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Highest-Ranking NYPD Cop: 'I Never Discussed Racial Profiling'

The former NYPD chief testified in federal court that he never felt the need to mention the issue to officers accused of racial profiling.
 
 
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The 1999 NYPD killing of unarmed 23-year-old Amadou Diallo prompted massive, daily demonstrations against racial profiling and police brutality in New York City. More recently, in February 2012, NYPD officer Richard Haste shot and killed unarmed teen Ramarley Graham in the bathroom of his home. The following June, anger over racial profiling culminated in a 20,000-person silent march against the NYPD' stop-and-frisk tactic.

Officers may only legally stop someone if they have reasonable suspicion of criminal activity, and can only "frisk" an area of clothing if they see a bulge that could be a weapon. Nearly 90% of those targeted by stop-and-frisk are black or Latino, however, and they have argued for more than 15 years that they are stopped without cause and searched illegally.

Racial profiling has been a hot-button issue not just for the black and Latino communities, but local press and politicians as well. Everybody, it seems, has been talking about stop-and-frisk’s effects on communities of color.

Everybody, that is, but the NYPD.

The NYPD and the city of New York are currently on trial as defendants in the class-action lawsuit Floyd v. the City of New York, which argues that illegal quotas for police activity like stops, summonses and arrests are forcing officers to break the law. The suit alleges widespread 4th and 14th amendment violations of New Yorkers who are unlawfully stopped and sometimes searched, simply because they are black or Latino. 

On Tuesday, recently retired Chief of Department and 44-year NYPD veteran Joseph Esposito -- once the highest-ranking uniform member of the NYPD -- testified in the class-action lawsuit that he never discussed with his superior, NYPD Commissioner Ray Kelly, how the controversial policing tactics might affect the black and Latino youths targeted. Esposito testified that he did not remember,  in their 11 years of working together, ever discussing with Commissioner Kelly what Jonathan Moore, attorney for the plaintiffs, called "the toll that the policies being challenged here may be having on a generation of black and Latino youth.” 

In fact, Esposito testified that the words “racial profiling” never left his mouth at the monthly NYPD COMPSTAT meetings (where high-ranking NYPD officials meet with precinct commanders to discuss strategy) which he had often presided over as Chief of Department since 2000.

Further reflecting the department’s lack of interest in racial profiling was Esposito’s admission that he never read, or became aware of, a New York state attorney general’s office report about racial profiling. The report, which analyzed 175,000 stops in a 15-month period of October 1988 to April 1999, concluded that blacks and Latinos were over-stopped during that time. Nor was he aware of any of the AG’s recommendations, like continued cooperation and updated stop-and-frisk reports, or training in relation to stop-and-frisk, he said.

The Floyd suit stems from the NYPD's alleged failure to uphold its end of the deal in a prior settlement. In 1999, shortly after the shooting of Amadou Diallo, the Center for Constitutional Rights filed a class action lawsuit (Daniels v. the City of New York) against the NYPD, alleging that officers violated the constitution via racial profiling and illegal stop-and-frisks. The 2003 settlement required the NYPD to enact a racial profiling policy in line with the Constitution, and to turn over audits of stops to the Center for Constitutional Rights. 

Testifying in the Floyd case on Tuesday, however, Esposito said the city’s racial profiling policy has not changed since 2002, when an operations order prompted by Daniels banned the practice for the first time in writing. “The policy was the same,” he said, suggesting that the NYPD did not alter the racial profiling practices challenged and mandated for reform in the Daniels case.

Upon receiving audits, the Center for Constitutional Rights found that the NYPD has increased its use of stop-and-frisk in the years since the Daniels settlement, and filed another class-action lawsuit,Floyd v. the City of New York, in which Esposito testified Tuesday.

From 2002 to 2011, the NYPD increased stop-and-frisk by more than 600% to more than 685,000 stops. “That increase is all on your watch, correct?” attorney Moore asked Esposito.

“Yes it is. As is the 40% decrease in crime,” Esposito testified. As Moore pointed out, however, the 600% increase in stop-and-frisk is a far greater percentage than the drop in crime. Moreover, while stop-and-frisk has increased exponentially since 2002, the rate of gun violence has remained relatively the same.

Lack of Oversight

Esposito repeatedly stressed that supervisors’ review of the UF-250 forms officers are required to complete after a stop provides sufficient evidence as to whether racial profiling occurred. “If you establish reasonable suspicion, then there is no racial profiling,” Esposito said.

Esposito testified that if a supervisor signs off on a 250, that indicates sufficient self-inspection to ensure quality stops, because the checkboxes on the form allow the officer to document reasonable suspicion. Many categories, like “furtive movements,” are vague, and Moore challenged Esposito’s claim that officers’ completion of the form provides ample evidence that racial profiling is not at play.

The patrol guide for the NYPD mandates officers to include in their activity log, also called a memo book, additional information about a stop, offering as an example a man “randomly” looking into windows as the background for “casing” to commit a crime as reasonable suspicion. Esposito said that officers do not always complete their memo books, however, and believes that doing is so unnecessary and even “redundant,” though his view is out of line with department policy.

Esposito said the NYPD relies on supervisors to ensure that officers are conducting proper stops. “I would call that a system to identify officers who aren’t operating properly,” he said.

Secretly recorded roll calls in NYPD precincts have captured supervisors demanding that officers meet illegal quotas for stops, summonses and arrests, thereby coercing them to do so illegally. Two NYPD whistleblowers responsible for the recordings, Adhyl Polanco and Pedro Serrano, testified in court last month.

In a summary of COMPSTAT meetings at which Esposito presided, the former Chief of Department is cited discussing figures, commenting about particular numbers of summonses, arrests and stops in precincts, and asking why some numbers were down. He testified in court that he does not believe supervisors set quotas; he said they are loose performance goals or standards, but he conceded it is possible that they might be “misinterpreted” by officers as hard quotas. Throughout his testimony, Esposito stressed that the NYPD’s enforcement activity is color-blind and targets crime conditions, like an area with recent robberies, rather than race. For residents of the higher-crime communities where stop-and-frisk is most aggressively used, however, the policing tool can do more harm than good.

Present for some of Esposito’s testimony Tuesday was Constance Malcolm, the mother of Ramarley Graham. She told AlterNet at the stop-and-frisk march in June that she believed Graham would still be alive were it not for racial profiling. On Tuesday, she said, “I still do.”

Kristen Gwynne is an associate editor and drug policy reporter at AlterNet.  Follow her on Twitter: @KristenGwynne