NYPD Police Commissioner James P. O’Neill. Photo: nyc.gov
Over 90 organizations from across New York City, 15 family members of New Yorkers killed by the NYPD, and others directly impacted by abusive policing supported an amicus brief filed in federal court by Communities United for Police Reform (CPR), urging the judge overseeing the stop-and-frisk cases to mandate the NYPD to adopt specific stop-and-frisk and trespass enforcement reforms.
The court had named CPR as a community stakeholder in the court-ordered reform process that stemmed from the ruling in the federal class action lawsuit, Floyd v. City of New York, and related cases – Ligon v. City of New York and Davis v. City of New York.
The reforms that the filing urges the court to mandate derive from the formal process in which community members, directly impacted by the NYPD’s unconstitutional stop-and-frisk practices, provided their input through public efforts of court-appointed officials, CPR members and partners, and other New Yorkers.
Thus far, the court-ordered reform process has primarily only yielded court-ordered changes to NYPD written procedures, forms and training materials. While the number of NYPD-reported stops has declined, it has become clear through the reform process that the NYPD’s self-reported numbers do not accurately reflect the reality on the ground in communities.
At the same time, the central reforms necessary to permanently protect the civil and constitutional rights of New Yorkers – including reforms to ensure timely and meaningful discipline when officers engage in unconstitutional stops and trespass enforcement – have yet to move forward, with the NYPD demonstrating little interest in adopting meaningful solutions. Community members have demanded reforms that provide transparent accountability and zero tolerance for abusive and unconstitutional stops, transparency in the various types of stops civilians experience, and an ongoing independent community board to assess NYPD compliance with the court decision and reforms.
“The decrease in the overall number of stop-and-frisks being reported by the NYPD is inaccurate and presents a false picture of reality on the ground in communities,” said Mark Winston-Griffith, a spokesperson for Communities United for Police Reform and Executive Director of Brooklyn Movement Center.
Winston-Griffith added: “The abusive, discriminatory use of stop-and-frisk and trespass enforcement continues, with at least thousands of stops improperly going unreported and thousands more police interactions, practically experienced as stops by civilians, not being accounted for in the data NYPD provides to the public. Racial disparities in who is stopped continue – overwhelmingly of Black and Latinx New Yorkers – with the majority of stops still resulting in neither arrest nor summons, constituting unnecessary police intrusions into people’s daily lives. Yet despite these facts, the NYPD has failed to accept the most essential reforms that communities are demanding through the court-ordered reform process to resolve the long-standing problems with stop-and-frisk. Judge Scheindlin articulated that ‘communities most affected by the NYPD’s use of stop and frisk have a distinct perspective that is highly relevant to crafting effective reforms’ and community members have highlighted reforms that must be implemented for this court reform process to be successful. The court should require the NYPD to implement these reforms being demanded by community members most impacted by stop-and-frisk as part of the reform process. Otherwise, this process will have largely been a failure and we are almost guaranteed to be back before the court because communities continue to face the same policing abuses, just as occurred following the Daniels v. City of New York case that preceded Floyd.”
The specific reforms urged for in the court filing include:
Zero tolerance for abusive policing and transparent discipline: There must be a system of meaningful, timely and transparent discipline and accountability for officers and precincts/commands for unconstitutional and abusive stops and trespass enforcement. There must be a publicly available summary of related misconduct and the range of discipline that officers will face for such misconduct, and precincts will face for allowing officers to repeatedly engage in unconstitutional and abusive stops – as well as aggregate public reporting of misconduct complaints and disciplinary outcomes.
Transparency and protection of rights for all stops: New York State has convoluted case law related to pedestrian stops by police that legally permits NYPD officers to engage civilians in investigatory encounters without the reasonable suspicion required of a Level 3 encounter that is at the heart of the stop-and-frisk case. Although often experienced by civilians no differently than reasonable suspicion stops, these other stops are legally classified as Level 1 and Level 2 encounters. Legally, a civilian has the right to walk away from such Level 1 and 2 encounters, but in reality, civilians do not feel free to walk away from an officer of the law with a firearm.
In some cases, the gestures, actions and words of an officer recreate the conditions of being stopped or detained on the street (Level 3), but many officers are not classifying these as level 3 stops. In other cases, when civilians seek to exercise the right to leave a level 1 or 2 encounter, officers do not honor it and escalate to threats and/or violence. NYPD officers should be required to notify people of their freedom to leave Level 1 and 2 encounters. It is the only way to ensure that officers are not abusing their authority and engaging in unconstitutional actions by giving the impression that the person cannot leave and then misreporting by not recording it as a stop.
Accurate reporting of all stops: Thus far, NYPD officers have legally been permitted to omit thousands of these Level 1 and 2 investigatory encounters from public reporting, even though civilians practically experience them no differently than level 3 stops. It gives the public and policymakers a false impression and skewed view of policing activity and the total number of Level 3 reasonable suspicion stops. Based on community members’ experiences, there are serious concerns that a significant portion of recent decreases in reported stops are due not to an actual decrease, but rather a misreporting of stops as Level 1 and 2 encounters. The NYPD must be required to record and publicly report (quarterly and annually) all level 1 and 2 encounters, disaggregated by demographic, geographic, and precinct/command information. Reporting of these encounters is vital in order for the public to accurately assess NYPD compliance with the requirement to conduct constitutional stops and trespass enforcement.
Because the public must rely on disclosures by the NYPD – which maintains exclusive possession of the relevant data – to evaluate compliance, full transparency is necessary to preserve accountability and oversight. The NYPD should be required to report these encounters, just as it does Level 3 reasonable suspicion stops, rather than concealing thousands of investigatory encounters that New Yorkers are experiencing as stops, and which may be unconstitutional level 3 stops.
Transparency in All Police Investigatory Encounters: In order to ensure transparency with regard to the nature and scope of New Yorkers’ rights in all encounters and enable New Yorkers to obtain information about stops to which they are subjected, officers should be required to identify themselves, explain the reason for the encounter, and provide their pre-typed business card in all investigatory encounters. Officers will soon be required to do this in all Level 2 and 3 stops, pursuant to Local Law, so it should not be burdensome or disruptive. It will maintain consistency regarding the transparency characterizing other levels of investigatory encounters.
Independent Community Board to Assess Compliance: Require the creation and resourcing of an independent community board, consisting of at least 5-7 organizations that are led by, serve, and organize directly-impacted communities and police accountability groups with a significant history of work with the Floyd/Davis/Ligon cases. An independent and resourced community board is required to ensure that there is a community-led assessment of NYPD compliance that is based on the realities experienced by people most impacted by abusive and unconstitutional stop-and-frisk and trespass enforcement.
The community input process, ordered by the court to remedy the NYPD’s constitutional violations and known as the Joint Remedial Process (JRP), was conducted over the last three years. It collected input from thousands of people from the communities impacted by the NYPD’s practices — as well as elected officials, religious and academic leaders, and NYPD representatives — through 64 focus groups, 28 community forums and meetings across the city. At the end of 2016, CPR members and partners organized a number of forums for directly-impacted community members to provide their input on what reforms they wanted to see to stem abusive and unconstitutional stops and trespass enforcement by the NYPD.
The reforms being recommended in this court filing are derived from that input by New Yorkers. Without the court mandating the reforms, the NYPD is likely to simply ignore the recommended reforms that came out of a comprehensive process to obtain community input. This would essentially render the JRP part of the court-ordered reform process irrelevant and a waste of time for the many New Yorkers who participated, and a waste of City resources that supported the reform process.
In a letter to the judge included as an appendix to the filing, 15 family members of New Yorkers killed by the NYPD urged the court to mandate the reforms. “Police killings of civilians are the most extreme example of more common abusive and too-often unconstitutional policing interactions, like abusive street stops and trespass enforcement,” the family members’ letter said. “Many of us have long said that the unjust killings by police are allowed to happen because we as a society allow the far more common abuses going repeatedly unchecked. If officers were held accountable for engaging in abusive, unconstitutional stops in a transparent, timely and meaningful way, it would prevent officers from engaging in even worse behavior that can result in the tragic injustices our families have been forced to experience. We urge you to side with the amicus curiae in mandating the proposed reforms stated in this filing be implemented by the NYPD.”
In May, the court-appointed facilitator of the Joint Remedial Process issued a report on his recommendations to the court, citing some of the recommendations by community members that the Communities United for Police Reform (CPR) filing is requesting. Last month, the attorneys for the plaintiffs in the three landmark class actions that challenged the NYPD’s stop-and-frisk and trespass enforcement practices as racially discriminatory and unconstitutional urged the federal court to order the NYPD to implement reforms generated through community input.
Even though the NYPD has self-reported that stops have declined, New Yorkers continue to face abusive and unconstitutional stops. The court-appointed monitor has repeatedly indicated that the NYPD has struggled to comply with rules, with the NYPD’s own audits showing officers not consistently or correctly documenting stops. These audits have indicated that up to 73% of stops are going improperly unreported. In the stops that are reported, the racial disparities remain as stark as they were at the height of stop-and-frisk in 2011, with Black and Latinx New Yorkers continuing to be disproportionately the subject of stops. There are thousands more stops that the NYPD designates as “low-level” based on convoluted case law, which allows the NYPD to avoid accounting for or reporting.
The court-ordered reform process from the decision finding that the NYPD’s stop-and-frisk practices were unconstitutional has yielded few substantive reforms and no reforms that address the NYPD’s systemic disciplinary failures. There has been nothing done to address accountability for abusive and unconstitutional stops, something that many directly-affected communities believe is critical to addressing the abuses. Instead, most of the reforms have focused on changing written procedural documents and training. In fact, attorneys for the plaintiffs in the case have cited that the NYPD “has received 1,536 complaints of racial profiling since it began tracking in 2015,” yet “ hasn’t substantiated a single profiling allegation in the more than 700 investigations it has closed.”
Even in the use of body-worn cameras that was required in the court decision, the NYPD has resisted implementing policies that actually advance accountability and transparency. The NYPD’s policy on body cameras was widely criticized by the plaintiffs, and local and national civil rights advocates.
Two organizations with members involved in Daniels both wrote letters to the judge as part of the filing. Malcolm X Grassroots Movement in a letter from one of its leaders, Linda Tigani, said: “The Malcolm X Grassroots Movement views the Floyd litigation and the court’s ruling of the NYPD’s stop-and-frisk program as an unconstitutional product of unenforced remedies in Daniels, et al. v. City of New York, et al. A key lesson learned is that a lack of accountable, transparent enforceable remedies in Daniels has led to skyrocketed stop and frisk rates. Therefore, as an organization represented on the Joint Remedies Process Advisory Board and involved in this fight for over 23 years, we believe it is our responsibility to correct the injustice post Daniels, and bring about enforced and community supported change. We urge you to exert the court’s authority and create police accountability and transparency that speaks to the needs of those directly impacted by policing in New York.”
The Justice Committee, in a letter to the jusdge from its two Co-Directors Loyda Colon and Yul-san Liem, stated: “One of the main lessons our organization has learned in the past 19 years, from Daniels to Floyd, Davis and Ligon, is that litigation alone will not bring about real or lasting change if there is not a consistent and formal mechanism for real leadership and input from the communities that are most impacted by abusive and unconstitutional policing. We also know from Daniels and Floyd that the NYPD can not be trusted to police itself – and that changes in policies, training and supposed protocols mean nothing if they are not backed up by real and fast consequences and discipline for abusive and unconstitutional actions. [I]f the NYPD is allowed to hide basic information from the public, it will be able to just use public relations spin to create the mirage of change while our communities continue to face unconstitutional stops, trespass enforcement, and daily abuses and humiliations. Unconstitutional and abusive stops can lead to killings of New Yorkers. This isn’t hyperbole or exaggeration. We support all of the requests for remedies in the CPR brief – and we know that they resonate with community members because our members and those we work with have said that these remedies are necessary.”
