the further persecution
and
degradation
of
the
African-American
and
Latino communities
that,
for
the
most part, have lost
faith
and
respect
for
the
NYPD.
187
See
STOP
AND
FRISK
FACTS,
supra
note
7.
See
also
New
York
City
Murder
Rate
2012,
supra
note 42.
188
New
York
City
Murder
Rate
2012,
supra
note
42.
189
2011
REPORT,
supra
note
3.
190
NYC
files
notice
of
appeal
in
police
stop-and-frisk
case,
first
step
in
process,
Fox
NEWS,
available
at
http://www.foxnews.com/us/2013/08/16/nyc-files-notice-appeal-in-police-stop-and-frisk-
case-first-step-in-process/.
(last
visited
October
2,
2014).
2016]
371