If significant changes to stop-and-frisk aren’t materialized by September, sanctions against the City will be sought.
On any given day in Philadelphia, when the issue of stop-and-frisk is raised, what follows are various opinions and little-to-no consensus. There are some people in the City who feel the policing tactic—which is not a policy etched on the books but rather marketed as a crime fighting tool police officers can utilize—is inherently racist and needs to exist no longer, in any form. Then there are those Philadelphians who believe the practice of stopping citizens who appear suspicious is a necessity for a City that, by many accounts, has a problem with illegal guns ending up in the hands of criminals whose dastardly acts attribute to an increase in homicides.
But today, following the release of 2015 statistics on stop-and-frisk, Philadelphians from both sides of the argument reached that elusive consensus: the numbers on the policing practice are bad. According to a report filed today by the ACLU of Pennsylvania and the law firm of Kairys, Rudovsky, Messing & Feinberg, LLP, as a part of the monitoring process of the 2011 consent decree in Bailey v Philadelphia—a 2010 lawsuit that alleged Philadelphia police officers had a pattern and practice of stopping and frisking pedestrians, a disproportionate amount of them who were Black and Latino, without reasonable suspicion—the first half of 2015 showed the police department continued widespread violation of both the consent decree and the rights of thousands of Philadelphians.
33 percent of all stops, the report notes, were made without the required reasonable suspicion and of those stopped, 69 percent were black; 23 percent were White, and 7 percent were Latino.
42 percent of all frisks were, too, made without reasonable suspicion and of those frisked, 79 percent were Black; 10 percent were Latino, and 11 percent were White. An internal audit of the Philadelphia Police Department in the second quarter of 2015 shows frisks without reasonable suspicion at a comparable rate of 53 percent, according to a news release that today delivered an ultimatum to the Kenney Administration: make rapid and significant progress or risk sanctions from the court later this year.
Mayor Jim Kenney, who some Philadelphians accuse of breaking his promise to black voters to completely end stop-and-frisk, said he was surprised that the 2015 numbers were as bad as they are.
Mr. David Rudovsky, counsel for plaintiffs, said in a statement that “We understand that Mayor Kenney’s administration did not create this problem, but Philadelphians have waited too long for a change. 2016 is the year that the PPD needs to show that it can comply with the consent decree without the need for court-ordered sanctions.”
Mayor Kenney, who acknowledged that it’s his and Police Commissioner Richard Ross’ responsibility to change the paradigm on this issue, said the problem was caused by former Mayor Michael A. Nutter, whose Administration “believed that randomly stopping people based on a profile was the way to fight crime.”
According to Mayor Kenney, the difference between the Nutter Administration and his is that profiling individuals by race and age will not be tolerated, and stop-and-frisk will only be used when there’s “reasonable suspicion, a constitutional stop or when a 9-1-1 call is made describing a particular individual in a crime.”
The point of reasonable suspicion is where the aforementioned consensus on stop-and-frisk dissipates. The Supreme Court’s ruling in Terry v Ohio articulates clearly that police officers—if they have reasonable suspicion—can stop a citizen. But Reverend Gregory Holston, CEO of OIC of America and a member of the advocacy group P.O.W.E.R, says reasonable suspicion is no longer good enough and that the police department must raise their standards to probable cause. Both Commissioner Ross, who told me that the 2015 numbers are clearly unacceptable and that he will do everything possible to improve them, and Mr. Sozi P. Tulante, the City Solicitor of Philadelphia, said Terry v Ohio would need to be overturned to raise the standards. Rev. Holston and Ms. Mary-Catherine Roper, Deputy Legal Director for the Pennsylvania Chapter of the ACLU, said that’s not true.
“They can’t hide behind the case law. They have the autonomy to impose any standard they want as long as its reasonable suspicion or above. The case doesn’t say you can’t institute a higher standard. The case set a floor, it didn’t set a ceiling,” Rev. Holston, a former lawyer, said.
“They’re refusing to embrace their autonomy,” said Ms. Roper, who this morning along with Mr. Rudovsky and others joined Commissioner Ross and Mr. Tulante in a conference with a federal judge to provide a progress report on reforms to stop-and-frisk. “They know perfectly well what their powers are.”
Despite the disagreements on autonomy, Ms. Roper is confident Commissioner Ross and his team can make the adjustments necessary to ensure police in Philadelphia are following the law on stop-and-frisk.
“Commissioner Ross has a very detailed and specific plan; he has all the tools to follow up. They don’t need a perfect record by September, but there needs to be a significant change,” Ms. Roper said.
One of the biggest tools at the disposal of Commissioner Ross, who attributes the third quarter spike in stops to anonymous 9-1-1 calls, is the directive on progressive discipline, which was barely used under the Nutter Administration. If an officer is a repeat offender, he or she will be given additional training. The second step would be counseling, sitting down with a supervisor and talking through why they’re unable to follow the consent decree. And the final step would be some form of punitive discipline, like a reprimand or a multi-day suspension.
Mr. Tulante said the discipline could mean the officer(s), at the next conference with the federal judge, has to appear with the Police Commissioner and explain why they’re not doing what’s required of them. September 15th, 2016, is the date set for the next meeting with the judge. Ms. Roper said neither she nor her colleagues believe that giving the City only months to clean up its act before requesting sanctions, like reparations to all those who rights were violated, is too demanding.
Commissioner Ross—who acknowledged the deficiencies and pledged not to run from the problem but tackle it head on—said, “progress will be made.”
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