State and local governments and public agencies must ensure that their laws, policies, and practices do not violate international human rights standards.150 These standards
are articulated in human rights treaties and other international law.151 Accordingly, the
NYPD, the New York City Council, and the New York State Legislature must each take
A policing strategy that relies on the widespread use of stops and frisks will inevitably run afoul of the law, the U.S. Constitution, and international human rights.
steps to ensure that the NYPD stop-and-frisk practices reflect the following human rights obligations:
● Protect all people from discrimination based on actual or perceived race, class,
gender, gender identity and expression, sexuality, ethnicity, language, religion, political or other opinion, national or social origin, age, housing status, income, or disability.152
● Ensure that all people are free from arbitrary arrest and detention, and from cruel,
inhuman and degrading treatment or punishment.153
● Ensure that all people enjoy equal protection of the law and the right to freedom
of movement, association, expression, and privacy and the right to participate effectively in cultural, religious, social, economic and public life, and that the dignity of all people is respected.154
NOTES
1. Center for Constitutional Rights (CCR), “First-quarter Stop-and-Frisk Data Sets Yet Another Shameful Record,” May 4, 2012, http://ccrjustice.org/newsroom/press-releases/first-quarter-stop-and-frisk-data-sets-yet-another- shameful-record. The NYPD reported a record 685,724 stops in 2011 and over 203,500 between January and March of 2012.
2. “2011 Stop and Frisk Statistics,” http://ccrjustice.org/files/CCR_Stop_Frisk_Factsheet-2011.pdf. CCR. In 2011, 84 percent of stops were of Blacks or Latinos, who, in 2010, made up about 23 percent and 29 percent of New York City’s population respectively. For more information see http://ccrjustice.org/racial-disparity-nypd-stops-and-frisks. 3. Ibid. In 2011, 88 percent of stops did not result in an arrest or a summons being given.
4. Ibid. In 2011, contraband was found in only 2 percent of stops.
5. CCR, “Daniels, et al. v. the City of New York,” http://ccrjustice.org/ourcases/past-cases/ daniels,-et-al.-v.-city-new-york.
6. NYPD’s Street Crime Unit (SCU) was an elite commando unit of more than 300 police officers who patrolled the streets at night in unmarked cars and in plain clothes. In February 1999, a team of four SCU officers killed unarmed African immigrant Amadou Diallo by firing 41 bullets at him as he was standing in the vestibule of his Bronx apartment building.
7. CCR, “Floyd et al v City of New York et al,” http://ccrjustice.org/ourcases/current-cases/floyd-et-al. 8. Communities United for Police Reform (CPR), http://changethenypd.org/.
9. Between August 2011 and January 2012, CCR conducted 52 interviews in-person and two interviews over the telephone. Interviewees were identified by community-based and grassroots organizations, activists, and direct service providers. Some interviewees suggested other individuals for CCR to interview, creating a snowball interview sampling method. Additional interviewees were randomly selected. Interviewees were asked questions based on a standard 26-question questionnaire, which was at times adapted in length to accommodate shorter length interviews. Those interviewed represented a diverse group of individuals representative of a broad range of experiences of people stopped by the NYPD. Individuals were asked to provide their preferred gender pronoun and describe their race or ethnicity for the report, and those preferences have been reflected herein.
10. Francis Pakes, Comparative Criminal Justice, 2nd Ed., (Portland: Willan Publishing, 2010), 128. The United States incarcerates 756 per 100,000 people. The next highest rates are Russia and China, respectively. For a general discussion of the crisis of criminalization of people of color in the U.S. see Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (New York: New Press, 2010).
11. Terry v. Ohio, 392 U.S. 1 (1968).
12. The UF-250 Stop, Question and Frisk Report Worksheet, PD344-151A.
13. Jeffrey Fagan, PhD, Floyd v. City of New York, 08 Civ. 1034 (SAS) (SDNY), October 2010, 118. A copy of the form that was in use from November 2002 to May 2011.
14. Ibid., The full text is available at http://ccrjustice.org/files/Expert_Report_JeffreyFagan.pdf. See also the May 16, 2012 class certification decision in Floyd at http://ccrjustice.org/floyd.
15. Ibid., 63-65.
16. CCR, “2011 Stop and Frisk Statistics,” http://ccrjustice.org/files/CCR_Stop_Frisk_Factsheet-2011.pdf. “In 2011, 88 percent of all stops did not result in an arrest or a summons being given.” See also Fagan report, Floyd v. City of New York, 66. The rate of arrests and summonses that resulted from stops and frisks from 2004 to 2009 was 11%.
17. CCR interview with Will E. (pseudonym), New York, New York, December 8, 2011. 18. CCR interview with Ricky S. (pseudonym), New York, New York, December 8, 2011. 19. CCR interview with Michael P. (pseudonym), New York, New York, January 24, 2012. 20. CCR interview with Juan L. (pseudonym), New York, New York, January 19, 2012. 21. CCR interview with April R. (pseudonym), New York, New York, December 8, 2011.
22. See for example: CCR interview with Keenan H. (pseudonym), New York, New York, December 7, 2011. 23. Ibid.
24. Ibid. Fagan, Floyd v. City of New York, 3-4, 66. “Force was 14 percent more likely to be used in stops of Blacks compared to White suspects, and 9.3 percent more likely for Hispanics.” See also CCR, “Racial Disparity in NYPD Stops and Frisks,” http://ccrjustice.org/racial-disparity-nypd-stops-and-frisks. See also CCR, “Stop-and-Frisk: Fagan Report Summary,” http://ccrjustice.org/files/Fagan%20Report%20Summary%20Final.pdf.
25. As used in this report, the term transgender describes a person whose gender identity or expression differs from societal expectations and/or from the sex they were assigned at birth.
26. CCR interview with Maria P. (pseudonym), New York, New York, December 8, 2011. 27. CCR interview with Carl W. (pseudonym), New York, New York, December 27, 2011. 28. CCR interview with Miles K. (pseudonym), New York, New York, December 29, 2011. 29. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011. 30. Ibid.
31. CCR interview with Maya S. (pseudonym), New York, New York, December 8, 2011. 32. CCR interview with Natasha A. (pseudonym), New York, New York, January 23, 2012. 33. CCR interview with Maribel S. (pseudonym), New York, New York, August 31, 2011.
34. CCR interview with Angel V. (pseudonym), New York, New York, November 18, 2011. “It got to the point where I have agreed to myself not to get any ethnic hairdos for a while, while I’m in that kind of neighborhood, because I have been harassed by the police while wearing hair like in dreadlocks or cornrows.”
35. CCR interview with Maria P. (pseudonym), New York, New York, December 8, 2011. 36. CCR interview with Mark K. (pseudonym), New York, New York, November 1, 2011. 37. Ailsa Chang, WNYC, “Police Commissioner Calls on NYPD to Stop Improper Marijuana Arrests,” September 23, 2011, http://www.wnyc.org/articles/wnyc-news/2011/sep/23/
police-commissioner-calls-nypd-stop-improper-marijuana-arrests/.
38. NYTimes.com, “Cuomo Seeks Cut in Frisk Arrests,” June 3, 2012. “From 2002 to 2011, New York City recorded 400,000 low-level marijuana arrests.... That represented more arrests than under Mr. Bloomberg’s three predecessors put together – a period of 24 years. Most of those arrested have been young black and Hispanic men, and most had no prior criminal convictions.”
39. Li-Tzy Wu, George E. Woody, Chongming Yang, Jeng-Jong Pan, Dan G. Blazer, Racial/Ethnic Variations in Substance-Related Disorders Among Adolescents in the United States, Archives of General Psychiatry, November 2011, doi:10.1001/archgenpsychiatry.2011.120.
40. More information on the immigration consequences of arrests and convictions is available through the Immigrant Defense Project, http://immigrantdefenseproject.org/.
41. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011. 42. CCR interview with Theresa C. (pseudonym), New York, New York, October 12, 2011. 43. CCR interview with Mark K. (pseudonym), New York, New York, November 1, 2011. 44. CCR interview with Keith I. (pseudonym), New York, New York, November 16, 2011.
45. For a useful explanation see Columbia Law School’s Collateral Consequences Calculator, http://calculator.law. columbia.edu/.
46. CCR interview with Michael P. (pseudonym), New York, New York, January 24, 2012. 47. Ibid.
48. The term “undomiciled” is used here to describe someone unable to secure stable housing without special assistance. Individuals may identify as undomiciled due to the pejorative connotations associated with the term ‘homeless.’
49. CCR interview with Oscar C. (pseudonym), New York, New York, December 5, 2011. 50. CCR interview with Juan L. (pseudonym), New York, New York, January 19, 2012. 51. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011.
52. CCR interview with Paulene J. (pseudonym), New York, New York, January 5, 2012. Paulene told CCR that her hearing impaired grandson was tackled by NYPD and handcuffed when he had been riding a bike because he had been unable to hear them when they yelled at him to stop.
53. CCR interview with Patrick B. (pseudonym), New York, New York, January 31, 2012. 54. CCR interview with Brent C. (pseudonym), New York, New York, November 10, 2011. 55. Fagan report, Floyd v. City of New York, 4, 25-29, 32-47.
56. Ibid., 4, 63, 66.
59. CCR interview with Brent C. (pseudonym), New York, New York, November 10, 2011. 60. CCR interview with April R. (pseudonym), New York, New York, December 8, 2011. 61. CCR interview with Maribel S. (pseudonym), New York, New York, August 31, 2011. 62. CCR interview with April R. (pseudonym), New York, New York, December 8, 2011.
63. Amnesty International (AI), Stonewalled: Police Abuse and Misconduct Against Lesbian, Gay, Bisexual and Transgender People in the U.S., September 2005, 17-19. “AI has heard reports of widespread profiling of transgender women as sex workers.” Available at http://www.amnesty.org/en/library/asset/AMR51/122/2005/en/2200113d-d4bd- 11dd-8a23-d58a49c0d652/amr511222005en.pdf. See also Joey Mogul, Andrea Ritchie, and Kay Whitlock, Queer (In) Justice: The Criminalization of LGBT People in the United States, (Boston: Beacon Press, 2011).
64. CCR interview with Maya S. (pseudonym), New York, New York, December 8, 2011. 65. CCR interview with April R. (pseudonym), New York, New York, December 8, 2011. 66. CCR interview with Maria P. (pseudonym), New York, New York, December 8, 2011. 67. CCR interview with Natasha A. (pseudonym), New York, New York, January 23, 2012. 68. CCR interview with Maribel S. (pseudonym), New York, New York, August 31, 2011. 69. CCR interview with Roland L. (pseudonym), New York, New York, January 31, 2012.
70. Amnesty International, Stonewalled, 3. “Transgender people, particularly low-income transgender people of color, experience some of the most egregious cases of police brutality reported to AI.”
71. See for example: PROS Network and Leigh Tomppert, Sex Workers Project, “Public Health Crisis: The Impact of Using Condoms as Evidence of Prostitution in New York City,” April 2012, 8. Available at http://www. sexworkersproject.org/downloads/2012/20120417-public-health-crisis.pdf. “According to the United States Centers for Disease Control and Prevention (CDC), consistent condom use is highly effective in preventing the transmission of HIV, the virus that causes AIDS, and reducing the risk of sexually transmitted diseases (STDs).”
72. New York City, Department of Health and Mental Hygiene, “A Report to the New York City Commission of Health,” December 8, 2010, (redacted version), 6. A redacted version of this study is attached as Appendix E to PROS Network “Public Health Crisis,” above.
73. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011. 74. UF-250 stop-and-frisk data from 2011, (unpublished).
75. CCR interview with Brianna E. (pseudonym), New York, New York, August 31, 2011. 76. CCR interview with Corey F. (pseudonym), New York, New York, December 8, 2011.
77. See ACLU Racial Justice Project, “School to Prison Pipeline,” http://www.aclu.org/racial-justice/ school-prison-pipeline.
78. CCR interview with Ben F. (pseudonym), New York, New York, January 18, 2012. 79. CCR interview with Corey F. (pseudonym), New York, New York, December 8, 2011. 80. CCR interview with Mark K. (pseudonym), New York, New York, November 1, 2011. 81. CCR interview with Peter J. (pseudonym), New York, New York, November 16, 2011. 82. CCR interview with Carl W. (pseudonym), New York, New York, December 27, 2011. 83. CCR interview with Angel V. (pseudonym), New York, New York, November 18, 2011. 84. CCR interview with Kareem S. (pseudonym), New York, New York, January 24, 2012. 85. CCR interview with Maria P. (pseudonym), New York, New York, December 8, 2011. 86. CCR interview with Peter J. (pseudonym), New York, New York, November 16, 2011. 87. Matt Apuzzo and Adam Goldman, Associated Press, “With CIA Help, NYPD Moves Covertly in Muslim Areas,” August 23, 2011, http://www.ap.org/Content/AP-In-The-News/2011/ With-CIA-help-NYPD-moves-covertly-in-Muslim-areas.
88. CCR interview with Oscar C. (pseudonym), New York, New York, December 5, 2011. 89. Ibid.
90. CCR interview with Michael P. (pseudonym), New York, New York, January 24, 2012. 91. CCR interview with Oscar C. (pseudonym), New York, New York, December 5, 2011. 92. CCR interview with April R. (pseudonym), New York, New York, December 8, 2011. 93. CCR interview with Natasha A. (pseudonym), New York, New York, January 23, 2012.
94. CCR interview with Angel V. (pseudonym), New York, New York, November 18, 2011. 95. CCR interview with Manny W. (pseudonym), New York, New York, October 13, 2011. 96. CCR interview with Joey M. (pseudonym), New York, New York, September 30, 2011. 97. CCR interview with Kym P. (pseudonym), New York, New York, October 27, 2011. 98. CCR interview with Mark K. (pseudonym), New York, New York, November 1, 2011. 99. CCR interview with Brian W. (pseudonym), New York, New York, November 16, 2011. 100. CCR interview with Thomas P. (pseudonym), New York, New York, January 18, 2012. 101. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011. 102. CCR interview with Joey M. (pseudonym), New York, New York, September 30, 2011. 103. CCR interview with Maria P. (pseudonym), New York, New York, December 8, 2011. 104. Ibid.
105. CCR interview with Natasha A. (pseudonym), New York, New York, January 23, 2012. 106. CCR interview with Brianna E. (pseudonym), New York, New York, August 31, 2011. 107. CCR interview with Manny W. (pseudonym), New York, New York, October 13, 2011. 108. CCR interview with Anthony T. (pseudonym), New York, New York, December 12, 2011. 109. CCR interview with Will E. (pseudonym), New York, New York, December 8, 2011. 110. CCR interview with Brian W. (pseudonym), New York, New York, November 16, 2011.
111. NYCHA is the New York City Housing Authority, which manages New York City’s public housing.
112. Fagan report, Floyd v. City of New York, 10. See also the NAACP-LDF and Legal Aid Society challenge to this practice in Davis v. City of New York, 10 Civ. 669 (SAS) (SDNY). Bronx Defenders, the New York Civil Liberties Union (NYCLU), Latino Justice, and attorney Chris Fabricant filed a federal lawsuit in March 2011 challenging the “clean halls” program where landlords allow NYPD officers to enter into private apartment buildings and engage in stops of residents. NYCLU, “Class Action Lawsuit Challenges NYPD Patrols of Private Apartment Buildings,” March 28, 2012. Available at http://www.nyclu.org/news/class-action-lawsuit-challenges-nypd-patrols-of-private-apartment-buildings. 113. CCR interview with Laverne I. (pseudonym), New York, New York, December 27, 2011.
114. CCR interview with Manny W. (pseudonym), New York, New York, October 13, 2011. 115. CCR interview with Samuel T. (pseudonym), New York, New York, December 27, 2011. 116. CCR interview with Jon T. (pseudonym), New York, New York, November 11, 2011. 117. CCR interview with Miles K. (pseudonym), New York, New York, December 29, 2011. 118. CCR interview with Duke S. (pseudonym), New York, New York, November 15, 2011. 119. CCR interview with Charles B. (pseudonym), New York, New York, December 27, 2011.
120. Illinois v. Wardlow, 528 U.S. 119 (2000). The Court rejects a per se rule that mere presence in a high-crime area creates reasonable suspicion.
121. Fagan report, Floyd v. City of New York, 53-4.
122. CCR interview with Joey M. (pseudonym), New York, New York, September 30, 2011. 123. CCR interview with Angel V. (pseudonym), New York, New York, November 18, 2011.
124. CCR interview with Angel V. (pseudonym), New York, New York, November 18, 2011. See also CCR interview with Carl W. (pseudonym). “I feel like the police are there to get me, not to protect me from being robbed. They’re there to say that I’m about to rob somebody and try and arrest me for it, over and over again.”
125. CCR interview with Roy F. (pseudonym), New York, New York, January 18, 2012. 126. CCR interview with Mark K. (pseudonym), New York, New York, November 1, 2011. 127. CCR interview with Curtis J. (pseudonym), New York, New York, January 31, 2012. 128. CCR interview with Hector S. (pseudonym), New York, New York, November 16, 2011. 129. CCR interview with Curtis J. (pseudonym), New York, New York, January 31, 2012. 130. CCR interview with Carl W. (pseudonym), New York, New York, December 27, 2011. 131. CCR interview with Jon T. (pseudonym), New York, New York, November 11, 2011.
133. CCR, “Amicus Brief in Glik v. Cunniffe, et al,” http://ccrjustice.org/ourcases/current-cases/glik. CCR submitted an amicus brief in Glik v. Cunniffe before the First Circuit Court of Appeals on behalf of Berkeley Copwatch, Communities United against Police Brutality, Justice Committee, Milwaukee Police Accountability Coalition, Nodutdol for Korean Community Development, and Portland Copwatch. The brief argues that concerned individuals and Copwatch groups have a First Amendment right to record public police activity. In September 2011, the judge ruled for Glik in the case, saying his First Amendment rights had been violated.
134. CCR interview with Anthony T. (pseudonym), New York, New York, December 12, 2011.
135. Discrimination based on actual or perceived race, class, gender, gender identity and expression, sexuality, ethnicity, language, religion, political or other opinion, national origin, age, housing status, income, or disability is in violation of numerous human rights instruments and agreements including the Universal Declaration of Human Rights (UDHR), Article 2; the International Covenant on Civil and Political Rights (ICCPR), Articles 2 and 3; the International Convention on the Elimination of Racial Discrimination (CERD), Articles 2 and 5; and the American Declaration on the Rights and Duties of Man (American Declaration), Article 2.
136. CERD, Article 5.
137. UDHR, Article 9; ICCPR, Article 9.
138. UDHR, Article 5; Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Article 16; ICCPR, Article 7; United Nations General Assembly Resolution 34/169 of December 17, 1979; “Code of Conduct for Law Enforcement Agents,” Article 5, http://www2.ohchr.org/english/law/codeofconduct.htm. 139. UDHR, Article 12; ICCPR, Article 17.
140. UDHR, Article 13.
141. UDHR, Article 20; ICCPR, Article 22; American Declaration, Article 22. 142. UDHR, Article 19; ICCPR, Article 19.
143. UDHR, Article 7; ICCPR, Article 26.
144. UDHR, Articles 18 and 27; ICCPR, Articles 25 and 27; American Declaration, Articles 3 and 13. 145. UDHR, Article 23; ICCPR, Article 10; UN “Code of Conduct for Law Enforcement Agents,” Article 2. 146. CERD, Article 2; ICCPR, Article 24.
147. ICERD, Article 5. See also the International Covenant on Economic, Social and Cultural Rights (ICESCR) which, though unsigned by the United States, provides a useful and legally relevant outline of international standards for social and economic rights.
148. UN, “Code of Conduct for Law Enforcement Agents.”
149. For example, CCR supports the Community Safety Act, which would help to address these issues.
150. Harold Koh, Legal Advisor, United States Department of State, “Memorandum for State Governors,” January 20, 2010, http://www.state.gov/documents/organization/137292.pdf. “U.S. treaty obligations may apply to all levels of government throughout the territory of the United States.”
151. Applicable international legal obligations are expressed in numerous treaties, declarations, and resolutions including: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of Racial Discrimination (CERD), the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and the American Declaration on the Rights and Duties of Man (American Declaration).
152. UDHR, Article 2; ICCPR, Articles 2 and 3; CERD, Articles 2 and 5; American Declaration, Article 2.
153. UDHR, Articles 5 and 9; CAT, Article 16; ICCPR, Articles 7 and 9; UN, “Code of Conduct for Law Enforcement Agents,” Article 5.
154. UDHR, Articles 7, 12, 13, 18, 19, 20, 23, and 27; ICCPR, Articles 10, 17, 19, 22, 25, 26 and 27; ICERD, Article 5; American Declaration, Articles 3, 13, and 22; UN, “Code of Conduct for Law Enforcement Agents,” Article 2.
Photo credits: page 1, Terraxplorer; page 3, Frederic Prochasson; page 4, Mike Cherim; page 6, Jay Lazarin; page 8, Kuzma; page 9, Bart Sadowski; page 12, DNY59; page 13, Terraxplorer; page 14, Beth Ambrose; page 15, Kim Sohee; page 18, Photobvious; page 20, Jay Lazarin; page 22, Nahal Zamani/CCR; page 25, Andrew Cribb
To learn more, get involved, or support CCR’s work to end illegal stops and frisks, visit the CCR website at www.CCRjustice.org.