The NYPD Stop, Question and Frisk civil trial

Anybody who has been a cop has made pedestrian/suspicious person stops.  It’s an essential tool in any community; big, small, urban or rural.  The cop looks for things that are out of the ordinary and not appropriate for the place and time.  High crime areas and recent crime trends are also considered.  You look at things the subject does, or maybe doesn’t do under the circumstances.  It’s something you develop when you’re a cop.  These objective observations build the “reasonable articulable suspicion” that’s necessary to detain someone on the street, question them and, when necessary, conduct a frisk/cursory search to eliminate any potential weapons that could endanger the officer.  Cops have been doing these stops long before I began my career in 1961.  The U.S. Supreme Court simply codified this practice in 1968 with the Terry v. Ohio case.

Now rarely do courts take notice of this type of citizen encounter, unless it results in something else…a criminal suppression hearing or use of force.  In November 2011 I testified in a Federal bench trial on the legality of a pedestrian stop; Petro v. Town of West Warwick, RI.  That encounter ended in the man’s death due to the subsequent altercation with the officers involving batons and OC spray.  The young man was dead when they arrived at the police station 4 minutes later.  His situation was exacerbated by a congenital heart problem.  But, the main issue was the legality of the initial stop which the Judge found to be unlawful primarily based on the involved officers’ own testimony.  This case resulted in a sizeable money verdict.

So what’s the big deal with the current Federal class action civil lawsuit in New York City?  One thing it covers 10 years worth of documented SQF encounters totaling over 4.5 million.  Everything seems to be bigger and more complicated with the NYPD. Spicing this up is the allegation by some officers and tape recordings of their superiors that there is a quota forcing the field officers to make these stops.  The Department’s position is that there may be a performance number, not a quota.

Last week I testified for the Plaintiffs at the Federal bench trial in this SQF case; Floyd, et al., v. NYPD.  The thrust of my expert testimony was (1) notice to the NYPD was ample; (2) deficient supervision of the field implementation of the SQF operation; and (3) administrative investigations involving citizen complaints stemming from these types of stops weren’t done in a reasonable manner.  None of the NYPD citizen encounters ended in a death or serious injury.  This trial is focusing simply on the legality of the encounters and the sufficiency of the documentation by the field officers.

What was the agency notice?  Going back to 1999, the N.Y. Attorney General studied the practice.  Some of the findings of that study indicated that there was a racial imbalance in the SQF encounters.  At that time the NYPD required officers to do a narrative on the form used for these stops.  This report found that the narratives in 39 percent of the stops were either unlawful on its face or lacked adequate sufficient articulation to determine the legality one-way or the other.

Then in 2003 the NYPD entered into a settlement agreement with a class of plaintiffs known as the Daniels Settlement.  The Department said it would develop a form for these stops and conduct audits to determine the sufficiency of the articulation for the stops.  The Department developed very extensive and adequate written training, policy statements and legal bulletins.  The form developed was the UF-250, which is a double-sided form with the specifics of the time, location and individual and a very extensive group of check-off boxes.  About 2008 a section was added regarding use of force during these SQF encounters including “taken to ground, baton, and OC spray.”  Unless there is an actual arrest resulting from the SQF, this appears to be the only notation or report of whatever force might have been used.  Of course no one in police work today would accept this as being adequate reporting of this level of use of force.

The other essential piece of the SQF written agency directions is that the officers must “fully articulate” the reasonable suspicion for the stop in his/her memo book/activity log.  NYPD seems to be the only police agency that uses this type of documentation of police activity that the officer then takes home or places in his/her locker at the end of the shift. 

Every year since 2003 until 2012 the Department has audited the use of the UF-250 and memo book entries associated with the SQF encounter.  On a scale of 1, being failure, to 4, being superior, the Department’s own auditing has shown a consistent failure by all patrol commands with the exception of Transit and Housing who have reached the 3, or passing.  I’ve wondered whether this is due to better supervision or the fact that both of these operations are the most heavily controlled by surveillance cameras.  It’s obvious that the field officers are thumbing their noses at the written provisions.  The field officers and their sergeants have created an “operational policy” markedly different than what the Department professes in written training and policy.

When you discover a problem in your agency, do something about it!  Fix it!

A wide range of field sergeants and precinct Integrity Control lieutenants were deposed and testified in this NYPD case.  With rare exception, they all said they just looked at the 250 forms to see if the boxes were filled out.  Virtually none of these including the officers themselves said anyone looked at their memo books.  There were virtually no documented sanctions for any sergeant or officer for this omission.  Even when there was a citizen complaint filed, these areas of omission were either not investigated or no sanctions were imposed on the sergeants and officers who violated the written guidelines.  On the eve of trial the Department adopted a new requirement that now the officers copy the page of their memo book and attach it each UF-250.  Fat chance that will happen!

What is amazing is that the Department either will not or has not considered making a report form consistent with its own legal requirements.  A police report that has a number.  An official report that can be retrieved without asking the officer to bring it in. 

So what can we learn from the troubles in this NYPD civil case.  Maybe we need to fully document the elements of reasonable suspicion even in cases of a simple Terry stop.  We are seizing the citizen, aren’t we?  A lot of you probably do that between your CAD system and the officer writing a full description of the stop in the vehicle computer identified to the CAD number.  Like any field police activity, supervisors should be required to look at these forms when they sign off on them and ask the officer questions when the information is lacking.  As with any field activity some quality control effort should be exerted to see whether the officer and the citizen have similar versions of what occurred.  And, of course, just like with traffic enforcement someone in the agency has to determine whether these types of stops are consistent with the make-up of the community being policed and the current crime patterns. 

Reform of the Chicago Police

Yesterday, April 15th, I was invited to give a presentation at this forum organized by the University of Illinois Chicago Criminal Justice Society.  Three other presenters were significant.

Rob Warren, Ex. Dir. of Northwestern University Center for Wrongful Convictions talked about his experiences that have resulted in 35 persons being exonerated and freed from prison.  His suggestions to combat this type of wrongful conviction based on false confessions is fourfold:  (1) record all interrogations, (2) limit the length of the interrogations, (3) prohibit investigators from lying to suspects during interrogations, and (4) allow expert testimony on false confessions at trial.  I found one of this points interesting.  He said that confessions that were not false averaged a little over 2 hours of interrogation, while those found to be false confessions lasted for over 6 hours and in one case 16 hours.

Ignacio Cano, a professor from the State University of Rio de Janeiro, came to us via Skype.  It seems that our TSA had shut down its vista computer link for 24 hours so he couldn't get on the plane in Brazil.  His presentation concerned police reforms in South and Central American countries. His experience wasn't good.  The bottom line was that outside efforts to change the culture of the police wasn't effective or lasting.  He believes that it must be a joint effort between outside influences and the officers inside the agencies.  He also said that officers involved in misconduct fell into two types.  The first were those who were lining their own pockets with money from drug operations or extortion. The second group were those who did misconduct designed to reduce crime even through murder of suspected criminals.  My good friend Steve Rothlein talks of this being coined 'Noble Cause.'  Professor Cano noted that all of the agencies refused to accept or acknowledge any responsibility in the actions of these officers. Just 'bad apples.'

The most interesting presentation, I believe, was the intimate explanation of Chicago Police corruption by Craig Futterman a professor from University of Chicago Law School. He and his students have been deeply involved in this area of police misconduct for nearly 20 years.  His law students rode with special enforcement units during one his research projects of police misconduct in public housing projects. These students came away with the perspective that the Constitution wasn't the same in these minority communities.  Terry stops were done without any hint of reasonable suspicion or any degree of articulation.

The other area of his historical work concerned the systemic and cyclic reform movement.  Every few years following a public outcry or high profile incident, the politicians would call for reform, have some sort of study, find a couple of scapegoats and then slip back into the way it always was when the hue and cry ended.  He has amassed a wealth of statistics on the officers involved in many of these most significant incidents of police misconduct.  In all of these the officers involved amassed huge numbers of citizen complaints, but the OPS or IPRA process and even that of IA did not identify these officers.  There was never any intervention.  These officers were not judged to have committed misconduct and were never disciplined.  Statistics seemed to overcome any intervention.  Of course, all of these units worked in minority areas of Chicago. 

Last week I read an article in TGest concerning an Ohio mayor who was foiled in his attempt to get someone to conduct an administrative investigation into actions of his Chief of Police.  The State agencies wouldn't help him unless it concerned a criminal allegation.  Even the Ohio Chiefs' Association refused to get involved.  Unfortunately this isn't uncommon!  Few want to wade into the dirty laundry of any agency.  Yet, it's a task that is often necessary.

 I've been involved as an outside consultant in several of these types of internal administrative investigations.  I've learned some valuable lessons.  In 2012 protections for an outside consultant in these types of investigations was enhanced by the U.S. Supreme Court decision in Filarsky v. Delia, 566 U. S. ____ (2012).  The Court extended qualified immunity to an attorney hired by a California Fire Department to conduct an IA on a firefighter.  The Court's decision hinged on common law and discussed the historical precedence of governments bringing in volunteers and outside experts to help in the affairs of the local government.

But, you should be aware of a few issues.  First, since you're not in a position to discipline the employee being investigated, you need to get someone in the local government to be the one to issue any admonishments such as Garrity or Kalkines.  After this is done that person can continue to sit in or leave and allow you to conduct the interview.  

Secondly, you have to familiarize yourself with the due process rights of the employee.  This means you must determine what, if any, provisions are in place in the personnel code, civil service rules, collective bargaining agreement or state police officer bill of rights.  Just because you're not an agency employee doesn't mean you get to step on the rights of the accused employee.

Lastly, some states may have requirements that someone doing this type of investigation must be a licensed private investigator.  I've run into that in two states.  It seems ridiculous since the same provisions doesn't stop an IACP or PERF investigation that is the same in scope.  I realize that this usually is just local politics at work.

A local government, whether it's the mayor, council, manager or chief of police, must have the option of looking outward for some administrative investigations.  Even if the state or another agency might take it on, these usually are very narrow in scope.  They don't look for the systemic issues.  They rarely try to cure the agency.  But, there aren't many outside consultants around with the depth of experience and knowledge to conduct these types of administrative investigations.  If you need one, begin the search early and vette whomever you might decide to pick.  The wrong choice will produce the wrong outcome.  Everyone will end up being hurt!