Similar to many jurisdictions throughout the United States, the New York City Police Department (“NYPD”) has a gang database—a criminal intelligence system utilized by the NYPD to keep track of alleged “gang members” in New York City. And similar to many jurisdictions throughout the United States, the NYPD’s gang database has been severely criticized. Opponents of the gang database accuse the NYPD of using it as a tool for racial profiling, mass incarceration, and mass criminalization of Black and Brown young men in New York City. Opponents of the database also take issue with the NYPD’s lack of transparency regarding the gang database. It is challenging to identify whether a person is within this database and even more difficult to be removed from it because individuals do not receive any notification when they are added.
The NYPD’s use of a gang database isn’t the first time it has been accused of racial profiling. Beginning as early as the 19th Century, the NYPD has been criticized for the correlation between its policing tactics and race. Most notably, in the early 2000s there was an increase in the use of stop and frisk tactics by the NYPD. However, Judge Shira Scheindlin, in Floyd v. City of New York, found that the NYPD had a “policy of indirect racial profiling” of Black and Latinx people through stop and frisk and that the NYPD had been “deliberately indifferent to the intentionally discriminatory application of stop and frisk . . . .”
Floyd led to a change in the NYPD’s stop and frisk tactics. Following the Floyd decision, the number of stops and frisks conducted by the NYPD decreased significantly. By contrast, the NYPD simultaneously expanded its Gang Division during this time, even though gangs were not a significant issue in New York City. A gang database poses detrimental risks to those added because inclusion can lead to being falsely labeled as a “gang member,” “inexplicably harsh charges or excessive bond,” and deportation by ICE. For these reasons, it is important that “the right people” are placed in a gang database.
Part I of this Note begins with a discussion of Floyd v. City of New York and the history of stop and frisk in New York City. The discussion then shifts to the NYPD’s focus on gang-oriented policing through “Operation Crew Cut” and its gang database. Part I explains what it means to be in a “gang” in New York City, the criteria for being placed in the NYPD's gang database, how its gang database functions in practice, and the racial makeup of those in its gang database. Part II argues that the NYPD’s gang database violates the 14th Amendment's Equal Protection Clause. The correlation between the gang database's disparate racial impact and the historical background of racial profiling in the NYPD helps prove discriminatory intent on the part of the NYPD. Part III argues that the NYPD’s gang database also violates the 14th Amendment's Due Process Clause. Since the NYPD provides neither notice nor an opportunity to be heard, the gang database infringes on the liberty of New Yorkers without due process of law. Part IV suggests reforms that can be made to the NYPD’s gang database, largely based on California’s CalGang legislation, that would fix the constitutional issues pointed out in this Note.