New York’s Stop-and-Frisk Ruling is Ripe for Appeal

Michael B. Mukasey, Wall Street Journal, August 19, 2013

The worse things get, the better things get. So goes the old agitprop teaching about the social preconditions for revolution. By that measure, last week’s federal court opinion blunting New York’s stop-question-frisk law enforcement tool is good news. Deeply flawed, it fairly begs for appellate review and reversal. The bad news is that it may never reach an appellate decision. But first the good news.

Judge Shira Scheindlin’s opinion, based on the 14th Amendment’s guarantee of equal protection of the laws, and the Fourth Amendment’s ban on unreasonable searches and seizures, concludes that the New York Police Department’s use of stop, question and frisk results in stops and searches based on minority status rather than any other factor. Since 1968, it has been constitutionally permissible for police officers to stop people on the street to question them, based on a “reasonable suspicion” that criminality “may” be afoot.

“Reasonable suspicion” is the most permissive standard known to the law, and it requires simply an articulable basis, something more than a hunch. An officer may also frisk the person he stops if he has a “reasonable suspicion” that the person “may” have a weapon.

The tortuous route to the court’s conclusion is traveled principally in the vehicle of statistics. But the journey begins with the plaintiffs’ reliance on 19 incidents allegedly involving stops and frisks. “Allegedly” is appropriate here because in four of the incidents the complainant’s account did not disclose the identity of the officer, and in one the evidence showed that the “stop” was simply an approach to question.

Of the 19 incidents, the court found that nine were not based on reasonable suspicion to justify a stop, five were based on enough to justify a stop but not a frisk, and five were fully constitutional. {snip}

Although the complainants in the various incidents were all black or Hispanic, how do you get from that to the conclusion that each of the officers involved acted out of a racial motive as opposed to, say, a mistake? Statistics.

But not just any statistics. If you don’t pick your numbers carefully, you might conclude from the nearly identically low rate of weapons or other contraband recovered from white and black subjects searched that whites were being searched on essentially the same basis, or lack of it, as members of minority groups.

Or you might tumble over the inconvenient fact that although whites make up 35% of the city’s population and committed 2.5% of shootings and 5.5% of violent crimes, based on victim and witness accounts in 2011, they constituted 9% of stops in 2011—a higher percentage than the violent crimes with which they were associated. On the other hand, blacks, who make up 23% of the city’s population but committed 77% of shootings and 66% of violent crimes, numbered only 53% of stops—a lower percentage than the violent crimes with which they were associated.

However, the judge relied on an expert who claims that the relevant comparison is between overall population and rate of stops rather than between incidence of criminality and rate of stops. And so, in Brooklyn’s 88th Precinct, for example, Asians constitute 40% of the population but commit only 1% of violent crimes and 6% of crimes over all. By this expert’s logic, Asians should make up 40% of the subjects stopped.


Obsession with statistics tends to crowd out common sense. Thus an inspector testified that the point of the program is less detection than deterrence, and considering that not all would-be criminals carry evidence of their intentions on their person, many of those stopped likely were deterred from intended criminality. This reasoning by an experienced police officer was dismissed by the judge, who said in her decision that there was no evidence to support it.

Really? Experienced cops say that rain is the policeman’s friend because it keeps would-be perpetrators indoors. The police use of stop, question and frisk has been the rain on the parade of violence we experienced in the 1980s and early ’90s, and has brought down the city’s murder rate from thousands per year to a few hundred—an improvement principally in minority neighborhoods.

It isn’t the guns recovered during the frisks that have resulted in those numbers, but the guns not carried due to the risk of discovery during a stop, question and frisk encounter. Is there proof of that? Something like 8,000 guns have been recovered in these searches in the last decade, not nearly enough to account for the precipitous fall in violent crime. But the drop in the crime rate was not considered in this case because of the trial court’s view that because good results cannot justify unconstitutional practices, those results are irrelevant. {snip}


All of this is good news for an appeal—but the appeal may never be heard. Several contestants in the Democratic primary for mayor have said they will make certain if elected that any city appeal is withdrawn. Because the case cannot possibly be briefed, argued and decided before the next mayor takes office on Jan. 1, 2014, there may be no appeal.


Topics: , ,

Share This

We welcome comments that add information or perspective, and we encourage polite debate. If you log in with a social media account, your comment should appear immediately. If you prefer to remain anonymous, you may comment as a guest, using a name and an e-mail address of convenience. Your comment will be moderated.
  • Get rid of it, New York. More black crime is exactly what I want to see come from your toilet of a city. Eventually, you won’t be able to hide *who* the criminals are for much longer.

    • NeanderthalDNA

      It’s getting very bad. That story about the Australian kid – shot down in a nice neighborhood.

      Lock and load time approacheth faster than I thought.

      • A Freespeechzone

        When you have support of violent crime against innocent citizens endorsed from the WH; which emboldens blacks to violently attack Whites–knowing they will not be held accountable.

        Remember that law enforcement has NO OBLIGATION to protect you or your family per a 2005 ruling by the SCOUS; so, your safety and that of your family is YOUR RESPONSIBILITY.

        Since I don’t live in NYC; frankly, I don’t give a crap about them–they have consistently elected leaders there that put citizens at risk….imagine a Weiner administration.

  • “Stop, question and frisk”

    Finally, someone gets it right. Even if it is one of the questionable previous President’s questionable cabinet members.

    Remember, Bloomberg recently came out and said that they SQF a few more whites than needed just to try to shut the other side up. (Which is obviously working so well.)

  • din_do_nuffins

    Our national prosperity is wasted trying to manage the horrors of the Diversity Curse.

    Our tolerance for humiliation degradation and missed opportunities must astound even Jesus.

    Hinton Rowan Helper was right- we can’t move forward toward greatness of destiny with the black undertow following us and always destroying what we create.

  • Luca

    A Tale of Two Cities.

    Chicago and New York have very similar racial populations.

    Chicago’s murder rate is about three times higher than NYC.

    NYC uses Stop, Question and Frisk, Chicago doesn’t.

    If racial profiling in some form could save hundreds of lives per year, would it be worth it?

    Not in the mind of a liberal. They never let life and death facts get in the way of their agenda.

    • MBlanc46

      Admitting any sort of racial profiling on the basis of empirical fact would be the first step on a very slippery slope. Our opponents in this debate are clearly aware of that and will oppose it to the bitter end.

      • Sue

        But profiling DOES exist with no complaint. Let’s see, there’s seniors and teen drivers insurance that they use stats on to raise their rates. NOT illegal stats because we pay for all of that. Watch a cop stop white teens for less hassle.

        • MBlanc46

          I did say “racial” profiling. The integrationists will oppose that with all they’ve got.

          • Sue

            Yes, you did. Adding to it and there’s white profiling which of course isn’t because we’re up for grabs.

  • Jefferson

    I notice that cities in the U.S where the percentage of Blacks is in the single digits, does not need to resort to extremely aggressive policing in order to keep the peace. Gee I wonder why that is ?

  • Spartacus

    “All of this is good news for an appeal—but the appeal may never be
    heard. Several contestants in the Democratic primary for mayor have said
    they will make certain if elected that any city appeal is withdrawn.
    Because the case cannot possibly be briefed, argued and decided before
    the next mayor takes office on Jan. 1, 2014, there may be no appeal.”


    Great ! I want New York to look like Detroit !

  • libertarian1234

    Well, so far, just recently, Obama and the other blacks elites, want to discontinue disciplining blacks in schools; they want drug penalties for blacks eased drastically; they want convicted felons to be able to vote; they want to let out of prison black criminals convicted of low level doping and sales; they want a reduction in all black sentences to be no more than that given to whites even though the threat and circumstances usually always differ; they don’t want blacks incarcerated at greater rates than whites nor do they want blacks to be executed for murder in greater rates than whites and they don’t want blacks to be profiled in areas where black crime and murder are out-of-sight.

    That’s not all of their demands, but it amounts to the crux of what they require right now.

    And after they finish with all their requirements for whites to adhere to they want it known that whites are self-absorbed and racist, looking out and concerned only with other whites.

    If person didn’t know any differently, he would think these edicts originated from the present inmate population of a nut house.

  • Yesterday, Bloomberg and various NYPD officials at his flank showed off some recently seized guns. (Improperly, they were pointed in the direction of the media members attending the press conference. Though some might consider that a feature and not a bug.) First off, you might have to presume that some of these guns they’re showing were seized long ago and already shown; various cities and P.D.s have been caught doing that. But what I find strange is that Bloomberg, in his presser, blamed North Carolina and South Carolina but didn’t give credit to SQF.

  • Romulus

    As reported yesterday on the nightly news some two hundred guns were seized by customs officers in new York from some would be hispanic smugglers. The law is ripe for appeal.

  • negrolocaust

    blacks do not belong around any other race of people someone transport these monstrous creatures back to africa they are not civilized or intelligent and do not belong around people.

    • Whitetrashgang

      And that is their good points, although you would have to consider does the wildlife of Africa want them?


    What’s funny about this is the fact that we all know that doing away with the stop and frisk policy is going to lead to a large increase in black people murdering other black people. However, when that happens the same black and Liberal hypocrites are going to be carrying on about how the police aren’t doing enough to stop these murders. Followed by the inevitable cries that the police are racist who simply do not value black people’s lives. Otherwise, of course, they would be doing more to protect them, right?

    This hypocrisy reminds me a little of how 90% of the so called black leaders in the mid 1980’s were the biggest pushers for mandatory drug sentences. Especially after Len Bias died from snorting coke. Yet today they have completely removed themselves as the main cheerleaders and backers for the mandatory drug sentences. And filled their now empty cheer leading, stiff penalty demanding, disgustingly foul smelling shoes with some nonexistent, evil white racist of mythical proportions looking to keep a brother down.

  • “Several contestants in the Democratic primary have said they will make certain if elected that any city appeal is withdrawn.”

    Distilled down, this means these Democrats have adopted runaway criminality as part of their party platform. Not only that, they are indirectly endorsing the white flight and urban decay that crime creates. I was under the impression – apparently mistaken in this case – that municipal governments wanted to attract businesses and young professionals, rather than driving them away.

  • “Hordes”. I see this sort of thing all the time, and call them “Homophonic Spellcheck Errors”, because so long as the wrong homophone is spelled properly, Spellcheck will not catch the mistake.

    How many boards could a Mongol hoard, if a Mongol horde could hoard boards?

    • I couldn’t hoard any. I don’t have any room for all the jars of pickle peppers.