Gotham Gazette

The Place for New York Policy and politics

The Racial Profiling Settlement

More than four years after Amadou Diallo was gunned down by police, a wrongful death lawsuit filed by Diallo's parents seeking millions in damages nears trial, sure to re-ignite some public opinion against the department if it goes before a jury.

In contrast, few headlines were made last month when city officials settled a federal class-action suit accusing the police department of illegal racial profiling when stopping suspects. But the settlement, while downplayed by the department as merely formalizing changes that have already been made, requires department records to be turned over for outside review through 2007. This ensures that racial profiling - which is what police critics say killed Diallo -- will remain the subject of intense legal and judicial scrutiny for years to come. And, with data on race often subject to more than one interpretation, the settlement could wind up sparking future debates.

The Settlement

The police department will not admit any wrongdoing as part of the settlement with the Center for Constitutional Rights, the non-profit group that filed the federal lawsuit one month after the Diallo shooting, naming as plaintiffs 10 black men who said they had unfairly been stopped by police because of their race. As part of the settlement, these men will receive a total payout of $167,500 from the city.

The settlement also includes a court order prohibiting the department from racial profiling (it is already against department policy). Once the agreement becomes final (which will likely happen during a November 25 “fairness hearing,” a standard practice in class-action suits that gives plaintiffs a chance to object to the settlement), police will also be obliged to begin conducting racial-bias "audits." The results of these "audits" must be turned over quarterly to the Center for review.

Along with these internal audits, the department must turn over every so-called "stop-and-frisk" report. Each time a New York police officer stops a potential suspect and pats them down, the officer must fill out a form, essentially answering why they stopped the person in the first place. To try and ensure fairness, another outside law firm will also review the reports. U. S. District Judge Shira Scheindlein would review anything found by the center to be questionable.

The police department and the plaintiffs have also agreed to conduct outreach programs in schools and elsewhere to inform citizens why the police make stops, how to respond when stopped, and the rights people have if they believe they have been unfairly stopped . Between 40 and 50 such programs will be held at various city high schools each year..

Path to Compromise

Much has changed since the lawsuit was filed. Lawyers targeted the police department's Street Crime Unit, citing a 1999 report (in pdf format) by the New York State Attorney General's Office that reviewed 175,000 stop-and-frisk forms and found that the unit stopped about 16 black potential suspects for every stop that resulted in an arrest. Diallo was shot by four officers from the unit who were patrolling for a suspected serial rapist. The Attorney General's report and a report by the U.S. Commission for Civil Rights in 2000 both found that the police department stopped a disproportionately large number of blacks and Hispanics.

But police brass disbanded the unit in April (it had already been de-emphasized much earlier), citing decreased numbers on the police force and a need to deploy officers elsewhere. And a month before that, Commissioner Ray Kelly issued an order against racial profiling, putting in writing that the department prohibited "the use of race, color, ethnicity or national origin as the determinative factor for initiating police action" Of course, Kelly was sure to emphasize that this had been policy all along, just unwritten.

The true reasons behind these changes may be more closely tied to the lawsuit than city officials will ever admit, but it was certainly logical for the police to downplay the settlement, especially considering the avalanche of civil claims that inundate the city every year. Many of these claims involve allegations of improper behavior by the police department. There were 1,796 new police action claims filed in fiscal year 2002, while $21.9 million was paid out by the city for such claims in the same year, according to the New York City Comptroller's Office.

Yet in fiscal year 2003, there were only 41 police action verdicts, according to the New York City Law Department (12 of which were for the plaintiffs). The Diallo lawsuit seeks $81 million in damages and pain and suffering (although numbers named in pending civil lawsuits can be substantially inflated; Abner Louima sued the city for $155 million after he was tortured by police at a stationhouse, and he wound up settling for $8.75 million in 2001).

Reactions and Repercussions

It certainly wasn't the money, then, that led the New York Post to label the settlement as an "obscene sellout" in a September 20th editorial. Rather, the paper was dubious of how the settlement will play out. Bill Goodman, lead counsel for the plaintiffs, said that the Center for Constitutional Rights will be on alert for patterns of racial bias, rather than scrutinizing individual incidents.

But Goodman hesitated when asked whether data gathered from the police department will be released to the public. "We haven't decided that," Goodman finally said; as far as he knows, he added, nothing in the settlement would prohibit the center from doing so. While the Post is concerned that the center will somehow "come up with wholly different stats," data released by the New York City Council this summer already demonstrate how easily statistics can make the department look bad.

"Blacks Are Searched by Police At a Higher Rate, Data Show," read The New York Times headline from the summer. The data showed that 50.9 percent of. persons stopped and searched by police in the first six months of 2002 were black, about double the percentage of the black population of the city (24.5 percent, according to the 2000 Census). Police quickly defended the numbers, pointing out that 59 percent of suspects in violent crimes were black, as identified by victims.

One wonders if the stop-and-frisk forms will point to a true cause-and-effect relationship between those two numbers for the average cop out on the beat when scrutinized. In any case, the numbers, unless they change dramatically, will do little to calm those who already feel that something is systematically not right with the police department.

Regardless of how the settlement plays out, it seems unlikely to be the last word on race and the Diallo shooting. The New York Daily News, citing a law enforcement source, reported that Manhattan U.S. Attorney Jim Comey was continuing to investigate police stop-and-frisks for signs of racial bias.

Then, of course, there remains the wrongful death lawsuit filed by Diallo's parents. The four plainclothes police officers who shot their unarmed son outside of his Bronx apartment building were cleared of all criminal charges. The civil suit would appear to be their last legal recourse. Anthony Gair, lawyer for the Diallo family, offered no hints of an imminent settlement, saying he thinks the case will make it to trial in January or February. And while Gair said he plans to attack the police department for failing to adequately train the men who shot Diallo, he also said, "It's my position…that the only reason Amadou Diallo was confronted at all was because he was black."

Jaime Adame has written for Newsday, the San Jose Mercury News, and the Austin American-Statesman.


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