As 2020 presidential candidate Michael Bloomberg has struggled to answer for his role in defending the NYPD’s widespread and racially discriminatory stop-and-frisk policy, Mayor Bill de Blasio has used the controversy to contrast his own tenure with the billionaire’s.
“Not only did we get rid of the broken use of stop-and-frisk, but we have — there are 150,000 fewer arrests in 2018 than five years earlier,” de Blasio told WNYC’s Brian Lehrer in December. “I mean, it’s the antithesis of what we saw with Mike Bloomberg and Ray Kelly where young people were affronted constantly by the NYPD, whether innocent or not, and under the stop-and-frisk policy treated very aggressively,” de Blasio said.
But New York City has not actually closed the chapter on the Bloomberg-era stops. The NYPD has been working for years under a federally-appointed monitor to reform its practices, and the work is far from over.
Though there is consensus that the number of police stops has declined dramatically since a peak of more than 685,000 in 2011, police are not documenting all of them. The monitor overseeing police stops has repeatedly cited underreporting as a serious problem. The NYPD acknowledges the issue, though did not respond to a question as to why the problem persists.
The most recent data for 2019 show that reported stops increased by more than 20 percent, to nearly 13,500, compared to 2018. The NYPD contends the increase reflects efforts to report more accurately.
Christopher Dunn, the legal director of the New York Civil Liberties Union, calls the numbers “suspiciously low,” especially given that there are 22,000 police officers and sergeants—officers who are most likely to perform stops.
“When you look at the history of stop activity in the NYPD, even though they've come way, way, down from the highs of the Bloomberg years, these numbers are not believable.”
What’s more, the racial disparities of the stops haven’t budged. In 2019, 88 percent of people stopped were black and Latino. That’s up from 85 percent in 2013, when a federal judge ruled that the NYPD’s stop-and-frisk practices were unconstitutional.
Among the stops reported by the NYPD last year, 35 percent resulted in an arrest or summons, a potential—though not certain—sign of improvement in police officers’ use of the tactic. In contrast, for example, just 12 percent of 4.4 million stops resulted in an arrest or summons over an eight-year period of stop-and-frisk under Bloomberg.
Still, the monitor has not deemed the NYPD’s stop-and-frisk practices to be in compliance with the Constitution, and the police department is likely to be under the monitor’s watch for years to come.
Luis Paulino was beaten by police officers in East New York in 2012 and won a settlement from the city. He thinks the federal monitor overseeing stop and frisk reforms needs to do more to hear from communities most affected by unlawful policing. "If you take your thumb off the pulse of the people, there's no way you can actually help them," he said.
When Shira Scheindlin, a federal district court judge, ruled in August of 2013 that the NYPD’s stop-and-frisk practices were racially discriminatory and unconstitutional, she ordered sweeping changes and a monitor to oversee them.
The work putting the reforms into place has been constant, according to those closely involved, though slow—very slow. In a recent interview, Scheindlin herself expressed surprise that the reform process is ongoing.
“I never envisioned that this monitorship would still be in place six and a half years later,” she told Gothamist/WNYC.
Scheindlin is no longer involved in the case, known as Floyd vs. the City of New York, and she has since retired from the bench. But her blunt legal opinion—writing that the city’s highest officials “turned a blind eye” to years of evidence of racial discrimination—and the remedies she ordered still guide the case.
Scheindlin appointed an attorney, Peter Zimroth, as the federal monitor and the reform work began in earnest in November 2014 after a year of legal filings by the Bloomberg administration and police unions. Zimroth documents progress, and problems, with stop-and-frisk reforms in public reports.
For the purposes of the monitorship, three different legal cases related to police stops are bundled together (the Floyd case covers street stops). That means there are a lot of moving parts to the reform work, and a lot of attorneys around the table meeting with the NYPD and Zimroth’s team to hammer out what the changes should look like.
Some of the most basic reforms required by the court, and newly-developed by all of those lawyers and police personnel in the room, include a new patrol guide section on stop-and-frisk; legally accurate guidance on when it is appropriate to use race to identify suspects; new training on street encounters and racial bias; and a revised stop form requiring officers to actually articulate reasonable suspicion for the stop (rather than just checking boxes).
The court also ordered the NYPD to begin tracking and investigating complaints of racial profiling. As of June 2019, the police department had failed to substantiate a single claim. (Zimroth has been working with the police department to significantly improve those procedures, as outlined in his latest public report from December.)
These policy changes are just first steps.
“The stuff exists on paper which, to us, is kind of the easy part,” said Darius Charney, a senior attorney at the Center for Constitutional Rights and lead counsel for the plaintiffs in the Floyd case. “Now the question becomes—how do you ensure that they’re actually implementing it in practice? And I think for all of those reforms the publicly available data shows that they have a long way to go.”
There are crucial policies that have not even been finalized on paper, Charney added, such as a new discipline protocol for officers who make unconstitutional stops in cases substantiated by the Civilian Complaint Review Board.
And what Charney and other legal advocates at the table are seeking is more reporting from the monitor on the fundamental question of whether stops are lawful and free of racial bias.
Dunn, the NYCLU legal director, says the lack of a more meaningful analysis on constitutionality has been frustrating. Dunn serves as counsel on one of the three cases in the federal monitorship, and has been closely involved in the reform process.
“Is race still playing a role in stops? There is no monitor reporting about that yet and we are in 2020,” Dunn said. “And the other related issue is, even setting aside racial bias—are stops legal in terms of officers having the required reasonable suspicion? Again, there is no meaningful monitoring reporting yet about whether or not the department is complying with that legal requirement.”
NYPD Commissioner Ray Kelly and Mayor Michael Bloomberg at a press conference in 2010.
Both Zimroth and the NYPD declined an interview. In a statement, Al Baker, a spokesman for the police department, said the NYPD has made significant progress in complying with the court’s orders so far and in collaborating with the monitor and plaintiffs’ counsel.
“The NYPD understands that constitutional, biased-free policing is foundational to building community trust and keeping New York City even safer and that every stop that is made in the city is not only done constitutionally, but is both recorded and documented as required,” Baker wrote.
The NYPD created a bureau to deal with mandated reforms. It has worked to tighten its auditing of stops and improve supervision. The NYPD also created a new system to flag “at-risk” officers who may need interventions like more training—a court-ordered change based on community feedback.
Pedro Serrano, a police officer in the Bronx, said there has been a subtle shift in how police handle stops.
“A lot of these new guys that I bump into, I hear a lot of positive stories,” Serrano said, adding that precinct supervisors are getting less pressure from higher-ups to fill quotas on stops. The number of police stops is also no longer tied to an individual officer’s performance evaluation (a court-ordered change).
Serrano testified at the Floyd trial on behalf of the plaintiffs about directives he received to target black and Latino people for stops. He is also part of a lawsuit claiming that the NYPD pressures officers to meet quotas for arrests and summonses. Because of these ongoing issues, Serrano says, he is not confident that any gains made on stop-and-frisk will actually stick in the long term.
“There are light adjustments that make it seem like everything's better,” Serrano said. “But as soon as the pressure dies down, it's gonna go right back.”
David Ourlicht, a named plaintiff in the Floyd case, also rejects the idea that policing has changed in New York City.
“The same people are being stopped — to a lesser degree,” he said. “That's not fixing the problem.”
Ourlicht is now a public defender for the Legal Aid Society, and takes issue with Mayor de Blasio’s hard sell on a reformed police department.
“Shame on you for making it seem like the policing problem in this city is fixed,” Ourlicht said. “It's not. And the more we pretend like we're moving in such a progressive, forward movement with this, the more that it stays the same.”
The NYPD showed reporters an example of a stop-and-frisk scenario at a training facility in the Bronx in 2012.
It’s up to Zimroth, the monitor, to determine how and when the NYPD is in compliance with court-ordered stop-and-frisk reforms. He includes in his latest report a kind of roadmap of the tasks laid out by the court so far and how he will determine when the NYPD has accomplished them—and maintains them in practice.
“Changing written policy is not meaningful unless the change is implemented and sustained in the field,” Zimroth wrote in his seventh report.
But communities directly impacted by unlawful police stops want more of a say in how the NYPD’s practices are playing out in the street, said Joo-Hyun Kang, director of the coalition Communities United for Police Reform. Indeed, in Scheindlin’s original court orders, the judge noted that the people most affected by stop-and-frisk must perceive the reforms as legitimate in order for them to be successful.
“Neither an independent Monitor, nor a municipal administration, nor this Court can speak for those who have been and will be most affected by the NYPD’s use of stop-and-frisk,” Scheindlin wrote.
Community groups took part in a lengthy community engagement process, as ordered by Scheindlin, which resulted in recommendations for 14 additional reforms. The judge now presiding over the remediation phase of the stop-and-frisk case, Analisa Torres, has ordered a version of three of them.
But Kang says at least two of the most crucial recommendations have not yet been ordered: stronger disciplinary measures and a “community oversight board” to help guide the reform process.
“The theory of change around this case was always that if there wasn't a strong disciplinary response and if there wasn't a strong community oversight mechanism, that it wouldn't be successful,” she said.
It is entirely possible that the court will order more changes in the future, according to those working closely on the reform work. And there is a sense that the monitorship is not coming to an end any time soon.
“I think it's clear it's going to go on for years,” Dunn said.
