The New York Chapter of the American Civil Liberties Union is preparing to provide a smart phone application at no cost to the residents of New York City. According to the ACLU, this will permit New Yorkers to record in “real time” Stop and Frisk incidents. The recording may then be forwarded to the ACLU. Once forwarded the recording is the property of the ACLU.
The issue which led to this is the ongoing dispute between the ACLU and the NYPD regarding what is known as the Stop and subsequent Frisk policy of a person in public. The ACLU is claiming racial profiling is blatant at a time the NYPD has indicated its officers are addressing issues in high-crime areas to combat crime and protect the people who live in these areas.
According to the ACLU, last year about 87 percent of those stopped were Afro-American or Latino, and 90 percent of those stopped were neither ticketed nor arrested. The NYPD has taken the position a Stop and Frisk most often will occur in a high-crime area. This is an important statement by the NYPD. One thing ignored or unknown is that fact crime tends to be intra-racial. Thus, it is highly likely if this many people were stopped in high-crime areas where there is an African-American or Latino population, then the NYPD is actually protecting law-abiding citizens who are African-American or Latino from becoming a victim of a crime. Such an approach is proactive policing. Protecting and serving law-abiding citizens within a high-crime area is to be expected. The circumstances determine whether or not a stop is first initiated. One’s race is a non-factor.
The ACLU is criticizing the police at a time it is conducting itself properly. Once again, most people so not understand the purpose of Stop and Frisk. Initiating a Stop of an individual is based solely on reasonable suspicion. The officer suspects reasonable suspicion is present. This is the lowest level of proof. It is not probable cause for arrest. Officers may only temporarily stop and question a suspect and if circumstances require it search the person for weapons. If no wrong doing is in place the person stopped must be released. This is a protection of an individual’s rights established by the Supreme Court in 1968. The Stop and Frisk policies must meet the standards of the Terry Doctrine. Releasing an individual at a time criminality is present is positive policing.
ACLU – Cell Phone Application
According to the ACLU, the purpose of this application is to Let You Shoot the Cops!
In July, a cell phone application for the purpose of a “Stop & Frisk Watch” will be available for use on an iPhone. This application is programmed to work only in New York City, and has three functions:
The “record” section allows easy video recording, which stops when the phone is shaken or when a button is pressed. The video is not stored on the phone. It is immediately uploaded to the New York ACLU. The application can also program one’s phone to automatically lock when recording is finished.
Once the video is uploaded, the application asks for information about where the images were taken, officers involved and other details about the incident. This “report” function also works without video being taken.
The application’s “listen” function provides real-time mapping of where others are using the application to record police.
Another feature is the application provides individuals recording a Stop and Frisk incident their rights under the law. My understanding is this has to do solely with one’s right to record police incidents. It is already known in law enforcement circles police encounters may be recorded. It appears the ACLU is not forewarning individuals along with their rights to record a Stop and Frisk incident these people are also duty-bound to comply with the police.
It must be understood when recording a police incident an individual cannot interfere with a police action or place oneself or others in danger. If people recording an incident are of the opinion they have the right to record based on information supplied by the ACLU this may lead to arrests of individuals for disorderly conduct, failure to comply, obstruction governmental administration, and/or resisting arrest due to the onlookers not understanding the authority of the police. The ACLU is placing these people at risk by not advising people, there may be a time they will need to comply with the police. I welcome the recordings. Acting upon good faith, in the interest of the community served, to protect individuals from experiencing victimization is just as important as one’s civil rights.
Terry v Ohio, 392 U.S. 1 (1968) – Terry Doctrine
In the State of New York, the policy and procedure permits the stop, question, and possibly frisk policy for weapons pursuant to section 140.50 of the New York State Criminal Procedure Law. However; each incident is based on the particular set of circumstances present at the time an individual is stopped. The circumstances present may permit an immediate Stop and Frisk.
As per this section, when police officers are within their jurisdiction and reasonably suspect a person has committed, is committing or is about to commit a felony or a Penal Law misdemeanor; the officer is authorized to stop, question and possibly frisk that individual as per the landmark case of Terry v Ohio, 392 U.S. 1 (1968).
The Terry Doctrine permits the temporary stopping and questioning of individual, in public who may be subject to a search for a weapon. This is permitted for the protection of the officer at a time reasonable suspicion is in place “criminal activity is afoot.” The Terry Doctrine also requires the police to release the individual after the temporary stop is complete and no wrongdoing is in place, this is good policing. This is protecting the community as well as the individual rights of the person first stopped and then released.
A Stop and Frisk incident as per the Perry Doctrine is the balancing test which recognizes although citizens have a right to be in public places, free from unlawful police intrusion, the police have a duty to prevent crime and apprehend offenders.
Intermixing Change with Standards Established Under the Law
It is recognized by the federal courts individuals may record law enforcement in a public place. This right is protected by the 1st Amendment. Federal Circuit Courts over time have reinforced this protected right. Now with that understood it is wise for law enforcement to expect to be recorded.
All officers should understand they will be recorded. Should an officer be recorded it is to be addressed in a professional way. Do not focus on the person recording the incident. Focus on the task at hand.
If officers utilize this approach, the use of the recording first intended to be used against an officer may actually serve as evidence the police responded appropriately. Understand, most often people recording the actions of police officers will not be personally involved, do not have the facts, and will not understand the action in place pursuant to policy and procedure within the limitations of the law.
Officers should take the time once their actions are being recorded to use the person recording the incident as a witness. Police should welcome their actions, words, conduct, and intent being recorded. Officers should take the time to speak slowly and clearly. Officers should also keep in mind the actions, conduct, behavior, intent, and words of the person stopped or subject to an arrest is also being recorded. Recordings cannot injure an officer as long as the officer is acting within the lawful performance of his duties.
Lastly, when being recorded by an individual, do not tell a person to stop recording; however, when the person is recording advise the person he/she may continue to record, but the person may be subject to arrest if he/she interferes with the police operation or endangers himself, another or the police.
Mayor Bloomberg and Police Commissioner Kelly have reiterated the Stop and Frisk policy works and is not based on racial profiling. Both have offered to make amendments to the policy, but not eliminate it. The olive branch was extended, the ACLU responded by “Shooting Officers” with a camera.
Jim Gaffney, MPA is LET’s risk management /police administration contributor. He has served with a metro-New York police department for over 25 years in varying capacities including patrol officer, sergeant, lieutenant, and executive officer. He is an ILEETA, IACP, and IACSP member. Jim mentors the next generation of LEO’s by teaching university-level criminal justice courses as an adjunct professor in the New York City area. The approach taken is bringing the concept of policing into the classroom.
Learn more about this article here: