Danielle Outlaw

Philadelphia Police Commissioner Danielle Outlaw.

The city quickly retracted a memo that it sent out to solicit affidavits supporting the police in civil rights litigation – but already it had left some in the community feeling concerned and misled.

The Philadelphia Police Department sent out a memo to several community organizations throughout the city on April 16. It encouraged city residents to sign a “declaration” to be submitted as an affidavit supporting the police in litigation concerning the enforcement of “quality-of-life” crimes. These crimes include carrying open liquor bottles, public urination, trespassing on closed public parks, and littering.

Some residents immediately raised concerns that the memo misrepresented the case at hand, which is an iteration of Bailey v. Philadelphia – the decade-oldfederal civil rights case about unlawful and racially discriminatory stop-and-frisk policing. The ACLU of Pennsylvania, as well as the law firm Kairys, Rudovsky, Messing, Feinberg & Lin, had filed a motion on March 18 seeking to have police issue quality-of-life offenders a warning before conducting a formal police stop – something they argue would reduce racial bias. The police memo incorrectly said that the plaintiffs were looking to prevent enforcement of quality-of-life crimes altogether.

“To be clear, plaintiffs do not propose that the PPD abandon the policing of QOL [quality-of-life] offenses,” the plaintiffs write in the March 18 court filing. “Rather, Plaintiffs’ proposal incorporates a basic reform by requiring, absent exigent circumstances, that the person engaged in the alleged quality of life offense first be asked to refrain from the objectionable conduct, and only if they refuse would officers be permitted to proceed with a formal stop.”

The email with the memo soliciting signatures for an affidavit, meanwhile, said “without the community support on this issue we are likely to get an order from the judge requiring us to cease enforcing certain quality of life offences.” The memo itself contained questions and statements that similarly implied, incorrectly, that the plaintiffs were seeking to end the enforcement of quality-of-life offenses.

The misinformation in the memo provoked complaints across social media and other news outlets, leading to its withdrawal after about one day.

The Society Hill Civic Association was among the community organizations that was sent the memo. Larry Spector, the president of the SHCA, said that he received an email with the memo attached during the afternoon on Friday April 16, with a message saying it had to be returned to the city Law Department by Monday April 19.  

Spector then forwarded it to contacts on the SHCA mailing list. He said that after more than 300 people had signed in less than 24 hours, one resident alerted him that the memo did not accurately reflect the litigation. Spector then sent out another email on the morning of April 17 – with the memo and relevant excerpts from the plaintiffs’ court filing attached – writing that he was discarding all signatures he had received earlier and residents still supportive of the memo would have to sign again. A few hours later, the city would issue its retraction.  

Spector said he felt that the memo sent to him was “misleading” and that reading the actual court filing caused him “to conclude it was a misrepresentation.” He said he thought that the city had tried to frighten residents with a short deadline and a pretended end to the enforcement of quality-of-life laws.  

“It was disgraceful, to be misled like that,”Spector said. “And to essentially just be, ‘you have to have this information by sundown otherwise the world’s going to end,’ that was not the way to do it.”

David Rudovsky, a civil rights lawyer who filed the plaintiffs’ motion and has helped litigate Bailey v. Philadelphia for years, noted that the city’s memo was “absolutely false.”  

“People were being told that we were asking the court, and the court was considering our request, that police stop all quality-of-life enforcement, which was absolutely false, and a complete misrepresentation,” Rudovsky said. “And we started getting calls from community groups about it and they said, ‘what’s going on,’ because they knew we weren’t asking from that.”

He added that the city’s attempt to solicit public opinion on this issue and in the manner that they did was “unusual,” and amounted to an attempt by the Police Department to build popular pressure in favor of the case.

“There are rules of evidence on surveys and these kinds of affidavits,” Rudovsky said. “It’s got to be done in a completely clean, neutral way.”

“I think it was an attempt by the Police Department to get community groups to put pressure on the judge not to go forward,” Rudovsky added.

The city has acknowledged the inaccuracy of the memo and conceded that it could misinform residents or frighten them into submitting an affidavit in support of the city and police. Police Commissioner Danielle Outlaw and City Solicitor Diana Cortes disavowed the memo in a joint statement.

“We apologize and immediately retract communications in the past week from police regarding enforcement of quality-of-life offenses in Philadelphia communities,” Outlaw and Cortes said. “To be clear - in no way was the intent to scare community members into hastily providing affidavits for fear of negatively impacting the case.”

Jim Kenney

Mayor Jim Kenney.

“We – as well as the Mayor [James Kenney] and Managing Director [Tumar Alexander] – strongly condemn any such fear-mongering.”

Outlaw and Cortes underscored that “any declarations or testimonials on this issue gathered from this outreach will not be presented to the Court at this time.”

A city spokesperson told The Philadelphia Free Press and University City Review that the city Law Department “drafted the text of the Declaration itself,” but that “the manner in which the circulation occurred was determined by persons within the Police Department.”

West Philadelphia Councilmember Jamie Gauthier, as well as Councilmembers-at-large Helen Gym, Kendra Brooks, and Isaiah Thomas, denounced the memo in an April 17 joint statement. They said that it promoted “the kind of indiscriminate policing which has been widely discredited as ineffective and counterproductive,” and accused it of being “in direct contradiction to the City’s racial justice goals.”

The plaintiffs maintain that on-sight enforcement quality-of-life crimes afford police too much discretion in selecting which offenders are stopped and which are informally warned – an arbitrary method of enforcement that, plaintiffs allege, results in quality-of-life stops being demonstrably biased against Black Philadelphians. Statistical regression analysis cited in the filing indicates that if a detention is a quality-of-life stop, then all else equal, the probability that a detainee is Black increases by 72%.

The outcry surrounding the memo and racial bias in police stops run parallel to the concerns residents in many Philadelphia communities have about quality-of-life offenses. Spector said that he and other members of the SHCA wanted to make sure that the city reduced racial bias while preventing the quality-of-life crimes that has bothered residents.  

“We don’t want to see unnecessary increase in stop-and-frisk encounters that we all know have, at times, had horrible, tragic consequences,” Spector said. “So, if quality of life can be maintained and those laws can be adhered to without stop and frisk, great, but certainly the underlying behaviors are unacceptable.”  

Center City Councilmember Mark Squilla told the Philly Free Press and UC Review that he had not heard too much about the memo from constituents before it had been withdrawn. Squilla did say, however, that his office frequently hears complaints from constituents about quality-of-life offenses.

“Obviously, we’ve been inundated with complaints on issues concerning it in the city over the last several years, from aggressive panhandling, to encampments, to ATVs, to defecation on the street, to open-air drug markets and things like that,” Squilla said.

At the same time, Squilla said that there were different ways of going about enforcement.

“I think there’s a new way at looking at enforcement today,” Squilla said. “Is enforcement just the police or is enforcement [to] deal with social services, where they come, and they give you options about what’s available to you and they give you the ability to go get help?”

Squilla said that he still wanted to learn more details about the plaintiff’s proposed reforms, such as what the specific quality-of-life offenses for which police would be issuing warnings before conducting stops, and how those warnings would be issued.

(Rudovsky, one of the attorneys for the plaintiffs, later clarified that a specific list of offenses would be determined by a court order or new police directives pursuant to a court order.)

The lawsuit Bailey v. Philadelphia, of which the March 18 motion is a part, was filed in federal court against the city of Philadelphia by the ACLU and Kairys, Rudovsky, Messing, Feinberg & Lin in 2010. The Bailey plaintiffs alleged that the city and the police department subject Philadelphians to stops-and-frisks without probable cause, violating their rights under the Fourth and 14th Amendments of the U.S. Constitution. They specifically argued that the city’s stopped-and-frisked residents on the basis of race, using the policy to discriminate against Black Philadelphians. The March 18 filing specified that Black Philadelphians, comprising only 44% of the city population were the subject of 71% ofpolice stops in the second half of 2019; while white Philadelphians, comprising 35% of the population were the subject of 22% of police stops. Statistical regression analysis conducted by city and plaintiff experts determined that the disparity could not be explained by other confounding, non-racial factors, such as crime rates and economic factors. Black Philadelphians, moreover, were about 50% more likely to be stopped without probable cause than white Philadelphians, and about 40% more likely of being frisked without reasonable suspicion.

In 2011, the city entered into a consent decree, by which its stop-and-frisk policies were made subject to certain restrictions. The court has been overseeing the city’s for nearly a decade, and in 2020, the city for the first time acknowledged in court that police stops in Philadelphia were being conducted with racial bias.” (Also in 2020, Philadelphia voters approved a referendum to amend the Philadelphia Home Rule Charter “to call on the Police Department to eliminate the practice of unconstitutional stop and frisk” – although the amendment is arguably tautological and mostly symbolic.)  

There is a total of eight demands in the March 18 filing and the city and the plaintiffs have agreed to five. These including the assignment of “specially trained Accountability Officers” to monitor racial bias in police stops in five police districts; the provision of “Bailey specific training” to instruct officers “on the Consent Decree and the Fourth and Fourteenth Amendment standards that govern stop and frisk practices”; and a “Command level review” of randomly selected documents and body-camera video relating to stops in five districts with high racial disparity in police stops.

The three demands that the city has not agreed to involve the dispute regarding quality-of-life offenses, and a process by which the department would discipline officers for conducting police stops with racial bias.

Rudovsky said he expects a ruling from the court within a couple of months.

The credibility of the city’s commitment to their obligations under the Bailey consent decree was undermined earlier this year by a leaked police memo from February. In the memo, a police captain scolds officers under his command for not conducting enough police stops. He then encourages officers to make motor-vehicle stops, partly because “motor vehicle codes give officers probable cause for a stop which avoids the issues we have with the Bailey Agreement.”

Rudovsky said that the city’s commitment to adhering to its Bailey obligations has improved somewhat over the last few years under the Kenney administration. He also said that the high-level leaders, such as the mayor and the police commissioner, seem willing to work with the court to achieve reform. Documents like the February memo and the quality-of-life memo nevertheless indicate to Rudovsky that the city is still resistant to enacting reform.

“That’s the basic question,” Rudovsky said when asked if the police department and city were working to adhere to the Bailey agreement in good faith. “There’s obviously resistance in the Police Department.”

Outlaw and Cortes, in their joint statement following the retraction, said that they would “work with Plaintiff's counsel to determine a more thoughtful and appropriate method to solicit community input on this issue.”

Spector said that properly getting community input should not be something that proves to be this challenging to a city’s elected officials.

“Responsible leadership should know how to solicit community support, I’m not going to give them guidance on how to do that,” Spector said. “They just did it wrong.”

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