A federal monitor determined the NYPD remains “not in compliance” with decade-old court orders to reform stop-and-frisk practices in a report published Sept. 6.
Back in 2013, a judge found the department’s racial profiling of Black and Brown New Yorkers unconstitutional in the landmark class action lawsuit Floyd et. al v. City of New York. Lead plaintiff David Floyd, a Black Bronx resident, was stopped and frisked by police twice including while assisting his neighbor with reentering his unit. However, the case also broadly represented all minority New York City residents.
A remedial order was issued following the Floyd decision mandating the NYPD to curb racially-biased stop-and-frisks. Sweeping policy changes and a body-worn camera pilot also sprung from the court order. The department rewrote its bias policing policy and overhauled its training for stop-and-frisks. And the court appointed the monitor to see the reforms through.
Two other lawsuits were brought into the fold after challenging similar practices. Davis et al. v. City of New York was settled after alleging unlawful stops and arrests in public housing. Ligon et al. v. City of New York challenged the NYPD’s Operation Clean Halls, which allowed police patrols in private apartment buildings, many with majority Black and Brown tenants.
More than ten years later, the NYPD still fails to monitor when stop-and-frisks racially target Black and Brown New Yorkers. The department is required to “develop sound policies” overseeing compliance to the 14th Amendment’s equal protection rights, which it was found liable for violating in Floyd.
No plan exists, although the monitor notes the NYPD is currently working on developing one.
Charles McLaurin, a senior counsel for the NAACP’s Legal Defense Fund (which represented plaintiffs in Davis), says despite the NYPD’s implementation of other reforms, the remedial order remains rooted in addressing racial profiling.
“This is not just the nuts and bolts on how the searches are done in accordance with the Fourth Amendment,” he said. “[These are] racial disparities that the department has to ameliorate per the 14th Amendment. The police department is supposed to actually come up with a plan [to] mitigate these disparities in how they conduct their stops and searches. Here we are more than 10 years later, and as this report indicates, they still have really produced a tangible plan that would give the public confidence that they’re actually taking this seriously.”
To be clear, stop-and-frisks — known as Terry stops or level 3 encounters in law-enforcement jargon — are broadly constitutional under the Fourth Amendment, which the NYPD was also found liable for violating in the case. Such stops require reasonable suspicion that a crime was or will be committed and subsequent frisks require further reasonable suspicion that the individual stopped is armed and dangerous. The officer can conduct a search during a Terry stop if the frisk yields an object with reasonable suspicion of being a weapon.
The monitor’s findings indicate the department’s reform efforts seem in better compliance with the Bill of Rights-based Fourth Amendment rather than the emancipation-based 14th Amendment. Earlier this year, the NYPD implemented “ComplianceStat” meetings, which regularly gather bureau officials from Patrol, Housing and Transit to scour body-worn camera footage for Terry stop violations.
Back in 2020, the department established an early intervention program for further oversight and training for problem officers suspected of conducting unlawful stop-and-frisks or racial profiling.
An NYPD spokesperson touted these reforms over an email statement, calling public safety and constitutional policing as “both critical components of the NYPD’s mission.”
“The Department is proud that New York remains the safest big city in America and of the reforms that it has made, which the Monitor has recognized,” the spokesperson wrote. “The NYPD is committed to working collaboratively with the Monitor to address the areas of concern raised in this latest report.”
Friday’s report marked the 21st since the monitorship began and looked at data between 2020 and 2023. Mylan Denerstein, a partner at Gibson, Dunn & Crutcher LLP, currently serves as the federal monitor after her predecessor and original appointee Peter Zimroth died in 2021.
Stop-and-frisks continue to generally rise under the Adams administration according to the monitor. In 2022, there were 15,102 reported Terry stops. Last year, there were 16,971.
The nature of stop-and-frisks are increasingly more aggressive as well. Previously, most encounters overwhelmingly originated from responding to a 911 or 311 call dispatch. Now most stops are self-initiated by police officers. Self-initiated Terry stops skyrocketed from 19% in 2020 to 46% in 2023.
While unconstitutional stop rates remain low, unconstitutional frisks and searches are up significantly under Mayor Eric Adams. In 2021, 15.8% of frisks were unlawful. The rate rose to 23.9% in 2022 after Adams took office.
Such increases coincide with the March 2022 creation of Neighborhood Safety Teams (NST), which the Adams administration frequently credits for reductions in citywide shootings since taking office. The squads staffed by handpicked cops in unmarked cars are deployed in neighborhoods disproportionately affected by gun violence, many home to a majority Black and Brown population.
Specialized units like NSTs conducted more than half of the NYPD’s unlawful Terry stops in the first half of last year according to the monitor’s report, noting specific targeting of young Black and Brown men for wearing fanny packs. And such squads are also self-initiating stops the most frequently.
Last year, the monitor’s report emphasized the unlawful practices of NSTs, spurring the NYPD’s refresher training for incoming unit members.
Additionally, NSTs are regarded as the “spiritual successors” of the now-disbanded anti-crime units, which deployed plainclothes officers in similarly hotspot neighborhoods. The officers who stop-and-frisked David Floyd were notably part of the program.
The findings also mentioned severe underreporting by officers conducting Terry stops but did not document them. Through reviewing body-worn camera footage, the monitor found 31.4% of stops were not reported in 2022.
Jennvine Wong, supervising attorney for Legal Aid Society’s Cop Accountability Project, believes it goes beyond a paperwork issue.
“There are too many officers who are making Terry steps and not documenting them in a stop report as required,” Wong said. “But it’s not just that, right? There’s a culture issue. It’s not taken seriously. Officers are not disciplined appropriately when they fail to do their duty…unless you have sergeants and leadership at the command level taking appropriate action to correct and address unconstitutional practices, they’re going to keep occurring.”
The report found supervisors approved improper stops conducted by officers in their charge, which the monitor fears will enable “renewed stop-and-frisk-related problems in the future.” For example, 11% of stops were unconstitutional according to the monitor’s audit. Yet NYPD supervisors found just 1% of all stops as improper.
Before 2022, racial profiling and other bias-based policing was investigated internally by the NYPD. Unsatisfied with how the police policed the police, the city council passed legislation granting the Civilian Complaint Review Board jurisdiction of such investigations. A Racial Profiling and Bias-Based Policing Unit was established with Darius Charney, lead counsel in the Floyd lawsuit.
“The stop and frisk cases we get time and time again, we really see in the allegations and in the evidence that we received in these cases very similar fact patterns in terms of stops to what we saw 10-15 years ago in Floyd,” said Charney to the AmNews.
Last year, the NYPD would not provide the CCRB with certain evidence to complete racial profiling investigations. Ultimately, the monitor ended up stepping in to ensure the necessary information was provided.
Guadalupe Aguirre, senior staff attorney at the New York Civil Liberties Union (which represented plaintiffs in Ligon), says ultimately, the NYPD is prioritizing form over substance in its reforms.
“The report says they’ve done all the trainings and the policy changing,” Aguirre said. “But that doesn’t matter if New Yorkers of color who [bear] the brunt of the unconstitutional stop-and-frisk and trespass enforcement [are not] feeling those changes on the ground.”
Like McLaurin, Aguirre believes the NYPD cannot decouple the 14th Amendment from complying with the court ordered mandates.
Beyond constitutional violations, the NYPD’s racial profiling is also simply ineffective policing. 2012 research by then-Public Advocate Bill de Blasio’s office reported police were twice as likely to find a weapon on a white New Yorker than a Black New Yorker during a stop-and-frisk.
There is precedent for the courts cracking down on law enforcement after failing to comply with mandates to reform racial profiling practices. A judge held Maricopa County Sheriff Office officials in Arizona in contempt after court orders from a class action lawsuit over targeting Latino drivers were not met. Former Maricopa County Sheriff Joe Arpaio was convicted on criminal charges, but was pardoned by then-Pres. Donald Trump.
Tandy Lau is a Report for America corps member who writes about public safety for the Amsterdam News. Your donation to match our RFA grant helps keep him writing stories like this one; please consider making a tax-deductible gift of any amount today by visiting https://bit.ly/amnews1.
Shameful. The McLaurin quote would make more sense if that “have” was “haven’t” – transcription error?