I N THE UNI TED STATES DI STRI CT COURT
FOR THE EASTERN DI STRI CT OF PENNSYLVANI A
M ahari Bailey, et al.,
Plaintiffs
v.
City of Philadelphia, et al.,
Defendants

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C.A. No. 10-5952

PLAI NTI FFS¶ THI RD REPORT TO COURT AND M ONI TOR
ON STOP AND FRI SK PRACTI CES
I . I ntroduction
A. Procedural History
On June 21, 2011, the Court approved a Settlement Agreement, Class Certification, and
Consent Decree (³Agreement´) in this matter. 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, frisks, and searches reported by the Philadelphia Police Department ³PPD´. The
audits showed very high rates of stops and frisks undertaken without reasonable suspicion.
3ODLQWLIIV¶ Second Report was submitted in July 2012, and included (1) a Fourth
Amendment analysis of the Third Quarter 2011 stop and frisk data, (2) a racial analysis of the data
for the First and Second Quarters, 2011, and (3) a racial analysis of possession of marijuana arrests
for the period September 15-November 15, 2011. Plaintiffs reported continued high rates of stops
and frisks without reasonable suspicion. On the question of racial disparitiesSODLQWLIIV¶H[SHUW,
Professor David Abrams, considered the benchmarks that had been agreed upon by the parties as
metrics that should be used in this analysis. Professor Abrams also conducted a series of
regression analyses and concluded that the racial disparities in stops and frisks (numbers by race

1

compared to census data) were not fully explainable by non-racial factors. Further, the analysis
of marijuana arrests showed even more pronounced disparities, with African-Americans and
Latinos constituting over 90% of all marijuana arrests.1
3ODLQWLIIV¶ Third Report focuses on stop and frisk practices for the first two quarters of
2012, from the perspective of compliance with Fourth Amendment standards. We will also
present our analysis of the marijuana arrests for the period September 15-November 15, 2012.
The Fourth Report, slated for May 2013, will present the racial analysis for stops and frisks for the
first two quarters, 2012.
This Third Report considers stops conducted after the PPD had completed re-training of
officers, issued new protocols on stop and frisk practices, and implemented accountability
measures, as required by the Agreement. The 2012 data provides the first opportunity to
determine the degree to which the remedial measures in the Agreement have been implemented.
Finally, by way of background, in December 2012, the parties agreed to a plan for the
development of a new PPD electronic data system that is designed to provide more accurate
information on stops and frisks and which will enable the parties to more effectively conduct
DXGLWVDQGDQDO\VLVRIWKHGDWD  7KHSDUWLHVDOVRDJUHHGWRDQHZVFKHGXOHIRUWKH&LW\¶V
submission of stop and frisk data to the plaintiffs. See Stipulated Order for Compliance with
Consent Decree, entered December 18, 2012 (Document 43).

In June, 2012, the City filed its First Report and asserted that the rates of impermissible stops and frisks
were lower than reported by plaintiffs. However, the PPD recognized that the Inspectors who conducted the audits
should not be crediting many stops based on allegations of loitering or other conduct that does not constitute
reasonable suspicion.
1

2

B. The Data Review Process
Plaintiffs have established a careful and comprehensive review process of the stop and
frisk data provided by the Police Department. Each quarter, we are provided data from
approximately 3200 randomly selected pedestrian and car stops. For the Fourth Amendment
analysis, we consider only pedestrian stops. Counsel for plaintiffs and trained law students
independently review each pedestrian stop and frisk under guidelines that incorporate the
standards set forth in the Agreement and by the United States and Pennsylvania Supreme Courts.2
We accept at face value the reasons stated by police officers for the stops and frisks, and make
assessments based solely on whether these reasons comport with standards established by the
Agreement and the Fourth Amendment. In close cases, we credit the stated basis for the stop and
frisk.
Plaintiffs are confident that their audits are accurate and, therefore, are troubled by the
contrary findings of the PPD. In an effort to determine the reasons for these different findings,
FRXQVHOIRUSODLQWLIIVPHWZLWKWKH'HSDUWPHQW¶V,QVSHFWRUVWRdiscuss the appropriate Fourth
Amendment standards. Along the same lines, plaintiffs have provided to the City a breakdown of
the categories of stops and frisks that were found to have most frequently resulted in improper
police interventions.3 The City has stated that chDQJHVDUHEHLQJPDGHLQWKH'HSDUWPHQW¶VDXGLW
process, including the assignment of Deputy Commissioner Nola Joyce to oversee the
implementation of the Agreement, the assignment of new Inspectors to ensure more accurate
reviews, and a more effective system of accountability. While we do not expect that the reviews

2

These reviews show a very high level of agreement between counsel and the law students as to the propriety
RIVWRSVDQGIULVNV  7KLV5HSRUWLVEDVHGRQFRXQVHO¶VUHYLHZV
3 See, infra, 11-12.

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E\SODLQWLIIV¶FRXQVHODQGE\WKH3ROLFH'HSDUWPHQWZLOObe perfectly aligned, unless there is a
sharp reduction in both the number of impermissible stops and frisks and in the stark disparities
reflected in the audits conducted over the first 18 months of data analysis, plaintiffs will request
the intervention of the Monitor and the Court.
I I . Review of 75-48a Forms in First and Second Quarters, 2012
A. Fourth Amendment Analysis
In this section, plaintiffs set forth their findings and assessments on the issue of whether
stops and frisks for the first two quarters of 2012 were supported by the requisite reasonable
suspicion.4 As in previous audits, in assessing whether reasonable suspicion existed for the stop
or frisk, we fully credited the narrative information provided by the officer and in ³close´ cases
found that reasonable suspicion was present.5
There is one positive development: the number of pedestrian stops has been reduced. In
2009, there were 253,000 pedestrian stops; in 2012 there were 215,000 stops, a decrease of almost
15%. Unfortunately, there has been no significant improvement in the quality of stops and frisks.
By our analysis, pedestrian stops are being made without reasonable suspicion in approximately
43-47% of the casesGHSHQGLQJRQKRZFHUWDLQ³VWRSV´DUHFDWHJRUL]HG  )risks are being
conducted without reasonable suspicion in over 45% of the cases, again depending on
categorization of frisks and searches. By race, 76% of the stops were of minorities

4

The review process was the first using the PPD electronic database. As noted, this system had design
deficiencies and the City is currently developing a new electronic data base to enable the parties to make more timely
and efficient audits.
5

With respect to frisks, we have created a third category for analysis. Where the stop was impermissible,
but the reasons for the frisk were otherwise proper, we recorded the frisk as ³WKHIUXLWRIWKHSRLVRQRXVWUHH.´ Under
this doctrine, the evidence that was seized would likely be suppressed due to the improper stop. See note 8, infra.

4

(African-Americans and Latinos) and 85% of the frisks were of minorities.6 The findings as to
impermissible stops and frisks are particularly disturbing given the fact that the Police Department
had the time and resources following the entry of the Agreement to re-train its officers on stop and
frisk practices and to establish supervisory reviews to ensure accountability for practices that
failed to meet clear mandates under the Agreement. Moreover, as detailed below, the Department
continues to report very low levels of improper stops and frisks, thus calling into question whether
the Inspectors (and IAD) are currently applying the appropriate standards.

This data shows significant disparities by race as compared to the census data. The question of whether
non-racial factors explain the disparities will be addressed in the Fourth Report, based on application of benchmarks
and regression analysis.
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First and Second Quarters, 2012
Pedestrian Stops7
Number of Pedestrian Stops

1852

Pedestrian Frisks8
Number of Pedestrian Frisks

265

Stops with Reasonable Suspicion

976

Frisks with Reasonable Suspicion

97

Stops without Reasonable
Suspicion

876

Frisks without Reasonable Suspicion

115

186

Frisks with RS following Stop w/o
RS
³)UXLWRIWKH3RLVRQRXV7UHH´
³1RQ-)ULVNV´VHDUFKHVLQFLGHQWWR
arrest)

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³1RQ-6WRSV´HJDUUHVWVUHTXHVW
for assistance)

First  and  Second  Quarters,  2012:  
Presence  of  Reasonable  Suspicion  to  
Frisk  

First  and  Second  Quarters,  2012:  
Presence  of  Reasonable  Suspicion  to  
Stop  

Fruit  of  the  
Poisonous  
Tree  
20%  
NO  
Reasonable  
Suspicion  
47%  

26

Reasonable  
Suspicion  
37%  

Reasonable  
Suspicion  
53%  
NO  
Reasonable  
Suspicion  
43%  

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From the data base provided by the City, we have excluded ³VWRSV´WKDWZHUHVLJKWDUUHVWVEDVHGRQ
SUREDEOHFDXVHRU³VWRSV´WKDWZHUHQRWLQYHVWLJDWLYHLQQDWXUHHJDSHUVRQWXUQLQJKHUVHOILQRQDQRXWVWDQGLQJ
warrant. We understand that further discussion with the City is necessary to resolve how these stops should be
analyzed. In any event, even if these stops are considered the rates of improper stops remains very high (43% as
opposed to 47%).
8

Where the police conducted a search based on probable cause or a search incident to an arrest, we did not
FRXQWWKDWDFWLYLW\DVD³IULVN´ 7KH³IUXLWRIWKHSRLVRQRXVWUHH´FDWHJRU\LQFOXGHs frisks that follow impermissible
stops, but which were otherwise based on permissible factors. That is, the officers had no legal reason to make a stop,
but having donHVRWKHVXVSHFW¶VFRQGXFWZRXOGotherwise justify a frisk. The Fourth Amendment would usually
require exclusion of any evidence found in this situation. Again, we will discuss with the City how best to analyze
these cases.

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Contraband
Contraband Recovered Total

299

Guns Recovered

3

Hit Rates (fraction of stops)
Contraband Recovered

1.57%

Guns Recovered

0.16%

Arrests10

5.29%

First  and  Second  Quarters,  2012  
Total  Fraction  of  Stops  Resulting  in  
Arrest  

First  and  Second  Quarters,  2012  
Total  Fraction  of  Stops  Resulting  in  
Contraband  Recovery  or  Gun  
Recovery  
CONTRA-­‐
BAND  

ARREST  
GUNS  

NO  
ARREST  
NONE  

9 This number may over-count contraband secured as a result of a stop and frisk, as total contraband recovered
includes cases of searches and frisks.
We recognize the limitations in XVLQJDUUHVWGDWDDVDEHQFKPDUNIRU³KLW-rates.´ On one hand, the number
may be too low as officers may have probable cause to arrest for very minor offenses, but properly exercise their
discretion not to make a custodial arrest (as opposed to a citation or verbal warning). On the other hand, the number
may be inflated since some arrests are based not on the conduct observed, but on post-stop information received, such
as an outstanding warrant.
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B. Commentary
There are a number of significant findings from the data review.
1. It is remarkable that 43-47% of all stops and over 45% of all frisks were made without
the requisite reasonable suspicion. These results are not appreciably different from the data
reviews for 2011, as set forth in the First and Second Reports. Thus, tens of thousands of persons
in Philadelphia continue to be stopped each year (and a significant number frisked) without
reasonable suspicion. Moreover, in our view, the audits conducted by the City for these two
quarters are flawed. As the following data shows, ,QVSHFWRUV¶ audits reported very low numbers of
stops or frisks without reasonable suspicion.
First Quarter, 2012
Central Police Division: 392 stops.11
No reasonable suspicion for stop: 4% (adjusting for car stops, 8%)
No reasonable suspicion for frisk: 2%
East Police Division: 391 stops.
No reasonable suspicion for stop: 4% (adjustment=8%)
No reasonable suspicion for frisk: 0%
Northeast Police Division: 393 stops
No reasonable suspicion for stop: 1% (adjustment=2%)
No reasonable suspicion for frisk: 2%

Since the police audits included car stops, we have adjusted the reported rates of impermissible stops and
frisks to reflect pedestrian stops only. On the assumptions that there are an equal number of car and pedestrian stops
and that almost all car stops are made with reasonable suspicion, we have doubled the percentages of pedestrian stops
made without reasonable suspicion. But even with this upward adjustment, the PPD and plaintiffs are still far apart in
their conclusions.
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Second Quarter, 2012
Central Police Division: 390 stops.
No reasonable suspicion for stop: 1% (adjustment=2%)
No reasonable suspicion for frisk: 1%
East Police Division: 394 stops
No reasonable suspicion for stop: 2% (adjustment=4%)
No reasonable suspicion for frisk: 1%
Northeast Police Division: 393 stops
No reasonable suspicion for stop: 0%
No reasonable suspicion for frisk: 2%
As this data makes clear, the differences between the PPD and plaintiff analysis is stark.
Under SODLQWLIIV¶DVVHVVPHQWVRIthe stops and frisks, not only is there an intolerably high level of
unlawful stops and frisks, but the Inspectors and IAD are improperly crediting a substantial number
of stops and frisks.
2. As with the data for 2011, the number of recorded frisks continues to be very low, with
only14.4% of stops resulting in a frisk. Indeed, this ratio is substantially lower than the low rates
(20-25%) reported in 2011. And, similar to the data review for 2011, a review of stops in which
the police reported suspicion regarding possession of a gun or a violent crime revealed a large
number of cases in which the police reported no frisk of the suspect. Thus, of 149 stops in which
guns, gunshots, or a robbery is mentioned as a basis for the stop, there were no frisks recorded on 79
stops (53%).
3. Of substantial significance, the hit rates were again quite low. Contraband of any kind
was recovered in only 29 stops (1.57% of all stops) and only 3 guns were seized (.16 of 1 %).

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Further, 112 stops were made where the police indicated that the suspect possessed a weapon, yet in
only 3 of these stops was a weapon recovered. Arrests occurred in 5.29% of all stops. While the
courts have not quantified the reasonable suspicion standard in terms of expected hit rates for
contraband (or for guns and other weapons), the hit rates in Philadelphia appear to be well below a
reasonable threshold. In other words, if there was reasonable suspicion for all stops, and frisks,
there should be far more than a 1.57% chance of recovering contraband. Moreover, in a program
designed to remove guns from the street, there should be a far higher percentage of stops that yield
guns or other weapons than the current 0.16%.
Reduction in the number of impermissible stops and frisks does not create a risk to public
safety. New York City has recently released data on its stop and frisk practices for 2011, reporting
a 28% reduction in the number of stops and a decrease in violent crime, and in particular homicides.
As noted, Philadelphia has also reduced the number of stops, but the number of impermissible stops
can be further substantially reduced without risk to public safety.
4. Analyzing improper stops and frisks by category, the results were quite similar to those
for 2011. As we have reported to the City, there continue to be significant numbers of stops for
conduct which the Agreement and case law make clear are not justifiable grounds for police stops
or frisks. These include:
loitering (or persons hanging out; congregating)
investigation of passenger in stopped car
involved in a disturbance
single person ³obstructing´ the sidewalk
anonymous information (e.g., man with gun; man with drugs)
person on steps or porch of ³abandoned´ property

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person involved in verbal dispute (non-domestic)12
high crime area/roll call complaints
panhandling
flash information (e.g., theft or robbery), but where officer states that suspect did not
match the flash information
curfew or bar checks where person was well over 21 years of age
As for frisks, problematic grounds include:
frisk for officer protection
frisk based on narcotics investigation
frisk because suspect stopped in high crime or high drug area
Plaintiffs did not expect that the transition from a stop and frisk practice that lacked any
meaningful oversight to a system that accurately tabulates all stops and frisks and in which there is
substantial compliance with the Constitution would be immediately successful. On the technology
front, the initial design of the data base was flawed, but the City is moving to implement a new
system. On the issue of whether stops and frisks are being conducted consistent with established
legal standards, and in particular only where reasonable suspicion supports the stop or frisk, the
results of our audits through the first two quarters of 2012 reflect persistent and unacceptably high
rates of improper actions. Unless there is a dramatic change in practices, we will be compelled to
seek judicial relief.

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:HFUHGLWUHSRUWVRI³GRPHVWLF´GLVSXWHs.

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I I I . Racial Disparities I n Possession Of M arijuana Arrests
,Q3ODLQWLIIV¶6HFRQG5HSRUWour analysis of police arrest reports for a two month period
(September 15-November 15, 2011) for cases in which the only charge was possession of
marijuana disclosed substantial racial disparities. Plaintiffs have reviewed police arrest reports for
the same two month time frame in 2012. We conducted a City-wide analysis of arrests and then
examined the data by police district. The results show even greater racial disparities than the 2011
data.
A. Possession of M arijuana Arrests in the City of Philadelphia
In the time frame subject to analysis, there were 798 arrests solely for possession of
marijuana, a slight increase from 2011 when there were 785 arrests. There were four
circumstances that led to the seizures of marijuana:
pedestrian stops/arrests: 60% (compared to 49% in 2011);13
observed street purchases: 22% (23% in 2011);
car stops: 14% (22% in 2011); and
routine school security searches: 4% (6% in 2011).
As depicted in the chart below, 673 or 84.4% of the arrests were of African Americans
(compared to 83.4% in 2011), 69 or 8.6% were of Latinos (8.2% in 2011), 46 or 5.8 % were of
Whites (7.4% in 2011), and 10 (or about 1%) were others (the same as in 2011). According to U.S.
Census Data in 2010 the racial composition of Philadelphia County is 43.4% African American,
36.9% White, 12.3% Latino, 6.3% Asian, and 1.1% other. Thus, in a City where Whites represent

The arrests resulted from either investigatory stops that led to seizure of marijuana or actual arrests based on
observations or information that established probable cause.
13

12

36.9% of the population, only 5.8% of those arrested for marijuana possession were White. This
finding is of particular concern in light of evidence (discussed in PlaintLIIV¶6HFRQG5HSRUWDW
that marijuana use is higher among Whites than among African Americans. Conversely, while
African Americans represent 43.4% of the population, nearly double or 84.4% of those arrested for
possession of marijuana were African Americans.

Racial  Composition  of  Philadelphia  

Racial  Composition  of  Marijuana  
Arrests  in  Philadelphia  

Other  
1.1%  
Asian  
6.3%  

Other  
1%  

Latino  
12.3%  
Latino  
8.6%  

Black  
43.4%  

White  
5.8%  
Black  
84.4%  

White  
36.9%  

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B. Possession of M arijuana Arrests By Philadelphia Police District
There are twenty-one police districts that report arrest data in Philadelphia. The
demographics of each district vary along socio-economic and racial lines. The data on marijuana
arrests by district in 2012 is quite similar to the arrest patterns observed in 2011, though there has
been an increase in the proportion of pedestrian stops that led to the seizure of small amounts of
marijuana. In predominantly African American districts (Districts 12, 14, 16, 19, 22, 35 and 39),
almost all of the possession of marijuana arrests were of African American, principally young men.
In many predominantly white districts (Districts 3, 6, 9, 15, 24, 25 and 26), most of the arrests were
also of young African American men. As in 2011, in one largely White district (District 5), there
were no arrests for possession of marijuana.
C. Commentary
The 2012 data bears a striking similarity to the data set analyzed in 2011. The nature of the
arrests, the overall racial disparities, and the disparities by police districts with markedly different
racial compositions show that these disparities are directly linked to policing protocols. While
other factors may influence the extent of racial disparities in the overall stop and frisk data (e.g.,
FULPHSDWWHUQVGHSOR\PHQWRIPRUHSROLFHLQ³KLJKFULPHDUHDV´WKHVWXQQLQJGLVSDULWLHVIRXQGLQ
even predominantly White police districts supports the conclusion that racial factors are
impermissibly influencing the decision to stop, search and arrest. As noted, plaintiffs will be filing
a Fourth Report that examines the racial implications of stop and frisk data.
3ODLQWLIIV¶6HFRQG5HSRUWXUJHGWKH&LW\WRWDNHremedial steps. We suggested that the PPD
enhance protocols related to training and supervision to ensure that officers are not making arrests
for possession of marijuana in a racially discriminatory manner. To that end, we requested that a

14

&RPPLVVLRQHU¶V0HPRrandum and appropriate training curriculum for use at the Police Academy
and for PPD officers and officials.
Plaintiffs also suggested that the PPD carefully monitor police practices in this area with
supervisory and, if necessary, disciplinary actions to correct patterns of race-based enforcement.
To accomplish that goal, we suggested that the PPD create a data base on possession of marijuana
arrests that includes the date and place of occurrence, biographical information about the arrestee
(including age, race and gender), and the circumstances that gave rise to the stop, seizure of the
PDULMXDQDDQGDUUHVW  :HUHTXHVWHGWKDWWKHGDWDEHSURYLGHGWRWKHSODLQWLIIV¶FRXQVHORQD
quarterly basis. The City failed to adopt the remedial measures proposed by plaintiffs or to
undertake any steps to remedy the racially disparate practices related to marijuana arrests.

Respectfully submitted,

/s/ David Rudovsky, Esquire

/s/ Mary Catherine Roper, Esquire
ACLU of Pennsylvania
PO Box 40008
Philadelphia, PA 19106

/s/ Paul Messing, Esquire
Kairys Rudovsky Messing & Feinberg, LLP
718 Arch Street, Suite 501S
Philadelphia, PA 19106
(215) 925-4400

/s/ Seth Kreimer, Esquire
University of Pennsylvania Law School
3900 Chestnut Street
Philadelphia, PA 19104
Counsel for Plaintiffs14

14

Counsel express their appreciation to a number of volunteer lawyers and law students who have donated
hundreds of hours of time in this project. Special thanks to Solena Laigle and Jonathan C. Dunsmoor who have
organized and structured the data collection and student reviews.

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