More Than Half of Philly Police “Frisks” Conducted without Reasonable Suspicion- ACLU Monitor

By Kenneth Lipp

The Philadelphia Police Department has again been delinquent in its obligations under a 4 year old Consent Decree concerning racially disparate “stop and frisk” searches,  says a legal monitor appointed to audit the PPD’s compliance with the decree known as the Bailey Agreement.

A Consent Decree is a settlement in a legal dispute, used often by the Department of Justice to exercise oversight of local police departments, that allows parties a resolution without admission of guilt. Those in dispute ask a court to enter into a common agreement with them, and the court acts as supervisor, via a proxy, of monetary transactions and structured interaction between parties.

To resolve a class action suit against the department for unconstitutional search practices filed in 2010, the City of Philadelphia entered into a Settlement Agreement and Consent Decree in June of 2011. The Bailey Agreement specifically forbids “stop and frisks” by the PPD  “…without limitation, where the officer has only anonymous information of criminal conduct, or because the person is only “loitering” or engaging in “furtive movements” or is acting “suspiciously,” or only because the person is in a “high crime” or “high drug” area.” 

At issue are two Constitutional concerns. First, whether or not “stop and frisk”searches the Philly Police conduct violate 4th Amendment protections against unreasonable search and seizure, and second, whether or not the subjects of searches are targeted by race, in violation of the 14th Amendment guarantee to equal protection under the law.

Now the plaintiffs in the case are threatening to return to court if the police department does not make dramatic moves to improve its practices.

“Today’s report shows that despite having almost four years to improve its stop and frisk practices, the PPD continues to illegally stop and frisk tens of thousands of individuals, ” says a press release from the American Civil Liberties Union of Pennsylvania, a party in the original lawsuit.

The report filed with the Eastern District of Pennsylvania yesterday is the fifth delivered by the court-appointed monitors, and the second in a row to say that more than half of “frisks” are conducted without reasonable suspicion.

The first report, delivered in February 2012, also showed that over 50% of stops and frisks were undertaken without reasonable suspicion. In second and third reports, filed in July and December of 2012,  40% of searches were not proper by 4th Amendment standards. There also continued to be disproportionate arrests of minorities not explainable by non racial factors (as the report puts it“with statistically significant racial disparities that were not explained by non-racial factors, e.g., crime rates, demographics of police districts, age, and gender”). Auditors also analyzed data from marijuana arrests and found that 90%, in both reports, were of black or Hispanic individuals.

With the delivery of the 2013 report in December, which showed that 76% of the stops were of minorities (African-Americans and Latinos) as were 79% of frisks, the plaintiffs threatened that “unless there is a dramatic change in practices, we will be compelled to seek judicial relief.”

The most recent report, which analyzes data from the first two quarters of 2014, logs a 6% improvement in PPD stops conducted with reasonable suspicion (63%).

A longtime Philadelphia Police officer, who spoke to the Declaration on condition of anonymity, says the numbers are misleading.

“Comparing stop data to population demographics to prove racial bias is premised on a fundamental logic flaw that the police randomly sample,” says the PPD captain.

“Some of the problem isn’t lack of reasonable suspicion. The PPD is in the process of training and re-training cops to put all their reasonable suspicion in the *75-48As. This runs counter to decades of teaching cops to summarize on reports. This is a cultural change that takes time.”

“We have been trained out the waazoo on the new standard for documenting reasonable suspicion/probable cause. But getting that consistently from 6000 cops takes time. That said, traditionally the “4 corners” rule NOW being applied to 75-48As via the agreement only applied to search and arrest warrants.”

*78-48A is the standard Philadelphia Police Report – the Consent Decree focused heavily on access to these reports, and on changing the way they are filled-out and archived. Under the 2011 agreement, the department was to begin entering all reports into an electronic database, and provide this to the ACLU monitors. – ed.

This explanation is consistent with the Department’s response to the latest report. They say that the audited searches lacked reasonable suspicion because of “incomplete paperwork, improper narratives used by police officers, and an overall lack of credibility in the electronic data base.”

Auditors also questioned the overall effectiveness of “stop and frisk” practices in curbing criminal violence (the searches are meant to determine whether a person is armed, not to look for evidence that they have committed a crime), even those searches properly conducted: “[G]iven the extraordinarily low rate of recovery of weapons or any contraband in frisk cases, there is good reason to believe that none of the factors cited as establishing reasonable suspicion are good indicators of a person in possession of a weapon.”

The 5th report in the Bailey v City of Philadelphia Consent Decree can be read below