IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Mahari Bailey, et al., :
Plaintiffs : C.A. No. 10-5952
:
v. :
:
City of Philadelphia, et al., :
Defendants :
PLAINTIFFS’ TENTH REPORT TO COURT ON STOP AND FRISK
PRACTICES: FOURTH AMENDMENT ISSUES
This Tenth Report to the Court provides a Fourth Amendment analysis of stop
and frisk practices by the Philadelphia Police Department (“PPD”) for the Third and
Fourth Quarters of 2019, and sets forth plaintiffs’ recommendations for necessary and
enhanced compliance measures by the PPD.
I. History of the Case
On June 21, 2011, the Court approved a Settlement Agreement, Class
Certification, and Consent Decree (“Agreement”). On February 6, 2012, plaintiffs
submitted their First Report which analyzed stop and frisk data for the first two quarters
of 2011. The First Report focused on Fourth Amendment issues, and specifically whether
there was sufficient cause for the stops and frisks reported by the Philadelphia Police
Department (“PPD”). The audits showed that over 50% of stops and frisks were
undertaken without reasonable suspicion.
Plaintiffs’ Second Report, submitted in 2012, showed continued high rates of
stops and frisks without reasonable suspicion (over 40% in both categories). On the issue
of racial disparities, plaintiffs’ expert, Professor David Abrams, conducted a series of
regression analyses and concluded that the racial disparities in stops and frisks were not
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fully explainable by non-racial factors. Further, the analysis of marijuana arrests showed
even more pronounced disparities, with Blacks and Latinos constituting over 90% of all
marijuana arrests.
Plaintiffs’ Third Report focused on stop and frisk practices for the first two
quarters of 2012. Plaintiffs again found a 40% rate of non-compliance with Fourth
Amendment standards, and racial minorities constituted over 90% of arrests for small
amounts of marijuana. In response, the City stated that the PPD was providing additional
training, issuing revised auditing protocols, and instituting new accountability measures.
The Fourth Report, filed in 2013, analyzed stops and frisks in 2012 and 2013, on
both Fourth and Fourteenth Amendment grounds. Pedestrian stops were made without
reasonable suspicion in 43% of the cases reviewed, and frisks were conducted without
reasonable suspicion in over 50% of the cases. There continued to be very low “hit-
rates,” with only 3 guns recovered in over 1100 stops (0.27%).
The stops and frisks continued to be racially disproportionate with statistically
significant disparities that were not explained by non-racial factors (e.g., crime rates,
demographics of police districts, age, and gender). The rate of stops without reasonable
suspicion for Blacks was 6.5 percentage points higher than the rate for Whites,
demonstrating that police were using a higher threshold of “reasonable suspicion” for
stops of White suspects.
The Fifth Report covered the first two Quarters of 2014 and showed a rate of
stops without reasonable suspicion of 37%. The rate of frisks without reasonable
suspicion, or as fruits of an impermissible stop, was 53%. Hit rates remained very low,
with 433 frisks yielding only two firearms. Indeed, where officers stated that a “bulge”
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justified a frisk, they seized a gun in only 1 of 78 frisks. On the issue of racial impact,
the experts for the City and plaintiffs both found statistically significant evidence of
racial bias in stops and frisks.
The Sixth Report covering two Quarters in 2015 showed continuing high rates of
stops and frisk without reasonable suspicion, very low “hit-rates” for weapons, and
racially biased patterns of stops and frisk practices. In February, 2016, the Court met
with the parties, including the Managing Director, the Police Commissioner and Mayor
Kenney’s Criminal Justice Advisor (Judge Benjamin Lerner) in response to the Sixth
Report which showed continued and serious non-compliance with the Consent Decree on
both the Fourth and Fourteenth Amendment issues. The City acknowledged the
deficiencies in the stop and frisk practices and set forth a plan for internal accountability,
including measures long advocated by plaintiffs, to ensure compliance with the Consent
Decree. The parties agreed that the data from the Third and Fourth Quarters, 2016 and
from 2017 would provide reliable grounds for assessing whether these measures are
effective and what additional steps would be necessary to achieve compliance with the
Consent Decree.
The Seventh Report (second half of 2016), showed improvements in the PPD stop
and frisk practices, including a 35% decrease in the number of stops for 2016 as
compared to 2015, and fewer stops and frisks without reasonable suspicion. Thus, in the
second half of 2016, stops were supported by reasonable suspicion in 75% of the cases
(as opposed to 67% in 2015) and frisks were supported by reasonable suspicion in 59%
of the cases (as opposed to 43% in 2015). Nevertheless, the data also showed non-
compliance with both Fourth and Fourteenth Amendment standards, with tens of
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thousands of persons being stopped and frisked without reasonable suspicion by the PPD
on an annual basis. These improvements were the direct result of newly implemented
internal accountability measures. The parties again met with the Court (Padova, J.) and
agreed to further implementation of accountability protocols in 2017.
The Eighth Report analyzed data from stops made in the first two quarters, 2017.
79% of all stops were supported by reasonable suspicion; 21% were without legal
justification. There continued to be a very high number of frisks without reasonable
suspicion, 42% (at the same rate as a year before).
The Ninth Report was filed in 2019, and reviewed data from the first two quarters,
2018. There was continued improvement in stops, with 84% done with reasonable
suspicion. With respect to frisks, however, while there was some improvement, there
was still a high rate of 30% without reasonable suspicion. By this time, the City had
drafted a disciplinary code for stop and frisk violators, including officers and supervisors
who engaged in repeat stops or frisks without reasonable suspicion (and for supervisors,
those who failed to correct such actions). Following a conference with the parties in June,
2019, Judge Padova approved the discipline protocol as part of the Bailey monitoring and
review process.
It was expected that the disciplinary system would go into effect in the Third
Quarter, 2019, but staffing and administrative problems delayed implementation until the
Fourth Quarter. And, since the first round of disciplinary notifications were not made
until early 2020, the current report does not reflect the efficacy or impact of these
disciplinary measures. We will issue another report based on the data provided from the
second and third quarters of 2020 that should provide some basis for evaluating the
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disciplinary process. Of course, with the impact of COVID 19, there is likely to be a
significant decrease in stops and frisks, due to more limited policing interventions. It is
important to note, however, as the data reviewed in this Tenth Report shows, without
disciplinary measures in effect, progress in the stop and frisk rates with reasonable
suspicion has stalled.
II. Third and Fourth Quarters, 2019: Fourth Amendment Analysis
In this section, plaintiffs set forth their findings for the Third and Fourth Quarters,
2019 on the Fourth Amendment provisions of the Consent Decree. As in previous audits,
in assessing whether reasonable suspicion existed for the stop or frisk, we fully credit the
narrative information provided by the officer and, in “close” cases, find reasonable
suspicion.
The total number of stops for 2019 was 76,937, with approximately one-half of
those stops occurring in the third and fourth quarters, reflecting a continuing decline in
pedestrian stops. Plaintiffs’ counsel reviewed 3993 randomly selected pedestrian stops
made in the second half of 2019.
1
84% were supported by reasonable suspicion and
16% were made without reasonable suspicion, precisely the same ratio as in 2018. Frisks
were reported in 485 of these stops, a significant drop from the 740 frisks for the two
quarters in 2018.
2
Of these, 62% were made with reasonable suspicion, 32% without
reasonable suspicion, and 6% followed stops without reasonable suspicion (“fruit of the
1 A number of “stops” turn out to be arrests based on full probable cause and some stops reflect police activity
that is not properly viewed as a stop, as there was no “seizure” of the person (e.g., a “stop” to provide medical
assistance or one who turns herself in on an outstanding warrant). Plaintiffs’ analysis excludes those “non-
stops.”
2 Plaintiffs have presented data to the City showing cases in which no frisk was noted, but under the
circumstances it is almost certain that one was conducted. See infra, at 20-21. We continue to discuss that issue
with the City to d determine what steps should be taken to address this matter.
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poisonous tree” category). This is a higher rate of illegal frisks than in 2018, where 70%
were made with reasonable suspicion, 21% were made without reasonable suspicion, and
9% were preceded by a stop without reasonable suspicion.
The following charts and graphs provide further data and breakdown of the stops
and frisks in this database:
1. Stop Data
Actual Stops
3993
Reasonable Suspicion
3346
84%
No Reasonable Suspicion
648
16%
Reasonable
Suspicion
84%
No Reasonable
Suspicion
16%
Stops: Second Half 2019
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2. Frisk Data
Frisks
485
Reasonable Suspicion
303
62%
No Reasonable Suspicion
153
32%
Fruit of the Poisonous Tree
29
6%
Reasonable
Suspicion
62%
No Reasonable
Suspicion
32%
Fruit of the
Poisonous Tree
6%
Frisks: Second Half 2019
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3. Stop/Frisk Ratio
While officers documented frisks in 613 cases, in 128 of these cases, the officers
conducted a search, and not a frisk. The 485 frisks are 12% of the 3993 stops.
Non-Frisked
88%
Frisked (excl. N/A
frisk)
12%
Stops Followed By Frisk
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4. Contraband Recovered by Stops
USC
19
0.48%
Guns (no drugs)
24
0.61%
Drugs (no guns)
105
2.65%
Guns & Drugs (both)
5
0.13%
Evidence / Other
65
1.64%
Note: 197 entries noted recovery of contraband, but multiple types of contraband
were recovered in 21 of these stops, thus resulting in 218 contraband seizures.
168
29
3796
Stops Resulting In Recovery Of Contraband
Non-Gun Contraband
Guns
Nothing
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5. Contraband Recovered by Frisks
Non-Gun Contraband
43
Guns
7
No contraband
435
Total Frisks
485
0
20
40
60
80
100
120
USC Guns (no drugs) Drugs (no guns) Guns & Drugs (both) Evidence / Other
Stops: Items Recovered
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6. Contraband Recovered By Frisks, With and Without Reasonable Suspicion
Reasonable Suspicion
33
No Reasonable Suspicion
14
Fruit of the Poisonous Tree
3
43
7
435
Frisks Resulting In Recovery Of Contraband
Non-Gun Contraband
Guns
Nothing
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7. Arrests and Contraband Recovered
Arrest, No Contraband Recovered
361
Arrest, Non-Gun Contraband Recovered
139
Arrest, Gun Recovered
28
No Arrest
3465
Total Stops
3993
Arrest, No
Contraband
Recovered, 361
Arrest, Non-Gun
Contraband
Recovered, 139
Arrest, Gun
Recovered, 28
No Arrest, 3465
Stops Resulting in Arrest and/or Recovery of
Contraband
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1. Racial Composition of Philadelphia
ACS 2016 (5-Year Estimates)
1559938
(total)
White
546979
35.27%
Black & African American
662382
41.55%
Hispanic
233968
13.77%
Asian
121726
6.84%
Native American / Pacific Islander / Other
15808
2.58%
White
35%
Black & African
American
41%
Hispanic
14%
Asian
7%
Native American /
Pacific Islander /
Other
3%
Racial Composition of Philadelphia
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2. Stops by Race
Black
2812
70.42%
78.16%
Minorities
Non-Latino White
872
21.84%
Latino
309
7.74%
Total
3993
2812
872
309
Stops by Race
Non-Latino Black
Non-Latino White
Latino & Other
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10. Stops by Race and Reasonable Suspicion
Reasonable
Unreasonable
Reasonable %
Black
2300
512
81.79%
Non-Latino White
777
95
89.11%
Latino & Other
268
41
86.73%
Total
3345
648
3993
83.77%
16.23%
2300
777
268
512
95
41
Black
Non-Latino White
Latino & Other
Reasonable Basis for Stop by Race
Reasonable Unreasonable
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11. Frisks by Race
Black
389
80.21%
89.05%
Minorities
Non-Latino White
57
11.75%
Latino
39
8.74%
Total
485
389
57
39
Frisks by Race
Black
Non-Latino White
Latino & Other
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12. Frisks by Race and Reasonable Suspicion
Reasonable
Unreasonable
FTPT
Reasonable %
Black
236
131
22
60.67%
Non-Latino White
41
11
5
71.93%
Latino
26
11
2
66.67%
Total
303
153
29
485
62.47%
31.55%
5.98%
236
41
26
131
11
11
22
5
2
Black
Non-Latino White
Latino & Other
Reasonable Basis For Frisk By Race
Reasonable Unreasonable FTPT
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13. Stops by Race and Contraband Recovery
Contraband
No Contraband
Total
Contraband %
Black
162
2650
2812
5.76%
Non-Latino White
24
848
872
2.75%
Latino & Other
15
294
309
4.85%
201
3792
3993
5.03%
94.97%
162
24
15
2650
848
294
Black
Non-Latino White
Latino & Other
Racial Breakdown of Stops & Contraband
Recovered
Contraband No Contraband
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14. Frisks by Race and Contraband Recovery
Contraband
No Contraband
Total
Contraband %
Black
38
351
389
9.77%
Non-Latino White
7
50
57
12.28%
Latino
5
34
39
12.85%
50
435
485
10.31%
89.64%
38
7
5
351
50
34
Black
Non-Latino White
Latino & Other
Racial Breakdown of Frisks & Contraband
Recovered
Contraband No Contraband
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III. Commentary on Fourth Amendment Issues
1. 16% of all stops were made without the requisite reasonable suspicion.
The Police Department audits for this period (total of 1037 stops, as opposed to 3993
reviewed by plaintiffs), found a rate of 87% with reasonable suspicion, which is almost
identical to plaintiffs’ findings. While this rate is significantly improved as compared to
earlier years, these numbers are the same as for stops made in 2018, and in light of the
fact that approximately 40,000 pedestrians were stopped in the second half of 2019, over
5,000 were stopped in violation of the Fourth Amendment.
2. 32% of all frisks were made without reasonable suspicion, and an
additional 6% of frisks were made in cases where the stop itself was not supported by
reasonable suspicion (“fruit of the poisonous tree”). Thus, 38% of all frisks were
conducted in violation of the Fourth Amendment, a number significantly higher than we
reported for 2018. The Police Department audits for the second half of 2019 report a
rate of frisks without reasonable suspicion of approximately 28% (and a rate of 20% of
searches without the requisite probable cause). But even the City’s data on frisks is
troubling, as this case is now in its tenth year of monitoring. And, if we split the
difference between the two audits, a full third of all frisks continue to be conducted
without reasonable suspicion. These data demand far more robust measures by the City
to ensure that frisks are made only with reasonable suspicion that the suspect is armed
and dangerous.
3. The number of reported frisks, 485, or 12.5 % of all stops, continues to be
very low (down from 16% in 2018). As before, there is reason to believe that officers
have not been reporting all frisks. In stops based on suspicion of gun possession or a
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violent crime, the police frequently report no frisk of the suspect. And while frisks in
some of these cases would be justified, in many they would be “fruits” of stops without
reasonable suspicion.
The City disputed similar data in previous Reports, claiming that officers did not
engage in frisks in robbery and gun investigations due to factors indicating no weapon
possession. To the degree that officers are refraining from frisks without reasonable
suspicion, the Bailey process is working, but non-reporting is not acceptable.
4. There continues to be a very low “hit-rate” for stops and frisks. Only 30
firearms were seized in the 3993 stops (a rate of less than 1%) and several of these
seizures were the result of searches incident to a probable cause arrest, not frisks.
Moreover, several of these were of licensed firearms. Drugs were found in 110 stops,
though in many cases the “frisk” for drugs was not legal. Overall, this was a contraband
seizure rate of less than 4%. We recognize that legitimate stops, especially for quality of
life violations, are less likely to disclose contraband than in stops for violent offenses or
weapon possession, but such low hit-rates remain troubling.
By contrast, as we have noted in previous reports, hit-rates for weapons on frisks
are a highly reliable metric as officers must have reasonable suspicion that the suspect is
armed and dangerous before a frisk can be conducted. Thus, it is fair to expect that
seizure of weapons would be made in a significant number of these cases if the officers
are accurately reporting facts that establish reasonable suspicion. Reasonable suspicion is
less than probable cause (itself a standard that is somewhat less than a preponderance of
evidence), and must be based on more than a hunch or speculation. Accordingly, among
courts and commentators, there is general agreement that for stops, there must be at least
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a 15-20% rate of underlying criminal conduct, and for frisks that same rate for seizure of
weapons. Yet, the rate of recovery of weapons is vanishingly small. Of 485 frisks
reviewed, only 7 firearms were seized, which means that almost 99% of frisks yielded no
weapons. Moreover, some of these seizures were made as a result of frisks without
reasonable suspicion, and it is likely that the hit-rates for weapons are even lower given
the fact that police reported no frisks (and no seizures of weapons) in many stops
involving violent crimes or reports of weapons.
3
The following data, drawn from all frisks in the database for the 4
th
Quarter, 2019,
shows the miniscule rate of seizures of firearms:
Reason
Frisks
Firearms
Bulge
88
2
Furtive movements
55
2
High crime/high drug area
7
0
Incident to arrest
102
0
Lack of cooperation
111
1
Narcotics investigation
44
0
Officer protection/safety
81
0
Other
74
0
Suspected weapon in plain view
or admitted by subject
20
0
Violent crime or other reason
for stop that creates weapon
suspicion
164
1
Totals
746
7
4
These data raise serious questions as to (1) whether the justifications that were
3 Our Tenth Report on Fourteenth Amendment issues will address the racially disparate impact of frisks
without reasonable suspicion.
4 This data is separate from the randomly drawn stops from the 3d and 4
th
Quarters and analyzed in this
Report and is drawn from all stops that resulted in a reported frisk for the 4
th
Quarter. It is noteworthy, that of
the 7 firearms seized, 5 were seized without reasonable suspicion.
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provided for the frisks are fair predictors of weapon possession and (2) whether the police
are accurately reporting their reasons for frisks.
It is also noteworthy that a substantial number of stops are for low level offenses
such as carrying an open liquor container, curfew violations, minor disturbances, and
panhandling. In the stop data for the last half of 2019, there were 717 stops for persons
with “open liquor containers” and 438 stops for small (and often infinitesimal) amount of
marijuana. And, in a random sample of approximately 700 stops, we determined that
over 40% were “quality of life” detentions (marijuana, open containers, minor
disturbances, after-hours in parks, curfew, truancy, littering, sleeping or opioid related
stops (e.g., person with drug related items)). In light of the very low hit rate for weapons
and the fact that stops and frisks generate strong negative community relations (and
continue to be highly racially disparate), the Police Department should as a matter of
policy to re-assess the cost/benefit of this policing program.
5. Analyzing improper stops and frisks by category, there continue to be a
significant number of cases in which the officer fails to state reasonable suspicion under
established legal standards. These include:
• Stops made on “flash” information, but no such information provided;
• Stops of single person “obstructing” sidewalk;
• Stops and frisks made on anonymous information (e.g., man with gun or with drugs);
• Stops of persons involved in a “disturbance,” “verbal dispute” or for panhandling;
5
• Stops and frisks based on “suspicion” of narcotics activity, but without a factual basis;
• Stops based on an open container (not alcohol);
5 We credit reports of “domestic” disputes.
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• Stops based on smell of marijuana; tobacco only being smoked
• Frisks made for narcotics; and
• Frisks made for weapons in violation of Commonwealth v. Hicks, 208 A.3d 196 (Pa.
2019) (impermissible to stop for firearm possession without cause to believe that suspect
does not have a license to carry or is using firearm in connection with criminal activity).
That officers continue to make stops and frisks in these circumstances, many
years after courts and the Consent Decree prohibited such conduct, is beyond any
possible justification. The U.S. Supreme Court and Pennsylvania Supreme Court have
held that stops based on an anonymous call of “person with a weapon” are
unconstitutional, Florida v. J.L., 529 U.S. 266 (2000); Commonwealth v. Hawkins, 692
A.2d 1068 (Pa. 1997), and as noted above, in Commonwealth v. Hicks, the Court
prohibited stops for firearm possession without cause to believe that suspect does not
have a license to carry or is using firearm in connection with criminal activity. Yet,
hundreds of persons each year continue to be stopped and frisked on this basis.
Similarly, the Courts and the Consent Decree prohibit stops based on “flash” information
corroborated where the flash information is not by the reporting officer. Here, too,
notwithstanding PPD training and counseling of officers there are hundreds of stops each
year where officers fail to state the alleged “flash information.”
6. The parties agree that internal accountability is the key to compliance with
the terms of the Consent Decree. The Police Department must impose sanctions against
the officer who disregards explicit training, and the Sergeant (or other supervisor) who
reviews and approves these stops. The Police Department delayed implementation of the
accountability process until 2019, notwithstanding Police Department Directives on stop
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and frisk practices (currently Directive 12.11, Appendix B), that include:
1. Under Section 7, patrol supervisors must review each 75-48a, send incomplete
forms back to the officer, and note what actions were taken where the officer did
not have reasonable suspicion for the stop or frisk.
2. Under Section 8, Commanding Officers must take necessary actions to correct
errors in stop and frisk practices including the identification of officers who fail to
state reasonable suspicion, and they are accountable for officers and their
supervisors who repeatedly engage in impermissible stops or frisks. The
Commanding Officers must submit memorandum on a periodic basis detailing
corrective actions taken.
3. Under Section 9, Special Unit Inspectors must complete audits of randomly
selected stop and frisk reports, provide Commanding Officers under their
supervision and command with memorandum detailing errors and deficiencies in
these reports, review responses by the Commanding Officers as to remedial
actions taken by the Commanding Officers, and to forward all findings and
actions taken to the Chief Inspector, Office of Standards and Accountability.
4. Under Section 9, the Office of Standards and Accountability must ensure
departmental compliance with stop and frisk procedures under the Directive
(including reports on any racially biased or other discriminatory patterns), and
provide quarterly audits of stop and frisk reports to various officials and offices
within the Police Department, including the Police Commissioner, Deputy Police
Commissioner and all Inspectors.
For many years, the only measures taken with respect to officers who engaged in
repeated stops or frisks without reasonable suspicion was re-training or counseling. No
sanctions were imposed. As noted, this Court has approved a new disciplinary protocol
and we have provided the City a statement of every stop and frisk conducted without
reasonable suspicion (in cases where there could be no plausible claim of good faith by
the officer) for the Fourth Quarter, 2019, as well as data reflecting the failure of
supervisors to correct these actions.
6
In turn, we expect that the parties and the Court will
be provided with the Police Department’s disciplinary actions in these cases.
6 The parties will provide the Court with the format for tracking these cases before the next conference.
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A review of stops and frisks in categories in which there have been repeated
violations of the Consent Decree (what are the most egregious stop and frisk patterns)
disclose numerous cases in which the supervising sergeant failed to recognize the lack of
reasonable suspicion and took no corrective action. Putting aside the very low hit rate for
these stops, the fact that officers continue to believe that such stops and frisks are
permissible, and that their supervisors regularly fail to correct these practices
demonstrates the need for comprehensive accountability measures. Without
comprehensive and consistent supervisory review, and discipline where merited, the
pattern of illegal stops and frisks will continue. To ensure accountability, Sergeants are
now subject to discipline for failure to advise officers in each case where the stop and
frisk was without reasonable suspicion. The data review for 2020 will show whether
these disciplinary measures have a positive impact on stop and frisk practices.
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IV. Conclusion
The rate of stops without reasonable suspicion has remained constant for the past
two years, and the rate of frisks without reasonable suspicion increased in 2019,
compared to 2018. And, while a comparative analysis with prior years shows
improvement in the quality of stops and frisk, this analysis must take into account the
very high rates of illegal stops that continued for many years over the course of this
litigation. On an absolute level, there are still far too many stops and frisks without
reasonable suspicion, and there is not substantial compliance with the Consent Decree.
We urge the City to consider the hit-rate data and categories of stops in assessing the
overall costs and benefits of stop and frisk practices. Plaintiffs will provide more detailed
proposals at the conference with the Court.
Respectfully submitted,
/s/David Rudovsky, Esquire
/s/Paul Messing, Esquire
/s/ Susan Lin, Esquire
Kairys, Rudovsky, Messing,
Feinberg & Lin, LLP
718 Arch Street, Suite 501S
Philadelphia, PA 19106
(215) 925-4400
/s/Mary Catherine Roper, Esquire
ACLU of Pennsylvania
PO Box 60173
Philadelphia, PA 19102
Counsel for Plaintiffs
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