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.