Federal: New York City Held Liable for Unconstitutional Terry Stops and Racial Profiling

The United States District Court for the Southern District of New York held the City of New York (“City”) liable for violating the Fourth and Fourteenth Amendment rights of Black and Hispanic plaintiffs in a class action and has ordered permanent injunctive relief in a nonjury trial.

The City was held liable of Fourth Amendment violations, including the widespread practices of unconstitutional stop-and-frisks by the New York Police Department (NYPD) and deliberate indifference to those practices, and Fourteenth Amendment violations, including the City’s policy of indirectly racially profiling individuals based on descriptions in criminal complaints and deliberate indifference to this racial profiling. The district court, in rendering its opinion on August 12, 2013, ordered immediate and eventual reforms to the policies, practices, training, supervision and documentation of the NYPD that led to these constitutional violations.

Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis and David Ourlicht filed their class action representing themselves and other Blacks and Hispanics against the City in the district court in 2008. They alleged that the NYPD and the City violated their Fourth Amendment rights through unjustified stops and their Fourteenth Amendment rights by targeting their race in those stops. The plaintiffs had to prove that the City – not its employees – violated their rights through its “own illegal acts.”

The Fourth Amendment allows a police officer to stop a person “if the officer has a reasonable suspicion supported by articulable facts” based on an objective standard that possible “criminal activity” is occurring. These stops are known as Terry stops. “[T]o proceed from a stop to a frisk, the police officer must reasonable suspect that the person stopped is armed and dangerous.” To proceed from a frisk to a search inside a person’s clothing, the officer must have a reasonable suspicion that the object detected during the frisk is indeed a weapon.

In finding the City liable of Fourth Amendment violations, the district court relied on statistics, testimony and other evidence. Dr. Jeffrey Fagan, the plaintiff’s liability expert, compiled a list of statistics after analyzing a database of 4.4 million UF-250s – forms that NYPD officers are required to complete for each stop – for stops made by the NYPD between January 2004 and June 2012. The statistics indicated that 6%, or 200,000, of the stops lacked reasonable suspicion. The court believed this number to be even higher in that a UF-250 was subjective, used sometimes vague “stop factor” checkboxes such as “furtive movements” instead of requiring an officer to explain the reason for the stop or frisk, and had not been completed for every stop.

Further statistics showed that 52% of all stops resulted in frisks and only 1.5% of these frisks revealed a weapon, 36% of UF-250s in 2009 did not identify a suspected crime, 6% of all stops resulted in an arrest and between 2002 and 2011, stops increased nearly 700%. The City unsuccessfully argued that the low rate of arrests had been due to stops preventing crimes from occurring.

Of the twelve named and unnamed plaintiffs testifying to nineteen stops, the district court determined that nine stop-and-frisks were not constitutional and while five other stops were constitutional, the subsequent frisks were not. Also, NYPD officials testified and the City conceded that UF-250s alone did not contain adequate information to indicate if stops were based on reasonable suspicion.

The district court additionally made the following findings: (1) testimony, documents and secret audio recordings of NYPD meetings revealed that officers and commanders were pressured to make stops without regard to constitutionality; (2 )sergeants and other supervisory staff that the City had claimed to supervise, monitor or review stops were inadequate or nonexistent; (3) the NYPD usually either discounted evidence of unconstitutional stops or failed to impose meaningful discipline; (4) training materials fell short of describing what constitutes reasonable suspicion for a stop; (5) officers were required to provide a justification for each stop in their memo books but usually did not do so; and (6) community members, police officers, the media and a 1999 Attorney General’s (AG) report put the NYPD on notice of widespread constitutional violations. The City was deliberately indifferent by failing to correct these violations.

The district court also held that the City violated the Equal Protection Clause of the Fourteenth Amendment through the NYPD’s unwritten policy of targeting “the right people, the right time, the right location.” Testimony indicated that the “right people” were Blacks and Hispanics based on suspect descriptions in criminal complaints. However, the court found that “fits description” had been checked only 13% of UF-250s. When the court asked former chief Joseph Esposito, the highest ranking NYPD official at one time, about the stops unrelated to complaints, Esposito (as to who is responsible for shootings in a certain area) said, “Well, it’s young men of color in their late teens, early 20s.”

The City defended that the stops in 2011 and 2012 were 87% Black and Hispanic, effectively proposing that they were more suspicious than Whites. The district court rejected this reasoning as nearly 90% of stops resulted in no summons or arrest and held that the City’s position provided evidence of racial profiling. Dr. Fagan’s statistics supported the city’s discriminatory position in that of the 4.4 million stops, 52% were of blacks, 31% were of Hispanics and 10% were of whites, while the population of New York City was approximately 23% Black, 29% Hispanic, and 33% White in 2010.

Further evidence of the City’s unconstitutional policy and its deliberate indifference to this policy was submitted through the 1999 AG report, the media and the community, through officer Kha Dang’s 2009 third quarter stops (120 blacks; 0 whites), Officer Edgar Gonzalez checking “fits description” on 132 of his 134 UF-250s despite unsupported justifications, and “through the numerous failures of supervision, monitoring, training, and discipline.”

To end these violations, the district court ordered “Immediate Reforms” and “Joint Process Reforms.” The Immediate Reforms include:

(1) Revisions to NYPD policies and training materials on what constitutes a stop and when a stop, frisk, or search can be conducted, and what constitutes racial profiling – such as targeting “the right people” – and why it is unconstitutional;

(2) Changes to UF-250s to: provide information to those who were stopped, including why they were stopped and how to file a complaint, improve the stop factor checkboxes, and to require a section for the officer to justify a stop, frisk or search;

(3) Training in the use of UF-250s and the accompanying memo books;

(4) Changes to supervision and monitoring so that NYPD officials can perform a more comprehensive review of the constitutionality of stops; and

(5) Improved procedures for imposing discipline.

The Joint Process Reforms were to be developed over six to nine months to supplement the Immediate Reforms with all reforms to be approved by the district court. The court also ordered body-worn cameras by patrol officers in multiple precincts for one year to alleviate mistrust between the parties, to verify complaints and to allow stops to be reviewed. The City was charged with all costs incurred by the reforms and cameras.

The district court’s order included relief for an earlier case (See: Ligon v. City of New York, 2013 U.S. Dist. LEXIS 98447 (S.D.N.Y. July 12, 2013), as the relief in both cases overlapped as to stops, supervision and training. See: Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013).

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