Black, Brown and Targeted

A Report on Boston Police Department Street Encounters from 2007–2010

Staff from the ACLU Foundation of Massachusetts and the national ACLU Racial Justice Program compiled this report.

Press date: October 3, 2014

American Civil Liberties Union Foundation of Massachusetts 211 Congress Street Boston, MA 02110 617-482-3170 x344 www.aclum.org

American Civil Liberties Union Racial Justice Program 125 Broad Street New York, NY 10004 212-519-7876 www.aclu.org

Cover photo: Boston resident Ivan Richiez TABLE OF CONTENTS

EXECUTIVE SUMMARY...... 1

I. INTRODUCTION: IVAN’S STORY...... 2

II. POLICING IN BOSTON: FROM “SEARCH ON SIGHT” TO “GETTING POSTED”...... 3

III. RACIAL BIAS IN THE BPD’S STOP-AND-FRISK PRACTICES...... 5 A. The Boston Police Department’s own reports reflect widespread targeting of Blacks B. Racial bias persists even after accounting for crime C. If anything, these findings underestimate Boston’s problem of racially biased policing

IV. THE BPD’S INABILITY TO SHOW THAT IT COMPLIES WITH CONSTITUTIONAL GUARANTEES AGAINST UNREASONABLE SEARCHES AND SEIZURES...... 11 A. Boston Police Department officers have not provided legitimate reasons for stops, frisks, and searches B. The Boston Police Department has not demonstrated that its use of stops and frisks produced results

V. THE EFFECT OF BIASED POLICING ON PEOPLE OF COLOR AND PUBLIC SAFETY...... 12 A. The human consequences of racially motivated stop and frisk B. Biased stop-and-frisk practices unfairly stigmatize communities of color

VI. TIME TO ACT: BRINGING ACCOUNTABILITY, CONSTITUTIONALITY AND TRANSPARENCY TO BOSTON STOP-AND-FRISK PRACTICES...... 14 A. Boston Police Department policies are inadequate B. The time for change is now

VII. CONCLUSION...... 17 Black, Brown and Targeted ACLU

EXECUTIVE SUMMARY that thousands of Black Bostonians were observed, stopped, interrogated, frisked, or searched because of their race. Key preliminary findings, all of which con- Boston Police Department (BPD) officers have trol for non-race factors, include the following: engaged in widespread racially biased “stop-and- frisk” practices, according to a preliminary statistical • Young Black men were more likely than young analysis of four years of BPD police-civilian encounter white men to be targeted for police-civilian en- reports. The findings confirm what many people from counters such as stops, frisks, searches, observa- communities of color have long suspected: Boston tions, and interrogations. police officers targeted people of color at far greater • When police-civilian encounters occurred, rates than white people. young Black men were more likely than young In 2010, the BPD secured a researcher to analyze white men to be frisked or searched. more than 204,000 BPD reports of police-civilian • Young Black men were more likely to be tar- encounters from 2007 to 2010. These reports, known geted for repeat police-civilian encounters. as “Field Interrogation, Observation, Frisk and/or The preliminary findings make clear that the BPD Search”—or “FIOFS Reports,” are made when an offi- has practiced racially discriminatory policing. This cer records having interrogated, observed, stopped, practice contradicts the principle of equal protection frisked, or searched someone. The researcher’s under the law, which is guaranteed by the Fourteenth preliminary analysis of these FIOFS Reports found Amendment to the U.S. Constitution and Articles 1, evidence that Black Bostonians are more likely to be 10, and 106 of the Massachusetts Constitution. selected for these encounters than otherwise identi- The data also show that, for Bostonians of all rac- cal white Bostonians. es, the BPD has failed to ensure that police-civilian Most alarmingly, the analysis found that Blacks encounters comply with constitutional protections were subjected to 63% of these encounters, even against unreasonable searches and seizures. Under though they made up just 24% of Boston’s popula- the Fourth Amendment to the U.S. Constitution and tion. The analysis also showed that crime—whether Article 14 of the Massachusetts Declaration of Rights, measured by neighborhood crime rates or the arrest police stops are unlawful unless supported by indi- records or alleged gang involvement of the civilians vidualized reasonable suspicion of wrongdoing, and subjected to these encounters—does not explain frisks require individualized reasonable suspicion that away this racial disparity. a person is armed and dangerous. The data, however, Instead, even after controlling for crime, alleged show that BPD officers have largely failed to justify gang affiliation, and other non-race factors, the their police-civilian encounters with individualized number of police-civilian encounters was driven by suspicion. a neighborhood’s concentration of Black residents: Instead, in three-quarters of all FIOFS Reports from as the Black population increased as a percentage 2007-2010, the officer’s stated reason for initiating of the total population, so did the number of police the encounter was simply “investigate person.” But encounters. The analysis also found, after controlling “investigate person” cannot provide a constitutionally for alleged gang involvement and prior arrest records, permissible reason for stopping or frisking someone. that Blacks were more likely to experience repeat po- It only describes what the officerdecided to do. lice encounters and to be frisked or searched during Finally, the BPD seems unable to prove that its an encounter. stop-and-frisk tactics were effective in fighting crime. This preliminary analysis—which has been shared According to BPD officials, officers did not file FIOFS with the BPD, the American Civil Liberties Union of Reports when encounters resulted in arrest. And, for Massachusetts, and the national ACLU—suggests the 204,000-plus FIOFS Reports that were completed,

1 Black, Brown and Targeted ACLU only 2.5% indicate that an officer seized weapons, ment directives on stops, frisks, searches, and drugs, or other contraband. Despite ACLU requests, consent. the BPD has not disclosed any information showing that it has eradicated racially biased policing, or that it I. INTRODUCTION: IVAN’S STORY now ensures that its stops and frisks are justified. Ivan Richiez, a young Black Dominican-American, The ACLU applauds the BPD for making FIOFS data was robbed at gunpoint in the summer of 2011. Two available to independent researchers, and for permit- young men took his wallet and cell phone. One of ting the researchers to share their preliminary analy- them pistol-whipped Ivan, smashing his mouth. sis with our organization, and thereby policy-makers and the public. These disclosures mark an enormous Ivan then slowly walked home, down Washington step forward; they present the police, elected offi- Street and right by cials, and the people of Boston with clear evidence the District E-13 Po- that it is time for the BPD to adopt a new, more effec- lice Station in Bos- tive, and more equitable approach. ton’s Jamaica Plain neighborhood. As We welcome the opportunity to use this new infor- Ivan approached mation to work with Boston city leaders, the BPD, and the station, blood- people from affected communities. Together, we can ied and battered, enhance public safety by reducing racial bias in polic- he thought of the ing and by building trust between Boston communi- role that police ties and the officers who swear an oath to protect and officers had played serve them. These are our key recommendations to in his life. the Mayor and the BPD: Ivan grew up in the South Street housing projects • Require all officers who engage in police-civil- of Jamaica Plain. His friends and neighbors came from ian encounters—including interrogations, stops, Boston’s communities of color: Puerto Ricans, Domin- frisks, and searches—to use body-worn cameras icans, African-Americans, Haitians and others—some during every interaction with the public. Also re- citizens and some immigrants. For them, the police quire written or video-recorded consent whenev- were a daily presence. er an officer claims that such an encounter was consensual. Ivan experienced his first stop and frisk on a warm fall evening in 2007, when he was 14 years old. He • Provide documentation—i.e., a receipt—to was sitting with some friends on the benches across any civilian involved in an interrogation, stop, from his apartment building. A Boston police car, a frisk, or search, whether or not it was consensu- “blue and white,” rolled into the South Street parking al. lot. Two uniformed officers, both white, jumped out • Publish electronic data on a quarterly basis and confronted Ivan and his friends: about all stops, frisks, non-consensual searches, “Who are you guys?” observations, and consensual interrogations and searches, including a breakdown by race, gen- “What are you doing here?” der, age, outcome, and the officer’s basis for the “Where do you live?” encounter and action. “What gang are you in?” • Adopt a bias-free policing policy that address- The officers then frisked Ivan. They grabbed at his es obstacles to race-neutral policing—including legs, his arms, his torso. One officer reached into implicit bias—and revise, provide training on, Ivan’s pockets. But they found nothing on Ivan or his and regularly publish BPD policies and depart- friends.

2 Black, Brown and Targeted ACLU

Ivan describes this treatment as rough, abusive, and police departments have pledged to “get tough” on lacking any respect. He says that this is common, for crime by targeting “high-crime” areas. But instead, himself and his friends. When asked how many times police officers have gotten tough on people of color he has been subjected to stops and frisks, Ivan says, by conducting high numbers of humiliating and stig- “Many times . . . thirty to forty times. Maybe fif- matizing stops, frisks, and searches in their neighbor- ty.” hoods. The night Ivan was robbed, he walked past the This is the problem that has become known as Stop police station. In his mind, he says, he paused. He and Frisk. thought, “Should I go inside? Should I tell the cops . . . The United States Supreme Court first authorized that I was just robbed at gunpoint?” the law enforcement technique of “stop and frisk” in He never told the police. He never reported the Terry v. Ohio, a 1968 case involving a group of men crime. As a result, the people who robbed him were who were casing a jewelry store for a robbery. The never caught. Ivan says “What would [the police] have Court permitted police officers to conduct investigato- done for me? I don’t trust them after the way they ry stops and protective frisks to protect officer safety have treated me and my people for so many years.” and to investigate possible crimes. But a stop or frisk cannot be based on a mere hunch, and it cannot rely at all on real or perceived race, ethnicity or national origin: II. POLICING IN BOSTON: FROM “SEARCH • To “stop” someone, a police officer must have ON SIGHT” TO “GETTING POSTED” individualized and objective reasonable suspicion The City of Boston has a checkered racial past, and that the person has committed, is committing, or the BPD is no stranger to it. In the late 1980s, the BPD is about to commit a crime. applied a policy of “Search on Sight” to anyone al- • To “frisk” someone, which is a pat-down of legedly “associated with a gang” in Boston’s predomi- a person’s outer clothing, an officer must have nantly-Black Roxbury neighborhood. This practice sub- reasonable suspicion that a lawfully stopped jected people to humiliating searches based on where person is armed and dangerous. A frisk is not a they lived and the color of their skin. As a Superior full-blown search for evidence; it may be used Court judge recognized, illegal only to seek weapons. searches in Roxbury were not The bottom line: the BPD officers are supposed to just tolerated by the BPD; they complete “2487 Forms” following were “applauded.” BPD unfairly targets encounters with civilians. From 2007 Thankfully, the BPD aban- Black people because to 2010, the forms were called “Field doned Search on Sight by the Interrogation, Observation, Frisk, early 1990s. But stories like of their race. and/or Search” or “FIOFS” Reports Ivan’s are common. These (though, as of 2011, they were stories suggest, and a prelim- renamed “Field Interaction/Observa- inary statistical analysis now shows, that the BPD still tion/Encounter” or “FIOE” Reports). At the time, BPD disproportionately targets Black men for stops, frisks, Rule 323 required officers to complete these reports and searches—even when controlling for the alleged after “observ[ing], detain[ing], or interrogat[ing] a gang affiliation and past criminal histories of people person suspected of unlawful design,” after “frisk[ing] subject to these encounters. or search[ing] an individual during a stop,” and after Similar experiences in other cities, from New York searching vehicles. City to Newark to Los Angeles, reflect this trend: BPD officers refer to these encounters as “FIOs.” But

3 Black, Brown and Targeted ACLU

Who’s Stopped and Who’s Not 2007 and 2010. The analysis is clear: from 2007 to Boston Police-Civilian Encounters Blacks accounted for more than 3 out of 5 FIOFS (Field Interrogation, Observation, Frisk and/or 2010, Boston had a serious stop-and- Search) in 2007-2010 but represent less than 1 of 4 people in Boston. frisk problem. This problem included a pattern of racially targeted, police-civilian encounters and a practice of failing Black - 63.3% to ensure that stops and frisks were justified. White - 21.8%

White Black Hispanic - 12.4% HISTORY OF THE BOSTON 21.8% 63.3% STREET-ENCOUNTER STUDY Unknown/No Data - 1.5% This report is part of the ACLU of Massachusetts’s “Justice for All” ini- Other - 1% tiative. In recent years, the ACLU of Massachusetts has received reports that Boston Police Department officers Boston Population are unfairly targeting people of color 2010 U.S. Census data for stops and frisks. Together with the national ACLU’s Racial Justice Program, White - 53.9% and with legal counsel from the law firm WilmerHale, we have sought to ex- Black amine the BPD’s stop-and-frisk policies 24.4% Black - 24.4% and practices. Hispanic - 17.5% In June 2009, the ACLU of Massachu- White setts wrote the BPD to propose a study Asian - 8.9% White of police-civilian encounters. We re- 53.9% quested access to FIOFS data and urged More than two races - 3.9% the BPD to “assess the significance of race as a factor in stop[s] and search- American Indian - 0.4% es.” We also asked the BPD whether FIOFS Reports were being used primar- ily to gather intelligence on civilians, aclum.org/stopandfrisk rather than to oversee officers. on the streets of Boston, it’s called “getting posted.” We were then told that we would While anecdotal evidence of racial profiling is easy be charged $112,000 simply to obtain redacted FIOFS to find, and a 2004 Northeastern University study Reports from 2007-2009. Unable to pay that amount, found evidence of racial bias in BPD traffic stops, the we considered other means—including litigation—of public has never been shown empirical data about making these vital public records available to policy- street encounters between Boston police officers and makers and the public. pedestrians. In March 2014, however, researchers But instead of going to court, in 2010 the ACLU of presented to the BPD and the ACLU a preliminary Massachusetts reached an agreement with the BPD. analysis of data from over 204,000 FIOFS Reports The agreement provided that then-BPD Policy Advisor of police-civilian encounters that occurred between Anthony Braga, a professor in the School of Criminal

4 Black, Brown and Targeted ACLU

Justice at Rutgers University, would work with the BPD to “code” the FIOFS Reports into an analyzable form. Dr. Braga agreed that he would then consult with independent scholars, including one suggested by the ACLU of Massachu- setts, to analyze the data. The stated research goal was to study: (1) the extent to which police officers documented stops, frisks, and searches in FIOFS Reports; (2) the nature and scope of any su- pervisory review of these reports; (3) the impact, if any, of race on decisions to stop or search; and (4) the incidence of stops and searches at different times and locations in Boston. Dr. Braga predicted that the study would be completed by the summer of 2012. However, the study is still ongo- ing as of the date of this report, and the BPD has not disclosed any of the underlying data. Instead, on two occasions, some of the data has been described. First, in June 2012, Dr. Braga told the BPD and the ACLU of Massachusetts that the proportion of FIOFS Reports This report addresses those key findings, while involving Black subjects (63.3%) far exceeded the understanding that new information may still come proportion of Black residents in Boston (24.4%). Later, to light. The preliminary findings, combined with in March 2014, Dr. Braga presented a preliminary discussions we have held with community members, analysis of the FIOFS Reports to the BPD, the ACLU leaders, and activists—some of whom are pictured of Massachusetts, the ACLU, and WilmerHale. He above—make clear that now is the time for a mean- revealed racial disparities that persisted even after ingful public conversation about reforming stop-and- controlling for crime and other non-race factors, and frisk practices in Boston. he said that a full written analysis would be completed by June 2014. The analysis is not yet complete. However, we have III. RACIAL BIAS IN THE BPD’S STOP- no reason to believe that the final analysis will con- AND-FRISK PRACTICES tradict the key preliminary findings presented in June When police officers use race as a factor in stop- 2012 and March 2014. ping or frisking people, they engage in racial profiling

5 Black, Brown and Targeted ACLU

thousands of Black people for these encounters at STOP AND FRISK IN BOSTON’S least in part because of their race.1 LATINO COMMUNITIES

Why does this report focus on the impact of the A. THE BPD’S FIOFS REPORTS REFLECT BPD’s stop-and-frisk tactics on Black Bostonians, WIDESPREAD TARGETING OF BLACKS rather than both Blacks and Latinos? Nearly two-thirds of BPD police-civilian encoun- The answer relates to the BPD’s core data prob- ters target Black Bostonians. While the 2010 cen- lems. The BPD’s data likely reflects an under-identi- sus reveals that Blacks made up 24.4% of Boston’s fication of Latinos. When reporting a police-civilian population, they comprised 63.3% of police-civilian encounter, officers must identify the subject as encounters from 2007 to 2010—well over double the American Indian, Asian, Black, Hispanic, or white. rate suggested by population figures. Over a four-year These limited categories fail to capture the com- period, Black Bostonians were subjected to roughly plexity of the Latino community, where often racial 129,600 of the 204,739 recorded police-civilian en- and ethnic categories are not mutually exclusive. counters. Officers may incorrectly report a Latino to be “white.” And like Ivan, some people in Boston’s The BPD’s practices between 2007 and 2010 were Latino communities identify by both their race and arguably even more racially skewed than the New ethnicity. York City Police Department’s (NYPD) tactics ruled unconstitutional in 2013 by a federal court. Boston and The likely under-reporting of police encounters New York City have comparable Black populations; the with Latinos makes it difficult to assess the impact 2010 census found that 24.4% of Bostonians and 23% of the BPD’s stop-and-frisk practices on Latinos. of New Yorkers were Black. However, Blacks account- But the preliminary analysis did find that a neigh- ed for 52% of NYPD stops between 2004 and 2012—a borhood’s concentration of “Hispanic” residents, shocking figure, but still far lower than the 63.3% of like the concentration of Black residents, drives BPD encounters that targeted Blacks.2 increased BPD encounters. The BPD’s stop-and- frisk practices should be reformed to address this B. RACIAL BIAS PERSISTS EVEN AFTER problem. ACCOUNTING FOR CRIME Thus, in formulating recommendations below, The research team has studied whether factors we propose reforms that would benefit all commu- other than race explain why, from 2007 to 2010, the nities of color. We also call upon the BPD to revise BPD targeted Blacks for nearly two-thirds of all po- FIOFS Report forms to accommodate more com- lice-civilian encounters. Was it simply because Blacks plex racial and ethnic designations, and to imple- are more likely than whites to commit crimes or live ment precinct-level cultural competency training in rough neighborhoods? in the histories and cultures of local immigrant and ethnic communities. The answer, it turns out, is no.

1 FIOFS Reports are not limited to stops and frisks; they also prohibited by the Fourteenth Amendment to the U.S. document interrogations, searches, and mere observations. In Constitution and Articles 1, 10, and 106 of the Massa- March 2014, BPD officials acknowledged that officers might have chusetts Constitution. Preliminary analysis of 204,739 failed to comply uniformly with the rule that they report all stops and frisks in FIOFS Reports from 2007 to 2010, and they continue FIOFS Reports confirms what many in Boston’s com- to fail to do so. Nevertheless, FIOFS Reports provide the best data munities of color have long suspected: the BPD has about stops and frisks in Boston. not only stopped, frisked, observed, and searched them at far greater rates than whites; it has targeted 2 Floyd v. City of New York, 959 F. Supp. 2d 540, 558-59 (S.D.N.Y. 2013), appeal dismissed (Sept. 25, 2013).

6 Black, Brown and Targeted ACLU

The research team conducted several analyses to • Black race is a significant factor driving BPD measure the effect of race on these encounters. Their police-civilian encounters. preliminary findings confirm that Blacks were more The research team determined that a neighbor- likely to experience both stops and searches—even hood’s concentration of Black residents drives the rate after controlling for non-race factors such as neigh- of police-civilian encounters. borhood crime rates or the past arrest records and What does this mean? It means that given two alleged gang affiliation of the civilians subjected to otherwise identical Boston neighborhoods—with police encounters. identical crime rates and total populations—BPD These preliminary findings include the following initiated more street encounters in the neighborhood evidence of race-based policing: with more Black residents. Between 2007 and 2010, the mere presence of Black residents increased the numbers of police-ci- 63% “Black” vilian encounters. And higher concentrations of Black residents yielded even more police-civilian encounters (see chart on page 8). This finding provides important—and disturbing—evidence that race drove, at least in part, BPD encounters. • A person’s Black race 75% Investigate Person substantially increases the likelihood that the BPD will target him for more than one encounter. The research team also reported that, among people who experienced police encounters, Blacks were more likely to be targeted for multiple encounters. Only 2.5% of the police-‐civilian What does this mean? It encounters studied means that, once targeted were reported to involve the seizure for an encounter, a Black of items. BPD has person was at a higher not shown that any of the 200K+ risk than an otherwise encounters resulted identical white person of in arrest. being targeted again. The researchers found that

7 Approximate Relationship between the Percentage of Black Residents and the Predicted Number of Police-Civilian Encounters in Boston Neighborhoods (Controlling for Other Variables)

Predicted Number of Police- Civilian Racially-Biased Policing Encounters

Racially-Neutral Policing

Percentage of Black Residents

aclum.org/stopandfrisk

8 Black, Brown and Targeted ACLU although prior arrest history and gang membership and whites who experienced police encounters, also increased a person’s chance of being targeted for Blacks were more likely than whites to be frisked or a repeat police-civilian encounter, those factors did searched. not explain away the role of Black race. Thus, Blacks What does this mean? It means that, if a Black targeted for police-civilian encounters are more likely person and an otherwise identical white person were to experience not just one, but repeat police-civilian each targeted for an encounter, the Black person encounters because of their race. was at a higher risk of having the police elevate the • A person’s Black race substantially increases encounter to a physical frisk or search. Once again, the likelihood that the BPD will target him for a the researchers controlled for a person’s prior arrest frisk or search. history, alleged gang membership, and other factors. The research team also reported that among Blacks Thus, after the start of a police-civilian encounter, Blacks were more likely to be Neighborhood Disparities: Boston Police-Civilian Encounters frisked or searched because of from 2007 – 2010, in the Three Most-Targeted and Three their race. Least-Targeted Districts The bottom line: the BPD Somerville unfairly targets Black people

Charlestown because of their race, separate and apart from efforts to target Cambridge East Boston Watertown neighborhoods or people associated with crime. Downtown Brighton

South End C. IF ANYTHING, THESE South Boston FINDINGS UNDERESTIMATE Newton BOSTON’S PROBLEM OF Brookline RACIALLY BIASED POLICING Roxbury Indicates 10,000 FIOFS The preliminary research might Jamaica (Field Interrogation, Plain Observation, Frisk and/or actually underestimate the role Search) of racial bias in the BPD’s policing Dorchester practices. Why? In assessing the role of crime in driving police-ci- West Roxbury/Roslindale Mattapan 44,570 vilian encounters, the research team relied on the BPD’s own 30,709 data and reporting practices. For Hyde Park three reasons, those practices 27,697 might undercount the number of Blacks who were targeted because of their race. 6,035 • BPD records appear to omit some encounters with people 4,037 who lack arrest records or gang affiliations.

3,304 BPD rules require an officer to aclum.org/stopandfrisk complete a FIOFS Report even if

9 Black, Brown and Targeted ACLU the officer stopped some- Reasons for Interrogation Observation, Frisk, or Search from 2007 – 2010 one who had no arrest re- “Investigate Person” was the most common reason given, yet it doesn’t reference a crime. cord, gang affiliation, drugs, or weapons. But Bostonians 1.3% 1.1% 0.9% report that this does not 1.6% Investigate person - 75% 2.2% always happen. 2.6% Ivan is one of those 3% Other/Missing - 12.3% Bostonians. He has been stopped and frisked many times, but the officers often Trespassing - 3% did not even take down his 12.3% name, much less fill out a Investigate Motor FIOFS Report. As a result, Vehicle - 2.6% FIOFS Reports may well “Investigate Person” underestimate the number Drugs - 2.2% of police-civilian encounters 75% that involved people of col- Alcohol/Public or unaffiliated with gangs or drinking - 1.6% lacking prior arrest records. Disturbing the peace/ • BPD records may Disorderly conduct - 1.3% overstate the involvement of Black people in Assault - 1.1% gangs. The BPD collects and retains the names of al- Firearm/Gun - 0.9% leged gang members in a BPD gang database, but has declined to reveal how it decides whether to include aclum.org/stopandfrisk or remove a name from the list. As Ivan’s experience ated these encounters. demonstrates, young Black men can be labeled gang And prior arrests might have been due to racially members even when they are not. And there is no biased policing. For example, the FBI Uniform Crime way for them to correct that error. Reporting Program shows that, in 2010, Black peo- • A person’s prior arrest record, by itself, cannot ple in Suffolk County were 4.8 times more likely than justify a stop or frisk. whites to be arrested for marijuana possession, even A person’s arrest record reflects past conduct; it though studies confirm that Blacks and whites use 3 does not justify stopping and frisking that person marijuana at roughly the same rates. whenever the police want. In fact, BPD officials have 3 ACLU, The War on Marijuana in Black and White, 156; see conceded that none of the encounters described in Results from the 2011 National Survey on Drug Use and Health: the FIOFS Reports involved an arrest. Whatever the Detailed Tables, Table 1.24B (Marijuana Use in Lifetime, Past Year, and Past Month among Persons Aged 12 or Older, by Demographic subjects of these Reports did in the past, they were Characteristics: Percentages, 2010 and 2011) (2012), available evidently not committing crimes when the police initi- here.

10 Black, Brown and Targeted ACLU

IV. THE BPD’S What can happen in police-pedestrian encounters? INABILITY TO SHOW At dierent steps governing police-pedestrian encounters, police have dierent rights, and so do you. THAT IT COMPLIES

WITH CONSTITUTIONAL denotes what police can do GUARANTEES AGAINST UNREASONABLE denotes what you can do Probable Stop Search SEARCHES AND Cause Question Arrest Frisk SEIZURES Ask “Am I under arrest?” Reasonable and “What’s the charge?” The Fourth Amendment to Suspicion - Stop the U.S. Constitution and -Ar Armed & Question Frisk ticle 14 of the Massachusetts Increasing standards Dangerous Declaration of Rights prohibit Ask “Am I being detained?” Reasonable If yes, you are not free to leave unreasonable intrusions on Suspicion - Stop our bodies and possessions by Crime Question the government. The prelimi- Ask “Am I being detained?” nary analysis of 204,739 FIOFS Speculation If yes, you are not free to leave Reports demonstrates that the or Hunch Make a consensual stop BPD has not ensured compli- You are free to leave ance with this prohibition. If police have

No Suspicion Make a consensual stop A. BPD OFFICERS HAVE NOT PROVIDED LEGITIMATE You are free to leave REASONS FOR STOPS, suspicion or hunch: a feeling or guess based on consent stop: Police can always stop you if you agree FRISKS, AND SEARCHES intuition rather than facts to be stopped. Therefore ask the police, "Am I free to leave?" reasonable suspicion of crime: some speci c and In 75% of all FIOFS Reports, Standards articulable facts that a person is involved in crime stop: a brief detention. Police can hold you for a governing reasonable amount of time BPD officers cited “investigate police reasonable suspicion armed and dangerous: some encounters speci c and articulable facts that a person is armed frisk: a pat down to the outer clothing to search for person” as the reason for with a weapon and is dangerous weapons only the interrogation, observa- probable cause: enough information to reasonably search: more extensive than a frisk. Police can look in { believe the person has committed a crime pockets , bags and containers for evidence of the tion, frisk, or search. But that alleged crime arrest: A person is taken into police custody based on phrase merely indicates that aclum.org/stopandfrisk evidence of a crime the patrol officer initiated a stop, frisk, or search. It cannot rationale cannot justify a single stop or frisk. It is no explain, either to the public or to a BPD supervisor, different from writing, “Because I said so.” why the officer did so. In fact, “investigate person” is worse than the The U.S. and Massachusetts Constitutions require “furtive movement” rationale that was used by NYPD more than that. Officers must have legitimate reasons officers in 51.3% of their stops and frisks. A federal for initiating stops and frisks. To initiate a stop, an court ruled that “furtive movement” is so vague that officer must have reasonable, articulable suspicion of it fails to justify a stop or frisk, without more specific criminal activity. To conduct a frisk, the officer must information.4 have reasonable articulable suspicion that the individ- Yet the “furtive movement” rationale at least -at ual is armed and dangerous. tempts to explain what someone did to attract suspi- Under these standards, an “investigate person” cion; the “investigate person” rationale does not.

4 Floyd, 959 F. Supp. 2d at 559. 11 Black, Brown and Targeted ACLU

Because the “investigate Boston Police Street-Encounter “Hit” Rate from 2007 – 2010 person” rationale is both so pervasive and so deficient, 2.5% the BPD cannot determine whether its officers regularly stopped and frisked people for good reasons or bad. Thus, this rationale undermines Arrest - 0% supervision, enabling BPD officers to avoid both individual Documented and collective accountability seizure - 2.5% to the Department, the peo- No documented seizure, No documented ple, and the communities that seizure, no documented no documented arrest they are supposed to protect arrest - 97.5% and serve. 97.5%

B. THE BPD HAS NOT SHOWN THAT ITS STOPS AND FRISKS PRODUCED RESULTS Beyond being unable to aclum.org/stopandfrisk prove that it has complied with constitutional guarantees against unreasonable searches and seizures, the BPD cannot show that its V. THE EFFECT OF BIASED POLICING ON stop-and-frisk practices helped to fight crime. BPD PEOPLE OF COLOR AND PUBLIC SAFETY officials have acknowledged to the ACLU that, despite Policing based on bias and negative stereotypes not a rule requiring officers to complete FIOFS Reports for only undermines civil liberties, it imperils public safe- every encounter, officers did not complete Reports ty. The harms caused by biased policing have become for anyone who was arrested. Because it did not track apparent in interviews and community meetings that the entire universe of stops and frisks—i.e., those that the ACLU of Massachusetts has had with Bostonians led to arrest and those that did not—the BPD cannot of color over the last several months and years. These say what proportion of stops and frisks resulted in discussions, some of which are described below, arrest. demonstrate that people feel hurt by, and fearful of, But the FIOFS Reports do reveal certain facts. They the police. show that, in a four-year span, the BPD targeted That is hardly surprising. Protests swept the na- Blacks for roughly 129,600 encounters—63.3% of tion in August 2014 following the killing of unarmed 204,739—that did not result in arrest. teenager Michael Brown by a police officer in Fer- Moreover, only 2.5% of the FIOFS Reports involved guson, Missouri. In Ferguson, traffic stop data show the seizure of contraband or a weapon. So tens of that police disproportionately target Blacks for stops thousands of Black Bostonians were subjected to and searches. Communities of color nationwide have these encounters despite not being engaged in con- pointed to Ferguson as an example of the counterpro- duct that a BPD officer deemed worthy of an arrest. ductive, stigmatizing, and sometimes dangerous- ef fect of unfairly targeting Blacks for police action. As a federal judge recognized when addressing the NYPD’s

12 Black, Brown and Targeted ACLU stop-and-frisk program, “While still getting stopped. I’m in the it is true that any one stop is a I can’t ride my bike newspaper as a neighborhood limited intrusion in duration and down the street to the scholar, and I’m still getting deprivation of liberty, each stop stopped. I can’t ride my bike is also a demeaning and humili- corner store without down the street to the corner ating experience. No one should store without worrying that live in fear of being stopped worrying that I’ll end up I’ll end up in the back of a cop whenever he leaves his home to car.” 5 in the back of a cop car.” go about activities of daily life.” The BPD’s targeting of Black These words are just as true —Armani W. men and youth for police for Boston as they are for New encounters has caused many York. When police officers engage in racially biased in Boston’s Black communities to feel as though they actions, they undermine the vital trust between po- are living under siege. The BPD’s stop-and-frisk tac- lice and the public that is necessary to ensure public tics pervade every aspect of daily life, leaving people safety. As New York Times columnist Charles M. Blow to feel as though they are criminals and constantly has said, fighting crime by treating young Black peo- suspect. As one young man explained, “Being stopped ple with “universal suspicion” is “like burning down a affects your sense of home and the image being pro- house to rid it of mice.”6 jected about you. [Stop-and-frisk] marks you and the people who look like you as criminals.” A. IMPROPER STOP-AND-FRISK TACTICS HARM BLACK BOSTONIANS B. IMPROPER STOP-AND-FRISK TACTICS ERODE In interviews and community meetings, young Black TRUST WITH COMMUNITIES OF COLOR Bostonians report feeling scared while walking home When people are stopped without any reason, or or to school because of how the Boston police target when they hear that the “reason” is reported as “in- and harass them. One young man stated that he does vestigate person,” they begin to believe that the sys- not know why the police regularly stop him when he tem is not treating them fairly. And, of course, they’re is not doing anything, and that the police’s behavior right. These experiences inevitably reduce trust and toward him and his friends “make people build a type faith in the police. of hatred toward them.” In his view, “We get stopped One young woman, Yohana B., put the problem all the time, but people in the South End get treated this way: “Unless you’re white, this is not a system to differently.” protect you. It is not about the rights written down, Another young man noted, “Police think badges it’s about what happens.” give them the power to do whatever they want.” Many of Boston’s young men of color believe that Similarly, Armani W. explained that no matter what when officers look at them, they see only one thing: he does, how he dresses, or where he goes, he always criminals. Alex P-C., a resident of Boston’s predom- feels that the police are targeting him. Armani stated, inantly-Black Roxbury neighborhood, stated, “Stop “I’m walking down the street trying to mind my own and frisk really changes how you act; like it really gets business and I get stopped. I look like college, but I’m to you. It makes you feel like you’re a criminal when you’re not even doing anything wrong.”

5 Floyd, 959 F. Supp. 2d at 557. When the BPD targets Mattapan, Roxbury, and Dorchester for stops just because of their high con- 6. Charles M. Blow, The Whole System Failed Trayvon Martin, N.Y. centration of Black residents, communities of color Times (July 15, 2013), http://www.nytimes.com/2013/07/16/ can feel that they are under occupation. opinion/the-whole-system-failed.html

13 Black, Brown and Targeted ACLU

Young Bostonians sometimes alter entirely legal VI. TIME TO ACT: BRINGING behavior just to avoid the police. They do not go to ACCOUNTABILITY, CONSTITUTIONALITY parks and playgrounds, basketball courts and baseball AND TRANSPARENCY TO BOSTON STOP- diamonds. They avoid train stations and bus stops, AND-FRISK PRACTICES city squares and community festivals. The preliminary analysis of FIOFS Reports from 2007 And, perhaps most worryingly, they avoid the po- to 2010 identifies a serious stop-and-frisk problem, lice. Ivan Richiez’s story suggests that victims of crime with two major dimensions: (1) racially biased po- are less likely to report it if licing, including the they have personally expe- targeting of Black rienced racially biased po- “Being stopped affects your sense neighborhoods for policing. That makes all of us of home and the image being lice-civilian encounters much less safe in our com- and of Black people for munities, in our homes, projected about you. [Stop-and- repeat police-civilian and on our streets. frisk] marks you and the people encounters as well as Lastly, by selecting Black frisks and searches; and people for the majority who look like you as criminals.” (2) a failure to ensure of more than 204,000 that the BPD’s practic- police encounters over es complied with constitutional prohibitions against four years, the BPD has effectively told Black children unreasonable searches and seizures. that we are preparing them to enter a pipeline. That How did this happen? And how do we end these pipeline starts in school, moves to stops and frisks on practices? the streets, and ends with jails and prisons. Stop and Frisk creates a culture that tells our youth, “The place for you is behind bars.” A. BPD POLICIES ARE INADEQUATE7 Martsyl Joseph, a criminal defense attorney in Bos- The BPD’s deficient practices from 2007 to 2010 ton, explains, “[Stop and Frisk] happens so much that appear to reflect deficient policies. The BPD has kids internalize the view that police have of them— disclosed five policies and training materials from this that they are criminals. Among many of the youth period, which address stops, frisks, and searches, as with whom I work, being targeted by the police be- well as procedures for completing FIOFS Reports and cause of the color of their skin has become ‘normal.’ entering information about civilians into law enforce- Kids know that even if they’re not doing anything ment databases. None of those materials prohibit wrong, the police are going to stop them. To Black and racially biased policing or instruct BPD officers on Latino kids, that’s just how it goes.” how to ensure that stops, frisks, and searches are not based to any extent on race, ethnicity, or national Joseph further notes that “with racially discrimina- origin, as the law requires. tory policing being the norm, you have large groups of youth who do not trust the police and who do not Nor does it appear that the BPD has imposed signif- want to cooperate with the police. You cannot have icant reforms since hearing, in June 2012 and March productive community policing so long as you keep 2014, about racial disparities in its police-civilian en- treating all young Black and Latino people like crimi- counters. The ACLU has asked the BPD to make avail- nals.” able all recent policies and training materials on racial

7 The policies and training materials discussed in this section are available at https://www.aclum.org/stopandfrisk/policies_and_ training.pdf

14 Black, Brown and Targeted ACLU profiling and Stop and Frisk, as well as recent data on encounters with civilians. stop-and-frisk practices. In response, the BPD has in- To the contrary, because the BPD’s post-2010 poli- dicated that it intends to move away from permitting cies evidently do not address the problems identified officers to use “investigate person” as a justification in June 2012 and March 2014, it is doubtful that those for an encounter. But the BPD has not provided any problems have been solved by the BPD’s post-2010 post-2010 policies, training materials, or data geared practices. toward addressing problems with racially biased polic- Accordingly, there remains cause for concern that ing or unjustified stops, frisks, and searches. BPD encounters with civilians, even if less frequent, Instead, the BPD has produced are still deeply flawed. These con- several other documents. These We should strive cerns are reinforced by interviews include a 2014 policy on consensual that the ACLU of Massachusetts police-civilian encounters, a train- to make Boston has recently conducted in targeting document on constitutional law, ed communities. Time and again, and a 2011 revision of Rule 323, a model to which people of color in Boston reported which governs the conduct and re- that police still target Black youth, porting of encounters with civilians. other cities aspire. not because they are committing These documents do not solve the crimes, but because of the color of BPD’s stop-and-frisk problems. their skin. For example, the 2011 revision to Rule 323 fails to instruct officers how to ensure that police encounters B. THE TIME FOR CHANGE IS NOW are not driven by race. It does not prohibit the use Boston has a new mayor and a new police commis- of race, ethnicity, or national origin to any degree in sioner. These circumstances present a unique oppor- justifying a stop, frisk, or search. Nor does it clear- tunity for Boston to adopt new and better approaches ly require officers to document all stops, frisks, and to Stop and Frisk. To transform an environment of searches. Rule 323 also fails to explain that a stop is discrimination and suspicion into one of trust and impermissible unless officers identify specific, articu- cooperation, we urge reforms that promote police lable evidence supporting individualized suspicion of Accountability, safeguard Constitutional rights, and wrongdoing. And finally, the rule does not identify the create Transparency. proper standard for conducting protective frisks—rea- In short, the BPD needs to A.C.T. sonable suspicion that a person is armed and dangerous—and does not adequately guard against the use Accountability of coercion to obtain “consent.” The BPD can manage only what it measures. The Similarly, the training document incorrectly states BPD should implement oversight that can quickly that stops are permitted based on factors such as spot, address, and correct unconstitutional policing. “time of day” and “furtive gestures.” But those fac- After all, the best policies will not lead to improve- tors, standing alone, do not provide reasonable suspi- ments in the streets unless the BPD ensures that cion for a stop. officers follow them. With respect to the ACLU’s request for updated • All officers engaged in police-civilian encoun- data, the BPD has reported a 42% drop in the number ters should wear and utilize body-worn cameras of police-civilian encounters per year between 2010 (BWCs) during every interaction with the public. and 2013. Although this reduction is commendable, Likewise, all BPD vehicles used in encounters it does not mean that the BPD has ceased dispropor- with civilians should be equipped with dash- tionately targeting Boston’s communities of color, or board-mounted cameras (DMCs). that it has ceased using flimsy justifications to initiate »»Officers should immediately notify people that

15 Black, Brown and Targeted ACLU

they are being recorded by a BWC. plement policies and training to ensure that officers »»The BPD should delete BWC or DMC video af- conduct proper stops, frisks, and searches, without ter two years unless a recording is “flagged” at any influence by race, ethnicity, or national origin. the subject’s request or because it documents • The BPD should revise its stop, frisk, and the use of force, or involves an encounter that search policies so that they require officers: is the subject of a complaint, or led to a deten- »»to have individualized, objective reasonable tion or arrest. suspicion of specific criminal activity to conduct »»The BPD should permit individuals recorded an investigatory stop; by BWCs or DMCs to have access to and make »»to have individualized, objective reasonable copies of those recordings. This same permis- suspicion that someone stopped is “armed and sion should be available to a third party if the dangerous” before conducting a protective frisk subject consents, or to criminal defense lawyers for weapons; seeking relevant evidence. »»to never rely in any way on real or perceived • BPD officers should issue receipts to any- race, ethnicity, national origin, religion, gen- one who is interrogated, stopped, frisked, or der, gender identity, disability status, or sexual searched. orientation; »»The receipt should be issued no matter wheth- »»to refrain from conducting a consensual en- er the encounter was consensual, and no mat- counter, interrogation, frisk, or search until the ter whether the encounter resulted in an arrest officer affirmatively informs the individual of his or other legal action. or her right of refusal, and obtains prior written »»The receipt should identify the officer(s) in- documentation of the subject’s consent; and volved, the time and place of the encounter, the »»to require substantial cadet and in-service legal basis for the encounter, and the means of training to all sworn officers on all revised FIOFS filing a complaint with the BPD. policies. »»The BPD should follow up appropriately on all • The BPD should revise its training policies and complaints relating to civilian encounters. FIOFS Report form to ensure that each Report: • The BPD should ensure that all officers com- »»identifies the individualized reasonable sus- plete a FIOFS Report for every stop, frisk, or picion that led to the police-civilian encounter search, regardless of whether the subject con- and each action taken during the encounter, sented and regardless of the encounter’s out- including any frisks, searches, and uses of force; come. »»cautions officers against using boilerplate lan- »»Supervisors should be required to promptly guage to articulate reasonable suspicion; review FIOFS Reports and to take corrective »»documents whether each encounter was action if an officer fails to complete them. consensual and, if so, provides proof that the »»The BPD should take corrective or disciplinary civilian’s consent was obtained in writing or action if a supervisor fails to conduct complete, through video-recording; and thorough, timely, and accurate reviews of the »»indicates whether the encounter resulted in a FIOFS Reports. summons, arrest, and/or seizure of weapons or Constitutionality contraband. Of course, oversight will not work unless the officers • The BPD should implement a bias-free policing conducting street encounters are actually trained to policy that: follow the Constitution. Thus, the BPD should im-

16 Black, Brown and Targeted ACLU

»»prohibits using race, ethnicity, national origin, VII. CONCLUSION gender, age, religion, sexual orientation, gender The information in this report places Boston at identity, or disability status to any extent in initi- a crossroads. One road continues with business as ating an encounter, stop, frisk, or search; usual, which has alienated communities and failed »»requires substantial cadet and in-service train- to ensure that police encounters are either just or ing to all sworn officers on bias-free policing; effective. The other road leads to transparency, police and accountability, and respect for the dignity and consti- »»disciplines officers for violating the policy. tutional rights of all Bostonians. Transparency All of us—the police, Bostonians, community groups, and others—should choose the second road. Beyond improving oversight and training, the BPD We should rededicate ourselves to making Boston a should work to rebuild trust with communities who place of healthy and safe communities with justice for have been stigmatized, victimized, and marginalized all. We should restore accountability, constitutionality, by the BPD’s stop-and-frisk practices. That rebuilding and transparency to police practices. And we should is impossible so long as the BPD’s practices and data strive to make Boston a model to which other cities are secret. aspire. • The BPD should develop and implement a If we do that, Boston’s streets will be safer, its police program to inform Bostonians about their right department will be stronger, and the trust between to a citizen-receipt following any police-civilian its police officers and civilians will be more durable. encounter and teaches them how to make police Nearly 250 years after Boston was dubbed “the Cradle misconduct complaints. of Liberty,” it is time again to put that ideal into prac- • The BPD should, on a quarterly basis, analyze tice. ▪ and publish data on all consensual or non-consensual stops, frisks, searches, observations, and interviews. The published data should be broken down by race, gender, age, and the officer’s basis for the encounter or action. • The BPD should annually publish its FIOFS-re- lated directives and training materials. And, on a quarterly basis, the BPD should publish information about civilian complaints, including how many were received and how they were resolved.

17 American Civil Liberties Union Foundation of Massachusetts 211 Congress Street Boston, MA 02110 617-482-3170 x344 www.aclum.org

American Civil Liberties Union Racial Justice Program 125 Broad Street New York, NY 10004 212-519-7876 www.aclu.org

aclum.org/stopandfrisk