A Policy Not Worth the Paper Its Written On: Why Further Legislation is Needed to Stop the NYPD’s Continued Use of Paper Records for its Stop and Frisk Database

Daniel Levin, Albany Government Law Review Member

Introduction

“[K]eeping records on innocent people is not the American way,” said New York State Assemblyman Richard Brodsky, as he urged Governor David Paterson to sign into law a bill prohibiting the use of an electronic database containing the identities of innocent stop and frisk individuals.[1] On July 16, 2010, Governor Paterson signed that bill into law (S.7945-A/A.11177-A), which amends section 140.50 of the Criminal Procedure Law to prohibit the electronic recording of certain identifying information of a person subjected to temporary questioning or search in a public place.[2] Opponents of the legislation argue that the law makes New Yorkers less safe by letting criminals go free.[3] At the same time, proponents of the legislation argue that it safeguards greater individual freedom and liberty from the government while maintaining the police’s ability to use the same crime-fighting techniques they have deemed effective in policing the streets.[4] While the legislation is certainly a step in the right direction, it does not go far enough in safeguarding individual liberty as the New York City Police Department (hereinafter “NYPD”) has already taken steps to replace their computerized stop and frisk database with a more primitive paper form.[5]

I. Database Origin

On September 6, 2001, New York City Mayor Michael Bloomberg signed into law Bill Number 55 of 2001, which required the NYPD to submit quarterly reports to the City Council containing information about the NYPD’s stop and frisk policies.  In the quarterly reports, the NYPD was required to submit the number of stop, question, or frisks conducted, the breakdown of these stops by race and gender, the number of arrests and summonses resulting from stops, the race and gender of each person arrested or given a summons resulting from a stop, and a categorical reason for each stop, question, or frisk.[6] The law became effective in 2002.[7]

The purpose of the law was to give the City Council greater oversight over the NYPD so that it could address public concerns about policing, specifically whether the NYPD engaged in racial profiling.[8] The Council aimed to determine the effectiveness of the NYPD’s stop and frisks as well as analyze whether there were racial disparities for individuals stopped and frisked, or if race or gender played a factor in an individual being stopped by the police.[9] In order to comply with this directive, the NYPD created a stop-and-frisk electronic database containing the identity of each person stopped, frisked, or questioned by the police.[10]

II. Background and Explanation of S.7945-A/A.11177-A

New York Criminal Procedure Law §140.50(4) prohibits cities of one million or more people (New York City) from recording in a computerized or electronic database “the name, address, or social security number” of a person who is stopped, questioned, or frisked by the police if the “individual is [subsequently] released without any further legal action” pending against them.[11] However, the police can still record in an electronic or computerized database the race, gender, location of the stop, and other generic characteristics of a person who is subsequently arrested after being stopped, questioned, or frisked by the police.[12] The purpose of the bill, according to its sponsors, Assemblyman Hakeem Jeffries and Senator Eric Adams, is to “protect the privacy and due-process rights of innocent New Yorkers who are stopped by the police and subsequently released without further legal action.”[13]

III. Constitutional Issues With The Database

The database showed that Blacks and Hispanics were stopped by the NYPD in disproportionate numbers.  From 2005 to 2009, the NYPD conducted over 2.5 million stop-and-frisks, or roughly 500,000 per year.[14] Blacks and Hispanics accounted for more than 80% of all people stopped by the police while whites were only stopped 10% of the time.[15] Moreover, 88.2% of the people stopped by the police and recorded into their database were not guilty of breaking any law and had no further legal action pending against them once they were released.[16]

Opponents of the policy also argue that it violates sections 160.50 and 160.55 of the New York Criminal Procedure Law.[17] Under section 160.50, the court clerk must seal a suspect’s criminal record once the criminal action against the suspect is terminated in his favor.[18] Section 160.55 of the Criminal Procedure Law is similar to section 160.50 and requires the termination of a suspect’s record who was convicted of a non-criminal offense.[19] Currently, the NYPD and law enforcement agencies seal the records of criminal defendants who are arrested but later released or found not guilty at trial.[20] However, the police violate this statute by not sealing the records of a suspect stopped by police, who has committed no wrongdoing and is not arrested.  No court has yet to strike down this policy.[21]

Although the new law prohibits the police from keeping electronic records of people who were stopped by the police and subsequently released, the police are still allowed to keep a paper copy of such information.[22] An internal NYPD memorandum directs police to continue filling out stop, question, and frisk report worksheets, also known as UF-250s, and to maintain them in a precinct file.[23] Officers must fill out the UF-250 worksheets if: 1) a person is stopped by use of force; 2) a person is searched and frisked after being stopped; 3) the person is arrested; or 4) the person stopped refuses to identify himself.[24]

The bill does not prohibit police officers from continuing to use stop and frisk techniques when “the officer reasonably suspects that the person stopped has committed or is about to commit a felony or a misdemeanor as defined in the penal law.”[25] The bill’s sponsors intentionally omitted a prohibition on paper records because they believe that “paper records do not pose the same degree of threat to civil liberties as the electronic database.”[26]

The courts came close to deciding the constitutionality of the NYPD database on May 19, 2010, when the New York Civil Liberties Union (hereinafter “NYCLU”) filed a class-action lawsuit in New York County Supreme Court against the City of New York on behalf of plaintiffs Clive Lino and Daryl Khan.[27] A judgment for the NYCLU would have required the NYPD to seal all records of individuals stopped, frisked, or questioned by the police and released without any further legal proceeding, instead of putting such an individual’s identity into their criminal database.[28] In the answer filed by the City of New York on July 7, 2010, it stated as an affirmative defense that since neither plaintiff suffered any injury as a result of the City’s maintenance of the database, the plaintiffs both lacked standing.[29] Second, it stated that the issue raised by the plaintiffs was a political question, which is not justiciable in a court of law, and therefore should be dealt with by the Legislature.[30] Since the new legislation took effect immediately, the NYCLU class-action lawsuit became moot, thus leaving the judicial question unanswered.[31]

IV. Police Procedure for UF-250 Forms

Once a police officer conducts a stop and frisk of an individual, he must fill out the UF-250 worksheet, pertaining to the characteristics and identity of the person stopped, and the reasons for the stop.[32] The purpose of the UF-250 form is to inform the court of the circumstances surrounding the person’s stop and it protects the NYPD “from allegations of police misconduct.”[33] Police officers can use the worksheet information as an “investigative tool[]”, enabling them to check which individuals were at a particular location during a certain time when a major crime took place.[34]

After the individual is stopped and the officer completes the UF-250 form, the officer has his supervisor review and sign it, before giving it to the commanding officer.[35] Once the commanding officer approves the worksheet, the desk clerk makes three copies of it, putting the original in the Criminal Records section of the precinct, a copy in the precinct binder, and a second copy is given to the detective squad police unit.[36] The commanding officer retains the precinct binders containing the worksheet forms and allows any police officer to access it upon request.[37] Prior to the electronic database prohibition, NYPD clerks would enter the worksheet’s contents into their computer database so that any member of the NYPD could access it. [38]

The new state law has no impact on the NYPD’s ability to continue its stop and frisk procedures without using a computer.  Police officers can still fill out the same content on the UF-250 form, and the copying and filing procedures of the form are unaffected.[39] The only discernable difference is that the police will have a slower time reviewing UF-250 forms in their precinct paper form than if the forms were uploaded into a computerized database.  The police will simply replace the computer database with precinct and detective squad UF-250 binders, which contain copies of the UF-250 form.

V. The Solution

The question remains of how to solve the problems associated with the NYPD’s UF-250 database.  There are three interests that must be simultaneously juggled: 1) the City Council’s ability to receive accurate NYPD records of stop and frisks by racial breakdown;[40] 2) a person’s individual liberty interest in not being subjected to repeated stops based on race;[41] and 3) society’s interest in the police preventing and deterring crime.[42]

The solution is to require the NYPD to redact an individual’s personal information on the UF-250 copies that are kept on file in the police station and used for investigative purposes.  The original worksheet, which the police put in their precinct’s criminal records archive, should be placed in a sealed file that can only be unsealed if the document is used in a legal proceeding.  This will allow the NYPD to still use the UF-250 as evidence in a criminal proceeding at a later date or as an affirmative defense in a civil suit against allegations of police misconduct.[43]

Any copies of the form, including the copies made for the precinct binder and the detective squad, should be redacted versions of the form.  The name, address, and social security number of the person stopped without any further legal proceeding taken against them should all be redacted from the form and unavailable to police to use for investigative purposes.  This method is also consistent with the new state legislation that allows the NYPD to electronically record the race of the person and location of the stop in order to allow the NYPD to easily share that information with the City Council.[44] At the same time it also protects a person’s constitutional rights.

Edited by Michael Telfer and Ethan Bonner. 


[1] Ray Rivera & Al Baker, Candidates Press Paterson to Limit N.Y.P.D. Database, N.Y. Times, July 13, 2010, http://cityroom.blogs.nytimes.com/2010/07/13/candidates-press-paterson-to-limit-n-y-p-d-database/ (last visited Jan. 2, 2011).

[2] N.Y. Crim. Proc. Law §140.50(4) (McKinney 2010).

[3] Rocco Parascandola, Glenn Blain, & Kenneth Lovett, Gov. Patterson Moves To Sign Bill Ending Frisk Records, NYPD Commish Ray Kelly Says We Lost Key Tool, N.Y. Daily News (July 16, 2010), http://www.nydailynews.com/ny_local/2010/07/16/2010-07-16_gov_will_put_end_to_frisk_records_albany_robs_us_of_key_tool_sez_kelly.html (last visited Jan. 11, 2011).

[4] Barry Kamins, New Criminal Justice Legislation, N.Y.  St. B.A. J. 30, 30 (Nov./Dec. 2010), available at http://www.nysba.org/AM/Template.cfm?Section=Bar_i_Journal_i_&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=44614.

[5] Id. at 31.

[6] See New York City Local Law 55 (2001).

[7] Raymond W. Kelly, Stop-and-Frisk Bill Imperils N.Y.: Ray Kelly Says Database Helps NYPD Protect Young Black Men, N.Y. Daily News (July 13, 2010), http://www.nydailynews.com/opinions/2010/07/13/2010-07-13_stopandfrisk_bill_imperils_ny_ray_kelly_says_database_helps_nypd_protect_young_b.html (last visited Jan. 2, 2011).

[8] Committee on Public Safety Minutes, N.Y.C. City Council (May 21, 2001).

[9] Id.

[10] Kelly, supra note 7.

[11] N.Y. Crim. Proc. Law §140.50(4) (McKinney 2010).

[12] Id.

[13] See Hakeem Jeffries, New York State Assembly, Memorandum in Support of Legislation, Bill No. A.11177-A (2010).

[14] Id.

[15] Id.

[16] Bob Herbert, Watching Certain People, N.Y. Times (Mar. 2, 2010), http://www.nytimes.com/2010/03/02/opinion/02herbert.html?_r=1 (last visited Jan. 2, 2011).

[17] See Press Release, Office of the Governor, Governor Paterson Signs “Stop and Frisk” Bill into Law (July 16, 2010), available at http://www.votesmart.org/speech_detail.php?sc_id=580194&keyword=&phrase=&contain=.

[18] N.Y. Crim. Proc. Law §160.50(1) (McKinney 2010).

[19] N.Y. Crim. Proc. Law §160.55(1) (McKinney 2010).

[20] People v. Pettinato, 22 Misc.3d 140A (App. Term 2d Dep’t 2009); Williams v. 106 Clarkson Realty LLC, No. 20106/08, 2010 N.Y. Misc. LEXIS 1061, at *4 (Sup. Ct. Kings County May 18, 2010).

[21] Press Release, American Civil Liberties Union, NYCLU Says New NYPD Stop-and-Frisk Database Raises Major Privacy Concerns (Feb. 5, 2007), available at http://www.aclu.org/racial-justice_prisoners-rights_drug-law-reform_immigrants-rights/nyclu-says-new-nypd-stop-and-frisk.

[22] Rocco Parascandola, NYPD Brass Says Stop and Frisk Records Aren’t Dead, Just Use Paper, Not Computers, N.Y. Daily News (July 22, 2010), http://www.nydailynews.com/news/ny_crime/2010/07/22/2010-07-22_write_on_say_cops_brass_says_stopfrisk_records_arent_dead_just_use_paper_not_com.html (last visited Jan, 2, 2011); Al Baker and Emily Vasquez, Police Report Far More Stops & Searches, N.Y. Times (Feb. 3, 2007), at B2, available at http://query.nytimes.com/gst/fullpage.html?res=9F07EEDA123FF930A35751C0A9619C8B63&sec=&spon=&pagewanted=all.

[23] Id.

[24] Office of the Attorney General of the State of New York, Civil Rights Bureau, The New York City Police Department’s “Stop & Frisk” Practices: A Report to the People of the State of New York From the Office of the Attorney General 89 (1999) [hereinafter “OAG Report”], available at http://www.ag.ny.gov/bureaus/civil_rights/pdfs/stp_frsk.pdf.

[25] Press Release, supra note 17.

[26] Parascandola, supra note 22.

[27] Complaint at 1,3, Lino v. City of N.Y. (Sup. Ct. N.Y. County 2010) (No. 10-106579), available at http://www.nyclu.org/files/releases/S&F_Sealing_Complaint_5-19-10.pdf.

[28] Id. at 14–15.

[29] Answer, Lino (No. 10-106579), at 8 (on file with author).

[30] Id.

[31] N.Y. Crim. Proc. Law §140.50(4) (McKinney 2010).

[32] OAG Report, supra note 24, at 63.

[33] Id. at 64.

[34] Id. at 65.

[35] Id. at 64.

[36] N.Y.C. Police Dep’t, NYPD Patrol Guide 2005 846, available at http://www.reentry.net/ny/library/item.178845-NYPD_Patrol_Guide_2005_NYPD.

[37] Id.

[38]See id.

[39] PoliceOne Staff, NYPD Memo: Cops Can Keep Stop-And-Frisk Records: They Just Have To Do So The Old Fashioned Way, With A Pen And Paper, PoliceOne.com (July 22, 2010), http://www.policeone.com/police-technology/articles/2144476-NYPD-memo-Cops-can-keep-stop-and-frisk-records/ (last visited Jan. 4, 2011).

[40] Committee on Public Safety Minutes, supra note 8.

[41] Jeffries, supra note 13.

[42] Delores Jones-Brown, Jaspreet Gill, & Jennifer Trone, Stop Question and Frisk Policing in New York City: A Primer 20,  Center on Race, Crime and Justice at John Jay C. of Crim. Just. (2010), available at http://www.scribd.com/doc/33806018/Stop-Question-and-Frisk-Policing-Practices-in-NYC-a-Primer.

[43] See e.g. People v. Edmond, No. 327/2007, 2007 N.Y. Misc. LEXIS 7691, at *3 n.7 (Sup. Ct. Queens County November 7, 2007); People v. Elliassen, No. 77/2008, 2008 N.Y. Misc. LEXIS 5981, at *2 (Sup. Ct. Richmond County September 5, 2008).

[44] Jeffries, supra note 13.

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2 Comments

Filed under Constitutional Law, Criminal Law, Equal Protection, Uncategorized

2 responses to “A Policy Not Worth the Paper Its Written On: Why Further Legislation is Needed to Stop the NYPD’s Continued Use of Paper Records for its Stop and Frisk Database

  1. Pingback: Tweets that mention A Policy Not Worth the Paper Its Written On: Why Further Legislation is Needed to Stop the NYPD’s Continued Use of Paper Records for its Stop and Frisk Database « Albany Government Law Review Fireplace -- Topsy.com

  2. NYPD has no intention of ending their Stop and Frisk program because it has been far to successful in keeping the prisons filled to capacity so investors can reap record profits each year. Stop and Frisk has always been a scam that targets minorities and the poor.

    The entire system is in on it and has to be dismantled and rebuilt from the ground up to weed out the evil and corrupt people that now inhabit it. Go to http://www.youtube.com/nycresistance to see footage of these Stop and Frisk being carried out by the NYPD on innocent people here in New York.

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