IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Mahari Bailey, et al., :

Plaintiffs : C.A. No. 10-5952
:
v. :
:
City of Philadelphia, et al., :
Defendants :

DEFENDANT CITY OF PHILADELPHIAS SEVENTH REPORT

TO COURT AND MONITOR1

I. INTRODUCTION2

In January 2016, a new Mayor for the City of Philadelphia, James F. Kenney, took office.

In addition, Mayor Kenney appointed long-time Deputy Commissioner, Richard Ross, as the

new Police Commissioner for the City of Philadelphia Police Department (PPD). Since

January of 2016, the City of Philadelphia (City) and PPD has taken extensive steps to address

the issues giving rise to this litigation. In the past sixteen months, the PPD has implemented a

number of new measures and controls to ensure that pedestrian stops and frisks in the City of

Philadelphia comply with Constitutional requirements. Based on the results of the PPD and

Plaintiffs audits for the First and Second quarters of 2016, the parties agreed that the data and

1
Based on the change of Administration for the City of Philadelphia and the Philadelphia Police Department
beginning in 2016, the City of Philadelphia did not submit a Reply to Plaintiffs Sixth Report, which covered the
First and Second Quarters of 2015. This course of action was discussed with the Honorable Stewart J. Dalzell prior
to the Status Conference held on March 22, 2016. At the March 22nd Conference, the newly appointed Police
Commissioner Richard Ross and Managing Director Michael DiBerardinis outlined a number of the reforms
discussed in this Report.

2
The City of Philadelphia will not attempt, in this Report, to recap all of the events that have transpired since the
inception of this litigation. For historical information, the City of Philadelphia will rely on prior Reports filed on the
Docket in this matter. This Report will focus primarily on the actions undertaken by the City of Philadelphia and the
Philadelphia Police Department since January 2016 and reference data from 2015 for comparison purposes.

1
results of the audits for the Third and Fourth quarter would provide a reliable basis for measuring

the effectiveness of the reforms.

The progress of the PPD and the commitment of Mayor Kenney to address systemic

issues related to pedestrian investigations conducted in the City of Philadelphia is clearly

reflected in the results from the 2016 audits. In 2016, the PPD conducted the lowest number of

pedestrian stops since the inception of this case in 2010 (139,441), which represents a 35%

decrease in the total number of pedestrian stops from 2015 to 2016. In addition to the decrease

in total number of pedestrian stops, the 2016 audits show significant decreases in pedestrian

stops made by Philadelphia police officers without reasonable suspicion beginning in the 2nd

quarter of 2016 as compared to those made in previous years and quarters. Like the number of

pedestrian stops in 2016, pedestrian stops without reasonable suspicion are at their lowest

percentages since the inception of this case in 2010. For example, in the 2nd quarter of 2016,

86% of pedestrian stops were supported by reasonable suspicion, while only 14% of pedestrian

stops were conducted without reasonable suspicion. This trend continued in the 3rd and 4th

quarters of 2016.

Consistent with the results of the 2016 audits, the City is committed to continuing its

efforts to implement and enforce effective reforms focusing on accountability and addressing

systemic issues related to pedestrian investigations.

II. THE DATA REVIEW PROCESS3

The PPD has established a process where all stops recorded on 75-48A forms are either

completed electronically or by paper forms, which are manually entered in the PPD database.

3
PPD Directive 12.11, Appendix B, Vehicle or Pedestrian Investigation Report (75-48A), which was updated on
November 24, 2015, sets forth the basis of PPDs policies and procedures relating to pedestrian investigations
conducted in the City of Philadelphia. (Attached hereto as Exhibit 1). Additional policies and procedures will be
discussed in later sections of this Report.

2
Patrol supervisors (i.e., sergeants) are required to review each 75-48A to ensure that all required

information, including reasonable suspicion, has been entered by the officer. See, Exhibit 1,

7. The patrol supervisor is the first step in the accountability process for the PPD. After the

patrol supervisor reviews each 75-48A, the Commanding Officer (i.e., Captain) is required to

verify each 75-48A and is directly accountable for those supervisors and officers whose reports

are repeatedly identified as lacking sufficient basis for stops, frisks and searches. See, Exhibit

1, 8. PPD Divisional Inspectors then conduct audits of a random data sample to determine

whether the recorded pedestrian stops and/or frisks were documented properly and conducted

with reasonable suspicion.4 See, Exhibit 1, 9. In prior years, the random data sample

included both pedestrian and car stops, which resulted in fewer pedestrian stops being audited.

Starting in the first quarter of 2016, Commissioner Ross directed PPD to limit the random data

sample to pedestrian stops only. This action by Commissioner Ross resulted in a greater number

of pedestrian stops being reviewed and audited on a quarterly basis. After the Divisional

Inspectors complete their Audits, the next level of review and accountability begins. The

Standards and Accountability Division, Audits and Inspections Unit (Audits and Inspections

Unit), conducts its own audit of the Inspectors reviews. Id. At the end of each quarter, all

pedestrian stops, including the audited random sample, along with the Audits and Inspections

Units 75-48A Comprehensive Audit, is provided to the Plaintiffs for their review and analysis.

Lastly, the parties submit Reports to the Court and Court-appointed Monitor for review and

analysis.

4
Eleven Divisional Inspectors conducted the reviews for the 1 st and 2nd Quarters of 2016 and twelve Divisional
Inspectors conducted the reviews for the 3rd and 4th Quarters of 2016.

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 III. POLICE REVIEW OF 75-48A FORMS FOR 2016

A. Fourth Amendment Analysis5

In this section, the City sets forth their findings on the issue of whether pedestrian stops and

frisks conducted in each quarter for 2016 were supported by reasonable suspicion. As in previous

audits, the parties agree to assess whether reasonable suspicion existed for the pedestrian stop and/or

frisk based on the narrative information provided by the officer. Therefore, when an officer fails to

provide a sufficient narrative in support of the pedestrian stop and/or frisk, it will be classified as a

pedestrian stop and/or frisk not supported by reasonable suspicion.

For the first quarter of 2016, PPD Divisional Inspectors reviewed and audited a total of

2,991 75-48A Reports. Of the 2,991 audited Reports, the Audits and Inspections Unit conducted

its quarterly review and audit of a random sampling (594) of the audited Reports. See Office of

Standards and Accountability Division, Audits and Inspections Unit, 75-48 Comprehensive

Audits for 1Q 2016 (attached hereto as Exhibit 2). Of these 594 pedestrian stops, 378 (@64%)

were conducted based on reasonable suspicion and 216 (@36%) did not meet the reasonable

suspicion standard. Of the 160 frisks, 85 (@53%) were conducted based on reasonable suspicion

and 75 (@47%) did not meet the reasonable suspicion standard.

For the second quarter of 2016, PPD Divisional Inspectors reviewed and audited a total

of 2,826 75-48A Reports. Of the 2,826 audited Reports, the Audits and Inspections Unit

conducted its quarterly review and audit of a random sampling (533) of the audited Reports. See

Office of Standards and Accountability Division, Audits and Inspections Unit, 75-48

Comprehensive Audits for 2Q 2016 (attached hereto as Exhibit 3). Of these 533 pedestrian

stops, 457 (@86%) were conducted based on reasonable suspicion and 76 (@14%) did not meet

5
The Citys Seventh Report on Fourteenth Amendment racial disparity issues will be filed separately pursuant to
this Courts Scheduling Order.

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the reasonable suspicion standard. Of the 132 frisks, 92 (@70%) were conducted based on

reasonable suspicion and 40 (@30%) did not meet the reasonable suspicion standard.

For the third quarter of 2016, PPD Divisional Inspectors reviewed and audited a total of

2,643 75-48A Reports. Of the 2,643 audited Reports, the Audits and Inspections Unit conducted

its quarterly review and audit of a random sampling (520) of the audited Reports. See Office of

Standards and Accountability Division, Audits and Inspections Unit, 75-48 Comprehensive

Audits for 3Q 2016 (attached hereto as Exhibit 4). Of these 520 pedestrian stops, 421 (@81%)

were conducted based on reasonable suspicion and 99 (@19%) did not meet the reasonable

suspicion standard. Of the 144 frisks, 105 (@73%) were conducted based on reasonable

suspicion and 39 (@27%) did not meet the reasonable suspicion standard.

For the fourth quarter of 2016, PPD Divisional Inspectors reviewed and audited a total of

2,628 75-48A Reports. Of the 2,628 audited Reports, the Audits and Inspections Unit conducted

its quarterly review and audit of a random sampling (544) of the audited Reports. See Office of

Standards and Accountability Division, Audits and Inspections Unit, 75-48 Comprehensive

Audits for 4Q 2016 (attached hereto as Exhibit 5). Of these 544 pedestrian stops, 446 (@82%)

were conducted based on reasonable suspicion and 98 (@18%) did not meet the reasonable

suspicion standard. Of the 150 frisks, 107 (@71%) were conducted based on reasonable

suspicion and 43 (@29%) did not meet the reasonable suspicion standard.

A table summarizing the PPD assessments of pedestrian stops and frisks conducted in

each quarter for 2015 and 2016 is set forth below.

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 PPD AUDIT RESULTS6

1Q 2Q 3Q 4Q 1Q 2Q 3Q 4Q
2015 2015 2015 2015 2016 2016 2016 2016
% ped. stops lacking 36% 63% 65% 35% 36% 14% 19% 18%
reasonable suspicion

% frisks lacking 5% 46% 29% 52% 47% 30% 27% 29%

reasonable suspicion

In addition to a decrease in the number of pedestrian stops made by Philadelphia police

officers without reasonable suspicion, the total number of pedestrian stops in the City of

Philadelphia decreased significantly in 2016. A table summarizing the number of pedestrian

stops conducted in each quarter for 2015 and 2016 is set forth below.

TOTAL PEDESTRIAN STOPS PER QUARTER FOR 2015 AND 2016

2015 1Q15 2Q15 3Q15 4Q15 Tot. 2015

Pedestrian 43,847 52,130 61,906 55,897 213,780
Stops

2016 1Q16 2Q16 3Q16 4Q16 Tot. 2016

Pedestrian 35,482 45,395 30,166 28,398 139,441
Stops

6
All numbers in this section are based on the samples audited by the Audits and Inspections Unit. In addition, the
1Q 2015 frisk analysis, which showed a very low rate of frisks without reasonable suspicion, was conducted based
on flawed metrics. The metrics have been corrected.

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 B. Commentary on Fourth Amendment Issues

As stated earlier, the PPD, in 2016, conducted the lowest number of pedestrian stops

since the inception of this case in 2010. Specifically, Philadelphia Police officers conducted

139,441 pedestrian stops in 2016, a significant (35%) decrease from the 2015 total of 213,780.

A comparison of total stops in the fourth quarter of 2015 to the fourth quarter of 2016 shows a

nearly 50% decline, from 55,897 to 28,398. These substantial decreases in the total number of

pedestrian stops conducted in the City of Philadelphia from 2015 to 2016 represent the Citys

commitment to addressing systemic issues related to pedestrian stops.

Similar to the total number of pedestrian stops in 2016, pedestrian stops without

reasonable suspicion are at their lowest percentages since the inception of this case in 2010.

Specifically, the 2016 audits7 show a substantial decrease in pedestrian stops made by

Philadelphia police officers without reasonable suspicion as compared to those made in previous

years and quarters. Based on the data in the 2016 PPD Audits, 29,972 pedestrian stops were

made without reasonable suspicion, a 72% decrease from the 2015 total of 108,430. In addition,

using the percentage of pedestrian stops without reasonable suspicion and the total number of

stops from the fourth quarter of 2016, we can estimate that the number of pedestrian stops

without reasonable suspicion was at an all-time low of 5,112. This is again representative of the

Citys commitment to this process.

Not only has the percentage of pedestrian stops conducted without reasonable suspicion

decreased dramatically beginning in the second quarter of 2016, the percentage of frisks

conducted by Philadelphia police officers without reasonable suspicion has decreased. In the

second quarter of 2016, 30% of frisks were made without reasonable suspicion. When compared

to the previous quarter, first quarter of 2016, this constitutes a 36% decrease in the number of
7
Referring to the City and Plaintiffs Audit Reports for 2016.

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frisks being conducted without reasonable suspicion. The trend continued in the third and fourth

quarters of 2016.

Significantly, the Plaintiffs audits show marked decreases in the rates of pedestrian stops

being conducted without reasonable suspicion: the audit for the first two quarters of 2016 by the

Plaintiffs show pedestrian stops without reasonable suspicion at 27%, while the audit of the third and

fourth quarters show pedestrian stops without reasonable suspicion at 25%, respectively. These

decreases in the percentage of pedestrian stops without reasonable suspicion, coupled with the

overall decrease in the number of pedestrian stops, clearly indicate that the numbers in this case are

trending in a positive direction. As Plaintiffs have noted in previous Reports, (you can)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. See, Plaintiffs Third Report, at p. 11 and Fourth

Report, at p. 9. Although there is not a simple, quick or easy remedy to implement systemic change

to an organization as large as the PPD (@6,600 officers), it is clear that this new Administration for

the City of Philadelphia has made it a priority to implement change and address pedestrian stops and

frisks that are being conducted by Philadelphia police officers without reasonable suspicion.

After the audits were completed for the second quarter of 2016, the parties met in

October of 2016 to discuss data-related issues and specific findings of non-concurrence between

the Audits and Inspections Unit and Plaintiffs audit. As a result of this meeting, the parties were

able to address and resolve a couple data-related issues (i.e., sequence versus incident numbers)

and arrive at a consensus on several analysis-related issues (i.e., basis for stops) that will provide

for greater consistency in future audits.

The City attributes the dramatic improvements in 2016, at least in part, to a number of

recently implemented internal measures and policy changes. Some of the most significant

8
updates are described below, certain of which were installed over the past year and are now

taking effect.

1. 75-48A Developments Beginning in January 2016

a. Compstat

The issue of the 75-48A review has been incorporated into the PPDs existing Compstat

process. Compstat is an accountability tool which is designed to, among other things, increase

the flow of information among high ranking personnel and units within the PPD. Compstat is

used to identify patterns and trends as soon as possible, which helps the PPD respond to the

Citys most pressing needs. While the process is most notably used in crime fighting, it focuses

district commanders on topics of particular importance to the Police Commissioner. Placing 75-

48A metrics into this system sends a very strong message from the Police Commissioner as to

the importance of the entire 75-48A review process.

b. Deputy Commissioner Patterson Meeting

PPD Deputy Commissioner Myron Patterson, at the direction of the Commissioner, has

met personally with all Chief Inspectors and Inspectors to discuss the PPDs expectations

regarding the 75-48A policy. Meetings at this level, again, stress the importance of this issue

from the Commissioner down to the officers in each unit.

c. District Captain Access to 75-48A System to Conduct Real-Time Interviews

District Captains have received training on accessing the 75-48A system to monitor, in

real time, the reports being generated under their commands. This real time monitoring gives

commanders the opportunity to address issues proactively rather than waiting for the quarterly

audits.

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 d. Additional Accountability Measures Recently Implemented

The existing 75-48A policy has operated with three (3) levels of review (Sergeant,

Inspector, and Chief Inspector Standards and Accountability). The new system maintains the

existing multi-level review structure and implements new controls to ensure accountability and

proper reporting, and to ensure that any mistakes are properly corrected. Under the recently

implemented measures, following the quarterly divisional audits, the Inspectors are required to

forward an Action and Report Memorandum to each Captain under their command. The

Captains are then required to relay the errors or mistakes down to the individual officers and

specifically address ways to correct such errors and mistakes in the future. The Captains will

then prepare a response memorandum, which is due back to the Divisional Inspectors within ten

(10) days. In addition, Command staff (Captains) are now directly responsible for corrective

action. (Weekly 75-48A Training Reports, attached hereto as Exhibit 6). Since March of 2016,

the Weekly 75-48A Training Reports have been submitted to Deputy Commissioner Myron

Patterson on a Department-wide basis. 8

Additionally, the Audit and Inspections Unit, tasked with auditing the work of the

Divisional Inspectors, is now required to forward a copy of its report to all pertinent

divisional/special unit inspectors. Much like the Captains mentioned above, the Divisional

Inspectors are required to report to the Chief Inspector of Standards and Accountability, in

writing, the ways in which any inconsistencies and errors will be corrected in future audits.

Finally, in order to achieve compliance, progressive disciplinary actions, which may

include officer retraining, a counseling memorandum, a notation of non-compliance in officer

8
Plaintiffs were recently notified by the City of the existence of the Weekly 75-48A Training Reports. The City is
in the process of gathering additional Reports to provide to Plaintiffs for their review and analysis. These Reports
appear to address one of Plaintiffs primary concerns pertaining to accountability. The City will reserve further
comment until additional Reports have been reviewed and analyzed by Plaintiffs.

10
personnel files and/or other disciplinary measures as determined by the PPD, have been

instituted for failure to implement corrective action.

e. Audits and Inspections Unit Training and Accountability

The Audits and Inspections Unit is not only the highest level auditor for the 75-48A form,

but also provides regular and detailed training for those units or squads that may be performing

poorly with respect to 75-48A compliance. Additionally, the Audits and Inspections Unit

provides pragmatic, all-encompassing training for all new promotional ranks. This

comprehensive training covers the use of proper forms, the constitutional issues at play and the

roles and responsibilities of new supervisors in the overall review process.

Throughout 2016 and 2017, the Audits and Inspections Unit has been especially busy

conducting trainings for PPD personnel at all levels, including groups of officers, captains,

sergeants, lieutenants, corporals and inspectors, as well as certain individual officers who were

previously flagged for insufficiencies in their paperwork. Spearheaded by Staff Inspector Robin

J. Hill, the Audits and Inspection Unit conducted over 40 such trainings in 2016 and over 10

such trainings in 2017. (Audits and Inspections Unit Training Record, attached hereto as Exhibit

7). These additional training sessions, and in particular the individualized training for officers

who have made multiple errors in the past, provide additional guidance and increase

accountability across the PPD ranks.

f. Municipal Police Officer (MPO) Training

Each and every police officer is required to complete a week long training course on legal

issues and changes in laws concerning law enforcement. The curriculum for each calendar year

is written and approved one year in advance. Beginning in 2017, MPO curriculum includes

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training regarding Directive 12.11, Appendix B and the legal requirements of reasonable

suspicion to conduct pedestrian stops and related frisks.

2. Ongoing Departmental Actions Designed to Address the 75-48A Issue

a. Roll Call Training

The PPD continuously provides roll call training when new policies or procedures

regarding 75-48As are implemented. Additionally, officers receive regular roll call training

regarding the constitutionality of pedestrian stops and frisks.

b. Department-wide Availability to PPD Legal Advisor

The PPD Legal Advisor provides specialized training when requested by any commander

and focuses the presentations on the specific nature of each unit. For example, the training for

patrol and narcotics officers may differ in certain ways because the stop issues facing those

units often differ from one another. While the constitutionality of stops remains the same, the

nuances among different units can be confusing for the officers. The Legal Advisor clarifies

these nuances and provides guidance on how to properly document the encounters on the 75-48A

form.

3. PPD Actions to Address Procedural Errors in the 75-48A Process

a. Sight Arrest

The issue of officers using the 75-48A form to document a sight arrest that was later

cleared and released, for whatever reason, has been problematic from a reporting perspective.

This practice resulted in many 75-48A reports being marked as incorrect, namely with respect to

the Narcotics Bureau. Under the new protocols, a modified reporting system has been installed

in which officers can place this information on the proper form (i.e. 75-48), rather than the

pedestrian stop form (i.e. 75-48A). The changes to pertinent policies on this issue have been

12
approved, implemented and are the subject of additional training procedures.

b. Individuals Present During Search Warrant Service

In prior quarters, the Audits and Inspections Unit was classifying 75-48A reports

incorrect in situations when individuals were detained during the service of a search warrant and

the officers did not describe their basis for reasonable suspicion on the 75-48A form. This was

legally incorrect. The United States Supreme Court has stated that the basis for a search warrant

is constitutionally sufficient to detain persons in the immediate area while a search is conducted.

Consequently, PPD policy has been amended to ensure that 75-48A forms are prepared and

audited in accordance with existing law.

c. Anonymous Flash Information

Officers often receive flash information via police radio which indicates the

commission or possible commission of a crime in progress. When flash information is received

from an anonymous source, it is not a sufficient legal basis to detain someone. However, flash

information that comes from a reliable or confirmable source, or which can be corroborated by

independent police observations, does, in fact, provide the lawful justification to conduct a stop.

Despite receiving training on this issue, this has created confusion for officers. In an

effort to provide greater clarity, the PPD modified the manner in which flash information is to be

broadcast over police radio. Accordingly, police radio now broadcasts flash information as

either verified or non-verified. This is expected to enhance the level of consistency and

legal compliance in officer responses to flash information.

4. Responses to Plaintiffs Recommendations

a. Hit-rate Analysis

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 The City continues to renew its reservations with respect to the significance of hit-rates

in assessing the legality and effectiveness of pedestrian stop and frisk practices. Assessing and

utilizing a hit-rate in the analysis of pedestrian stops and frisks would also have to take into

consideration an officers discretion to not arrest an individual for what is considered or

perceived as minor/nuisance offenses. By removing this type of discretion, the hit-rate could

be substantially increased. Plaintiffs themselves even acknowledge that courts have not

quantified the reasonable suspicion standard in terms of expected hit rates for contraband, yet

still surmise that reasonable suspicion did not exist for a large number of stops. The pedestrian

investigation, which can include a pedestrian stop and frisk, is a well-recognized law

enforcement tool. When conducting audits, the analysis begins with the determination of

whether reasonable suspicion for the stop exists, and not whether contraband was recovered thus

validating the pedestrian stop and frisk.

b. Percentage of Frisks

As noted previously in this Report, the percentage of frisks not supported by reasonable

suspicion is decreasing. Despite this decreasing trend, PPD recognizes the need to focus on this

aspect of the pedestrian investigations conducted in the City of Philadelphia. Since the inception

of this case, a great deal of PPD resources and attention have been focused on the pedestrian stop

aspect of pedestrian investigations. As of late, the PPD has begun directing its resources and

attention to the pedestrian frisk aspect of pedestrian investigations. Specifically, the Audits and

Inspections Unit has recently concluded an analysis of the third quarter of 2016 frisks

categorized by Plaintiffs as being without reasonable suspicion. The City is in the process of

sharing the results of the review with Plaintiffs and scheduling a meeting to discuss how the

analysis can assist in future reports.

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 c. Accountability Measures

As noted previously in this Report (See, B.1.), PPD, in 2016, has undertaken numerous

accountability measures to address the rates of pedestrian stops and frisks conducted without

reasonable suspicion. Based on the Audits, these accountability measures are working. Based

on the nature of these measures and the desire to implement systemic change, additional time is

required and necessary for the current accountability measures to be fully institutionalized in the

PPD.

C. Conclusion on Fourth Amendment Issues

The PPD has taken numerous steps to reduce the number of pedestrian stops and frisks

made without reasonable suspicion. These steps include, among others, retrofitting patrol cars

with up-to-date reporting technology, changed protocols with respect to the use of 75-48A

Reports, increased detail in the broadcast of flash information, additional training at all levels

of the PPD and an updated and more comprehensive review, and accountability process for

supervisory officials. These new measures have enhanced the inter-departmental flow of

information among PPD units and personnel, have eliminated errors in the reporting process, and

have stressed the accountability of officers and supervisors; the results of which have shown a

significant reduction in the number of improper and improperly recorded pedestrian stops in

2016.

The PPD audit results from 2016 strongly suggest that the new Administrations

commitment to implement change in the pedestrian investigation process is making a real

difference. Despite the improvements in the Fourth Amendment analysis, the City understands

that additional work is necessary to continue the positive results from 2016. As such, the City

15
remains committed to working with the Court, Court-appointed Monitor and Plaintiffs on

addressing issues relating to pedestrian stops and frisks.

Respectfully Submitted,

/s/ Craig M. Straw

Craig M. Straw, Esquire
First Deputy City Solicitor

/s/ Jonathan Cooper

Jonathan Cooper
Assistant City Solicitor
Pa. Attorney ID No. 316374
City of Philadelphia Law Department
1515 Arch Street, 14th Floor
Philadelphia, PA 19102
(215) 683-5448
jonathan.cooper@phila.gov

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