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New York Stop and Frisk is racial profiling

Written By Kenneth Brooks on 08-15-2013 | in Government, Ethics, Race, Democracy, Human Relations, Critical Thinking, Freedom,

U.S. District Judge Shira A. Scheindlin of Southern District Of New York ruled that New York City's "stop and frisk" law violated David Floyd and other plaintiffs Fourth and Fourteenth Amendment rights. Reading the facts and statistic of the case confirmed three conclusions for me. New York's "stop and frisk" law is racial profiling. It wastes police office time and police resources. It forces police officers to violate citizens' constitutional protection or suffer poor evaluations that negatively affect their careers.

New York Mayor Bloomberg, Police Commissioner Kelly, and many family members of crime victims disagree with the decision. They argue that "stop and frisk" helps to remove weapons off the street. This is an emotional reaction. Disturbing facts in the judge's "executive summary" quoted below reveal only about 1.5% percent of millions of searches discover a weapon. A weapon is not necessarily a gun. Police stopped black-race-labeled people at five times and Latinos three times the rate they stopped white-race-labeled people. Nevertheless, they seized weapons and contraband from white-race-labeled people in higher percentages than the other groups. Probably those statistics indicate police officers stop more people based on their skin color than they do based on probable cause. Using police officers' time for more frequent patrols is a better crime deterrent than wasting it to search, frisk, and alienate law-abiding citizens.

Judge Scheindlin said in the Introduction of the Case, "This case is about the tension between liberty and public safety in the use of a proactive policing tool called "stop and frisk." The New York City Police Department ("NYPD") made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk."

Judge Scheindlin added: "The Supreme Court has recognized that "the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security." In light of the very active and public debate on the issues addressed in this Opinion - and the passionate positions taken by both sides - it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone."

Here is the Executive Summary taken from the Court's ruling.



Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs "must prove that 'action pursuant to official municipal policy' caused the alleged constitutional injury." "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."

The Fourth Amendment protects all individuals against unreasonable searches or seizures. The Supreme Court has held that the Fourth Amendment permits the police to "stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause." "Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant." The test for whether a stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter. "'[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.'"

The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. "The impact of the official action - whether it bears more heavily on one race than another - may provide an important starting point."

The following facts, discussed in greater detail below, are uncontested

. Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.

. The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.

. 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.

. 8% of all stops led to a search into the stopped person's clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.

. 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.

. In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.

. In 2010, New York City's resident population was roughly 23% black, 29%Hispanic, and 33% white.

. In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.

. Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.

. Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7%of the stops of Hispanics, and 2.3% of the stops of whites.

. Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

Both parties provided extensive expert submissions and testimony that is also discussed in detail below. Based on that testimony and the uncontested facts, I have made the following findings with respect to the expert testimony.

With respect to plaintiffs' Fourth Amendment claim, I begin by noting the inherent difficulty in making findings and conclusions regarding 4.4 million stops. Because it is impossible to individually analyze each of those stops, plaintiffs' case was based on the imperfect information contained in the NYPD's database of forms ("UF-250s") that officers are required to prepare after each stop. The central flaws in this database all skew toward underestimating the number of unconstitutional stops that occur: the database is incomplete, in that officers do not prepare a UF-250 for every stop they make; it is one-sided, in that the UF-250 only records the officer's version of the story; the UF-250 permits the officer to merely check a series of boxes, rather than requiring the officer to explain the basis for her suspicion; and many of the boxes on the form are inherently subjective and vague (such as "furtive movements"). Nonetheless, the analysis of the UF-250 database reveals that at least 200,000 stops were made without reasonable suspicion.

The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as "apparently unjustified." For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as "apparently unjustified." The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked "other" on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as "ungeneralizable" rather than "apparently unjustified." (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). "Furtive Movements," "High Crime Area," and "Suspicious Bulge" are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.

With respect to plaintiffs' Fourteenth Amendment claim, I reject the testimony of the City's experts that the race of crime suspects is the appropriate benchmark for measuring racial bias in stops. The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this

reasoning is flawed because the stopped population is overwhelmingly innocent - not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area. Instead, I conclude that the benchmark used by plaintiffs' expert - a combination of local population demographics and local crime rates (to account for police deployment) is the most sensible.

Based on the expert testimony I find the following: (1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate. (2) Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations. (3) For the period 2004 through 2009, when any law enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime. (4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely - and Hispanics 9% more likely - than whites to be subjected to the use of force. (5) For the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. Together, these results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.

With respect to both the Fourth and Fourteenth Amendment claims, one way to prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees - here, the NYPD. The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.

As early as 1999, a report from New York's Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal. Without a system to ensure that stops are justified, such pressure is a predictable formula for producing unconstitutional stops. As one high ranking police official noted in 2010, this pressure, without a comparable emphasis on ensuring that the activities are legally justified, "could result in an officer taking enforcement action for the purpose of meeting a quota rather than because a violation of the law has occurred."

In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting "the right people" for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling. While a person's race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion. Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.

One example of poor training is particularly telling. Two officers testified to their understanding of the term "furtive movements." One explained that "furtive movement is a very broad concept," and could include a person "changing direction," "walking in a certain way," "[a]cting a little suspicious," "making a movement that is not regular," being "very fidgety," "going in and out of his pocket," "going in and out of a location," "looking back and forth constantly," "looking over their shoulder," "adjusting their hip or their belt," "moving in and out of a car too quickly," "[t]urning a part of their body away from you," "[g]rabbing at a certain pocket or something at their waist," "getting a little nervous, maybe shaking," and "stutter[ing]." Another officer explained that "usually" a furtive movement is someone "hanging out in front of [a] building, sitting on the benches or something like that" and then making a "quick movement," such as "bending down and quickly standing back up," "going inside the lobby . . . and then quickly coming back out," or "all of a sudden becom[ing] very nervous, very aware." If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.

I now summarize my findings with respect to the individual stops that were the subject of testimony at trial. Twelve plaintiffs testified regarding nineteen stops. In twelve of those stops, both the plaintiffs and the officers testified. In seven stops no officer testified, either because the officers could not be identified or because the officers dispute that the stop ever occurred. I find that nine of the stops and frisks were unconstitutional - that is, they were not based on reasonable suspicion. I also find that while five other stops were constitutional, the frisks following those stops were unconstitutional. Finally, I find that plaintiffs have failed to prove an unconstitutional stop (or frisk) in five of the nineteen stops. The individual stop testimony corroborated much of the evidence about the NYPD's policies and practices with respect to carrying out and monitoring stops and frisks.

In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.

In conclusion, I find that the City is liable for violating plaintiffs' Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD's practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD's unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City's highest officials have turned a blind eye to the evidence that officers are

"Throughout the country, police work diligently every day trying to prevent crime, arrest those who are responsible, and protect victims from crimes that undermine their dignity and threaten their safety. They work for relatively low pay for the risks that they take, and although in some communities their role is respected and admired, in other communities they are vilified and treated as outcasts." CHARLES OGLETREE, THE PRESUMPTION OF GUILT 125 (2012). conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting "the right people" is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason - in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.

I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the need for policing is greatest. But the police are not permitted to target people for stops based on their race. Some may worry about the implications of this decision. They may wonder: if the police believe that a particular group of people is disproportionately responsible for crime in one area, why should the police not target that group with increased stops? Why should it matter if the group is defined in part by race? Indeed, there are contexts in which the Constitution permits considerations of race in law enforcement operations. What is clear, however, is that the Equal Protection Clause prohibits the practices described in this case. A police department may not target a racially defined group for stops in general - that is, for stops based on suspicions of general criminal wrongdoing - simply I note again that based on the uncontested statistics, see infra Part IV.A, the NYPD's current use of stop and frisk has not been particularly successful in producing arrests or seizures of weapons or other contraband.

For example, as discussed at length in this Opinion, race is a permissible consideration where there is a specific suspect description that includes race. See, e.g., Brown v. City of Oneonta, New York, 221 F.3d 329, 340 (2d Cir. 2000). because members of that group appear frequently in the police department's suspect data.30 The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.

To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD's conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD's compliance with the ordered remedies.



DENNIS, and DAVID OURLICHT, individually and

on behalf of a class of all others similarly situated,


- against-


Race identity incompatible with autonomy and liberty

Written By Kenneth Brooks on 07-31-2013 | in Government, Race, Democracy, Human Relations, Critical Thinking, Freedom,

NerdWallet reported Vallejo, California the most diverse city in the United States of America based on data from the U.S. Census. The website reported growing diversity in America as a source of pride among residents. The survey based diversity claims on federal government race classifications -"As of June 2012, people of color constituted 36% of the workforce." However, diversity claims based on ignorance and bigotry are cause for concern about Americans' reasoning ability and not pride.

People that claim pride in race identity have surrendered self-image and individual autonomy for group image and subordination to a unified force external to them. Racial groups with a distinctive genetic set not shared by any others do not exist in nature. Anthropology and genetic science discredited assertions of inborn or learned racial-group culture or behavior.

Racists-people that believe human race difference- credit common abilities and culture to black-race people of Africa, brown-race people of Asia, and white-race people of Europe based on similar physical traits among members. They even argue that research shows more common genetic traits among people on the same continent and among declared racial-group members than with populations of other continents. This is a specious argument given human methods of reproduction.

Humans reproduce by female and male sexual union with each parent contributing half the genetic material for the new human. Obviously, this reproduction method creates a new person different from either parent. Therefore, certain genes will predominate in populations where parents chose mates from a limited gene pool, like a continental area. Nevertheless, individuals in those populations show genetic differences.

Nature is not impulsive and does not produce inconsistent results. Results that nature creates when certain material and forces are present are always the same. Nature produces humans of different physical traits from the presence of certain genetic material. No matter differences in physical appearance, members of all populations have the ability to learn language, culture, and knowledge of other populations. This shared ability is evidence of one human species that share genetics of reasoning ability and adaptability.

All life on Earth has ability survive. Autonomous (self-directed) individuals improved survival potential when grouped as families to secure food, shelter, safety and to advance their general welfare. Families formed communities as equal humans sharing and exchanging units of production. Losses of individual autonomy and liberty developed as communities grew in size and some members sought to enrich themselves off the labor of others. History reports periods of political unification that advanced powers of the State (monarchs, dictators, religious leaders, even democracies) over the people by destroying individual autonomy. Commonly, a monarch and nobility exercised political power and privilege at the top and serfs as a featureless labor commodity at the bottom.

Citizens of the new American Republic had goals and the opportunity to restore individual autonomy and liberty. Instead, they yielded to greed and racism to continue authority of the State over the people. Owners of large plantations lacked the power to force race identity and enslavement on other individuals. They used the Constitution to extended State power over human rights of the people. The State used its powers to deprive people of liberty and the right of property-ownership of their body based on race classification. States limited voting rights only to male property owners. This disenfranchisement of working-class wage earners without property made them subordinate to wealthy property owners and not free. Eventually, States changed laws to enfranchise all white-race-labeled males.

After the Civil War, capitalists attacked human and civil rights protections in Amendments 14 and 15. Through the U.S. Supreme Court, they redefined the meaning of the 14th Amendment's mandate for equal protection under the law for all natural born and naturalized citizens. The Supreme Court reinterpreted the Amendment to grant corporations rights of a person. It reinstalled consideration of race in law by upholding State laws of racial segregation (separate but equal).

Some people protested the person status for corporations, but society allowed laws of racial segregation without much protest. Blinded by the emotional lure of racism and exhilaration from ideas of white-race-supremacy, most Americans at the time did not see that both Court rulings advanced the powers of capitalists over members of the working class.

Capitalists' achieved multiply goals from racial segregation laws. They disenfranchised and subordinated the recently freed people and kept them captive as cheap labor. However, low wages for any group of workers affects the bargaining power and wages of all workers. Therefore, white-race-labeled workers harmed their economic interests by supporting the brutal economic oppression of black-race-labeled workers. Capitalist pocked the wealth and white-race-labeled workers enjoyed the white race identity and power to degrade other humans.

Capitalists owned the corporations. They gained more influence over government with corporations classified as persons. Expanding corporate power met little opposition during the 20th Century from Southern voters that showed more interest about extending laws of racial segregation and oppression of black-race-labeled people than other issues.

American racism took an ironic twist during the 1960s. American society had made great advances for equality of opportunity after Congress approved 1964 Civil Rights Act, and 1965 Voting Rights Act. Then, some people previously targeted for economic, political, and legal oppression based on skin color and black-race-classification yielded to the emotional lure of race identity and racism. They supported the movement for African-American racial and cultural identity for them. They acted against self-interest of equality of opportunity. "A rose by any other name would smells as sweet." Racial segregation, economic, political, and legal inequality by any other name is as oppression.

My bitter disappointment on learning of the African-American movement continues today. I never embraced race for an identity. Even as a child, I recognized the intellectual trap of group thinking and the loss of personal identity. I wrote a book, "African-Americans and Other Myths, Confusing Racism with Cultural Diversity (1994) that warned of the negative results of adopting the African-American race identity.

As I expected, society supported the African-American Movement and used it as the foundation for claims of culture diversity of race (policy of separate-but-equal race segregation). Now government, writers, and society in general refer to a "White majority and black and other minority groups of color. In other words, only white-race-labeled people are of American culture.

As Americans remain distracted by race and ethnicity, capitalists and corporations are reducing the working class, 85 percent of Americans, to serfdom. The flow of wealth continues mainly to the upper 10 percent of families while employment, wages, and benefits for workers decline. Rights to vote and to own weapons are the people's most potent weapon against the State and capitalists power. Voting power of an aware and educated citizenry can overcome capitalists' excessive influence over government. Nevertheless, they must act before legislators destroy the power of the vote.

After America passed the Fifteenth Amendment that guaranteed voting rights without race restrictions, legislators in Southern states used poll taxes, intelligence tests, and intimation to nullify the voting rights of black-race-labeled Americans. A fact not well known to Americans is that those restrictions applied to white-race-labeled voters too. Many of them also were uneducated and poor. Those legal hindrances to voting permitted political party bosses to control election results by easing qualifications for voters that sided with them.

The Supreme Court and political bosses are attacking working class voters' access to voting booths again. The Court nullified sections of the 1965 Voting Rights Act that restricted State's authority to draft unfair voting law. Immediately, politicians seized the opportunity to pass laws that make it inconvenient for working-class citizens to vote. They do so with a wink to white-race-labeled citizenry that "we are reversing political gains made by those "black" folk." Nevertheless, those hindrances apply to all voters and inconvenience low-income areas most. This time those sneaky attacks on liberty and voting met more opposition from current voters that are more knowledgeable about threats to their liberty, economic and political rights.

I believe most Americans are fair-minded and they want to end inequality of opportunity based on race classifications. Nevertheless, they are confused about race claims. Most of them believe in race difference and support policies for equality of opportunity among the races. However, race is a fantasy and social construction. Therefore, the belief of race difference is a prejudice. Nature is not impulsive. It only produces the results of the material and forces present and not what people believe them to be. Prejudice and false belief about race difference will produce negative results for American society no matter how sincerely Americans want a different result. They must evaluate and change beliefs about race. Despite reasoned conclusions against them, people have difficult time discarding beliefs and conclusions with strong emotional attachments.


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