Former Chief of Department Joseph Esposito insisted yesterday that racial profiling never came up during regular crime control meetings of New York City Police Department top officials and precinct commanders.

Testifying at a trial where plaintiffs are attempting to prove the NYPD has an intentional, top-down directed policy of stopping hundreds of thousands of minority New Yorkers without reasonable suspicion of criminal activity, Esposito said, "I don’t know if I’ve used the term ‘racial profiling’ but we do talk about lawful stops."

Southern District Judge Shira Scheindlin (See Profile), presiding over the "stop and frisk" bench trial, interrupted Esposito and said he was answering a different question. The real question, Scheindlin said, was whether the "topic of racial profiling" was ever raised at regular CompStat anti-crime strategy meetings.

"Again," Esposito insisted, "I don’t have to say the words ‘racial profiling’ to address it."

Esposito is fresh off his March 27 retirement after more than 40 years on the force and more than 12 years as its highest-ranking uniformed member.

He is also the highest-ranking city official to appear at the trial before Scheindlin, where plaintiffs are seeking an injunction to reform NYPD policies they say violate the Fourth Amendment as interpreted by the U.S. Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968).

Through the half-way point of a trial expected to wrap up on May 10, Scheindlin has heard from plaintiffs who have been stopped, officers who stopped them, other officers who claimed the NYPD has a quota on the number of stops it expects its officers to make, and high-ranking department officials who have rebutted that claim.

Scheindlin also has heard from Columbia Law School Professor Jeffrey Fagan, an expert for the plaintiffs who asserts that his study of the forms officers used to document stops, UF 250s, shows a widespread pattern of unconstitutional stops targeting young black and Latino men.

Mayor Michael Bloomberg, Police Commissioner Raymond Kelly and other top officials have repeatedly defended stop-and-frisk practices as constitutional and an effective crime-fighting tool.

The city’s defense at trial is that officers stop people at higher rates in high-crime neighborhoods, not based on race. As Heidi Grossman of the Law Department said during opening statements in March, making more stops in high-crime neighborhoods is "the nature of hot-spot policing. It is not racial profiling" (NYLJ, March 19).

By calling Esposito to the witness stand yesterday, plaintiffs and their attorney, Jonathan Moore, are attempting to show that unconstitutional stopping and frisking is endemic, and the result of a deliberate choice made by top police officials.

Proving that claim to Scheindlin, the plaintiffs hope, will seal their argument that the NYPD needs an outside, court-appointed monitor to ensure that officers are properly trained on the law and effectively supervised by their superiors, with the message being sent from the chief of department through the chain of command that stopping people based on race is unacceptable.

‘On Your Watch’

Esposito became chief in 2000, a year after the release of a report commissioned by the New York Attorney General’s Office and prepared by Fagan that drew a "strong statistical correlation between race and the likelihood of being stopped."

Yesterday, Moore asked Esposito about the explosive growth in stops and frisks during his tenure.

Moore said the stops increased to 685,000 in 2011 from 97,000 in 2002.

"All on your watch," Moore said to Esposito.

"Yes it is," Esposito responded, smiling, "as is the 40 percent decrease in crime."

Moore displayed on a large screen redacted minutes of CompStat meetings in which Esposito questioned precinct commanders about crime trends and asked about the number of summons their officers issue and stops they made.

Moore pressed Esposito on why he asked precinct heads about the number of stops, commenting on more than one instance that the number of UF 250s was down.

Esposito insisted that the discussion of stops was just one part of a broader exchange between himself and precinct commanders on how to address spikes in crime, and not an order to ramp up stops.

In one set of minutes, from an October 2008 meeting, Esposito said, "It’s a big ship, and we’re turning it around. We got to keep a close eye on it."

When asked by Moore, and then Scheindlin about why he commented that UF 250s were down 10,000 at one point, Esposito tried to clarify that the numbers were not the only factor.

"We’re stressing quality, not quantity," he said.

In addressing "quality stops," Moore asked Esposito whether a quality stop is one that "meets the definition of reasonable suspicion?"

"Yes," Esposito answered. "But it also means a stop that addresses the [specific] crime problem in the precinct."

Moore then asked why, at one CompStat meeting, Esposito was discussing stops that don’t result in enforcement actions such as a summons or arrest.

"How does basically an innocent stop that doesn’t result in enforcement action become a topic at CompStat," he asked.

Esposito’s response was that "we look at a baseline" and compare one year to the next, measuring all kinds of statistics, "including UF 250s."

He continued, "Just because there is no enforcement of the 250 doesn’t mean there isn’t a legitimate stop. We make stops when we think a crime is happening, we think a crime has happened or a crime is about to happen. What is hard to understand is how many crimes are prevented by stopping a person that is giving you reasonable suspicion."

Later, as Grossman began her examination, Esposito emphasized that looking at the number of UF 250s, like the number of arrests and summons, is just "a part of our analysis."