By Austin Nolen
Philadelphia police officers engaged in fewer unconstitutional stops and frisks during 2016, but more training, supervision and discipline are needed to continue this positive trend, according to two reports filed in federal court yesterday.
The reports were filed pursuant to a consent decree in Bailey v. City of Philadelphia that requires the Police Department to adopt policies and procedures to decrease the number of stops and frisks that violate the Fourth Amendment and the Equal Protection clause of the Fourteenth Amendment.
In 2010, Mahari Bailey and other plaintiffs represented by the Pennsylvania chapter of the American Civil Liberties Union sued the City, alleging that police had a pattern of practice of violating their rights against unreasonable search and seizure and their right to be free of discrimination on the basis of race. In 2011, the City agreed to the consent decree.
For most of the years since the consent decree was first signed, police focused on building the tools to implement the decree. Among other steps, they designed an electronic database to allow easy analysis of stop and frisk data and formulated a process for reviewing and auditing the data.
While necessary for implementing the settlement, these tools alone did not solve the issues with stop and frisk. In a 2015 report, using the narratives contained in police reports documenting the reasons for stops and frisks, the plaintiffs concluded that 37% of stops made by police in 2014 were illegal.
Moreover, the ACLU claimed, the level of unlawful frisks were even higher. While police may stop a person on reasonable suspicion for any crime, a frisk requires reasonable suspicion of a concealed weapon. In 2014, plaintiffs argued, 53% of frisks either lacked reasonable suspicion or followed stops which were themselves illegal.
When similar patterns were observed in the 2016 report based on 2015 data, the plaintiffs and the judge hearing the case demanded implementation of an accountability system. The election of new mayor Jim Kenney who was publicly committed to reforming stop and frisk helped convince the ACLU not to immediately seek sanctions for violations of the consent decree.
Beginning in 2016, the Police Department began implementing its system for tracking and disciplining improper stops and frisks. Under the system, sergeants who supervise a squad of officers are responsible for making sure justifications for stops and frisks are adequate.
Captains, who are in charge of geographic districts and special units, are in charge of corrective action for officers under their command who make stops without reasonable suspicion or who do their paperwork inadequately.
Above captains, police Inspectors, who supervise groups of districts or special units, are in charge of auditing a random sample of stops and frisks done by their units, and recommending corrections for errors observed. Finally, the Office of Standards and Accountability audits the Inspectors’ audits.
For officers who repeatedly fill out paperwork improperly or engage in unlawful stops, the Department now employs progressive discipline. According to Police Commissioner Richard Ross, no officer has reached the number of improper actions for formal administrative charges, but officers have been retrained and counselled, and the Department is “prepared if charges are necessary.”
According to the reports filed by the City and the ACLU, this new system has meaningfully decreased improper stops and frisks. The Police Department’s audit found that in the second half of 2016, fewer than 20% of stops lacked reasonable suspicion. The ACLU estimated that 25% lacked a proper foundation.
This is a substantial decrease from previous years. Challenges remain, however. The City estimates that 29,972 stops were made illegally in 2016 (down from 108,430 in 2015), and the ACLU estimates over 35,000. These are still large numbers, especially for the people subject to these unlawful stops.
According to the ACLU, these unlawful stops are often based on a few common themes. For instance, while both the U.S. Supreme Court and the Bailey consent decree prohibit the use of anonymous tips without corroboration to stop a suspect, these sorts of tips are frequently cited by Philly cops to justify their stops.
Similarly, significant numbers of stops are justified on grounds such as presence in high crime area, proximity to abandoned buildings and obstruction of sidewalks. None of these factors standing alone amounts to cause for an officer to stop someone and yet they are commonly cited by police.
According to Ross, PPD plans to address this issue through continued use of the new review system. The Department is also implementing a new practice for distributing anonymous 911 tips to officers, warning them when a tip alone cannot be the basis of a stop.
Frisks are also a separate problem. The City and ACLU agree that the rate of illegal frisks in 2016 was between 27-28%. However, the ACLU also estimates that another 14% of frisks, while legal, followed initial stops that were illegal. This brings the total of unlawful frisks up to over 30%.
Furthermore, the plaintiffs believe that not all frisks are reported because many reported stops for suspicion of guns and violent crime do not report a frisk, which would often be common sense to undertake when making a stop for these sorts of crimes.
In response, the Police Department is focusing more of its analytical attention on frisks. According to the City’s report, “the Audits and Inspections Unit has recently concluded an analysis” of frisks during the third quarter of 2016 and “is in the process of sharing the results of the review with plaintiffs.”
One issue left unaddressed in yesterday’s reports is the question of whether or not police officers are stopping and frisking people in a racially-biased manner in violation of the Equal Protection clause of the Fourteenth Amendment.
The numbers are clear: Philadelphia police stop and frisk many more minorities than whites. This alone does not establish bias, however: as plaintiffs’ attorney David Rudovsky noted, “the fact of the racial disparities doesn’t equate to racial bias… you have to factor in non-racial factors” such as different neighborhood crimes levels into statistical analysis as well.
The City and ACLU will be filing statistical reports addressing racial discrimination in stops and frisks during 2016 on May 16th. According to City Solicitor Sozi Tulante, the City will argue that non-racial factors fully explain the racial disparities and the ACLU will argue that at least some racial bias exists.