How to revamp NYPD's 'stop and frisk' policy? That's the hard part.

A federal judge on Monday appointed an independent monitor to revise the New York Police Department's 'stop and frisk' policy, which the court said amounts to racial profiling. That won't be an easy task.

Seth Wenig/AP
New York City Mayor Michael Bloomberg, right, speaks while Police Commissioner Ray Kelly looks on during a news conference in New York, Monday, Aug. 12, 2013.

Now that a federal judge has ruled that New York’s “stop-and-frisk” practices amount to a system of city-sanctioned racial profiling, attention shifts to a court-appointed independent monitor who will oversee the city’s on-the-ground compliance with constitutional guidelines.

A close analysis of this case reveals a difficult task ahead: The monitor, former prosecutor Peter Zimroth, must supervise a revision of a crime-fighting tactic that city officials see as enormously successful, despite the bitterness it has caused in minority communities.

While the ruling does not put an end to stop-and-frisk, it does require it to change. So Mr. Zimroth must navigate a tangled thicket of precise legal protocols, police procedures, and paperwork, as well as the street instincts of New York City cops.

Then there's a mayor and a department seething at the court's findings. Mayor Michael Bloomberg blasted Judge Shira Scheindlin of the US District Court, saying she “ignored the real-world realities of crime” and failed to give the city a fair trial. “And she conveyed a disturbing disregard for the good intentions of our police officers, who form the most diverse police department in the country,” Mayor Bloomberg said Monday.

But police are bristling most at the judge’s finding that their efforts illegally profiled black and Hispanic men. NYPD Commissioner Raymond Kelly called the judge’s ruling “disturbing” and “offensive” and “recklessly untrue” – a charge echoed by cops on the street.

“I’ve been here 32 years, and I take offense to the idea that Judge Scheindlin thinks we are racial profilers, painting everyone with the same brush,” says Sgt. Ed Mullins of the 67th Precinct in Brooklyn, president of NYPD’s Sergeants Benevolent Association.

As the mayor and the police commissioner defend the NYPD's stop-and-frisk tactics, they both insist that minorities benefit most from the police department's aggressive targeting of high-crime neighborhoods. They trumpet the 50 percent drop in the city’s murder rate since Bloomberg first took office as a direct result of its policing. “There were more stops with suspicious activity in neighborhoods with higher crime because that’s where the crime is,” Commissioner Kelly said Monday. There were at least 7,300 fewer murders during Mayor Bloomberg’s 11-year tenure compared with the previous 11 years, “and if history is any guide, those lives saved were overwhelmingly the lives of young men of color.”

Even so, some experts doubt that stop-and-frisk can take all the credit.

“In the long run, I suspect that the crime rate is going to continue declining,” says Kelly Welch, professor of sociology and criminal justice at Villanova University. “This ruling won't really affect that much at all, because 90 percent of the time, when someone is stopped and frisked, there is nothing found; so, therefore, it’s not like they were really catching that many people that they wouldn't have caught anyway.”

At the heart of the case are NYPD tactics that go back decades, beginning with the introduction of CompStat, the computer-assisted crime map that allows police to target and then flood high-crime neighborhoods with officers looking for people exhibiting suspicious behavior – and then subjecting those individuals to stop-and-frisk.

“It’s easy to say there’s been over 4 million stops done over the past 10 years, and that [90] percent of them turn out to be nuthin’,” says Sergeant Mullins. “Ok, well, another way to look at it is, that it’s a really hard-working police department that’s really trying to find the bad guy.”

Of course, it is precisely the manner of these stops, and the specific targeting of high-crime minority neighborhoods, that failed to meet constitutional muster. One of the most significant problems with the NYPD’s stop-and-frisk policy, according to the judge's decision, is that it fails to adhere to the murky legal concept of “reasonable suspicion.”

For the courts, “reasonable suspicion” means an officer must be able to articulate specific, concrete reasons to justify his or her stop. This standard is lower than probable cause, but it has to be more than a hunch.

For the NYPD, “articulable” suspicions are registered on a series of check boxes on a Stop, Question and Frisk Report Worksheet. This form, also called the UF-250, outlines possible circumstances of the stop, including “Fits Description,” “Suspicious Bulge/Object,” and “Furtive Movements.”

“Here’s the problem with reasonable suspicion,” says Mullins. “Within there, there’s a gray area: trying to come to the best possible means of catching a bad guy, without violating people’s rights.... Now, you’re saying, we’re fishing with a net, but we ought to fish with a pole, and so you’re now saying that when the police get involved, they better be exact.”

Mullins offers an insider’s view of stop-and-frisk in action to illustrate just how murky “reasonable suspicion” protocols can be: “Look, I’m looking for a male wearing a red shirt and black pants. Now, the victim just had a gun put to their face, so who I stop is a male wearing a maroon shirt and dark blue jeans. Did I stop the right guy? If you ask anyone in the art world, they’d say, it’s a maroon color; but ask a person with a gun in their face? They’d just say it was a red shirt and dark pants – they couldn't tell you if they were navy blue pants.”

“So, an officer will make that stop, and he either has the right guy or the wrong guy,” continues Mullins. “But more of that will come out when he starts talking to him.” He goes on to describe a scenario in which the person who “Fits Description” shows a valid ID and says he works at a nearby CVS pharmacy. “And then an individual from CVS comes by and says, ‘Hey, Joe, everything OK?’ And so he’s just in the right place at the wrong time. He just happens to be going about his business. So what’s wrong with my stop? Absolutely nothing is wrong with that stop.”

“But take away those things – he doesn't work at CVS, he’s now sweating and he’s breathing heavy. Well, people sweat and breathe heavy, that happens. But did he just run away from a crime? I have to figure that out.”

This example gets into the territory Judge Scheindlin singled out in her decision. How do officers figure this out? A good part of the case zeroed in on the vagueness and fungibility of the check boxes on UF-250 form – which are marked “must check at least one.”  

The “Furtive Movement” check box, for example, has no objective meaning, and officers can define it pretty much as they may. Indeed, police officers testifying at the trial had difficulty explaining exactly what it meant – a critical issue, because the constitutional protocol demands “articulable” suspicions rather than vague impressions. Some said it could mean a suspect was “changing direction,” or being “very fidgety,” or “going in and out of his pocket.”

“If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity,” Scheindlin noted dryly.

The same goes for the “Suspicious Bulge/Object” check box. Officers are able to justify their stop-and-frisks with merely the appearance of everyday objects in people’s pockets. “The outline of a commonly carried object such as a wallet or cell phone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search,” Scheindlin ruled.

So these are some of the issues Zimroth will have to oversee when, barring a stay of the judge's ruling on appeal, he begins the process of reforming the NYPD’s stop-and-frisk procedures.

“In order to go forward in a smart way, they might need to come up with more concrete or objective ways of understanding reasonable suspicion, so that officers have some guidance going forward, that goes beyond race,” says Dr. Welch.

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