Updated: 11:18 am, Wed Mar 11, 2015

PBA: ‘Frisk’ Guidelines Make Cops’ Jobs More Difficult and Dangerous

‘Furtive Movements’ Can’t Be Sole Justification In Making Stops

By Mark Toor

PATRICK J. LYNCH: Being punished for NYPD’s sins.  

The NYPD has issued guidelines for stop-and-frisks that the president of the Patrolmen’s Benevolent Association said are so restrictive that “police officers are going to have to travel with an attorney just to interpret these new...regulations.”

“Once again, the department and courts are putting responsibility for the problem that they created with illegal activity quotas on the shoulders of our members,” Patrick J. Lynch said after the rules were released March 2. “The end result is making a difficult job more difficult and dangerous for members.”

Arose From Federal Case

The revised guidelines were issued in response to a settlement of a Federal class-action lawsuit, Floyd v. New York, in which U.S. District Judge Shira Scheindlin ruled in August 2013 that the Police Department’s aggressive stop-and-frisk strategy was unconstitutional.

She found that officers had stopped hundreds of thousands of people without having reasonable suspicion that they were involved in a crime, as the U.S. Supreme Court decision underlying stop-and-frisk requires.

She also ruled that the department was stopping people because they shared racial or ethnic characteristics with the majority of offenders, a violation of the U.S. Constitution. Nearly 90 percent of those stopped were young black or Latino men; no more than 12 percent were arrested or given summonses.

Then-Mayor Michael Bloomberg, who considered stop-and-frisks essential to bringing down the crime rate, appealed her decision. But Mayor de Blasio, who campaigned against what he called overuse of stop-and-frisk, agreed with Judge Scheindlin’s decision and dropped the appeal, reaching a settlement that included most of her ruling.

Crime Fell With Frisks

In the meantime, crime continued to drop even as the number of stop-and-frisks declined from a high of 685,724 in 2011 to 46,235 last year.

The five-page NYPD memo, which was to be read at 10 consecutive roll calls, underscored the nearly-half-century-old U.S. Supreme Court directive that an officer “must have individualized, reasonable suspicion that the person stopped has committed, is committing, or is about to commit a felony or penal-law misdemeanor.”

Officers need “more than a mere suspicion or a hunch” to justify the stop, and must “be able to articulate facts establishing a minimal level of objective justification,” according to the new rules.

The guidelines say “furtive movements,” one of 10 justifications for a stop that officers could check on the old UF-250 forms, are by themselves not enough to justify a stop. “Furtive movements” was checked on more than half the UF-250s filed in 2011, and many stops were made on that basis alone.

Using Wrong Criteria

In her opinion, Judge Scheindlin noted that various officers who testified in the suit defined furtive movement as fidgeting, changing direction, looking over one’s shoulder, grabbing at a pocket or waistband, walking in a certain way, entering and exiting a car too quickly, going into a building and then coming out, or evidencing nervousness.

“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,” she wrote.

Mere presence in a high-crime area was also ruled out as a justification for a stop. The high-crime-area and furtive-movement arguments may still be used in conjunction with other factors justifying a stop, according to the guidelines.

But, they add, “the stopping officer must be able to specifically describe the suspicious nature of the ‘furtive moments’ that he or she observed, and he or she must not define the ‘high-crime area’ too broadly, such as encompassing an entire precinct or borough.”

Specificity Matters

The guidelines also deal with specificity in descriptions. Officers would justify stops by telling the subjects that they matched a general description aired over the police radio. Under the new rules, some factor other than race and age must be cited.

“A person may not be stopped merely because he or she matches a generalized description of a crime suspect, such as an 18-to-25-year-old black male; if physical description is the only factor relied on by the officer, it must be more specific than that to form a sufficient basis for a stop,” the guidelines said.

The rules also cover the ways officers may search someone they stop. The new rules hew closely to the Supreme Court decision, which was generally ignored by the department. In order to search, the officer must have reasonable suspicion that the person stopped is concealing a weapon.

“A frisk is limited to a pat-down of the outer clothing of the subject to determine if the suspect has a weapon,” according to the guidelines. “If during the course of the pat-down, the officer feels an object that the officer reasonably suspects is a weapon, the officer may take whatever action is necessary to retrieve the object and protect himself or herself.”

Limit on Search’s Intent

The guidelines also specify that the purpose of the search is only to seek weapons that could be a threat to officers, not to find evidence of crime.

Under the old system, some officers would order people they stop to empty their pockets and then, if they produced an amount of marijuana that it was actually legal to carry, arrest them for displaying it in public. Former Police Commissioner Raymond W. Kelly, who was in charge when stop-and-frisk metastasized, eventually ordered an end to this practice.

The president of the Sergeants’ Benevolent Association, Edward D. Mullins, said the new rules were “an indirect presumption of wrongdoing” by cops. He told the New York Post that they would lead to “hesitation—and potentially an avoidance of duties—in order to not fall victim to unjustified criticism or discipline.” He also predicted a sharp increase in shootings and homicides once the weather warms up.

CCR: Will Improve Quality

But the Center for Constitutional Rights, one of the plaintiffs in the Floyd case, said the new rules were just what was needed. “We think it’s the first step in what’s going to be a long process of meaningfully reforming how the Police Department practices stop-and-frisk,” senior staff attorney Darius Charney told the Daily News.

He said the rules will lead officers to make better stops, which will result in higher rates of arrests and summonses, “which is what the Police Department wants.”