NYCLU Endorses Proposed NY City Council Bill Prohibiting Racial Or Ethnic Profiling

Testimony Of Robert Perry On Behalf Of The New York Civil Liberties Union Before The New York City Council’s Committee On Public Safety Regarding Int. No. 142, Prohibiting Racial Or Ethnic Profiling

My name is Robert Perry. I am the Legislative Director of the New York Civil Liberties Union (NYCLU).

On behalf of the NYCLU, I thank city Council Member Peter Vallone Jr., Chair of the Committee on Public Safety, for convening this hearing.

The NYCLU commends Council Member Phil Reed for introducing Int. No. 142, as well as those Council Members who have signed their names as co-sponsors of this bill.

With this bill the City Council takes up an issue that speaks to the fundamental fairness and effectiveness of police practices in New York City. That issue arises when a person’s race or ethnicity becomes a substitute for some evidence of wrongdoing – and becomes the rationale for a police officer to stop, frisk or arrest that person. The bill seeks to provide some better empirical basis for assessing how and when this occurs.

The NYCLU strongly supports this proposal. While we have concerns regarding specific sections in the bill, these concerns do not diminish our endorsement of the bill’s essential provisions.

The term racial profiling is considered provocative by some law enforcement officials, even as a growing body of empirical evidence provides ever more precise documentation of the phenomenon.

At a national conference on Strengthening Police-Community Relationships, then-President Bill Clinton characterized racial profiling as a “deeply corrosive practice” and stated further that racial profiling is the opposite of good police work, where actions are based on hard facts, not stereotypes.”

At the conference, held in June 1999, police professionals, civil rights leaders and government officials discussed the design and implementation of racial profiling data collection systems. Since the conference hundreds of jurisdictions have begun to implement these types of data collection systems. As of July 2001, twelve states have passed legislation mandating collection of data on the race and ethnicity of persons subject to police stops.

It would be misguided to construe these initiatives as driven by the adversaries of law enforcement. Scholars view these data-collection efforts, which are often undertaken in collaboration with stakeholders in the community, as essential to promoting professional policing practices. These efforts, they report,

. . . have the potential for shifting the rhetoric surrounding racial profiling from accusations, anecdotal stories and stereotypes to a more rational discussion about the appropriate allocation of police resources. Well planned and comprehensive data collection efforts can serve as a catalyst for nurturing and shaping this type of community and police discussion.

Racial Profiling: The Scope of the Problem

There is now a large body of evidence that demonstrates persons of color are more likely than white Americans to be stopped, questioned, searched, and arrested by the police. This occurs, according to one scholar who has analyzed the phenomenon,

in part because of the race, in part because of heightened law enforcement intensity in minority communities, in part because of the temptation among law enforcement officers to simply ‘play the base rates’ by stopping minority suspects because minorities commit more crimes, and in part because of the tacit approval of these practices by their superiors.

In New York City the charge of racial profiling has been a recurring one over the last decade. In reviewing the NYPD’s stop-and-frisk data, the United States Commission on Civil Rights observed that blacks and Latinos were stopped and frisked in numbers disproportionate to their numbers in the general population. These data, the Commission report concluded, create a strong inference that “racial profiling plays some role in the stop and frisk practices of the [ ] department [overall].” The New York City Civilian Complaint Review Board has published an analysis of police misconduct complaints filed in the late 1990s that appears to corroborate the Commission’s findings. The CCRB’s report finds that African-Americans accounted for 63 percent of all civilian complaints arising from police-initiated street encounters; Latinos filed 24 percent of these types of complaints. (These groups represent 31.7 percent and 20.3 percent, respectively, of the New York City population.)
Most of the street-stop incidents that led to these CCRB complaints were based upon the police officers’ observations, not upon third-party information. The CCRB found that, as compared with whites, African-Americans and Latinos who filed a street-stop complaint more often included an excessive force allegation. And compared with all other police-misconduct complaints filed with the CCRB, the agency was more likely to substantiate complaints related to street stops.

The NYPD has suggested that these data indicate the “demographics of known violent crime suspects as reported by crime victims” or “continuing crime patterns in the area policed.” However, a significant percentage of police stops, as reported in UF-250 forms, are not based upon victim or witness identifications. And to suggest that “crime patterns” serve as a rationale for disproportionate police stops of black and Latinos is to all but acknowledge that racial profiling is police department policy.

A 1999 report by the office of New York State’s Attorney General, Eliot Spitzer, provides a rigorous statistical analysis of the NYPD’s stop-and-frisk practices during the late 1990s. The report analyzed approximately 175,000 UF-250 forms – which police officers are required to fill out after a wide variety of “stop” encounters. The analysis offers compelling empirical evidence that as compared with whites, blacks and Latinos were being disproportionately stopped and frisked by police – and that the disparity existed even when statistics were adjusted for race-specific crime rates and the racial makeup of communities.

For example, even after accounting for the effect of different crime rates in certain communities, blacks were stopped 23 percent more often than whites, across all crime categories; the comparable rate for Latinos was 39 percent. Again, controlling for race-specific and crime-specific arrest rates, blacks were stopped 2.1 times more often than whites on suspicion of committing a violent crime and 2.4 times more often than whites on suspicion of carrying a weapon. City wide, 15.4 percent of all UF-250 forms examined in the Attorney General’s study contained facts, as provided by police officers, that were insufficient to justify a stop based upon reasonable suspicion; 23.2 percent was the comparable statistic regarding stops made by members of the Street Crimes Unit.

This racial bias in police practices occurred during a period in which the NYPD had initiated a strategy that involved the aggressive prosecution of so-called “quality of life” crimes. As arrests spiked, it appeared that the evidentiary quality of the police work disintegrated. Misdemeanor arrests increased from 129,404 in 1993 to 215,158 in 1998. But the rate at which prosecutors declined to prosecute these cases also rose dramatically. Overall, more than 140,000 misdemeanor and felony cases completed in 1998 ended in dismissals, an increase of 60 percent as compared with 1993.

Prohibition of Racial Profiling

It is important that this legislative proposal both defines and prohibits racial and ethnic profiling. These provisions of the bill would codify in the administrative code the police department’s existing policy that prohibits racial profiling, which is defined as the use of race, color, ethnicity or national origin as the “determinative factor” in initiating a police action.

The bill’s definition of racial profiling is consistent with the police department’s policy. And it reflects judicial rulings that state the use of race as an indicia of criminality is impermissible where race alone is the predicate for a police action and where the use of race in this context is for purposes of harassment.

Beyond this attempt to create a rule against racial profiling in the execution of a police stops and frisk, the legislative intent acknowledges implicitly what the Supreme Court made explicit when it found it permissible for a police officer to stop and frisk an individual even in the absence of probable cause that criminal activity was afoot: such actions, the court observed, are inherently provocative; a frisk is “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and is not to be undertaken lightly.”

This said, it is our view that the definition of racial profiling in the bill does not make sufficiently clear what is permissible and impermissible as regards the use of race or ethnicity as the basis for conducting a police stop and frisk. It is important that this definition serve both as a substantive legal standard and as a practical guide to the patrol officer regarding the basis for interdicting an individual in the street.

With this objective, I include for review and consideration by the committee draft language from the federal End Racial Profiling Act, which was introduced by Congressman Conyers in 2001, and is about to be re-introduced with certain revisions to the original bill.

(5) RACIAL PROFILING – The term `racial profiling’ means the practice of a law enforcement agent relying, to any degree, on race, ethnicity, religion, or national origin in selecting which individuals to subject to routine or spontaneous investigatory activities, or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and time frame, that links persons of a particular race, ethnicity, religion, or national origin to an identified criminal incident or scheme. (6) ROUTINE or SPONTANEOUS INVESTIGATORY Activities – The term “routine or spontaneous investigatory activities” means the following activities by law enforcement agents: interviews; traffic stops; pedestrian stops; frisks and other types of body searches; consensual or nonconsensual searches of the persons or possessions (including vehicles) of motorists or pedestrians; inspections and interviews of entrants into the United States that are more extensive than those customarily carried out; immigration-related workplace investigations; and other types of law enforcement encounters compiled by the FBI and the Justice Department’s Bureau of Justice Statistics (BJS).

I note that the Conyers bill has amended the definition of racial profiling to prohibit the use of religion as the rationale for a police action in that absence of independent and reliable information that links a person to criminal wrongdoing. The proposed New York law should incorporate this amendment. In the aftermath of the events of September 11, 2001, Muslims and Sikhs and persons perceived to be adherents of these religions have been subjected to relentless and often brutal police practices – practices precipitated by little more than ill-informed impressions as to a persons religious affiliation, ethnicity or national origin. A report by the office of the Justice Department’s Inspector General, released in April 2003, documents a stark pattern of ethnic and religious profiling.

Collecting and Reporting on the Demographics of Police Stops

Sections 14-303 and 14-304 describe procedures for collecting and reporting information regarding police stop-and-frisk incidents. These data are intended to provide a meaningful empirical basis for determining what precipitates a police action; and, in particular, for determining whether race, color, ethnicity and gender have been used appropriately.

Section 14-303 directs a police officer to record eleven discrete pieces of information upon conducting a police stop – including the basis for the stop, frisk or search, the race, color, ethnicity and gender of persons stopped; and whether these police actions led to a warning, citation or arrest. Section 14-305 mandates the reporting of this information and prescribes certain baseline measures for making such reports.

It can be anticipated, if not predicted, that this data collection and reporting model will be interpreted in certain quarters as reflecting an adversarial or hostile posture toward the NYPD. Why then are police departments throughout the country collecting data on the demographics of police stops?

Scholars who are studying this phenomena suggest a number of reasons: The systematic collection of statistics and information regarding law enforcement activities can be used to –

Inform community-police discussion about the nature of police practices and about the allocation of police resources;

Move the discussion of race from rhetoric and accusation to a more rational dialogue about appropriate law-enforcement strategies;

Provide more objective and understandable information for assessing crime and the police response to crime;

Develop training programs that educate police officers about the conscious and subconscious uses of racial and ethnic stereotypes; and

Promote more amicable and productive police-civilian encounters.

These scholars also observe that when a police department begins to collect information about the racial and ethnic demographics of police stops, it demonstrates that the police have nothing to hide; and this serves to enhance the credibility of police officers.

Demographic data on street stops should be considered essential intelligence in evaluating the fairness and effectiveness of stop-and-frisk activity. The NYPD has integrated all manner of policing data into its Compstat system, considered the gold standard among police professionals and widely credited with improving the effectiveness and accountability of street cops, supervisors and senior-level officers. It is my understanding that the NYPD has implemented a database of stop-and-frisk data that will be accessible to line supervisors for use as a management tool. It is therefore both feasible and logical that data on race and ethnicity should be routinely captured and included in the NYPD’s database and publicly reported, in the aggregate, as provided in this bill.

The NYCLU endorses the basic data collection and reporting model as proposed in Int. No. 142. However, the bill leaves both the design of the form for collecting stop-and-frisk data as well as the format for reporting such data to be developed in consultation with the Civilian Complaint Review Board. It is not clear from the bill how this consulting process is intended to proceed. However, it would appear to unduly limit input. The NYCLU strongly urges the Public Safety Committee to broaden this deliberative process to include representatives of civil rights and civil liberties organizations, community advocacy groups, academic experts, and police officials.

I offer, in brief, the following specific observations about the data collection and reporting provisions as proposed in of the bill:

• The existing provisions in the Administrative Code that provide for the collection and reporting of stop-and-frisk data are fundamentally flawed. The current law does not require the reporting of raw data on police stops, but rather selections or summaries of data. The law fails to distinguish between police-initiated stops – the ones most likely to be influenced by improper racial or ethnic considerations – and stops based on witness reports. The law excludes motor-vehicle stops from the reporting requirements. These and other flaws in the existing law create a compelling argument for passage of Int. No. 142
• Section 14-303 of Int. No. 142 would require the integration of certain information currently reported in UF-250 forms and new information called for in the bill. In considering the design of a new reporting form, we would urge that the Committee members revisit the design of the UF-250. As redesigned in 2001, the form employs a menu of options – or justifications – regarding the basis for a police stop. The police officer no longer provides a narrative description of the basis for the stop; but rather, as characterized by a spokesperson in the Attorney General’s office, a series of multiple-choice options, with any option being the correct one.
• The bill does not address the underreporting of police stops in UF-250 forms. An analysis of police misconduct complaints conducted by the Civilian Complaint Review Board found that police officers had failed to complete the form in 40 percent of stop-and-frisk incidents examined. In the absence of greater compliance with the requirement that police officers document stop-and-frisk activity in UF-250s, the CCRB recommended that a police officer provide a “stop receipt” as a means of holding police officers accountable.

Conclusion

Racial profiling is the sorry legacy of overzealous, undisciplined policing. Racial profiling places police officers above the law they are sworn to enforce. It is a practice that is all too commonplace. And the consequences can be grave both for the police – and for the policed. Policing that wrongfully targets persons based upon race or ethnicity reinforces perceptions by residents in minority neighborhoods that they are under suspicion for no good reason and are therefore vulnerable to over-aggressive police actions. And this perception can create a backlash against the police.

That the deliberations on this subject can sometimes be a contentious undertaking is no justification for not proceeding. The conflict fomented by the wrongful use of race and ethnicity as justification of police actions demands that policy makers address the problem honestly and directly. Perhaps this hearing may be the beginning of that process.