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Testimony Before the New York City Council in Support of the Community Safety Act

Testimony of Donna Lieberman and Udi Ofer on behalf of the New York Civil Libertoes Union before the New York City Council Public Safety Committee in Support of the Community Safety Act (Into. Nos. 799, 800, 801 AND 881)

October 10, 2012

I. Introduction

In July of this year, the Bronx District Attorney—an elected official whose job it is to protect public safety in his borough—took a step that epitomizes the extent to which New York City has lost faith in the ability of its police department to do its work. After discovering that many public housing residents who were arrested on criminal trespass charges were in fact innocent (even though police officers had provided written statements to the contrary), the District Attorney decided to stop prosecuting people that police officers arrested for trespassing in public housing unless prosecutors also interviewed the arresting officer to ensure that the arrest was warranted. As The New York Times described in its article about this decision, “By essentially accusing the police of wrongfully arresting people, the stance taken by Bronx prosecutors is the first known instance in which a district attorney has questioned any segment of arrests resulting from stop-and-frisk tactics.” This action, while the first of its kind, is hardly the first by a New Yorker in response to a growing sense that the NYPD, in its current state, is faltering.

In June, thousands of New Yorkers took part in a silent march against abusive stop-and-frisk tactics. Just two weeks ago, close to 1,000 New Yorkers rallied outside of City Hall in support of the legislative proposals before the City Council today. Indeed, not a week goes by without media accounts or public events on the problems of stop-and-frisk abuses and related policing practices. Legally, stops and frisks are two separate acts that involve two different levels of required legal justification. To stop a person, a police officer must have reasonable suspicion that the person has committed, is committing, or is about to commit a crime. To frisk a person, however, the officer must have reason to believe that the person stopped has a weapon that poses a threat to the officer‘s safety, a higher and more specific standard. Yet clearly this tactic, while permissible in certain circumstances, is being widely abused by the NYPD. The use of stop-and-frisk has grown by more than 600 percent under the Bloomberg administration. Of the 4,694,361 stops conducted during Mayor Bloomberg‘s tenure,4 4,128,233 resulted in no arrest or summons, meaning that in 88 percent of the time, NYPD officers stopped innocent people. In 2011 alone, the NYPD conducted 605,328 stops of innocent people. In 53.6 percent of these stops of innocent people, a frisk also took place, and force was used in 19.7 percent of the stops.

While the stopping-and-frisking of tens of thousands of innocent people every year negatively impacts many communities in New York City, the indignities of the NYPD stop-and-frisk program are borne in large measure by communities of color. The program requires thousands of innocent young black and Latino men to suffer repeatedly the indignities associated with routine police stops and searches on the public sidewalks. In 2011 alone, black and Latino residents comprised 87 percent of stops of innocent people. That year the number of stops of young black men (ages 14 to 24) exceeded the entire city population of young black men (168,126 as compared to 158,406). Ninety percent of young black and Latino men stopped were innocent. Indeed, instead of a crime fighting tool, stop-and-frisk has become a demoralizing means of racial profiling for tens of thousands of New Yorkers. As a federal judge who granted class action status to those who have been stopped and frisked on the streets of New York recently put it, the City‘s misuse of stop-and-frisk has revealed a “deeply troubling apathy towards New Yorkers‘ most fundamental constitutional rights.”

Moreover, current stop-and-frisk practices simply do not work. Despite the enormous increase in the NYPD‘s use of the stop-and-frisk tactic, there has not been a significant reduction in gun violence. During Mayor Bloomberg‘s first year, there were 1,892 shooting victims, while police officers conducted 97,296 stops. In 2011, there were 1,821 shooting victims, a decrease of four percent from 2002, while police officers conducted 685,724 stops, an increase of 605 percent from 2002. Clearly this six-fold increase in stop-and-frisk did not lead to a comparable reduction in gun shootings in New York City.

This should come as no surprise, as the overwhelming majority of stops do not lead to the recovery of a gun, and the gun retrieval rate has only declined under the Bloomberg administration. In 2011, only 0.1 percent of stops and 0.2 percent of frisks resulted in the recovery of a gun, yielding 804 guns. Yet in 2003 (the earliest year for which a gun recovery figure is available), the Department recovered 627 guns when it conducted 160,851 stops, still a very small recovery rate but significantly higher than in 2011. In other words, stops in 2003 resulted in one gun being recovered for every 257 stops, while stops in 2011 resulted in one gun being recovered for every 853 stops. In short, the empirical evidence does not support the claim that the stop-and-frisk program genuinely reduces gun violence.

At the same time that stop-and-frisk tactics have risen exponentially in New York City, so have other programs that similarly rely on abusive practices. Today, New York City has the distinction of being the “marijuana arrest capital of the world,” as the NYPD still arrests more individuals for the possession of small amounts of marijuana than for any other offense (nearly 140 each day) despite the fact that in the 1970s the state decriminalized the private possession of small amounts of marijuana. Community members have long complained that many of these arrests are based on illegal stops and coercive tactics that trick individuals into consenting to a search. New York City spends at least $75 million a year enforcing these low-level marijuana arrests, and much like the NYPD‘s stop-and-frisk practices, 86 percent of arrestees are black or Latino, despite the fact that marijuana use is less prevalent among people of color than with whites.

Meanwhile, former and current NYPD personnel have also revealed that the NYPD has conducted surveillance on New York City‘s Muslim communities, targeting New Yorkers based on their religious beliefs and practices and with no suspicion of wrongdoing. According to the reports, among other things, the NYPD has dispatched undercover officers to Muslim and Arab neighborhoods in New York City in order to monitor daily life, including at mosques, bookstores, restaurants, and Internet cafes; deployed “mosque crawlers” to monitor hundreds, if not thousands, of mosque prayer services; monitored neighborhoods for “angry rhetoric and anti-American comments” and targeted individuals based on their reading habits and Internet search histories; and monitored Muslim student associations at City College, Baruch College, Hunter College, LaGuardia Community College, St. John‘s University, Queens College, and Brooklyn College. The allegations contained in the media accounts appear to be consistent with a “radicalization” report released by the NYPD in 2007, which conflated religious beliefs and practices with preparations for terrorism, and focused exclusively on people who practice Islam in the United States. The New York Civil Liberties Union and our allies in Communities United for Police Reform who support the Community Safety Act strongly support the NYPD‘s fight against crime in our city. We appreciate the daily sacrifices made by police officers to keep our city safe. At the same time, we believe that too many NYPD practices have simply spiraled out-of-control, and have made our city less safe by alienating entire communities, while wasting precious law enforcement resources by going on fishing expeditions rather than following solid leads.

In order to stop the NYPD from continuing practices that have not made our city safe but have led to community mistrust and daily violations of constitutional rights, and in order to reinstate the public‘s faith in those who are intended to be its protectors, the New York Civil Liberties Union respectfully submits the following testimony in support of Intro. 799, Intro. 800, Intro. 801, and Intro. 881. These bills, known collectively as the Community Safety Act, will (1) protect New Yorkers against racial profiling and other forms of discrimination by the NYPD; (2) protect New Yorkers against unlawful searches, including during a stop-and-frisk; (3) ensure that police officers act in a transparent manner during a stop; and (4) create an Inspector General‘s office that will monitor the policies coming out of One Police Plaza. Not only will these bills help to change the public‘s eroding trust in the NYPD, they will also lead to a better NYPD and will allow the Department to do its most difficult job: keeping New Yorkers safe while also protecting their essential freedoms.

II. Intro. 800: Protecting New Yorkers Against Racial Profiling and Other Forms of Discrimination

At the core of the problems that currently plague the NYPD is the disproportionate impact of policing abuses against certain communities in New York City. In order for the public to regain trust in its police force, it must be assured that all New Yorkers, regardless of their race, ethnicity, age, gender or religion, are treated equally. Without clear standards in place to guide the Police Department‘s investigatory practices, the NYPD may, on a whim, engage in fishing expeditions that subject entire communities to unwarranted questioning, searches, arrests, and surveillance. These bias-based policing tactics fundamentally undermine community trust in the NYPD, waste officers‘ time, and, furthermore, undermine the NYPD‘s purpose of keeping communities safe.
As a solution, the NYCLU strongly encourages the City Council to pass Intro. 800, which would protect the rights of New Yorkers who have been profiled due to their actual or perceived race, color, ethnicity, religion, sex, gender identity or expression, sexual orientation, or immigration status, in addition to numerous other categories.

The bill does so by (1) strengthening the current definition of bias-based policing, (2) broadening the list of communities protected against discrimination by the NYPD, and (3) allowing New Yorkers to hold the NYPD accountable for practices that have a disparate impact.

A. Strengthening the Definition of Bias-Based Policing

Intro. 800 vastly improves upon New York City‘s current definition of racial profiling by banning the NYPD from relying, to any degree, on protected categories when engaging in law enforcement activities, with an important exception for when the NYPD has trustworthy information, relevant to a specific location and time, which links a person to suspected unlawful activity. This change would much improve upon the current definition of profiling in city law, and ensure that police officers do not waste their valuable time focusing on innocent people instead of following specific leads. That is why the United States Justice Department uses a similar standard to Intro. 800‘s in its own anti-racial profiling policy.

To be clear: Intro. 800 would permit the NYPD to use race, ethnicity, religion, and other protected categories in its law enforcement activities, but it would limit the use of such information to situations that involve trustworthy information that is relevant to the locality and timeframe of alleged illegal activity. For example, if police officers receive a call that a white man who looks six feet tall and weighs about 200 pounds committed a crime on the morning of October 10th in the vicinity of City Hall, then of course police officers would be able to look for a white man who fits the profile. What the NYPD will be prohibited from doing, however, is to stop every white man in New York City for the next two weeks because of this one suspect description.

This strengthened definition of profiling will greatly enhance both the efficiency and function of the NYPD and ensure that whole communities will not be singled out and profiled based on the alleged misdeeds of the few. It will also ensure that NYPD officers follow solid leads when conducting law enforcement activities, and not go out on baseless fishing expeditions. And it will bring New York City in line with the Justice Department‘s current definition of profiling, which it adopted during the Bush administration.

B. Broadening the Communities Protected Against Discrimination

The legislation will also bring New York City in step with numerous other states and cities that have been similarly troubled by bias-based policing practices. These cities and states have taken similar steps in expanding the categories of people protected from bias-based policing. For example, California law prohibits law enforcement discrimination against individuals on the basis of “race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability.” Similarly, officers in New Mexico are not permitted to rely on a person‘s “race, ethnicity, color, national origin, language, gender, gender identity, sexual orientation, political affiliation, religion, physical or mental disability or serious medical condition.”

Intro. 800‘s broad inclusion of protected categories reflects the concerns raised by community members throughout the city about the need to protect them from police abuses. Stop-and-frisk data indicates that young people, and specifically young men of color face the brunt of stop-and-frisk abuses, yet neither age nor sex are protected categories under New York City‘s current anti-profiling law. Similarly, housing status has been added as a protected category in light of the widely acknowledged police practice of unlawfully arresting public housing residents and visitors for trespassing.

Similarly, including immigration status as a protected category reflects the current fears in New York City that federal deportation programs, like Secure Communities, will lead to an increase in false arrests as a pretext to check a person‘s immigration status. As Governor Cuomo asserted last year when he issued a moratorium on implementation of the federal Secure Communities program, New York State has an interest in protecting the rights of undocumented immigrants from being caught up in aggressive immigration enforcement schemes. It was for this reason that he attempted to suspend New York‘s participation in the Secure Communities program, which subjects arrestees to deportations even in if the underlying arrest was illegal. However, despite Governor Cuomo‘s concerns with the Secure Communities program, New York City is, nonetheless, being required to participate in the program. This bill would provide a much needed safeguard to protect immigrant families. It will also ensure that New York City police officers will not engage in profiling for the purpose of checking a person‘s immigrations status.

C. Providing a Private Right of Action and Disparate Impact Claims

In addition to broadening the categories of people protected under Intro. 800, this bill also sets forth that any person who has been subjected to bias-based policing practices is entitled to injunctive and declaratory relief. Most significantly, the bill would permit an individual or organization to bring a legal action to demonstrate that law enforcement activities have had a disparate impact on certain groups of people. This is an important component of the bill because it allows communities to hold the NYPD accountable for practices that have a disproportionate impact with no legitimate justification.

While Intro. 800 would create a legal presumption of suspicion when it comes to practices that have a disparate impact, it is important to note that proving a disparate impact does not mean that the case will be over. Rather, the burden will then shift to the government to prove a substantial justification for the disparate impact. If the government is able to do so, then it will be up to the plaintiff to provide an adequate alternative to achieving the governmental interest without the discriminatory effect.

This legislation is in line with the Civil Rights Act of 1964, which was enacted to address pervasive discrimination based on race, ethnicity, national origin and religion. The Civil Rights Act had an enormous impact, effectively outlawing the unequal application of voter registration requirements and racial segregation in schools, in the workplace, and in public accommodations. Intro. 800 would allow New York City to fill in a significant gap in this law – something that was foreclosed after the U.S. Supreme Court in Alexander v. Sandoval found that a regulation enacted under Title VI of the Civil Rights Act did not include a private right of action based on evidence of disparate impact.

Justice Antonin Scalia, in that infamous 5-4 decision, held that while section 601 of Title VI contained an implied private right of action, it did not include a private right of action based on disparate impact claims (the Justice Department still has the authority to bring disparate impact claims, and does so on a regular basis).23 Many scholars have since criticized this decision, but here in New York City we have the ability to do something about it: Intro. 800 would restore this right to New Yorkers, and allow them to do what they were able to before 2001; that is, to hold the NYPD accountable for practices that have a disparate impact. It is worth noting that the state of Illinois did exactly this when in 2003 it restored the right of the people to bring disparate impact claims against law enforcement practices.

Intro. 800 also mirrors the language of the End Racial Profiling Act (ERPA), which is co-sponsored by Kirsten Gillibrand in the Senate and by a majority of New York City‘s congressional delegation in the House. The federal legislation includes an almost identical definition of profiling as the one included in Intro. 800, and similar to Intro. 800, would create a private right of action based on disparate impact claims.24 The End Racial Profiling Act would address many of the concerns that the Community Safety Act is aimed to address, but, in the absence of movement in Congress, New York has the unique opportunity to implement similarly groundbreaking legislation in New York – a City with a great need for reform to our policing practices.

It is especially important to note that disparate impact theories of liability are already available in numerous federal and city laws. For example, plaintiffs are able to bring disparate impact claims to enforce the Fair Housing Act (42 USC § 3613), Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352), the Americans with Disabilities Act, (42 USC § 12112), and the Equal Credit Opportunity Act25 (15 U.S.C. § 1691). Moreover, New York City‘s Human Rights Law broadly provides New Yorkers an opportunity to bring disparate impact claims in the context of employment, public accommodations, housing, licensing and other areas. Disparate impact claims are, in fact, widely available and accepted in many contexts.

Finally, it is the NYCLU‘s understanding that certain Council Members have expressed concern about the cost of implementing a bill that includes expansive remedies. In response to these concerns, the sponsors of this bill have proposed an amendment to remove compensatory and punitive damages, leaving the sole remedies of injunctive and declaratory relief. This will not only prove more cost-effective for the City, but it will ensure that plaintiffs bringing claims will be doing so in the interest of implementing reforms to the NYPD, rather than for monetary gain.

III. Intro 799: Protecting New Yorkers’ Privacy Rights during a Consensual Search

While Intro. 800 would protect the rights of New Yorkers to be free from discrimination, Intro. 799 would allow them to better protect their privacy rights when being asked to consent to a search. Specifically, this bill would allow all New Yorkers to be better informed about their rights during what are known as “consensual” searches by the police, by making sure that these searches are truly voluntary and informed —just as the Constitution intends.

Under the Constitution, there are only a few exceptions to when a police officer can search an individual without probable cause or a warrant. One of these narrow exceptions permits an officer to search an individual without probable cause or a warrant when the individual has consented to the search. The Supreme Court has interpreted the law of consent according to the concept of “voluntariness,” ruling that, when a subject of a search is not in custody, the Constitution requires that it “demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.” However, while this is the standard under which officers are supposed to be operating, in reality, the concept of voluntariness is actually not understood by most civilians: “instead, a police ‘request‘ to search a bag or automobile is understood by most persons as a command.”

As a result, New Yorkers have often misunderstood the extent of their privacy rights during a consensual search. In order to ensure that the practice of uninformed consensual searches halts, Intro. 799 will ensure that consensual searches are truly voluntary and informed by making sure that New Yorkers are aware of their constitutional right to approve or refuse consent in searches that are not pursuant to probable cause, a warrant, or arrest. In those searches, Intro. 799 will simply require two things: First, police officers will have to articulate to the individual that the person is being asked to voluntarily consent to a search and that he or she has the right to approve or refuse consent. Second, in order to shield police officers from false claims of wrongdoing and to create greater transparency in these sorts of searches, Intro. 799 will also require that police officers create a record of the person‘s consent. It will be up to the Police Commissioner to determine how to capture proof from the individual being searched. Importantly, this bill would not apply when an officer has probable cause or when an officer believes that the individual he or she just stopped is armed and dangerous and should be frisked. Instead, this bill would only apply to those searches that are truly intended to be consensual, rather than coerced or assumed by the officers involved. In doing so, this bill will improve police-community relations by ensuring that officers request consent in such a way that it is not taken unilaterally as a command.

This bill will also address the problem of New Yorkers being wrongfully arrested for private possession of small amounts of marijuana. In 1977, New York legislators passed the bi-partisan Marijuana Reform Act, under which possession of small amounts of marijuana was decriminalized. Having marijuana “in public view or burning” became a misdemeanor. As arrests for possession of minor amounts of marijuana increased during the Bloomberg administration, community members have complained of being arrested for having marijuana “in public view or burning” when in fact the small amount of marijuana came into public view only after the person emptied his or her pockets following a “request” from an officer. This legislation would ensure that any search conducted under these circumstances was based on voluntary and informed consent, and not based on trickery.

In summary, Intro. 799 would create the functional equivalent of a Miranda warning for searches by requiring officers to advise people of their right not to consent to a search when there is no other legal basis for the search, and obtain proof from the person to be searched that the consent given is real, voluntary, and informed.

IV. Intro 801: Requiring NYPD Officers to Act in a Transparent Manner

Intro. 801 will bring about greater transparency in policing practices by ensuring that residents know who they are dealing with when they are stopped by the police and also know the reason for the stop. Given the huge increase in stop-and-frisk in the last several years, a vast majority of which do not lead to arrests or summonses, too many New Yorkers are currently having negative experiences with the police. In these stops-and-frisks, community members have consistently expressed concerns that they do not know the identity of the police officer who stopped them or the reason why. As The New York Times reported in June, with a typical stop-and-frisk, “The officers swoop in, hornetlike, with a command to stop: ‘Yo! You, come here. Get against the wall.‘ They batter away with questions, sometimes laced with profanity, racial slurs and insults: ‘Where’s the weed?‘ ‘Where’s the guns?‘ The officers tell those who ask why they have been stopped to shut up, using names like immigrant, old man or ‘bro.‘ Next comes the frisk, the rummaging through pockets and backpacks. Then they are gone.”

Intro. 801 would help change at least some of these practices and make the NYPD a more transparent agency by requiring law enforcement officials to identify themselves to those who they are stopping, frisking, or searching, and by providing them with their full name, rank and command, as well as the specific reason for the law enforcement activity. At the end of a stop or frisk that does not result in an arrest or summons, the police officer will have to provide the civilian with a written record of the encounter and information on how to file a complaint with the Civilian Complaint Review Board. This law represents the kind of basic “courtesy, professionalism, and respect” that the NYPD supports, and it would represent an important change in the way that its officers approach their street-level duties. Similar legislation has been passed in Arkansas, Minnesota, and Colorado.

V. Intro 881: Establishing an Inspector General to Monitor the NYPD

Finally, Intro. 881 would create an Office of Inspector General to monitor the policies coming out of One Police Plaza to ensure that they do not lead to the violations of civil liberties and civil rights.

Oversight and transparency are hallmarks of American democracy, and this is particularly true for law enforcement agencies, who we entrust with extraordinary powers. Yet in New York City, there is no agency charged with the sole responsibility of monitoring the NYPD to ensure that its policies do not lead to the violations of New Yorkers‘ constitutional rights.

All federal law enforcement and intelligence agencies, including the CIA, FBI and Justice Department, employ inspectors general, as do most New York City agencies. The Los Angeles Police Department has an Inspector General, and all five of the next-largest municipal police departments have some form of independent oversight with subpoena power. Yet the NYPD, the largest police force in the country, does not have an Inspector General. Moreover, while the CCRB and Internal Affairs Bureau investigate individual complaints of police misconduct, they are not charged with the mission of monitoring policing patterns and practices, and making recommendations for systemic changes. Intro. 881 will fix this problem.

Intro. 881 would create an Inspector General to be appointed by the mayor with the non-binding advise of the Speaker of the City Council and chairs of the Public Safety Committee and Civil Rights Committee. The Inspector General will have the authority to issue subpoenas to audit NYPD records as well as to issue subpoenas to individuals whose testimony the Inspector General believes is necessary in order to fully investigate the problem.

The Inspector General will be required to keep the Mayor, the Police Commissioner, and the City Council fully informed about any problems or deficiencies in the department‘s policies that it discovers and any corrective actions it might recommend. The Inspector General‘s office will also create a mechanism for the public to submit requests for reviews on matters within its jurisdiction. This way, individual New Yorkers who have observed problematic NYPD patterns or practices, such as stop-and-frisk abuses or the unconstitutional surveillance of the Muslim community, can submit requests for the Inspector General to use its powers to begin investigating the issue. Finally, the Inspector General will be able to receive and investigate complaints from any employee of the NYPD concerning the possible existence of problems with the department‘s programs, including any complaints of retaliation against officers or other individuals in the department. This may, for example, permit many police officers who have already expressed displeasure with the NYPD‘s quota system—which forces officers to make a minimum number of stops-and-frisks, summonses and arrests—to make these complaints to the Inspector General.

By creating the Inspector General‘s office, City Council will be creating a body that will be able to watch the NYPD to ensure that in the future, the patterns that currently plague it–such as stop-and-frisk abuses and quotas–are addressed early and effectively. Review by an outsider will allow the NYPD to better perform its job and will help to reinstate the public‘s faith in the NYPD.

VI. City Council’s Authority to Pass the Community Safety Act

Finally, contrary to what some in the Bloomberg administration have stated, the City Council does clearly have the authority to pass the Community Safety Act. The Act does not create structural changes in city government, and does not curtail the Police Commissioner‘s authority to discipline police officers. Rather, the bills that comprise the Community Safety Act involve what the New York Court of Appeals has described as a general regulation of the “operations of city government,” and any limitation on the Police Commissioner‘s freedom to act is “merely a consequence of legislative policymaking.”

Indeed, a number of counties and cities throughout New York State have passed legislation similar to the bills that comprise the Community Safety Act, even though they operate under the same state laws as the New York City Council. These examples include laws passed by local legislative bodies that require that police officers identify themselves to the public, prohibit racial profiling by police officers, and create police oversight mechanisms.

VII. Conclusion

The NYCLU urges the City Council to pass the Community Safety Act and to take this important step to reform NYPD practices that have led to the violations of New Yorkers‘ constitutional rights. By passing this legislative package, the City Council will also demonstrate to the public that it shares its concerns about Police Department abuses. The City Council will make sure that New York City is once again seen as a city in which residents from all backgrounds can call the police when they need help, seeing the NYPD as an ally in the fight against crime and violence.

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