Unlawful and discriminatory searches:

Police officers disproportionately conduct stops, frisks, and searches on pedestrians and motorists of color without legal justification; this is part of a larger pattern and practice of profiling in law enforcement. Police officers also conduct unnecessary and unlawful frisks and searches, including strip searches of people who are <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">transgender and <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">gender nonconforming for the impermissible purpose of assigning <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">gender based on anatomy or to humiliate and punish them.

Lack of informed and voluntary consent:

Consent for searches is often presumed without advising the person that they have the right to refuse consent if there is no legal justification for the search, and without documenting the person's voluntary, informed consent to the search.

Arrests every three seconds:

Police officers make an arrest every three seconds in the United States, reflecting the increasing criminalization of our communities. The vast majority of arrests are for minor and low-level offenses, including "broken windows" offenses, traffic offenses, and possession of small amounts of drugs like marijuana.

Incentives to arrest:

Many jurisdictions measure police officers' performance by how many arrests they make and how many tickets they issue — not by how well they work with communities to solve problems, resolve conflict, and increase public safety. According to the Pew Research Center, more than one-third (34 percent) of police officers reported that their departments had informal arrest quotas.

Raising revenue through fines and fees:

In some communities, tickets, fines, fees, and asset forfeitures generated by arrests contribute to a significant portion of revenue and law enforcement budgets, thereby incentivizing overpolicing.

Sexual harassment and assault:

Sexual misconduct is a serious crime. Some police officers inappropriately touch, sexually harass, and sexually assault people during frisks and searches. A police officer is caught in an act of sexual misconduct about every five days.

Problematic search practices:

Public strip searches and gender searches are problematic.

• Public strip searches and cavity searches are sometimes conducted in public in the context of "<span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
  Stop-and-Frisk
  When police temporarily detain somebody and pat down their outer clothing when there are specific, articulable facts leading a reasonable police officer to believe that a person is armed and dangerous.Stop-and-frisk is also sometimes referred to as a “Terry stop,” derived from the U.S. Supreme Court case <em>Terry v. Ohio</em>,which decided that stop-and-frisk must comply with the Fourth Amendment of the U.S. Constitution and cannot be unreasonable. (See “Frisk<em>.”</em>)
  ">stop-and-frisk" and drug enforcement.
• Officers conduct unnecessary and unlawful frisks and searches, including strip searches, of transgender and gender nonconforming people for the impermissible purpose of assigning gender based on anatomy or to humiliate and punish them.

Establish clear legal standards and practices.

Stop, search, and <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">arrest policies and procedures should:

• • Clearly articulate applicable legal standards.
  • Explain the meaning of legal standards using specific examples.
  • Prohibit police officers from discriminating against any protected group in enforcement activities.
  • Clearly articulate the method police officers must use to <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
    Frisk
    A pat-down or search of a person’s outer clothing. A frisk must be based on a reasonable, articulable suspicion that the subject of the frisk is armed and presents a danger to a police officer during a lawful investigatory stop. Unless the police officer feels something that could be a weapon through the outer clothing, they cannot go inside a person’s pockets or under the person’s hat or other clothing during a frisk (See “Stop- and-Frisk”).
    ">frisk and search people of all genders, and specifically women.
  • Clearly prohibit any kind of search to assign a gender to or to harass, humiliate, or punish someone.
  • Collaborate with <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
    LGBTQ
    Acronym for lesbian, gay, bisexual, transgender, and queer/questioning.
    ">LGBTQ communities to develop and tailor stop-and-frisk policies.
  • Prohibit pretextual stops.
  • Reinforce <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
    Procedural Justice
    <p class="Normal1">A term used to describe treating individuals fairly and respectfully during police interactions. (See <i>“</i>External Procedural Justice<i>”</i>and <i>“</i>Internal Procedural Justice<i>”</i>)</p>
    ">procedural justice in all enforcement actions.
  • Include comprehensive training on stops, searches, and arrests based on <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
    Community Policing
    A holistic approach to law enforcement in which police departments actively build meaningful relationships with community members to improve public safety and advance community goals.
    ">community policing principles and practices.

Ban and/or strictly regulate consent searches.

Police departments should ban or, at a minimum, strictly regulate consent searches of people and their cars. Police officers should be required to tell the person they want to search, in a language or mode of communication that is effective, that (1) they have the right not to consent to a search, and (2) that refusing consent to a search will not be used against them. Officers should also obtain written or recorded proof of the person’s informed, voluntary consent before conducting the search.

Require training.

Ensure all officers are trained to identify and report <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">explicit bias and recognize patterns that indicate <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">implicit bias in officer decision-making.

Collect and publish data.

Police departments should be required to:

• • Collect, analyze, and make data public in alternative and accessible formats:
    • The number of stops, frisks, searches, and consent searches conducted; who they were conducted on; and the basis and outcome of the searches.
    • Information about arrests, including specific information about the facts that led to an arrest.
  • Enable legislators, oversight bodies, and the public to evaluate whether searches are being performed effectively and lawfully.

CAUTION: Departments should never be required or permitted to collect or maintain information about an individual's immigration status, <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="

Sexual Orientation

A scientifically accurate term for an individual’s enduring physical, romantic, or emotional attraction to other people.

">sexual orientation, or experience as a transgender or gender nonconforming person. 

Ban quotas and evaluation based on number of arrests.

Police departments should prohibit quotas, formal and informal, for tickets and arrests, and focus instead on the quality of policing. Departments should also not evaluate officer performance or make decisions about promotion based on the number of tickets or arrests an officer issues or makes.

Decouple revenue from arrests.

Prohibit municipal financial structures that incentivize officers to make more arrests, issue more tickets, and seize more assets as a way to fund law enforcement activities.

Require supervisors to review arrests.

Police departments should require supervisors to review and evaluate the legal basis and justification of officers' stops and arrests on a regular basis to detect any indication of bias and to evaluate officer performance. Leaders should discipline officers who conduct improper stops and should train them on alternatives to arrests:

• • Officers can give verbal warnings rather than writing citations or making arrests.
  • Officers should explore alternatives to enforcement, such as <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="
    Diversion
    A program that implements rehabilitative strategies and services instead of traditional criminal punishment.
    ">diversion or deflection programs.

Decriminalize and deprioritize minor offenses.

Police departments should decriminalize and deprioritize arrests for minor offenses such as <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">loitering, drinking alcohol in public, disorderly conduct, public urination, etc., and establish preferences for a warning or a summons over an arrest.

Change the law.

Regulating stops, searches, and arrests is best achieved by passing legislation that:

• Creates clear and lasting legal standards for conducting stops and searches.
• Bans or strictly regulates consent searches.
• Decriminalizes minor offenses.
• Creates mechanisms for individuals and organizations to hold individual officers and departments accountable for violations of constitutional rights.
• Requires departments to collect, analyze, and regularly publish data on stops, searches, and arrests in alternative and accessible formats.

Reallocate resources.

Advocate for the municipality to divert resources away from making arrests and toward programs that meet people’s basic needs.

Organize around the release of data.

Use data demonstrating discriminatory use of frisks, searches, and arrests to argue for policy change and call on your police department to make such data public. Data should be published online and in alternative and accessible formats.

Strengthen policies.

Pressure the mayor, police chief, or sheriff to adopt, strengthen, or effectively enforce existing police department policies on stops, searches, and arrests.  

Officers need training and guidance on stop, search, and arrest.

Officers are entitled to receive specific guidance and training on how and when to conduct a stop, search, or arrest.

Unlawful searches are inefficient and ineffective.

Unlawful searches are inefficient and ineffective because evidence recovered cannot be used in court.

Unlawful and discriminatory searches reduce public safety.

Unlawful and discriminatory stop-and-frisk practices make communities less safe. People subjected to frequent stop-and-frisk interactions with police officers experience high levels of anxiety, feel demeaned and humiliated, and are less likely to trust or cooperate with police officers. These practices also funnel people into the criminal legal system.

Transgender and gender nonconforming people must be protected.

Officers must not commit sexual harassment or assault during searches or violate the rights of transgender and gender nonconforming people.

Unlawful searches come at a public cost.

Baseless arrests, arrests for minor offenses, and discriminatory arrests come at a significant financial and human cost to our communities and decrease, rather than increase, public safety.

Deflection and diversion programs are effective.

Referring people to services that meet their needs has proven to be far more effective at increasing public safety than arresting people for minor offenses — particularly offenses related to poverty and drug possession or use.

The Opposition:

"Limiting officers' ability to stop-and-frisk people and conduct consent searches ties their hands and prevents them from finding weapons and drugs."

Overcoming the Opposition:

“Indiscriminate and discriminatory stops, frisks, and searches are ineffective methods of finding weapons or contraband. Police officers search Black and Latinx people more often than White people, but data show that officers are more likely to find weapons and contraband on White people. In New York City, officers engaged in widespread stops and frisks without legal justification — but they uncovered weapons in less than 2 percent of stops. We would never accept such a low rate of return on a public investment in any other context, and we cannot allow it in law enforcement, either.”

The Opposition:

“Consent searches are essential; they enable officers to act on their instincts and hunches to find weapons and drugs.”

Overcoming the Opposition (1):

"Consent searches are not an effective law enforcement <span aria-describedby="tt" class="glossaryLink " data-cmtooltip="">tactic and lead to discrimination. Dr. James Fyfe, former director of training for the NYPD, urges police departments to ban consent searches because they threaten our Fourth Amendment rights, and are not an efficient law enforcement tool.”

Overcoming the Opposition (2):

“Requiring that officers obtain proof of consent to search where no legal basis for the search exists is good law enforcement practice. Waivers of Fourth Amendment rights are valid only when they are made voluntarily and intelligently — when people have the information they need to give their consent. If police officers find a firearm during a consent search, they need proof the search was legal and based on informed, voluntary consent for the charges to hold up in court.”  

The Opposition:

“Officers should not be prohibited from arresting people who are breaking the law.”

Overcoming the Opposition:

“Police officers exercise considerable discretion when deciding whom to arrest, for what, and when. They can decide to issue a warning or look the other way when one person engages in unlawful conduct and to bring the full power of the law down on someone else who does the same thing. This is tremendous power — and should be carefully monitored and regulated to ensure that officers are acting with the necessary legal basis and not based on bias.”  

The Opposition:

“Officers just make arrests; the courts sort out later whether people actually committed a crime.”

Overcoming the Opposition:

“An arrest is a traumatic experience that can have a tremendous impact on a person’s life. It can cause them to miss work, school, and childcare responsibilities, and even lose housing, employment, and custody of their children, especially if they are held for long periods because they cannot afford bail (even when bail is low). An arrest should be a last resort, not an automatic response.”

For more information on the Seattle Police Department’s search policies see: http://www.seattle.gov/police-manual/title-6---arrests-search-and-seizure/6180---searches-general For more information on consent searches see: [Link to one pager about consent searches] [Link to ACLU fact sheet on consent search bans] [Link to Colorado legislation on consent searches] For more information on limiting discriminatory searches see: [Link to section on bias based profiling for provisions on limiting discriminatory searches] For an example of a model policy on searches of LGBTQ people see: [Link to model LGBT policy] For an example of a model policy on sexual harassment and assault see: [Link to model sexual harassment and assault policy] For more information on The Vera Institute of Justice’s report on arrests see: https://www.vera.org/publications/arrest-trends-every-three-seconds-landing