July 11, 2015

NYPD Stop and Frisks on the Decline

According to a recent article in the NYLJ, the number of NYPD stop and frisks has been in a steep decline since 2011, when the police logged 685,724 events. By 2014, officers recorded just 46,235 such stops. That the drop off has been dramatic is obvious; the underlying reasons a bit less so, although the newly appointed federal monitor, Peter Zimroth believes it may be the result of uncertainty and a lack of understanding on the part of the officers.

It's easy enough to ascribe that to inadequate training, but that explanation is too facile. The reality is that race is perceived by many officers as a perfectly legitimate reason to suspect criminality is afoot, particularly when we are talking about young black men in certain neighborhoods.

Let's back up a moment. Lost in the hullabaloo over the stop and frisk litigation is that at no point did any court determine that policy itself was impermissible or unconstitutional. Generally, there is nothing wrong with stopping and frisking a person when an officer has a reasonable suspicion that criminal activity is afoot. The problem with the NYPD's version of the policy is that the department was targeting people based on race without regard for whether there was any independent basis to conduct the stop and frisk. Being young, male, and black, was often enough evidence of criminal activity for some officers to seize and search people.

The ultimate settlement of the litigation was grounded in the idea that officers could keep stop and frisk in their arsenal of tools, but had to employ it within constitutional parameters. In other words, there had to be a legitimate factual reason to stop and frisk a person. What exactly those were, however, was seemingly unclear to officers.

Zimroth has been quoted as saying:
[O]fficers are not confident or have been misinformed about, among other things, what they are authorized to do under the law, what their supervisors expect of them, what their personal legal liability might be and under what circumstances discipline will be administered. We do not know the extent to which officers may be declining to make lawful, appropriate stops because of these uncertainties. To the extent it is happening, though, it is not a healthy state of affairs for police officers or communities.
This suggests a problem easily remedied by additional training, reinforced by occasional roll call lectures and reminders. If the officers dutifully write up the stops as required, and supervisors closely review the paperwork, bad stops can be identified and the officers' errors corrected promptly. Or at least that is how Zimroth's comments read.

There is plenty of truth to this view. I have deposed more police officers than I can count and only a few were able to articulate what "probable cause" means, even though the officers know that they are not permitted to make an arrest without it. The point being that young police officers receive (retain?) little analytical or legal training. Apparently, nuance and subtlety are not commonly found on the street or in patrol cars.

More importantly, for many officers, race is an appropriate component in their analysis of possible criminal activity. The sight of several young black men or teenagers walking down the street triggers many officers' alarms precisely because they are young, male, and black. For some, this is perfectly rational and legitimate perspective. Yet, it is now being made clear to these officers that they cannot make race-based stops. Not surprisingly, officers long-trained to engage in race-based policing are now confused about how to proceed, which results in fewer and fewer stops.

Zimroth is correct: more training is critical and will benefit all concerned. But we cannot simply outlaw race-based policing for it to go away; we have to continue talking about how it came to be in the first place.

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