Oversight Report Says More Than A Third Of Frisks Performed By NYPD Officers Were Unconstitutional

More than a decade ago, the NYPD was sued successfully over its stop-and-frisk program. A federal court found the program routinely violated rights and disproportionately targeted minorities. Judge Shira Sheindlin ordered a number of reforms to the program and it was placed under federal oversight.

Since then, the NYPD hasn't changed much about how it handles these interactions. Officers were required to document these stops and provide demographic information about those stopped and/or frisked. It refused to do this.

It was ordered to more closely adhere to the Constitution. It didn't do this either. Instead, the number of stops/frisks declined precipitously... at least on paper. But if cops weren't filling out the forms, that meant an untold number of stops were happening every year. And that meant the new, radically lower number of stops was probably an illusion.

Both the judge and federal monitor tried (and mostly failed) to get the NYPD to play by the rules. The larger failure was deliberate, though. No one in the NYPD was interested in respecting constitutional boundaries. Violations went unnoticed and/or unpunished.

More than ten years on from the 2013 court decision, the monitors overseeing the court-ordered reforms have released another report [PDF]. And it shows the NYPD hasn't changed a thing. Even when officers can be bothered to document these interactions, the documentation shows cops aren't respecting rights or other limits placed on the NYPD's stop-and-frisk program. (h/t CBS News)

If anything, it looks like the NYPD is getting worse in terms of constitutional compliance. As the court-ordered reforms continue to recede into history, the NYPD is regressing to its stop-and-frisk mean. Stops are increasing again. CBS News notes the number of annual stops has doubled since 2020. The report shows that quantity definitely isn't quality. Here's how things are broken down in the oversight report:

In 2020, 94% of frisks were based on reasonable suspicion. That dropped 10 points to 84% in 2021. 2022 saw another nearly double-digit drop, from 84% to 76%. As of the middle of last year, the numbers were abysmal: not even two-thirds of frisks were supported by reasonable suspicion (63%).

Things aren't much better on the search end of things. The progression is stop (the lowest suspicion standard), frisk (more suspicion needed), and actual searches (probable cause, in most cases). That number has similarly declined over the past few years as the number of stops continues to increase. In 2020, nearly 94% of documented searches were legally justified. By the middle of 2023, that percentage had dropped to 68%.

That's a lot of rights violations! Of course, there are a couple ways to look at this data set. Don't worry. Neither option makes the NYPD look good or lawful or respectful of federal court decisions.

The legality numbers may have been higher back in 2020 due to selective reporting of stops, i.e., mainly those officers who followed every law, rule, and court-ordered regulation. That would explain why the legality of frisks and stops has declined as the number of reported stops have increased. More reporting is being done, but officers no longer care enough to only report stops that actually follow the rules.

The second option is that as stops increase, the care that goes into ensuring they remain constitutional has declined. This means officers feel more comfortable fully reporting unconstitutional stops/frisks/searches because they've observed over the past several years that officers aren't getting disciplined for violating the Constitution. If anything, they've noticed officers getting punished for not filing reports, since that was the sticking point the last time the NYPD ran into trouble with its court-ordered oversight.

But it's probably a blend of both options, considering under-reporting is still a huge problem:

After ten years of oversight, there are still too many officers who are making Terry stops but not documenting them in a stop report, as required. Underreporting of Terry stops by officers increased from 2020 to 2022. The Monitor team's audit of BWC videos showed that 31.4% of Terry stops in 2022 were not documented.

Given what's covered here, one would expect a more drastic decline in constitutionally-compliant stops if every stop were documented. There's no reason to believe otherwise, given the NYPD's stop-and-frisk history and its constant refusal to comply with court-ordered reforms.

Either way, nothing in the report gives any indication NYPD officers are fully compliant with court-ordered reporting requirements or the US Constitution. None of that is surprising. In fact, it's difficult to call it disappointing" because it's exactly what we've been led to expect from the NYPD, if not law enforcement in general.

Another problem is noted in the report, even though the report doesn't actually call it out as a problem. The monitors note that stops initiated by 911 calls are almost always handled in accordance with the law (96% compliant), but a majority of stops are made by officers who aren't actually patrol officers. They're made primarily by a couple of the PD's task forces - special units that tend to be far more aggressive and far less respectful of residents' rights.

In the same six months, the specialized units, such as the NST and PST, made the majority of the improper Terry stops, frisks, and searches, most of which were self-initiated stops involving officers stopping a person to investigate whether they had a weapon. For example, young Black and Hispanic men have been stopped without reasonable suspicion, often when they were wearing fanny packs. For many Terry stops reviewed by the Monitor team, the officer was in a police car some distance away from the person stopped and it was late in the evening when there was little light, and it was unlikely, if not impossible, for the officer to observe what might be a weapon through the fabric in a fanny pack. Additionally, there were also instances in which stop reports were inconsistent with BWC video or did not contain sufficient detail to legally justify the stop.

The NST is the NYPD's Neighborhood Safety Team," a crew of specialized officers operating across all five boroughs who often make arrests in unmarked vehicles." It's a rebrand of the PD's Anti-Crime Unit" (isn't the entire PD anti-crime?") - one necessitated by that unit's frequent rights violations.

The PST is the Public Safety Team" - a specialized unit that is pretty much the same thing as the NST. The only difference is PST members wear police uniforms. However, like the NST, they drive unmarked cars.

So, the majority of illegal frisks/searches are being performed by officers who may not be readily identified as police officers - ones who are granted a vast amount of discretion in terms of their duties. And, as we've seen pretty much everywhere, giving cops more power, less direct supervision, and the opportunity to do their jobs dressed as something other than cops often results in a ton of misconduct, abuse, rights violations, and excessive force deployment. The NYPD is no different than any other law enforcement agency in the nation, other than it has more officers. That and the court-ordered reforms, which it has ignored repeatedly since they were first handed down more than a decade ago.

There's a clear solution to this ongoing problem. The monitor's report makes several recommendations, but one sentence at the end of page 34 sums up exactly why the NYPD isn't getting any better at respecting constitutional rights or complying with court-ordered mandates.

First-line supervisors are not holding their officers accountable for unconstitutional Terry stops.

It doesn't matter how much remedial training, policy updates, and body-worn camera audits the NYPD engages in if it won't take care of this part first. No officer is going to care about training, policy changes, or audits of their stops if they know the most that will happen to them is being sent to another class on Terry stops. Unpaid suspensions and firings are the only things proven to work. Until the NYPD decides it's going to engage in actual accountability, this problem will just keep getting worse. And history shows the NYPD as a whole needs the same sort of discipline. City officials need to be willing to fire or remove front-line supervisors and the people above them if they're unwilling to do their jobs properly.

But if I'm a NYC resident, I'm not holding my breath. It won't work any better than holding onto your wallet every time the city writes out another check to a victim of police misconduct. Maybe city reps can comfort their consciences by believing the NYPD is a necessary evil. But they should never forget they're buddying up to evil because it's so much easier than actually trying to make things better.