THE NEED TO REFORM POLICE PRACTICE TO PROTECT CONSTITUTIONAL RIGHTS – LESSONS FROM THE CASE OF FLOYD V CITY OF NEW YORK

Salc : Anneke Meerkotter

The behaviour of New York police officers recently came in focus in an opinion issued by a District Court judge in the case of Floyd and others v the City of New York [08 Civ. 1034 (SAS), 12 August 2013, Shira Scheindlin USDJ]. The case raises a number of important issues which are relevant to policing practices in southern Africa which are discussed below.

The case illustrates the need for a comprehensive strategy to reduce unconstitutional police practices. National governments should ensure that:

  • Preventive police practices have an evidentiary basis;
  • Measures are put in place to monitor police compliance with constitutional requirements, including the development of effective supervision and documentation mechanisms;
  • Complaints procedures are known and disciplinary procedures are enforced in a fair and transparent manner; and
  • The training of police officers provides clear guidelines on how to perform their duties in a professional and unbiased manner.

Background

The case deals with the police’s use of a proactive policing method called ‘stop and frisk’. The US Supreme Court has previously ruled that police are only permitted to stop, and briefly detain a person for investigative purposes, if the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be stirring.  To proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

Police officers in New York are required to document each instance of ‘stop and frisk’. Information obtained from these documents shows that at least 4.4 million stops were conducted between January 2004 and June 2012:

  • Over 80 precent of these stops was of blacks or Hispanics.
  • In at least 88 percent of these stops, the suspicion giving rise to the stop turned out to be misplaced.
  • Only 12 percent of stops resulted in an arrest or summons. In most of these cases no charges were subsequently laid.
  • More than half of the time the police also subjected the person to a frisk, yet only 1.5 percent of such frisks led to finding a weapon.
  • Blacks were targeted for stops based on a lesser degree of objectively founded suspicion than whites, yet they were more likely to be subjected to the use of force by police and more likely to be arrested after a stop, than whites.

The plaintiffs argued that the current ‘stop and frisk’ practice violates their constitutional rights in two ways:

  1. They were stopped without a legal basis, in violation of their right to personal security, which includes the right to be protected from unreasonable searches; and
  2. They were targeted for stops based on their race, in violation of their right to equal protection of the law.

Instead, the plaintiffs argued that all stops must be based on ‘reasonable suspicion’ and stops must be conducted in a racially neutral manner. These arguments were accepted by the court.

The detailed judgment illustrates the various measures which should be in place to ensure police are accountable to local communities, and conduct their activities in deference to people’s constitutional rights.

Police ‘stop and frisk’ practices affect people profoundly

The judge noted that it is important to recognise the human toll of unconstitutional stops. The reality is that the impact of police stops on an individual is often disregarded. Each stop is often a demeaning and humiliating experience which makes people feel unwanted and distrustful of the police. It creates a situation where people live in fear of being stopped when they go about their daily activities and alienates the police from the community. This resonates with recent debates in the United States. The judge quoted from President Obama’s speech subsequent to the death of Trayvon Martin where he reflected on his own experience of being black and thus an automatic suspect when carrying out normal activities such as shopping or walking in the street.

In southern Africa there is a similar disregard for the impact of stops and arrests on people’s lives. Those who are most likely to be on the street, such as persons who are homeless, migrants from rural areas, vendors, sex workers and street children, are most likely to be stopped, frisked or arrested by police, with little regard for their dignity and rights.

Biased policing violates the right to equal protection of the law

The evidence presented during the trial in this case revealed a clear racial bias in the police department’s reasons for targeting blacks and Hispanics more frequently for stops and frisks.

The judge emphasised that it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals.  The court ordered that the police must immediately revise its policies regarding racial profiling.

Stops and arrests taking place in southern Africa are often based on biases relating to poverty, gender, race, ethnicity or place of origin.  In Zimbabwe, for example, many women find it difficult to go out at night without risking arrest for ‘loitering’, yet the men who accompany them are not arrested.  Racist and xenophobic biases also underpin many stops, frisks and arrests in the region. In Zambia, Botswana and Malawi, vague laws relating to rogues and vagabonds and idle and disorderly persons are often used by police as justification to stop and question or arrest a person without any legal basis for such actions.

Preventive police practices should have an evidentiary basis

Quoting the US Department of Justice, the judge noted that there was significant evidence that unlawfully aggressive police tactics are unnecessary for effective policing and detrimental (and even counter-productive) to the mission of crime reduction. The court noted that there was no evidence that the police’s use of stop and frisk was successful in producing arrests and reducing crime.

A recent study on policing in southern Africa, conducted by the Southern Africa Litigation Centre (SALC) and Centre for Human Rights Education, Advice and Assistance (CHREAA), raises similar concerns. Police officers in Malawi were found to frequently use sweeping exercises as a crime prevention tool, yet there is no evidence that such exercises actually prevent crime. During sweeping exercises many innocent people are arrested, detained and released without being charged. This shows a complete disregard for the human rights and dignity of people, especially vulnerable groups, including sex workers and street children.

Measures should be put in place to monitor police compliance with constitutional requirements

The case revealed a lack of monitoring by the New York police department of the extent to which police conducted unconstitutional stops. Supervisors reviewed the productivity of officers but not whether stops were legally warranted. The court emphasised that the lack of supervision of the constitutionality of stops was as a result of senior police management’s failure to direct supervisors to perform this task. The judge recommended the development of alternative monitoring and supervision practices in different precincts to determine which methods would work best.

Effective supervision of police officers requires diligent documentation

The case is interesting in its analysis of the flaws in police documentation systems. The case illustrates that where police are expected to complete a checklist to document the reasons for the stop, the completion of such forms becomes rote. Evidence was led, for example, of an officer who ticked the same boxes in 99 percent of his forms. Instead, if the form requires a police officer to narrate the basis for the suspicion, it is much easier to monitor whether unconstitutional stops take place. The lessons in this case are important for southern Africa where we grapple to find adequate reporting systems which are not open to abuse or that over-burden police officers.

To justify a stop, officers were able to tick boxes stating the reasons for the stop, including ‘furtive movements’, ‘high crime area’ or ‘fits description’. The judge questioned these categories as being too subjective and likely to be influenced by unconscious racial biases. Courts have recognised that ‘furtive movements’ alone are a vague and unreliable indicator of criminality. The court ordered the police to immediately revise the forms police should complete and to ensure that activity logs were kept properly.

Setting targets for police productivity can be counter-productive

The City of New York’s practice of demanding quotas from police officers for stops was introduced as part of the Compstat model, which is a statistics-based performance management system.  Evidence presented during the case indicates that the City pressured police officers to meet quotas for stops with no regard for whether such activities were constitutional. This inevitably led to an increase in unconstitutional stops. The same situation often arises in southern Africa when police are expected to meet a quota for arrests or fines. It raises an important question about how performance is assessed and highlights the inherent risks in statistics-based performance management systems.

Failure to discipline police officers for misconduct affects accountability

Evidence presented in the case shows that where complaints were lodged against police officers, the rule was to reject the version of the complainant in favour of that of the police officer when no other evidence was available. Thus, the police were seldom reprimanded or disciplined for unconstitutional stops and this led to a sense of impunity.

A similar situation prevails in southern Africa, where police are seldom taken to task for violating constitutional rights. This has led to a situation where the community often lack faith in complaints mechanisms. The failure to discipline police officers reinforces a culture of indifference to constitutional rights within the police force.

Training of police officers must provide clear guidelines on how to perform their duties

This case highlighted clear deficiencies in the training officers received on when stops would be justified.  The court ordered the police to immediately correct erroneous training material and to revise its policies and training regarding stop and frisk to adhere to constitutional standards.

This correlates with the recent SALC and CHREAA research which shows that police officers often do not have a consistent understanding of the elements of offences and the standards for ‘reasonable suspicion’, to justify a stop or arrest without a warrant.

The government must act to prevent police actions which violate constitutional rights

The City of New York was aware that unconstitutional stops were regularly made but did little to counteract this. The court found that the City knew that inadequate training and supervision was likely to cause constitutional rights violations, and their failure to address this showed a deliberate indifference.

Comprehensive strategies should be developed to reduce unconstitutional practices

The judge ordered immediate reforms, as well as the development of a strategy to address unconstitutional stop and frisk practices.

The following judicial remedies imposed by the court are well-suited for interventions in southern Africa:

  • The court appointed a monitor to guide the implementation of the injunction ordered against the police in order to avoid further litigation and delays.
  • The judge suggested that, for a trial period, police could give an information card to those who have been stopped but not arrested nor issued a summons. The card would provide reasons for the stop, badge number of the stopping officer and information on how to file a complaint.  This is a creative measure to encourage accountability and it is worth considering if, and how it could be applied in southern Africa.
  • The police department was ordered to immediately issue a directive to all commanding officers that explains the constitutional standards for stops and frisks. The directive should order all police officers to comply immediately with those standards.
  • The judge ordered that all parties participate in a Joint Remedial Process under the guidance of a facilitator. The Joint Remedial Process will supplement the immediate reforms suggested and work with parties to develop timelines and performance milestones. The input of those most affected by the stop and frisk practices was deemed important to the Joint Remedial Process and the judge ordered that the facilitator convene town hall meetings to provide a forum in which all stakeholders could participate and have their voices heard.