Posted on August 20, 2013

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.