December 2, 2013


NYPD Memo Intended To Ease Cop Profiling Fear

Explains Guidelines, Protection


PATRICK J. LYNCH: Proceed cautiously.    
RAYMOND W. KELLY: Concern about reluctance to ‘stop.’  

The NYPD issued a memo to officers Nov. 22 that seems aimed at reassuring them about the new law allowing people who feel they were profiled to sue, which took effect in November.

Police Commissioner Raymond W. Kelly said the memo, which was to be read at 10 consecutive roll calls, was “an attempt to explain the law and what the law says in essence.” He said it was possible that the new law could cause “some reluctance” on the part of officers to engage in stop-and-frisk.

Aimed At Curbing Stops

One of the goals of the law was to force the department to rein in its aggressive program, which was declared unconstitutional in August by a Federal Judge.

The five law-enforcement unions have expressed concerns about the law, which expands the definition of profiling to include not only race and ethnicity but factors such as gender, age, disability, housing status and sexual identity. It allows people to sue in state courts seeking orders to ban discriminatory policies. They cannot receive monetary damages but can be awarded legal and expert-witness fees.

The unions say it paints police officers as guilty rather than innocent at the start of a trial, since the law requires that they prove they were not discriminating to get off the hook. They also say officers could be held personally liable for the legal and witness fees.

The Patrolmen’s Benevolent Association was not mollified by the NYPD memo. Its president, Patrick J. Lynch, said, “Racial profiling was already appropriately prohibited as illegal prior to the implementation of Local Law 71, which was an election-driven piece of legislation that will cost lives and bring crime and disorder back to the city.

‘Dangerous Hesitation’

“In our opinion,” he continued, “the only impact that the new law will have is to cause a very dangerous hesitation to occur in the minds of our police officers facing potentially dangerous situations. This union has advised all of its officers that they should take action when they see a crime in progress, or if their own life or the life of another person is in danger. Otherwise, concerning events not occurring in the officer’s presence, all officers should be careful not to initiate any law-enforcement action that could be construed as violating the new legislation and subject the officer to legal action.”

The Sergeants and Lieutenants Benevolent Associations also have warned their members that the new law requires caution.

The Police Department memo warned, “Liability can be established by showing that an officer intentionally engaged in bias-based profiling and the officer fails to prove that the enforcement action was justified by a factor unrelated to discrimination.”

Will Be Indemnified

But it told officers they can expect the city to indemnify them. “An officer acting within the scope of his/her employment and the discharge of his/her duties will be represented in actions stemming from this law just as the officer would be in any other civil lawsuit,” it said.

In the debate leading up to the passage of the law over Mayor Bloomberg’s veto in August, Mr. Bloomberg, opponents in the City Council and some of the unions said it would prohibit officers from using demographic factors—not only race and ethnicity but also disability status, gender and age—in describing suspects.

The memo said the law “does not prohibit an officer from considering these demographic factors in deciding whether to initiate law-enforcement action. The law prohibits their uses as the ‘determinative factor.’ For example, if a radio run from a verified complainant describes a crime suspect by race, sex, clothing description and direction of travel, a person who has those physical characteristics and is traveling in the direction described may be the subject of law-enforcement action.

‘No Violation There’

“There is no this circumstance because the suspect’s race is not the determinative factor for law-enforcement action. It would be unlawful to stop or otherwise engage that individual if the deciding factor for doing so was that he/she matched only the race of the person described in the radio run.”

Current department practice already prohibits profiling, discouraging officers from relying on a single demographic factor “rather than an individual’s behavior or other information that links a person or persons to suspected unlawful activity,” the memo said.

Advising officers on how to avoid problems under the law, the memo reminds that “members must be able to articulate the factors which led them to take enforcement action, in particular those factors leading to reasonable suspicion for a stop-and-question and any subsequent frisk, or probable cause for an arrest.”

This is an echo of Terry v. Ohio, a 1968 U.S. Supreme Court ruling that said officers must be able to describe a reasonable suspicion that the person they stop has just committed, is about to commit or is in the midst of a crime. Critics of the NYPD program say officers driven by quotas frequently ignored this requirement.