Sultan v. Kelly, et al. (Challenging the NYPD’s subway bag search program)

This case, filed on Feb. 19, 2009, challenges the NYPD’s subway bag search program. J. Sultan, a 32-year-old native New Yorker of Kashmiri descent, has been stopped and searched by police officers 21 times since the NYPD initiated the subway program in 2005. Most white New Yorkers have been stopped rarely, if at all. Sultan’s South Asian appearance is the only factor that can explain this persistent targeting by police officers.

The lawsuit maintains that Sultan’s constitutional rights under the Fourth and Fourteenth amendments were violated and names the NYPD Commissioner Raymond Kelly and the City of New York as defendants. As part of the subway program, the NYPD places checkpoints at any given time in a tiny percent of the approximately 1,000 subway entrances throughout the city. Officers manning checkpoints ostensibly select passengers for bag searches on a numerical basis. The officers decide at the start of a checkpoint what fraction of passengers to search, for example every 25th person. The likelihood that Sultan would be stopped 21 times from July 2005 to June 2008 on the basis of this numerical system is about 1 in 165 million. After the 13th time he was stopped and searched, Sultan filed a complaint with the Civilian Complaint Review Board. He filed more complaints as the stops continued, routinely recording the names and badge numbers of the officers who stopped him.

In June 2008, he sent a letter to Mayor Bloomberg seeking help in ending the NYPD’s racial profiling. He also sent letters to other elected officials and lodged a complaint to Police Commissioner Ray Kelly through the NYPD’s web site. To his knowledge, these letters and messages resulted in no action to stop racial profiling at the subway checkpoints. Flaws in the checkpoint program’s design invite racial profiling. The NYPD explicitly forbids checkpoint officers from recording any demographic information about the people they select. This is in stark contrast to the Department’s stop-and-frisk policy, which requires officers to report the race of every person stopped outside of the subway checkpoint program.

The policy of not recording demographic information about those selected for subway searches ensures that the NYPD will be unable to detect or correct racial profiling by officers. The lawsuit asks the court to issue an injunction requiring the NYPD to implement better training, supervision and monitoring to eliminate the possibility of racial profiling. It also asks the court to require the NYPD to collect racial data of all persons stopped at subway checkpoints.

On June 30, 2009, a federal judge approved a settlement in which the city paid Sultan $10,000 in damages. Sultan twice offered to forego all damages if the NYPD would agree to monitor and supervise subway checkpoints to ensure racial profiling does not occur. The city rejected these offers. 

E.D.N.Y., Index No. 09 CIV 698 (direct)