A day after an appeals court declared that the ruling terming the current stop-question-and-frisk tactic discriminatory remains in place until next year, the New York Police Department bowed to the inevitable and began instructing police officers on how to avoid getting sued for stopping suspect minorities.
Cops can still stop a person acting suspiciously if the description is based on race, but only if there are other descriptions also, according to a memo Chief of Department Philip Banks wrote to all commands.
For example, they could describe an alleged robbery suspect as a black 6-foot-2 male, wearing a white cardigan and with a scar on his face. But the “black male” in itself is discriminatory, the memo said.
“It is important to note that local law 71 does not prohibit an officer from considering these demographic factors in deciding whether to initiate law enforcement action,” he wrote in the four-page memo on how to properly profile a suspect. “It would be unlawful to stop or otherwise engage that individual if the deciding factor for doing so was that he/she matched only the race of the person described in the radio run.”
The directive also assures officers that the NYPD will be fully supportive of cops who are sued over profiling, as long as they stick to the new protocol.
“Police officers will always do their job and will respond to situations,” Commissioner Raymond Kelly said. “We just put out a ‘Finest Message’ in an attempt to explain what the law says. In essence, the new classes of individuals they have created, being a member of them should not be the determining factor in stopping someone.”
A new city council law that passed in the summer over Mayor Michael Bloomberg’s veto allows people who feel they were stopped based on their race, as well as some other protected classes, to sue police in state court, though they would not be entitled to a financial settlement.
A separate federal lawsuit ended with a ruling that the way police profile is discriminatory and unconstitutional. While an appeals court subsequently removed the judge from the case, saying she gave the appearance of bias, the court declined Monday to put a stay on her ruling.
While the city announced they would pursue an appeal, with critic Bill de Blasio taking office in January there was no chance of success.
But the Patrolmen’s Benevolent Association, which represents police officers, filed its own lawsuit against the implementation of the law.
“The problem is that it’s still too vague and open to interpretation,” said Al O’Leary, a union spokesman.