Police Profiling: A Global Problem

The Open Society Foundations support efforts to document and remedy profiling by law enforcement in the United States and Europe. Strategic litigation is a key tool, and a new wave of cases is challenging profiling in New York, the UK, Australia, and France. Here, Marc Krupanski of the Open Society Justice Initiative and Terrance Pitts of our U.S. Programs discuss how the debate over police stops is playing out in different parts of the world.

Marc Krupanski: The historic racial profiling trial in New York City—Floyd v. City of New York—challenging police stop and search practices recently ended. What, if anything, surprised you in the trial?

Terrance Pitts: New York City police have been stopping hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino. Despite serious concerns over racial profiling, illegal stops, and privacy rights, the NYPD has been defiant and reluctant to take a close look at their stop-and-frisk practices or consider how the overuse of the tactic may be damaging community relations.

During the trial testimony, there was a stark contrast between the perspectives of community members impacted by stop-and-frisk and the NYPD. Plaintiffs’ witnesses gave testimony detailing a sense of victimization and humiliation at the hands of the police. They discussed, quite movingly, being stopped because of the color of their skin, the clothes they wore, or what neighborhood they lived in. When people are stopped on their way to school, coming from football practice, or hanging out with friends, it makes them feel they aren’t part of society or less than everyone else. Their sense of public humiliation came out repeatedly in the testimony. The NYPD, on the other hand, does not see these incidents as stigmatizing but as a necessary law enforcement tactic. This says something about how communities of color are perceived as criminals by law enforcement in New York City. But their presumed criminality isn’t held up by the hit rate on the stops: only six percent of all stops result in arrest and the gun retrieval rate is only 0.15 percent.

But I was really surprised by the testimony from courageous officers who spoke out against policing practices that they believe are patently unfair and potentially unconstitutional. These officers have criticized NYPD policies and practices, formal and informal, which place performance goals or quotas on officers to make stops, summonses or arrests, and which they claim specifically target black and Latino communities, particularly young men.

MK: Right, that is something that has also come out in cases in the UK (Roberts v. The Commissioner of the Metropolitan Police and the Secretary of State), France (Kaouah and others), and Australia (Haile-Michael). We’ve heard about how this practice has impacted people on a personal level, but also how it impacts families and entire communities, ultimately undermining trust and legitimacy in the police within significant communities. Only in the UK have we seen the police promise to review the use of Section 60, a law that allows police officers in England and Wales to stop people without reasonable suspicion, promising to curtail those stops. Let’s hope they do.

TP: Do you see any similarities in the Floyd case to jurisdictions outside the U.S.?

MK: One of the problems we’ve seen in other locations, such as in France and Spain, is that the police do not document stops. Also, some countries are very resistant to collecting ethnic or racial disaggregated data under the false ideal that race does not function in society. Of course, in New York it’s quite different where the NYPD collects data on stops, including disaggregated racial data. So, although we see that stop forms alone don’t prevent racial profiling, as in New York, they are a critical management and oversight tool that allows for more scientific internal and external accountability.

But one of the problems in New York is that there is no space for narratives on the form - just the use of check boxes. The narrative aspect can be important to document the reason for the stop and to verify use of reasonable suspicion. In Australia, as part of the settlement, the police officers’ diaries were made public. Even though they didn’t use stop forms, the diary pages revealed their reasons for stops, which referred to plaintiffs as “criminals loitering” in an area—despite the fact no one was arrested or charged with anything—or that the individuals “appeared nervous in police presence” or were wearing “homeboy clothing.” This revealed the police weren’t relying upon reasonable suspicion, but maintained an association of young black people, especially men, as being criminal. If you are black and in a public space, the police overwhelming and unfairly suspect you of criminal activity. If you are in a group, you’re in a gang. If you are by yourself, you’re a drug dealer. As the lawyers argued, it perversely switches the burden on African Australians to justify being in a public space rather than placing the onus on the police, as required by law, to have a legitimate reason to interfere with freedom of movement. It flips the script for the rule of law and what it means to live in a contemporary democratic society.

TP: The practice of stop-and-frisk could be a legitimate law enforcement tactic, but the tactic is overused, and not carried out as mandated by case law or the constitution and impinges the ability of citizens in targeted communities to move freely. These issues are at the heart of Floyd. The notion that an entire group of citizens can be singled out for suspicion tears apart some of the core framework of the U.S. Constitution. The 4th Amendment prohibits unreasonable searches and seizures, and 14th Amendment guarantees equal protection under the law. But the Floyd case also makes us think about the kind of society we want to create and live in. It begs the question of how we choose to create a democratic society. This is important to consider as New York quickly becomes a majority “minority” and multicultural city with a large immigrant population.

MK: What were some of the remedies discussed in the Floyd case?

TP: One of the remedies asked for by the plaintiffs in Floyd is to modify the stop form—the UF 250—to include a narrative portion to allow officers to articulate justification for reasonable suspicion. Another requested remedy is to eliminate any policies that require officers to meet quotas, performance goals, or other measures that create an incentive to stop without reasonable suspicion. The plaintiffs are also asking for a court appointed monitor to oversee any injunctive relief and to have a facilitator to manage the injunctive relief process. The plaintiffs also want a comprehensive evaluation of all stop-and-frisk polices, practices and supervision. Another important component is to have the community help articulate an appropriate remedy.

Whatever the remedy, we know successful reforms of police practices anywhere, not just New York City, require accountable police leadership that values community input. To be long-lasting, the next New York City mayor and police commissioner are going to have to be behind some of the proposed reforms. Community leaders will have to continue to speak up and articulate concerns about policing practices to hold the city’s leaders accountable.

TP: How do we best address problem of racially biased policing?

MK: The use of stop of forms by police can help as a first step, but we need other mechanisms. Police should articulate a valid reason for stops, and stops should be based upon reasonable suspicion. Forms should be reviewed by police supervisors and designated civil society to provide oversight. Training police is an option, but training by itself does not solve the problem. We must work to improve police–community dialogue and create productive spaces where police can meet with communities to hear what people want from police. Policing is a public service and needs to be reoriented as such. The Open Society Justice Initiative tries to support efforts that enhance police-community dialogue. For instance, we had a project in the UK and the Netherlands in partnership with the Open Society Youth Initiative to bring together police and visible minorities to discuss public safety. We also find it important to build the leadership capacity of communities so they can say what kind of policing they want in their communities. This means highlighting the impact discriminatory policing practices have on peoples’ lives and their communities as well as their vision for policing in their communities.

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Until such time as our Community Family is finally aware of our History, and all who have come before us...and how soo many strived to bring equality, peace, justice to this society; until then we will continue to spin like gerbils in a
cage, BECAUSE WE TRULY DO NOT KNOW WHO WE ARE, THE POWER WE HAVE TO MAKE CHANGE, THEN AGAIN DO WE HAVE THE WILL?.

DWB been happening since Henry invented the Ford. Seems to have increased at the same or faster than population has increased. Stopping it will require deep major changes in our messed up culture.

What if the laws being enforced are wrong, unjust laws?

Education in America has shifted from schools to television. We learn adult cops and robbers.

Sometime consider a leading example among the societies of the Earth, Uncle Sam, in my 85-year lifetime has gone far astray.

On coming to America, Albert Einstein commented that he knew of no better way for a society to create disrespect for its laws than to pass a law that cannot be enforced.

I'd suggest that Open Society try to restore trust in Uncle Sam and his America by focusing on the underlying causes of stopping and frisking citizens.

As Thoreau wrote in the 1840s, "Unjust laws exist". Today, they have proliferated. Think deeply to where laws are created. Think to where you understand that when you make a law, you make a criminal.

The vast NYC/NYPD problem here might be almost eliminated by a return to our ancestors "Freedom to Ingest" at their nearest pharmacy.

If you haven't browsed www.PatriotDream.com, it is a tiny ageing beginning.

Further thoughts: USA-805-898-0502

Unjust laws do exist in so many places. Even those that we believe in firmly believe in on one level. What do I mean by that?

The constitution places very clear and firm limits on what the federal government can do. Interstate commerce, national defense and sound money. Decisions and enforcement of every other issue belongs to the states or the individual. For years now, we have ignoring the law of the land, the Constitution, that every soldier and politician has sworn to uphold, in order to support federal laws that sound reasonable.

The federal government has no legal authority to be involved in education, health care, research, public media, etc. The states are well equipped to handle these issues and with greater feedback and control by the public.

As we continue to allow the federal government to make more decisions, outside of constitutional jurisdiction, with the public's support, we will then see the complete dismantling of the constitution and all the protections we are afforded because of it. Free Speech, Free Press, the right to free assembly, the right to a speedy jury trial, The right to protection from unreasonable search and seizure, Gun rights, the right to make our own health care decisions, the right to raise our children the way we as parents see fit,

There are plenty of web site already warning us of this dangerous path we are currently on. There are so many similarities with Hitler's Germany and the mistakes the people of that country made to allow for complete tyranny of their country and the world. Let's not repeat that mistake again.

Support the Constitution!

Get the Federal government out of involvement in areas not consistent with the Constitution.

How about if a Neighborhood Watch group, or a similar voluntary organization created a 1-866-BAD-COPS type phone number, where anyone who has been unfairly stopped, frisked etc -- can anonymously call in later and report the incident providing the cops badge no (but without revealing their own name or other personally identifiable information, to prevent any retaliation).

The voluntary organization would enter the data into a database, and once a week (or, once a month) the voluntary organization would go to NYPD office and share the stats with the Police Captain (whoever in charge) - showing how the people who are stopped are majority African American or Latino etc.

This way the police higher ups can see / monitor what is really going on in the streets, and proactively stop any trend. They can hear the voices from the other side of the table (meaning the drivers who are stopped), instead of reports generated within the police dept itself (which may be biased).

I have several other ideas. How may I be able to add any value. Thanks.

Someday we will learn that we are in this together. There is no separation. No separate doors for entry home. No illusions can enter. You are everyone you see. There is no one out there but you.

I think this practice are helping for ours safety.

Perhaps part of police training could be role reversal exercises lasting for a period of time, i.e.more than a month, in which white officers to be had to live in ethnic neighborhoods.

Racism is very disturbing especially to the victim(s). It permeates his or her psychic and affects performance which could be worst on those who suffer phobia of derogatory approaches. As much as its harm on its victim(s) so is its satisfaction to the racist. Some people appreciate their status by comparing with some others from racial perspective basically from skin color. The back ground of racism stem from those who consider their civilization compared to another at any time to be superior putting the other on a mundane level of human evolution.
Racism is condoned in some societies if the governments overlook its practice, permitting those who perpetrate it to continue unabated. Such societies whose history has not experienced wide contacts or societies with long history of racial subjugation are often entangled in this psychological gap of master- servant relationship. This is conventionalized when it puts the latter on a better and protected political and economic stand.
Despite being the most victimized, I appreciate how African had embraced Europeans during the era of the slave trade to the epoch of colonialism and even thereafter. They facilitated their path to exploitation through force, subjugation and pacification especially as the tools; Rum, guns, knives, silk relegated Africa’s bows and arrows, the smiths and wine brewers to almost extinction. The most remarkable was western religion Islam and Christianity which invaded Africa during the expansion of trade. It absolutely engulfed the African mind, unquestionably inferiorating his traditional religious practices.
I appreciate those who break this barrier personally through marriage, not as a last resort or treasure digging but by every other desire and affection for each other. This’s the strongest, to my opinion anti-racial attitude manifested by any. Racism is personal and derogatory to contemporary civilization.

Videography of the stop & frisk is better than form-filling;at least the police would be more respectful while doing it,for you cannot take away this essentially preventative strategy from them.

I see this everyday in my small town Blytheville, Arkansas. We need to have community more involved in policing, and power to sanction those who violate peoples' rights.

As long as we look at one another as enemies and not as friends or at least as fellow human beings, security challenges will continue to assume more frightening and intimidating postures and features. It is the same eye of hatred, prejudice, superiority complex that law enforcement agents like the police would employ to ascertain that some one is not a security risk. This quest for assurance of safety would equally be biased where the police and passer by are not of same race and colour and gender. Any solution? Of course there are in abundance especially when we agree that tears and blood are colourless. The black person's are same with the white's. We are one and same human persons, economic differences and differences in geographical locations as well as climatic conditions can not fault our oneness. let us be open and accommodating after all multiple colours are definitely more beautiful and richer.

A hearty thank you to all of you who have commented on this article. There are many interesting points raised that we hope to address further.

For the time being, I want to share a quick update to this discussion about potential remedies and solutions that have been offered in New York City by community members, organizers, and now the New York City Council as well.

Two pieces of the "Community Safety Act", (referenced in the discussion above by Terrance) a bill that will establish an inspector general of the NYPD (#1079) and a bill that prohibits "bias-based policing" and establishes a private right to action in case of its occurrence (#1080), passed the NY City Council early this morning.

The inspector general bill passed 40-11 and the bias-based policing bill passed 34-17. Mayor Bloomberg has vowed to veto both bills, but both reached what advocates call the "critical number" of two-thirds majority to be "veto proof".

You can read more here: http://nyti.ms/14vzOh7

IT IS WRONG TO JUDGE PEOPLE BY THEIR COLOR. BECAUSE COLOR IS AN ARTIFICIAL BARRIER. THE MOST IMPORTANT THING IS OUR CONDUCT.

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