ACROSS THE HUDSON: TAKING THE STOP AND FRISK DEBATE

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ACROSS THE HUDSON: TAKING THE

STOP AND FRISK DEBATE BEYOND

NEW YORK CITY

David A. Harris*

This article presents the results of a survey conducted by the author of

56 police departments across the country concerning the practice of data

collection on stop and frisk practices of those police departments. These

results are discussed against the backdrop of the debate on stop and frisk,

examined in this article through a review of the legal basis for the practice

and its use by police departments. The article then argues that greater data

collection efforts in places other than New York City, where such efforts

have been more robust that elsewhere, could broaden and deepen the de-

bate on stop and frisk and better inform the larger debates over the impact

of race on criminal justice, particularly with respect to the question of

whether stop and frisk necessarily has a disparate impact on racial and

ethnic minorities, as New York City data indicates.

NTRODUCTION

.............................................. 854

I. T

EGAL

TANDARD IN IHE

U.S.: T

UPREME

OURT

’

ECISION IN

ERRY V

. O

HIO

................ 857

II. U.S. L

NFORCEMENT

’

OSITION ON

TOP

RISK

............................................... 862

III. D

ATA

OLLECTION ON

TOP

RISK

.............. 864

IV. T

URVEY

: M

AJOR

MERICAN

OLICE

EPARTMENTS

’ D

ATA

OLLECTION ON

TOP

RISK

CTIVITY

..................................... 869

V. O

PPORTUNITIES FOR

EFORM

REATED BY

ATA

OLLECTION

FFORTS

................................ 873

A. Changing the Narrative: “It’s Not Just New York;

In Our City, Stop and Frisk Works Like This.” . . . 873

B. Does Reliance on Stop and Frisk Always Result in

Racially Disproportionate Impacts? ............... 874

C. “If [Names of Other Cities] Can Collect Data on

Stops and Frisks, Why Can’t We?” .............. 876

* Distinguished Faculty Scholar and Professor of Law, University of Pittsburgh

School of Law. I would like to thank Laura Gomez Martin and Caitlin Norton, Uni-

versity of Pittsburgh School of Law Class of 2013, who helped carry out the survey

research that forms the backbone of this article.

853

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854 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

D. Fine Tuning a Stop and Frisk Strategy to Account

for the Costs it Imposes ......................... 877

E. Transparency ................................... 878

ONCLUSION

................................................ 879

NTRODUCTION

Going back to the 1990s, there has been heated debate over the

stop and frisk practices of the New York Police Department (NYPD).

In the mid-1990s the NYPD began to use stops and frisks intensively

as part of the “broken windows” policing philosophy.

After the death

of Amadou Diallo in a hail of police bullets in 1999, a study

ordered

by New York’s Attorney General of the NYPD’s stop and frisk prac-

tices provided the first comprehensive empirical analysis of the use of

stops and frisks in New York.

The data for the study on the stops and frisks came directly from

the police, because NYPD officers were required to record data on

every stop and frisk on a form, and then to submit the forms to their

superiors.

These data included the nature of the subject’s suspicious

behavior, the subject’s identity, including race or ethnic group,

whether or not any contraband (chiefly guns or drugs) was found, and

whether an enforcement action resulted: an arrest, issuance of a sum-

mons, or the like.

Between the release of the 1999 study and the present, the NYPD

has actually increased its intensive use of stops and frisks: in 2002, the

NYPD conducted 97,000 stops and frisks; by 2011, the total had in-

creased to nearly 700,000.

The disproportionate racial impact of these

stops and frisks has also continued: over eighty percent of the stops

and frisks in the years 2002 through 2011 were people of color.

This

led to the filing of a federal class action case, Floyd v. City of New

York,

challenging the NYPD’s stop and frisk practices. Trial pro-

1. See infra note 42 and accompanying text.

N.Y. S

TATE

FFICE OF THE

TTORNEY

., T

ORK

ITY

OLICE

E-

PARTMENT

’

TOP AND

RISK

RACTICES

: A R

EPORT TO THE

EOPLE OF THE

TATE OF

ORK FROM THE

FFICE OF THE

TTORNEY

ENERAL

(1999) [hereinafter

TOP

AND

RISK

RACTICES

EPORT

], available at http://www.oag.state.ny.us/sites/default/

files/pdfs/bureaus/civil_rights/stp_frsk.pdf.

3. See infra notes 46–47 and accompanying text.

4. 2011 NYPD Stop and Frisk Statistics,

FOR

ONSTITUTIONAL

IGHTS

, http:/

/ccrjustice.org/files/CCR-Stop-and-Frisk-Fact-Sheet-2011.pdf (last visited Jul. 22,

2013) (showing 685,724 stops in 2011).

ELORES

ONES

-B

ROWN ET AL

., C

ACE

, C

RIME

& J

USTICE

TOP

, Q

UES-

TION

& F

RISK

OLICING

RACTICES IN

ORK

ITY

: A P

RIMER

19 (2010), availa-

ble at http://www.jjay.cuny.edu/web_images/PRIMER_electronic_version.pdf.

6. No. 08 Civ. 01034 (SAS), 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013).

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2013] ACROSS THE HUDSON 855

ceedings in Floyd began on March 18, 2013 in U.S. District Court;

Judge Shira Scheindlin issued an opinion on August 12 finding the

defendants liable for violations of the Fourth and Fourteenth Amend-

ments. She appointed an independent monitor to oversee the imple-

mentation of changes she ordered in policy, practice, and training on

stop and frisk, along with other significant remedies.

All of this has

meant that the stop and frisk battle has been very much a New York

story for more than fifteen years; after the decision in Floyd, this be-

came more true than ever.

And the NYPD has made its position clear:

intensive use of stops and frisks has successfully suppressed violent

crime.

The decision in the Floyd case will have great national impact.

According to Samuel Walker, professor emeritus of criminology at the

University of Nebraska and one of the country’s foremost experts on

police accountability, the size and renown of the NYPD will give the

case “enormous national ramifications” in American police

departments.

It is important to note that the NYPD is not the only municipal

law enforcement agency in the U.S. that makes a regular practice of

7. As this article went to press, the Floyd litigation remained in a state of flux. On

October 31, the U.S. Court of Appeals for the Second Circuit stayed Judge

Scheindlin’s order pending appeal, and removed her from the case because she vio-

lated the judiciary’s code of conduct by compromising the “appearance of impartiality

surrounding this litigation.” Ligon v. City of New York, Nos. 13-3123, 13-3088, 2013

WL 5835441, at *1 (2d Cir. Oct. 31), clarified sub nom. by In re Reassignment of

Cases, 2013 WL 5998139 (2d Cir. Nov. 13, 2013) (per curiam); see also Joseph Gold-

stein, Court Blocks Stop-and-Frisk Changes for New York Police,

N.Y. T

IMES

(Oct.

31, 2013), http://www.nytimes.com/2013/11/01/nyregion/court-blocks-stop-and-frisk-

changes-for-new-york-police.html?_r=1&.

8. Following the decision in Floyd, a flood of news stories reported on various

aspects of Judge Scheindlin’s opinion. A basic Google search found references to

seventy-five stories in news publications during the first thirty days after the decision;

many of these stories were reprinted dozens of times in other publications across the

country and on web sites.

9. See Shane Dixon Kavanaugh, Commissioner Kelly Says Almost 75% of Violent

Crime Committed by African-Americans,

N.Y. D

AILY

EWS

, May 2, 2013, http://

www.nydailynews.com/new-york/commissioner-kelly-defends-stop-and-frisk-target-

ing-african-americans-article-1.1332840#ixzz2UiHaXcKt (citing Kelly stating that

black New Yorkers are actually “understopped” and benefit most from stop and frisk);

Leo Eisenstein & Laura Gottesdiener, Why Michael Bloomberg is Wrong About Stop-

and-Frisk,

OLLING

TONE

, May 22, 2013, http://www.rollingstone.com/politics/

news/why-michael-bloomberg-is-wrong-about-stop-and-frisk-20130522 (“Mayor

Michael Bloomberg and Police Commissioner Ray Kelly have dismissed these con-

cerns, claiming that stop-and-frisk has dramatically reduced the city’s murder rate.”).

10. Adam Klasfeld, ‘Remedy’ Witness Takes Stand in Street Stop Case,

OURT-

HOUSE

EWS

ERVICE

(May 15, 2013, 6:17 PM), http://www.courthousenews.com/

2013/05/15/57678.htm. Professor Walker was a witness for the plaintiffs in the case.

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856 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

using stop and frisk tactics. On the contrary, police in the U.S. have

long used stops and frisks in every city in America, both before and

since the U.S. Supreme Court’s 1968 decision in Terry v. Ohio

which formally legalized this longstanding practice.

But until re-

cently, there has been little chance of understanding the prevalence of

this tactic outside of New York, and no chance of measuring it: no

other police departments collected data on the stop and frisk activity.

When the New York Attorney General’s Office released its 1999

report on stop and frisk activity, it highlighted (without intending to) a

little-noticed fact: the NYPD seemed to be the only police agency in

the U.S. regularly collecting comprehensive data on its stop and frisk

activity. New York seemed to be the one place where police, citizens,

and researchers could measure stop and frisk. But that may be about to

change. New York, it seems, is no longer the only city in the U.S.

where we might get an accurate picture of the use of stop and frisk

activity. For this article, I conducted a survey in 2011 and 2012 of

fifty-five of the largest police departments in the U.S. The objective

was to find out how many of these departments other than the NYPD

created records of stops and frisks; if so, what data those records in-

cluded; how systematically the data were kept; and how accessible to

the public the collected data were. The survey revealed that the re-

ceived wisdom—that the NYPD, alone, collects stop and frisk data—

no longer holds. According to the survey, more than twenty of the

police departments surveyed record some data on stops and frisks.

Some of these jurisdictions record data in ways that could allow ana-

lysts to draw the kind of detailed analysis we have seen in New York;

a smaller number still make these data publicly available.

Thus, in the near future the empirical discussion of stop and frisk

as a regular police practice can now take into account a wider variety

of jurisdictions and contexts than just the NYPD. And it is high time

that this broader discussion should take place. It may be that some of

these other jurisdictions use the tactic differently: perhaps more suc-

cessfully (in terms of percentage of stops and frisks which produced

evidence seized or arrests made) or not so intensively as the NYPD

does. Perhaps most importantly, since there is no reason to expect po-

11. 392 U.S. 1 (1968).

12. See, e.g., id. at 13 n.9, 14 n.11 (citing

L. T

IFFANY ET AL

ETECTION OF

RIME

TOPPING AND

UESTIONING

, S

EARCH AND

EIZURE

, E

NCOURAGEMENT AND

NTRAP-

MENT

18–56 (1967);

RESIDENT

’

OMM

’

NON

NFORCEMENT

& A

DMIN

US-

TICE

, T

ASK

ORCE

EPORT

: T

OLICE

183 (1967) (“In many communities, field

interrogations are a major source of friction between the police and minority

groups.”)).

13. See infra notes 65–80 and accompanying text.

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2013] ACROSS THE HUDSON 857

lice to abandon stop and frisk as an enforcement tactic, we may learn

whether police agencies other than the NYPD make use of stops and

frisks without having the disparate impact on communities of color

that the NYPD data has consistently showed. All of this could inform

the debate to an important degree. At this point, everything we know

comes from just the NYPD: a large and important jurisdiction, to be

sure, but one that is not necessarily representative of policing every-

where in the country. As an added benefit, the recognition that many

of the leading police departments are already recording their stop and

frisk activity should encourage other jurisdictions to begin to do this

as well. All of this would give us a fuller picture from which to draw

stronger conclusions and make better law enforcement policy

judgments.

Stop and frisk is not a New-York-only tactic, and therefore it

should not be a New-York-only story. In the bargain, those concerned

with these police practices in other cities not now collecting data can

begin to make the argument that collecting these data is not something

just for New York anymore. A shift toward data collection on stop and

frisk practices will enable us to better understand our police depart-

ments, their effectiveness, and the impacts that their enforcement

choices have—on everyone, but particularly on communities of color.

This article will begin with an examination of stop and frisk, the

law that governs the tactic and its place in American law enforcement.

This is followed by a discussion of the survey I conducted of fifty-five

large American police departments and what it reveals: a still-small

but growing number of U.S. law enforcement agencies in large cities

have begun data collection on stop and frisk activity by their police

officers. Thus we may be in a position to have a much richer, and less

New York-centric, picture of how police in the U.S. use this venerable

tactic. The survey material itself appears in two appendices. The arti-

cle then moves to a brief discussion of the possible implications of the

survey results for specific criminal justice and police reforms.

EGAL

TANDARD IN IHE

U.S.: T

UPREME

OURT

’

ECISION IN

ERRY

V. O

HIO

The U.S. Supreme Court sets constitutional limits on what Amer-

ican police departments may do in the courses of criminal investiga-

tions through its interpretation of the Fourth, Fifth, and Sixth

Amendments to the U.S. Constitution in cases it decides. The Supreme

Court’s decisions on these three Amendments lay down constitutional

minimum standards for how police carry out arrests and seizures,

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858 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

search for evidence, interrogate suspects, and conduct pretrial identifi-

cation procedures. These decisions set down the broad parameters for

what police can and cannot do: for example, even when they have

probable cause to believe a crime has been committed, they must have

a warrant to search a home,

but they do not need a warrant to search

a vehicle.

While police in the U.S. have used stop and frisk tactics for

years, only in 1968 did the American justice system formally ac-

knowledge these methods and bring them within the legal and consti-

tutional system. The U.S. Supreme Court did this in Terry v. Ohio,

case that still stands today.

In Terry, a police officer on foot patrol saw a pair of men stand-

ing near a jewelry store. Taking turns, each man walked away from

the spot near the store while the other remained, and took a slow walk

back and forth in front of the store, looking in the window. Both men

then stood together and talked, and then the other member of the pair

would depart for a walk in front of the store window.

The police

officer who saw this felt that the men “didn’t look right to me.”

The

activity the officer saw made him suspicious that the men were “cas-

ing” the jewelry store for a robbery, even though he had not yet wit-

nessed any criminal act.

He therefore approached the men, who by

that point had joined with a third man, and asked them what they were

doing. When the men did not give a satisfactory explanation, the of-

ficer took them into custody and did a cursory search of each by pat-

ting down their outer clothing with his hands. When the officer felt

guns on two of the men while performing this “pat down” search, he

confiscated the weapons, and arrested the men.

The Terry case gave the Supreme Court the opportunity to speak

to the constitutionality of the practice of stop and frisk, and to specify

how these interactions between police and citizens could be carried

14. Payton v. New York, 445 U.S. 573, 590 (1980).

15. Carroll v. United States, 267 U.S. 132, 147 (1925); see also California v. Car-

ney, 471 U.S. 386, 390 (1985).

16. 392 U.S. 1, 16 (1968). The police “stop and frisk” practice is not outside the

purview of the Fourth Amendment, which governs “seizures” of the person not even-

tuating in “arrests” in traditional terminology; whenever a police officer accosts an

individual and restrains his freedom to walk away, he has “seized” that person, and a

careful exploration of the outer surfaces of a person’s clothing all over his body in an

attempt to find weapons is a “search,” a serious intrusion upon the sanctity of the

person, which is not to be undertaken lightly. See id. at 16–17.

17. Id. at 5–6.

18. Id. at 5.

19. Id. at 6.

20. Id. at 7.

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2013] ACROSS THE HUDSON 859

out legally. In so doing, the Court acknowledged that stops and frisks

had sometimes been abused in deliberate efforts to control and assert

power over black communities.

The Court’s articulation of this last

point was the first time (and it remains one of the few times) that the

Court admitted that an existing and common police tactic had been

used in a racially discriminatory way.

The Court then explained how stops and frisks should work in

practice in order to comport with the Fourth Amendment. First, the

Court acknowledged that the police officer who stopped the two men

did not have enough evidence of wrongdoing by them to establish

“probable cause” for police action.

Probable cause had, until that

time, been the bottom line legal requirement for a police search or

seizure—the most common type of seizure being an arrest.

But in

Terry, the Court held that the police could conduct a stop (a temporary

detention for investigation) and frisk (a cursory pat down of the outer

clothing for the purpose of detecting weapons) with less evidence than

probable cause: the police officer observing the suspect(s) need only

have reasonable suspicion to suspect that crime was afoot and that the

suspect was involved with it.

This meant that police could perform

stops and frisks with less evidence than would be necessary for a full

arrest.

Reasonable suspicion, the Court said, means more than just a

mere hunch, a gut feeling, or intuition that a suspect is up to no good.

Rather, the suspicion must be reasoned, in the sense that an officer

could articulate the factual basis for his or her suspicion.

While the

officer need not observe outright criminal conduct to have reasonable

suspicion, he or she had to have articulable reasons based on facts, not

just feelings. Second, the suspicion had to be particularized: it had to

be grounded in the actions and context surrounding the particular sus-

pect involved.

It would not be sufficient to observe that other, simi-

lar people acted suspiciously; the officer had to have reasons to

suspect the person individually, not just because the person fit into a

21. Id. at 14.

22. It is important to say, however, that even as the Court took notice of “the

wholesale harassment by certain elements of the police community, of which minority

groups, particularly Negroes, frequently complain,” the Court dismissed the ability of

the Fourth Amendment exclusionary rule to help the situation, explaining in the same

sentence that this harassment “will not be stopped by the exclusion of any evidence

from a criminal trial.” Id.

23. Id. at 22.

24. See id. at 19–20.

25. Id. at 26–27.

26. See id. at 27.

27. Id.

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860 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

category of people. These two ideas—reasonable, articulable suspi-

cion, and particularized individual suspicion—help to ground what

might otherwise be a vague concept requiring little evidence.

The Terry case contained one other idea that is generally less

understood and frequently overlooked. The Terry standard for stops

and frisks actually requires that the police make not one judgment, but

two. First, is there reasonable suspicion that would give the police

justification to believe that the suspect is involved in a crime that is

afoot? This would constitute a sufficient basis for a stop.

Second, is

there reasonable suspicion that a weapon is involved, which would

allow them to frisk? The frisk, the Court said, is allowed in order to

discover weapons that might be used to harm the officer conducting

the stop; its purpose is not the discovery of evidence, but assuring

officer safety.

Thus, the frisk requires reasonable suspicion that the

suspect is not just involved in a crime, but also that the suspect is

armed and dangerous.

The source of the suspicion that the suspect

may be armed and dangerous can be either 1) suspicion of involve-

ment in a crime that, by its nature, requires weapons or at least the

threat of violence, or 2) the observation of something that creates rea-

sonable suspicion of the presence of a weapon—a bulge under the

waistband of one’s clothing, where weapons are often carried, for ex-

ample—regardless of whether the crime suspected usually includes a

weapon or violence. An example of the former would be the facts in

the Terry case itself: two men conducting reconnaissance in prepara-

tion for a daylight robbery of a jewelry store, which by its nature

would almost certainly include the threatened use of a weapon.

example of the latter might be a person suspected of shoplifting or

auto theft—not normally a crime accompanied by violence—when the

suspect’s outer clothing reveals the telltale outline of a firearm. If the

crime suspected is a crime using violence or a weapon, or if the officer

observes the signs of the presence of a weapon during a crime not

associated with violence, the officer can both stop and frisk, and need

not wait for any suspicion to be resolved by the stop before perform-

28. Id. at 26–27.

29. Id. at 29.

30. Id. at 27.

31. As the Court observed, “[t]he actions of [the plaintiffs] were consistent with

[the officer’s] hypothesis that these men ‘were contemplating a daylight robbery—

which, it is reasonable to assume, would be likely to involve the use of weap-

ons . . . .’ ” Id. at 28.

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2013] ACROSS THE HUDSON 861

ing the frisk.

On the other hand, an officer stopping someone for a

nonviolent crime, not associated with weapons, cannot frisk unless the

outward signs of a weapon are observed.

Stop and frisk has been, and remains, an extremely common tac-

tic in American police work. Yet Terry v. Ohio and other court deci-

sions that have followed

remain the only real regulation of these

actions. Because these court decisions have served as the source for

constitutional rules on stops and frisks for decades, statutes do not

play a significant role in regulating these practices.

Police agencies in the U.S. have their own internal rules, regula-

tions, and standard operating procedures, and these may, in some

agencies, govern search and seizure practices. But internal police rules

on search and seizure, when they exist at all, are not always public,

and they do not have the force of law. Thus a member of the public

would be in no position to know about them. And even if the public

did become aware of these regulations, they cannot serve as the basis

for any legal action. Thus these rules may create some modicum of

internal administrative control over stop and frisk, but they do not help

the public to understand, or to demand accountability for, police ac-

tions on the street.

All in all, the legal structure surrounding stops and frisks has cre-

ated an unfortunate system. There is almost no legislative regulation

of stops and frisks in the U.S. Instead, stops and frisks are regulated

only by court decisions, arising in criminal cases pursued after the

stops and frisks take place. Police regulation by court decision in

criminal cases is by nature reactive; courts can only decide cases that

come before them. Unlike legislatures, courts (with the possible ex-

ception of the U.S. Supreme Court) have little power to create general

solutions to solve problems prospectively. The only way the public

can challenge these practices is when a defendant contests the consti-

tutionality of the stop and frisk in an individual criminal case, or

through a time-consuming, resource-intensive civil lawsuit, like the

32. Id. at 33 (Harlan, J., concurring) (“Where such a stop is reasonable, however,

the right to frisk must be immediate and automatic if the reason for the stop is, as

here, an articulable suspicion of a crime of violence.”).

33. See, e.g., id. at 32–33 (Harlan, J., concurring) (noting that the right to frisk

based on suspicion of a “crime of violence” is “immediate and automatic,” which

implies that the same is not true for suspicion of nonviolent crimes in which no out-

ward sign of a weapon is perceived).

34. See, e.g., Arizona v. Johnson, 555 U.S. 323, 332 (2009) (standing for the pro-

position that during a traffic stop, which supplies legitimate grounds for the stop, an

officer with reasonable suspicion that the passenger is armed and dangerous may frisk

the passenger).

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862 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

Floyd case in New York. Even in the event that plaintiffs in these civil

suits win, these actions do not necessarily change either the law or

police department policy. Neither of these backward-facing methods

makes for good prospective regulation or productive policy-making.

Combine this with the common lack of any data and a low legal

threshold for police action (in the form of the reasonable suspicion

standard), and success in either criminal case suppression motions or

civil lawsuits will be rare indeed. This leaves the practice regulated

only in a very limited way, with police retaining very great discretion

to perform stops and frisks.

II.

U.S. L

NFORCEMENT

’

OSITION ON

TOP

RISK

Even with the power to shape the law in broad constitutional

strokes, the U.S. Supreme Court does not dictate the specifics of local

law enforcement policy. In big cities like New York, Los Angeles, and

Chicago, and in smaller cities like Fort Smith, Arkansas and Annapo-

lis, Maryland, each jurisdiction’s own police department is autono-

mous. The Constitution supplies broad rules, but specifics—how

heavily should the department focus on the enforcement of gun laws?

Should police concentrate on undercover investigations?—come from

local police officials. Each agency determines its own law enforce-

ment strategy, tactics, and policy—including the ways they will use

stop and frisk.

Police officials have used Terry v. Ohio to make intensive use of

stop and frisk a key element of crime-fighting strategies in many cit-

ies. For example, in 1994, when Rudolph Giuliani became mayor in

New York City and appointed William Bratton to be the Commis-

sioner of Police, the NYPD proclaimed that an emphasis on “getting

guns off the streets of the New York” would form one of the major

pillars of its crime fighting strategy, and the Department put this into

its written policy;

since that point, stops and frisks have been one of

the major tools the NYPD has used to implement that policy.

2007, when Michael Nutter ran for mayor of Philadelphia, he prom-

ised to bring down crime by relying heavily on stops and frisks.

(In

35.

TOP AND

RISK

RACTICES

EPORT

, supra note 2, at 53.

36. Id. at 58. (“[A]s implemented by the NYPD, ‘stop & frisk’ serves the Depart-

ment’s No. 1 strategic goal—‘getting guns off the streets of New York.’ Notwith-

standing its origins as a technique designed to ensure officer safety, ‘stop & frisk’

plainly has been used as a method to detect and seize illegal handguns.” (footnote

omitted)).

37. Marcia Gelbart, Council Airs ‘Stop and Frisk’ Views, The Nutter Crime-Fight-

ing Proposal Got Its First Public-Safety Hearing,

HILA

. I

NQUIRER

, Oct. 25, 2007,

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2013] ACROSS THE HUDSON 863

2011, Mayor Nutter had to settle a law suit against the city for the

overuse of stops and frisks.

)

Despite the diversity of attitudes and approach that this extreme

localism brings to American police agencies, it is safe to assume that

every American law enforcement agency uses stops and frisks. While

the intensity of use may vary, and every department may not make

stops and frisks a priority enforcement tactic, it is used everywhere to

some degree. According to William Bratton, former NYPD Commis-

sioner and former Chief of Police in Los Angeles, stop and frisk is an

everyday reality everywhere in the U.S. . Bratton has long been identi-

fied with policing in New York (where he served as police commis-

sioner), and with the NYPD’s heavy use of stop and frisk, so when he

was hired to advise the struggling Oakland, California, police depart-

ment, some feared that the Oakland police would begin to use stop and

frisk much more than they had in the past. Bratton said, “[t]hose that

are advocating that it can be done away with, or representing that it

can be done away with, I’m sorry, because you do away with it and

you’re going to have your cities overrun with crime because it is the

basic tool that every police department in America uses.”

According

to Bratton, “any police department in America that tries to function

without some form of ‘stop-and-frisk,’ or whatever terminology they

use, is doomed to failure. It’s that simple.”

Having patrol officers increase their stop and frisk activity makes

for effective crime fighting, the argument goes. The intensive use of

stop and frisk has become a regular part of enforcement in urban high

crime areas; “broken windows” policing

(usually identified with

New York City, but practiced elsewhere as well) and “hot spot” polic-

http://articles.philly.com/2007-10-25/news/25232456_1_frisk-crime-fighting-propo-

sal-police-cars (“Nutter’s proposal to allow police to stop, question and frisk people

suspected of carrying illegal weapons is a chief part of his anticrime strategy.”).

38. Settlement Reached in Philly Stop-and-Frisk Suit,

ABC

COM

(

June 21, 2011),

http://abclocal.go.com/wpvi/story?section=news/local&id=8201528.

39. Laird Harrison, Oakland Police Consultant Defends ‘Stop, Ask and Frisk,’

KQED N

EWS

(Feb. 25, 2013, 9:38 AM), http://blogs.kqed.org/newsfix/2013/02/25/

oakland-police-consultant-defends-stop-ask-and-frisk.

40. Jorge Rivas, Oakland Hires Former LAPD Chief Who Says Cities Without

‘Stop-and-Frisk’ are Doomed,

OLOR

INES

(Jan. 23, 2013, 1:07 PM), http://color

lines.com/archives/2013/01/oakland_hires_former_lapd_chief_who_says_cities_with

out_stop-and-frisk_are_doomed.html.

41. The term and the philosophy behind it come from George L. Kelling & James

Q. Wilson, Broken Windows: The Police and Neighborhood Safety,

TLANTIC

, Mar.

1, 1982, at 29, available at http://www.theatlantic.com/magazine/archive/1982/03/

broken-windows/304465/ (arguing that maintaining order by taking action on the

small things—someone breaking a window—would prevent the slide toward more

serious and frequent crime).

\\jciprod01\productn\N\NYL\16-4\NYL402.txt unknown Seq: 12 12-DEC-13 8:52

864 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

ing (in which officers and assets are concentrated in the areas of

chronic criminal activity)

often feature heavy utilization of stop and

frisk practices. Many law enforcement leaders commonly assert, with

great confidence, that heavy reliance on stop and frisk constitutes a

productive way of operating, and results in an increased number of

arrests and confiscations of contraband. It is, they say, part of an effec-

tive crime-fighting strategy that proves valuable, day in and day out.

The curious thing, however, is that until now, these assertions of

the efficacy of intensive use of stops and frisks as a crime-fighting

tactic have usually not been based on data. They constitute the ac-

cepted wisdom, to be sure. But without data that allows everyone in-

volved to see the real patterns in stop and frisk activity and its actual

productivity as a crime-fighting strategy, as opposed to its assumed

efficacy, members of the public have remained uninformed. Members

of the police are uninformed as well (though they may not believe that

they are). This leads not to fact-based discussion and discourse, but to

anecdotal assertions that reflect what citizens and police think is hap-

pening. When discussion is not grounded in facts, police assert that

what they are doing obviously works; citizens who experience these

actions as personal intrusions or assaults on their dignity assert, with

equal certainty, that the police are engaged in racial profiling. And

there the discussion remains: stalemated.

III.

ATA

OLLECTION ON

TOP

RISK

Given all of the above, one can readily understand how important

it would be to have a solid, fact-based picture on stop and frisk activ-

ity in the U.S. And the only way to have such a picture is through the

consistent, accurate collection of data on this practice. Since stop and

frisk has been part of the police arsenal for even longer than the four-

plus decades that the practice has been regulated through the 1968

42. “Hot spot” policing is a more recent idea than the broken windows theory, but a

popular one. See, e.g., Anthony A. Braga et al., The Effects of Hot Spots Policing on

Crime: An Updated Systematic Review and Meta Analysis,

USTICE

(May 16,

2012), available at http://www.tandfonline.com/doi/abs/10.1080/07418825.2012.673

632#.UkCFw8ash8H; Hot Spot Policing Can Reduce Crime,

’

NST

USTICE

(

Oct. 14, 2009), http://nij.gov/topics/law-enforcement/strategies/hot-spot-policing/;

Hot Spot Policing to Reduce Violent Crime,

. H

EALTH

ESEARCH

http://

publichealthlawresearch.org/public-health-topics/violence-prevention/evidence-brief/

hot-spot-policing-reduce-violent-crime (last visited Sep. 23, 2013).

43. See Ray Kelly, Opinion, Ray Kelly: The NYPD: Guilty of Saving 7,383 Lives,

ALL

. J.

(July 22, 2013, 7:14 PM), http://online.wsj.com/article/SB100014241278

87324448104578616333588719320.html?mod=WSJ_Opinion_LEADTop.

\\jciprod01\productn\N\NYL\16-4\NYL402.txt unknown Seq: 13 12-DEC-13 8:52

2013] ACROSS THE HUDSON 865

Terry v. Ohio case, one might imagine that data on this regular and

accepted police activity would be plentiful.

But in point of fact, data collection on stops and frisks in the U.S.

has been relatively rare. To be more precise, while police in some

departments sometimes collected some limited data on their individual

stops and frisks—for example, filling out so-called field interrogation

cards and turning them in at the end of each shift

—little of this has

happened within any comprehensive system, and most of it has been

used for internal tracking purposes. All in all, in most police depart-

ments there has been virtually no systematic, organized effort to col-

lect information on the practice in a way that gives big-picture insight

into what police are doing. What is more, what data there is has usu-

ally not been available to the public in any form.

For some years, the great exception to this rule has been the New

York Police Department. The NYPD has long required its officers to

record information about each stop and frisk performed.

The re-

quired information, collected on a standard form called the UF-250,

included the time and place of the stop and frisk, identifying informa-

tion on the suspect (name, address, and the like, as well as the sus-

pect’s race or ethnic group, as perceived by the officer), the facts

observed by the officer that support the officer’s reasonable suspicion,

the date, time and location of the incident, whether any contraband or

weapon was recovered, and whether an arrest was made or a citation

issued.

In 1999, when the killing of an unarmed civilian named Am-

adou Diallo by NYPD officers ignited weeks of protests,

the Attor-

ney General of the State of New York ordered the NYPD to turn over

stop and frisk reports for all of 1998 and the first quarter of 1999. It

was the existence of the stop and frisk data collected on the UF-250

forms that made this possible. The Attorney General’s report analyz-

44. See, e.g.,

ICHAEL

F. B

ROWN

, C

RIMINAL

NVESTIGATION

: L

AW AND

RACTICE

118 (2

d ed. 2001) (“Every investigative detention should be documented with a field

interrogation report . . . .”).

45. See

TOP AND

RISK

RACTICES

EPORT

, supra note 2, at 59 n.48 (“In 1986, the

Department implemented a policy requiring officers, in certain specified circum-

stances, to document ‘stop & frisk’ street encounters on the UF-250 form.”).

46.

ONES

-B

ROWN ET AL

, supra note 5, at 9.

47. See Patrick Cole, Daily Protests of NY Shooting Keep Political Heat on Giu-

liani,

. T

RIB

, Mar. 30, 1999, at 3, available at http://articles.chicagotribune.com/

1999-03-30/news/9903300080_1_diallo-shooting-amadou-diallo-mayor-rudolph-giu-

liani; Rachel L. Swarns, The Diallo Shooting: The Protesters; Unlikely Protesters:

Diallo Case Draws Diverse Group,

N.Y. T

IMES

Mar. 27, 1999, at B1, available at

http://www.nytimes.com/1999/03/27/nyregion/diallo-shooting-protesters-unlikely-

protesters-diallo-case-draws-diverse-group.html?pagewanted=all&src=pm; More than

200 arrested in protest of New York City police shooting,

COM

(Mar. 24, 1999,

5:12 PM), http://www.cnn.com/US/9903/24/diallo.protest/index.html.

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866 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

ing stop and frisk data, released by the Attorney General in December

of 1999,

revealed that the rate at which police officers “hit”—made

an arrest, recovered evidence, or the like—was in the low teens. The

hit rate for blacks and Latinos (10.6 and 11.6 percent, respectively)

was lower than the hit rate for whites (12.6 percent).

The fact that

almost ninety percent of stops and frisks produced nothing showed

just how ineffective the tactic was.

In the years since the release of the Attorney General’s 1999 re-

port, the NYPD has continued to release yearly stop and frisk data,

and a remarkable trend shows up in these numbers. While crime in

New York (and elsewhere, for that matter) has continued to drop dur-

ing the last decade, the use of stops and frisks in New York City has

increased substantially. In 2003, NYPD officers stopped and frisked

160,000 people; by 2009, that number increased to more than

575,000—an increase of more than 350 percent.

In 2011, the first

year of the survey discussed in this article, the NYPD said it stopped

more than 685,000 people.

Patterns of racial disparity have continued as well. From 2003

through 2009, “Blacks and Hispanics [made] up a substantial majority

of persons stopped.”

In 2011, just over 50 percent of all of those

stopped were black; thirty-three percent were Hispanic, and less than

ten percent were white

—almost the same ratios seen in the 1999

Attorney General’s report.

Another fact that has not changed is that

stops and frisks are not particularly good at ferreting out crime; hit

rates remained low in 2011, with just twelve percent resulting in

charges or arrests.

48.

TOP AND

RISK

RACTICES

EPORT

, supra note 2.

49. See id. at ix. I have written about this elsewhere. See, e.g.,

AVID

A. H

ARRIS

ROFILES

NJUSTICE

: W

ACIAL

ROFILING

ANNOT

ORK

81–82 (2002).

50.

ONES

-B

ROWN ET AL

, supra note 5, at 4.

51. 2011 NYPD Stop and Frisk Statistics, supra note 4.

52.

ONES

-B

ROWN ET AL

, supra note 5, at 14.

53. See 2011 NYPD Stop and Frisk Statistics, supra note 4.

54.

TOP AND

RISK

RACTICES

EPORT

, supra note 3, at 94–95 (“[B]lacks com-

prised 25.6% of the City’s population, yet 50.6% of all persons stopped were black.

Hispanics comprised 23.7% of the City’s population, yet 33.0% of all “stops” were of

Hispanics. By contrast, whites comprised 43.4% of the City’s population, but ac-

counted for only 12.9% of all stops.”) (internal footnotes and quotation marks omit-

ted); Sean Gardiner, NYPD Stop-and-Frisk Activity on the Rise,

ALL

. J.

(May 31,

2011, 5:12 PM), http://blogs.wsj.com/metropolis/2011/05/31/nypd-stop-and-frisk-ac-

tivity-on-the-rise/.

55.

TOP AND

RISK

RACTICES

EPORT

, supra note 3, at 111 (“[F]or every stop

that resulted in an arrest, 9.0 total stops were made[,]” which is a rate of 11.11%)

(internal quotation marks omitted); Sean Gardiner, supra note 55.

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2013] ACROSS THE HUDSON 867

The availability of data on NYPD stop-and-frisk practices has

resulted in significant new research. For example, researchers have

used the data to demonstrate the poor crime-fighting efficacy of these

heavy stop-and-frisk tactics, especially when targeted at minority

youth.

Researchers have also shown how much of this effort seems

targeted at low-level arrests for possession of small amounts of mari-

juana among black and Latino males.

The evidence also shows that

in these marijuana cases searches and seizures seem to take place as a

pretext for searches for weapons, yet the researchers found “no signifi-

cant relationship between marijuana enforcement and the likelihood of

seizing firearms or other weapons.”

Other empirical work on the

New York stop and frisk data indicate that order maintenance police

activity in New York “is not about disorderly places nor about im-

proving the quality of life, but about policing poor people in poor

places” in ways that have a disproportionate impact on racial and eth-

nic minorities.

Far more important than the gains for enterprising researchers

and academics, however, is that these statistics have informed a very

pointed public debate over police policy. New York Mayor Michael

Bloomberg and Police Commissioner Raymond Kelly have continued

to tout their record on public safety, especially the continuing decline

in homicides in almost every year since the mid-1990s, and have

credited proactive policing that features stops and frisks. But activists

and members of the public, especially in communities of color, have

for some years seized upon the stop and frisk numbers, especially

those that show continuing racial disparities, to explain that the heavy

stop and frisk approach has substantial costs, alienating communities

of color from the police, and that the gains seem small: only ten per-

cent of the stops and frisks yield anything (contraband, arrest, etc.),

and a much smaller percentage yet yield the real quarry: guns. And

those opposing heavy stop and frisk activity have been able to mount

real legal challenges to police procedure using the statistics; the Floyd

case is the product of these efforts.

It is worth noting, of course, that the existence of statistics and

data on stop and frisk activity themselves does not by itself make any

56. Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race and the New

Disorder in New York City Street Policing (Columbia Law Sch. Pub. Law & Legal

Theory Working Paper Grp., Paper No. 10-242, 2010), available at http://ssrn.com/

abstract=1443441.

57. Id.

58. Id.

59. Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race

and Disorder in New York City, 28

ORDHAM

. L. J.

457, 457 (2000).

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868 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

particular conclusion inevitable. Even when the parties agree on what

the numbers from New York say, this does not create any agreement

about what the numbers mean. For example, the data are clear and

consistent: as in other years, only about twelve percent of the stops

and frisks produce anything—recovery of contraband such as illegal

drugs (usually small amounts of marijuana), recovery of a firearm, or

the like—that resulted in an arrest or the issuance of a summons.

For

advocates seeking a curtailment of stops and frisks, this means that

stops and frisks are ineffective and serve largely to control and antago-

nize those subjected to these procedures over and over.

For propo-

nents of the activity, the low hit rate means something else: stops and

frisks are an effective deterrence method. Because would-be perps and

carriers of guns know that the police continue to carry out an aggres-

sive, proactive policy of stopping and frisking people, they behave

themselves generally, and leave their guns at home especially.

The

overall result, proponents say, is a less violent city in which those who

might be tempted are less inclined toward murderous violence.

This brings us to the crux of what the survey conducted for this

paper shows us. Although we can get a considerable amount of infor-

mation concerning stops and frisks from the New York data, research-

ers, police, municipal administrators and advocates examining stop

and frisk practices outside of New York City must exercise caution.

They must avoid the mistake of assuming that what the data show in

New York would also appear in stop and frisk data from other Ameri-

can jurisdictions. Other police departments might approach stop and

frisk in very different ways, train their officers differently, or have less

faith in the crime control efficacy of the tactic. Other cities may ex-

hibit stronger, or weaker, patterns of racial and ethnic disparity, or

they could have policies that discouraged reliance on stops and frisks

in the way that New York did. This makes it important to look beyond

New York, and to examine what else is available.

60. 2011 NYPD Stop and Frisk Statistics, supra note 4.

61. E.g., Laura Ly, New York’s Stop-and-Frisk Policy Now in the Judge’s Hands,

CNN

COM

(May 21, 2013, 11:19 AM), http://www.cnn.com/2013/05/20/justice/new-

york-stop-frisk-trial (stating that according to the plaintiffs in the Floyd case, “over

the past eight years, blacks and Latinos constituted 85% of the people stopped, though

90% of those stopped were neither arrested nor given a court summons. Only 1%

resulted in the recovery of a weapon and 0.14% resulted in the recovery of a gun,”

leading their attorney to argue that “[c]learly the NYPD isn’t stopping the right people

to get guns off the street.”).

62. Id. (“The police department says that the policy—in which police stop, question

and frisk people they consider suspicious—is used to deter crime.”)

63. Id. (arguing that the NYPD’s “performance goals”—not quotas—for stops and

frisks by officers are needed “to keep the city safe.”).

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2013] ACROSS THE HUDSON 869

Yet the problem for researchers on American stop and frisk prac-

tices outside of New York has been that, in point of fact, relatively

few American police departments have collected data on stops and

frisks in ways that would allow study of the tactic. Thus for a long

time the best known example of a department emphasizing stop and

frisk, the NYPD, has been the only real example in the empirical

world. The NYPD may be the best known police department in the

world, one of the most frequently noted in news reporting, movies,

and television; the Department’s crime-fighting efforts may constitute

one of the best-known success stories in law enforcement, or in all of

municipal governance, in the last thirty years. Nevertheless, it would

be an error to assume that a particular crime control tactic that has

been used intensively in New York would fit other cities just as well.

Those closest to the action in New York City do not even agree on

what the data tell us; thus we cannot know whether these data would

tell us anything of value to make judgments or policy elsewhere.

That is why the survey discussed here represents a potential step

forward. Given the common use of stop and frisk in every city and

police department, and especially the impact of the tactic on commu-

nities of color, real information about stop and frisk activity in each of

these cities can play a valuable role in understanding what local police

agencies actually do, and the impact it has on crime and on those who

live in these places. This means that the discussion of stop and frisk

must move across the Hudson and beyond New York City, to in-

form—or spark—real factual debate about stop and frisk.

IV.

URVEY

: M

AJOR

MERICAN

OLICE

EPARTMENTS

’

ATA

OLLECTION ON

TOP

RISK

CTIVITY

In an effort to understand the state of data collection on stops and

frisks beyond New York City, I undertook a survey of fifty-five of the

largest police departments in the U.S. These departments—or rather,

their chiefs—make up the membership of the Major Cities Chiefs, one

of the leading law enforcement leadership organizations.

A survey

64. According to its website, the Major Cities Chiefs Police Association (MCC) “is

a professional association of Chiefs and Sheriffs representing the largest cities in the

United States and Canada. MCC membership is comprised of Chiefs and Sheriffs of

the sixty-three largest law enforcement agencies in the United States and seven largest

in Canada. They serve over 76.5 million people (68 US - 8.5 Canada) with a sworn

workforce of 177,150 (159,300 US, 17,850 Canada) officers and non-sworn person-

nel.”

AJOR

ITIES

HIEFS

OLICE

’

, https://www.majorcitieschiefs.com/ (last

visited May 23, 2013). MCC has periodically expanded its size, including more cities

(and their chiefs) over time. Id.

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870 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

of these departments does not examine a true cross-section of Ameri-

can policing; most of the approximately 18,000 police agencies in the

U.S. are small, and the agencies queried here are the largest in the

country.

But these large agencies seemed the most likely 1) to have

the inclination to respond to the survey, 2) to have the inclination and

the personnel to create a data collection and analysis effort for stops

and frisks, and 3) to have a mix of racial and ethnic groups in their

populations that would make stop and frisk a likely issue, and there-

fore worth studying through data collection. In other words, if any

police departments in the U.S. had decided to undertake such efforts,

it was most likely to be these; if they had not, there is little reason to

think that other smaller agencies had, or would in the future. Moreo-

ver, if the idea was to find narratives that might compete with or com-

plement the dominant New York story of stop and frisk, data

collection in large departments could offer contrasting stories from

other big cities.

The basic methodology utilized for the survey was not elaborate.

Research assistants contacted the designated police agencies to gather

information on whether or not the agency collected data on stops and

frisks. Email contact would typically be followed as necessary by tele-

phone calls; sometimes, traditional written requests by mail were re-

quired as well. Almost always, making contact and finding the right

person authorized and informed enough to speak required multiple at-

tempts. Research assistants worked from a list of written questions;

that list was formalized in a model written contact letter. The survey

was designed to ascertain, among other things, whether or not the de-

partment required officers to collect data on stops and frisks, whether

or not officers collected certain specific pieces of information (e.g.,

race or ethnicity, the legal basis for the stop, and whether any contra-

band was found), whether the data were collected in electronic (i.e.,

searchable and analyzable) form, and whether department-wide data

on stops and frisk were made available to the public.

In all, forty-four of the fifty-five departments responded. A com-

prehensive listing of the responses and the information is provided in

chart form, as Appendix A. The model written contact letter is at-

tached as Appendix B. Of those responding, twenty-three said that

they did require officers to collect some specific data on each stop and

65. Local Police,

UREAU OF

USTICE

TATISTICS

, http://www.bjs.gov/index.cfm?ty

=tp&tid=71 (last visited Jul. 25, 2013) (noting that, of the 18,000 police agencies in

the U.S., “about half of local police departments employed fewer than 10 sworn

personnel . . . .”).

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2013] ACROSS THE HUDSON 871

frisk conducted.

Eighteen departments said that they did not require

any collection of data on stops and frisks;

three others said that of-

ficers collected data, but that doing so was discretionary.

Twelve police departments never responded to the survey. Of

those agencies collecting data, twenty-one said that the data included

suspects’ race or ethnicity and other identifying information.

Thir-

teen of these departments said that the data were available to the pub-

lic in some form. As small as these numbers are, the fact that this is

being done anywhere, in some of the largest U.S. police departments,

represents a big step forward. It was not long ago that few U.S. police

departments collected stop and frisk data. The idea of sharing any data

with the public would never have occurred to anyone.

A few of these departments, such as those in Los Angeles and

Cincinnati, have been required to collect data on stops and frisks as

part of police reform agreements with the U.S. government.

(In Los

Angeles, Cincinnati, and other cities, these agreements, referred to as

“consent decrees,” have sometimes required that data on all stops and

frisks be collected.)

A few other departments, such as the Philadel-

phia Police Department, collect stop and frisk data as a result of the

66. See app. A (Stop-and-Frisk Data Practices for Major Cities) available at

www.nyujlpp.org.

67. Id.

68. Id.

69. Id. One department said it did not collect race or ethnicity, but did collect other

identifying information; all of the others collected both race or ethnicity and other

identifying information.

70. These reform agreements are reached pursuant to the U.S. Department of Jus-

tice’s authority under 42 U.S.C. § 14141, the so-called “pattern or practice” law,

which enables the federal government to investigate police departments for evidence

of a “pattern or practice” of police practices that violate constitutional rights. For an

overview of this federal authority, carried out by the Department of Justice’s Civil

Rights Division Special Litigation Section, see Conduct of Law Enforcement Agen-

cies,

U.S. D

’

TOF

USTICE

http://www.justice.gov/crt/about/spl/police.php (last vis-

ited June 4, 2013).

71. Id.; e.g., Consent Decree at sec. III, para. 105, United States v. City of Los

Angeles, No. 00-11769 GAF (C.D. Cal. June 15, 2001), available at http://www.jus-

tice.gov/crt/about/spl/documents/laconsentpart4.php (“By November 1, 2001, the De-

partment shall require LAPD officers to complete a written or electronic report each

time an officer conducts a pedestrian stop,” specifying in detail what data is to be

collected); Settlement Agreement and [Proposed] Order at sec. VI, para. 64, United

States v. Town of East Haven, No. 3:12-CV-1652 (D. Conn. Nov. 20, 2012), availa-

ble at http://www.justice.gov/crt/about/spl/documents/ehpdsettle_11-20-12.pdf (pro-

viding, in part, that “EHPD shall, consistent with this Agreement, develop a

comprehensive policy on stops, search and seizures. This policy shall have the follow-

ing elements: . . . (c) A requirement that all stops, searches, and seizures be docu-

mented in an Incident Report,” and specifying eight different types of information

which must be included).

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872 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

settlement of lawsuits brought by private citizens and non-governmen-

tal organizations (e.g., in Philadelphia, the American Civil Liberties

Union of Pennsylvania brought the lawsuit).

In all, the U.S. picture

on data collection is at least a little encouraging: a small but growing

number of jurisdictions now collect at least some data on stops and

frisks of pedestrians as a routine matter.

The Philadelphia data make an interesting and compelling exam-

ple of how data on stops and frisks from outside of New York can

provide insights and provoke important local debate. Some data have

been collected on stop and frisk practices in Philadelphia for more

than a decade because of a private lawsuit against the police brought

in the 1990s.

The result of this suit was a settlement in which the

city and police department agreed, among other things, to collect data

on pedestrian stops and frisks.

As stated earlier, when he was elected in 2008, Mayor Nutter

ordered the police department to increase stop and frisk activity.

The

Mayor was true to his word: by at least one measure, stop and frisk

activity in Philadelphia under Mayor Nutter was actually more intense

than under the NYPD in New York. In 2009, police stopped 575,000

people in New York, a city of roughly 8.175 million—a ratio of about

one in fourteen. In Philadelphia in the same year, police stopped

250,000 in a city of 1.526 million—a ratio of one in six,

with a rate

of racial disparity which exceeds what the data showed in New York

City.

Stops and frisks resulted in arrests less than eight and one-half

percent of the time—a hit rate not even as high as the mediocre twelve

percent rate reported most recently in New York.

The police depart-

ment had also become sloppy in the record keeping required by the

1990s settlement. After renewed complaints of police abuse surfaced

in 2008, 2009, and 2010, the American Civil Liberties Union of Penn-

sylvania filed suit again.

The city and the police department settled

72. Settlement Agreement, Class Certification, & Consent Decree, Bailey v. City of

Philadelphia, No. 10-5952 (E.D. Pa. June 21, 2011), available at http://www.aclupa

.org/download_file/view_inline/744/198/.

73. NAACP v. City of Philadelphia, No. 96-6045 (E.D. Pa. Sept. 4, 1996).

74. See supra text accompanying note 38.

75. Patrick Walters, ACLU Files Lawsuit Challenges ‘Stop and Frisk’ Searches in

Philadelphia,

ASH

. P

OST

Nov. 4, 2010, http://www.washingtonpost.com/wp-dyn/

content/article/2010/11/04/AR2010110408055.html.

76. Id.

77. Id.

78. Complaint, Bailey v. City of Philadelphia, No. 10-5952 (E.D. Pa. Nov. 4, 2010),

available at http://www.aclupa.org/download_file/view_inline/669/198/.

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2013] ACROSS THE HUDSON 873

again in 2011,

promising to collect more stop and frisk data more

thoroughly and consistently, and to refrain from some troublesome

stop and frisk practices.

PPORTUNITIES FOR

EFORM

REATED BY

ATA

OLLECTION

FFORTS

The efforts to collect data on stop and frisk activity outside of

New York are perhaps still too few, and those that do exist may be too

limited. Nevertheless, they do raise some possibilities for change,

some of which may prove significant.

A. Changing the Narrative: “It’s Not Just New York; In Our City,

Stop and Frisk Works Like This.”

As discussed earlier, for some years the story of stop and frisk in

American policing has come almost exclusively out of New York.

Former Mayor Rudolph Giuliani and the police force made intensive

use of stops and frisks a cornerstone of their “broken windows” polic-

ing strategy.

Giuliani’s successor Michael Bloomberg, and his police

commissioner, Raymond Kelly, have continued this strategy.

Com-

bine the NYPD requirement of data collection on all stops and frisks,

the public reporting of that data every year, the ongoing federal litiga-

tion over that strategy, and the reports that police administrators de-

manded that each patrol officer meet certain numerical goals (which,

of course, are not quotas) for activities like stops and frisks,

and then

have this occur in a city that remains the center of the media universe,

and it becomes easy to understand why stop and frisk has been a New

York narrative.

The results of the survey show that, for the first time, that narra-

tive need not remain so New York-centric. For the first time, people

in a small but growing number of other major cities can get a real,

data-based picture of stop and frisk activity in their own municipali-

79. Settlement Agreement, Class Certification, & Consent Decree, Bailey v. City of

Philadelphia, No. 10-5952 (E.D. Pa. June 21, 2011), available at http://www.aclupa

.org/download_file/view_inline/744/198/.

80. See supra notes 36–37 and accompanying text.

81. See supra note 10 and accompanying text.

82. Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct,

ILLAGE

OICE

, May 4, 2010, http://www.villagevoice.com/2010-05-04/news/the-nypd-tapes-

inside-bed-stuy-s-81st-precinct. This article spawned numerous follow up pieces in

The Village Voice, and countless articles elsewhere; The Village Voice follow up

pieces can be accessed at http://www.villagevoice.com/related/to/Adrian+Schoolcraft/

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874 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

ties. They need not take the New York experience as their own; they

can know and understand what their own police departments do, how

they use stop and frisk activity, and with what effect. They need not

simply assume that their own cities look like New York in the use, or

abuse, of this often controversial tactic.

The ability to take this kind of localized look at stop and frisk

police activity is all to the good. The United States has roughly 17,000

police agencies: large, big city agencies like the NYPD, the Chicago

Police Department, and the Los Angeles Police Department; small-

town agencies of ten or fewer officers; medium-sized departments

such as those in St. Paul, Minnesota or Pittsburgh; and specialty de-

partments (transit authority police, housing department police, univer-

sity police departments). And size is not the only dimension on which

these thousands of agencies may diverge. They police very different

areas of the country; they may have widely differing missions; they

may have vastly different priorities. Given all of this, we should ex-

pect a high degree of variation in the ways that American police de-

partments utilize stops and frisks. Expecting all of them to use stop

and frisk the way that New York does, or to make rules and policies

for other police departments based on the experience of the NYPD,

seems foolish—though it is perhaps understandable, if we lack any

other information. The point is that now, in at least some cities in the

U.S., that approach is no longer necessary. Any police department that

chooses to collect and analyze data on its officers’ stop and frisk activ-

ity gets a picture of itself from which to work and make judgments.

B. Does Reliance on Stop and Frisk Always Result in Racially

Disproportionate Impacts?

In New York, one of the central complaints about the NYPD’s

intensive use of stops and frisks has always been that the burden of

these actions falls disproportionately on people of color, particularly

young black and Latino men.

It may be this complaint, more than

83. Examples of these complaints are too numerous to summarize. For a recent

example, see Ailsa Chang, For City’s Teens, Stop and Frisk is Black and White,

WNYC N

EWS

(May 29, 2012), http://www.wnyc.org/articles/wnyc-news/2012/may/

29/city-teenagers-say-stop-and-frisk-all-about-race-and-class/ (finding black teens

overwhelmingly likely to have experienced a police stop compared to white and Asian

teens); New NYCLU Report Finds NYPD Stop-and-Frisk Practices Ineffective,

Reveals Depth of Racial Disparities, N

.Y. C

IVIL

IBERTIES

NION

(

May 9, 2012),

http://www.nyclu.org/news/new-nyclu-report-finds-nypd-stop-and-frisk-practices-in-

effective-reveals-depth-of-racial-dispar (“Young black and Latino men . . . account

for only 4.7 percent of the city’s population, [but] black and Latino males between the

ages of 14 and 24 accounted for 41.6 percent of stops in 2011. The number of stops of

young black men exceeded the entire city population of young black men (168,126 as

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2013] ACROSS THE HUDSON 875

anything, that has fueled friction between the NYPD and many of the

citizens the department serves in New York.

There is nothing about this that is new. Going back to the Terry

case itself—the 1968 decision that, once and for all, gave stop and

frisk a legal framework and the Supreme Court’s constitutional bless-

ing—one sees the Court discuss race and policing in a candid manner

that is still rare today. Discussing the limitations of the exclusionary

rule as a way to change police conduct, the Court said that “[t]he

wholesale harassment by certain elements of the police community, of

which minority groups, particularly Negroes, frequently complain,

will not be stopped by the exclusion of any evidence from any crimi-

nal trial.”

One might agree or disagree with the conclusion presented

in this sentence, but the rest of it is at least an oblique acknowledge-

ment of the disproportionate use of stops and frisks on the street to

target people of color.

In the 1990s, with crime falling dramatically in New York during

the latter half of the decade, communities of color seemed to feel less

than appreciative of police efforts that had helped to bring about this

positive change. William Bratton, the former commissioner of the

NYPD under Giuliani, said that this represented a huge lost opportu-

nity: lowering crime had not raised the level of trust of police in com-

munities of color, largely because of “the controversial ‘stop and frisk’

tactics of New York City’s street crime unit, in which many minority

residents felt that they were being harassed by the police.” Bratton

quoted Zachary Carter, the former U.S. Attorney for the Eastern Dis-

trict of New York, as describing this lost opportunity as “a love affair

that was waiting to happen.”

Given that so much of the decrease in

the city’s crime had actually come in the highest crime areas, with

large minority populations, Bratton found Carter’s words particularly

insightful. “I was struck by that comment and thought to myself that it

was really a love affair that should have happened but did not.”

We can now get beyond that narrow discussion in the other

places that have started collecting data. Do data on stops and frisks in

Fort Worth, Texas, and other cities show the same types of racial dis-

parities that we have long seen in New York? If there are disparities,

compared to 158,406). Ninety percent of young black and Latino men stopped were

innocent.”).

84. 392 U.S. 1 (1968).

85. Id. at 14–15.

86. Clyde Haberman, NYC; Police Work; Getting Past Raw Emotion,

N.Y. T

IMES

Feb. 25, 2000, http://www.nytimes.com/2000/02/25/nyregion/nyc-police-work-get-

ting-past-raw-emotion.html.

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876 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

do these patterns differ in any way, either big or small? If the data

were to show that (unlike in New York) no patterns of racial disparity

are apparent in the other jurisdictions, this would be incredibly impor-

tant because it indicates that there are ways to use the tactic that do not

automatically call forth enforcement that has a racially disproportion-

ate impact.

The ability to make comparisons of the racial impact of stops and

frisk practices across cities and police departments would provide a

helpful tool for crafting and targeting possible criminal justice reform.

Given the damage that racially disproportionate targeting (in other

words, racial profiling) of persons using stops and frisks might do in

terms of the destruction of police/community relations, the ability to

use the tactic in ways that avoid this type of racial impact would be

crucial. By contrast, if data from different cities seems to confirm the

NYPD experience—that is, if we observe that racially disproportion-

ate impact is the rule with stop and frisk, not the exception—this will

help point us to creating specific policy changes that perhaps take on

racial bias in street level policing in a much more general way. It may

even prompt us to argue that the use of stops and frisks must be either

more heavily regulated—i.e., it should require more evidence than just

reasonable suspicion—or perhaps should only be used in very narrow

categories of circumstances, such as when a weapon is present but not

when non-violent crime is suspected. Whatever the eventual conclu-

sion, having data from other jurisdictions will enable us to understand

the true picture of the use of stops and frisks everywhere, and how we

might tackle the central problem of racially disproportionate impacts

in appropriate ways. Few issues could be more important.

C. “If [Names of Other Cities] Can Collect Data on Stops and

Frisks, Why Can’t We?”

The survey shows that there are a small but growing number of

the largest police departments in the United States that have taken on

the challenge of collecting data on stop and frisk activity. The other

side of this observation, of course, is that most of the fifty largest

departments have not, or only do so in a way that is not useful for

systematic analysis, or do not share the data they collect with the

public.

For people living in those jurisdictions, the fact that police in

cities other than New York have begun to adopt the practice of data

collection may create a new argument to try to persuade their own law

enforcement agencies to do this. It is one thing for the NYPD to take

on collection of data on stops and frisks, a police chief or other admin-

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2013] ACROSS THE HUDSON 877

istrator might say; the NYPD is a huge department with considerable

resources they can bring to bear on this task. Besides, the chief might

say, collecting data in New York is expected by the public, after all

the years in which the NYPD has done it. But we’re not the NYPD—

not as big, not as resourced, and the like. However, faced with the

evidence that this is not just a practice of the NYPD—and that a

growing number of other police departments, in other areas of the

country with differing missions and jurisdictions have decided to

move in this direction—the argument that data collection on stops and

frisks is neither doable nor necessary outside of New York becomes

much less tenable. Thus advocates for police accountability can argue

not just that data collection is possible—the NYPD does it, after all—

but that it is the better practice and is done in other, similar cities.

D. Fine Tuning a Stop and Frisk Strategy to Account

for the Costs it Imposes

Stop and frisk activity that conforms to the law does not violate

the Constitution. But there are some questions police agencies and cit-

ies should consider in addition to the legality of police activity. Even

if officers may legally use stops and frisks, does this always mean they

should use them to the maximum extent possible? Is heavy reliance on

stops and frisks the best way to control crime? Might a more selective

use of the tactic do just as much to control crime? Could another over-

all strategy which emphasizes stop and frisk much less have the same

crime control effect, without the cost that heavy stop and frisk activity

entails?

And make no mistake: there is a cost to aggressive use of stops

and frisks. The individuals subjected to this kind of activity may feel

alienated from police, victimized, or humiliated. They may be upset,

and feel that the way the police have elected to control crime is hap-

pening to them, and not being done for them. And this is not simply a

matter of not wanting to offend or to be politically correct. Alienation

from law enforcement breeds distrust, creating barriers to communica-

tion. And information about what is happening on the street is the

lifeblood of successful policing. People who fear the police and dis-

trust them are, quite simply, less likely to supply the crucial informa-

tion that officers need to solve crimes, and less likely to feel the police

and the law itself are legitimate.

Given these costs, the availability of data on stop and frisk activ-

ity in more cities creates an opportunity to make stops and frisks better

87. See

R. T

YLER

EOPLE

BEY THE

(2006).

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878 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

targeted, more likely to produce results, and less likely to produce the

harmful costs associated with an aggressive use of the tactic. In other

words, to the extent that the story of stop and frisk becomes one not

just about New York and its statistics but about many other cities, with

many individual crime control strategies, the more likely it is that any

city may find ways to adjust its use of stop and frisks and increase its

effectiveness.

E. Transparency

The collection of data on stops and frisks in an increasing number

of cities outside of New York can, by itself, lead directly to a specific

and positive reform. This is because if the effort to collect data is part

of a comprehensive effort that also makes the data available to the

public, it increases the transparency of police actions and creates an

empirical window on the benefits or drawbacks of police policy in

action.

One hears the term “transparency” in many contexts these days.

The idea is that by making the workings of government open to public

scrutiny, the public will better understand what those in charge are

doing, and can hold officials accountable in appropriate ways. Be-

cause of the prospect of accountability that transparency spawns, offi-

cials may do a better job, but more importantly may avoid

misbehavior and corruption because of the prospect of being discov-

ered, and then turned out of office and/or prosecuted. This conception

of transparency is the same idea expressed by Justice Louis Brandeis

when he said that “[s]unlight is said to be the best of disinfec-

tants . . . .”

It is no accident that a current non-governmental organi-

zation dedicated to transparency calls itself The Sunlight

Foundation.

Some—not all—of the police departments outside of New York

that have begun to collect data on stop and frisk activity make this

data available to the public. Most do not. Even the NYPD does this

now only because it is mandated to do so by the settlement agreement

in an earlier (2003) lawsuit over stop and frisk. But with a small num-

ber of the largest police departments making these data public, other

agencies may see that this kind of transparency can benefit them. Al-

lowing the public to know the real nature of police activity, repre-

88. Louis D. Brandeis, What Publicity Can Do,

ARPER

’

KLY

, Dec. 20, 1913, at

10.

89. Andrew Berger, Brandeis and the History of Transparency,

UNLIGHT

OUND

LOG

(May 26, 2009, 10:47 AM), http://sunlightfoundation.com/blog/2009/05/26/

brandeis-and-the-history-of-transparency.

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2013] ACROSS THE HUDSON 879

sented in empirical findings, may help create and build trust between

police and those they serve. When the public knows the real facts con-

cerning what their police officers do, this may help to dispel the dis-

trust of police methods. The agency will move from being seen as

secretive about its actions to acting as if it has nothing to hide and

nothing to fear from the public knowing the facts. Moreover, the open

discussion of the data may help police and the public understand each

other better. Suppose, for example, that the data in a given city reveal

that the police have dramatically increased stop and frisk activity, but

only in areas with the highest crime rates. Suppose further that in the

same time period, serious crime decreases by a small but measurable

amount. When not just the small decrease in serious crime but also the

large increase in stop and frisk activity become part of the public dis-

cussion, the public can have a serious discussion about the policy

choices being made and the desirability of those choices. The question

becomes whether or not the decrease in serious crime is worth the

substantial increase in stops and frisks. Some may say yes, while

others will disagree. But without the stop and frisk data, the discussion

is both stilted and insufficiently informed, and all the public knows is

that serious crime has decreased because of stops and frisks. And who

doesn’t want less crime?

ONCLUSION

The survey described in this article reveals a new set of opportu-

nities for law enforcement agencies and for those concerned with po-

lice policy: the story of stop and frisk by police can now move beyond

consideration solely of the use of this tactic by the NYPD. The

2011–12 survey of the fifty-five largest police departments in the U.S.

revealed that some of them now collect some data on stop and frisk

activity by their officers in a format that could be stored, searched, and

analyzed electronically. In some of these departments, enough data is

collected to give analysts a reasonably good understanding of how

stops and frisks are being used in the agency; in some, these data are

made public.

The benefits of these data collection efforts constitute, or can lead

to, specific reforms that can have particular impact on the debates over

the impact of race on criminal justice. First, the discussion can

broaden and deepen, because the narrative will no longer only reflect

New York City and its police department; other cities may utilize stop

and frisk very differently. Second, we may learn if using stop and frisk

must inevitably have a disparate impact on minority racial and ethnic

groups, as it seems to in New York, or whether it might be used very

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880 LEGISLATION AND PUBLIC POLICY [Vol. 16:853

differently in other places, without this impact. The answer to this

question might, all by itself, cause policy makers to re-think the wis-

dom of heavy reliance on stop and frisk. Third, other cities not now

collecting stop and frisk data which would have considered the effort

something that only a city like New York would or could do might

revisit this question. If other cities in other regions of the country

choose to do this, maybe others will follow. Fourth, cities that do

choose to go ahead with data collection and analysis efforts on stops

and frisks could fine tune their efforts, in a way that they could not

without the information. This can make for better and more precise

crime-fighting efforts, and also allow for adjustment to avoid racially

disproportionate impacts of the policy. Last, the collection of data will

increase transparency, when accompanied by an effort to make the

data available to the public.

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PPENDIX

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