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Stop-and-Frisk: A Response to Ben

This week, Ben and I debated the New York stop-and-frisk ruling for Scripps Howard News Service. Usually, we each get our 300-odd-words in, and leave it at that.

This week, though, I find a lot to object to in Ben’s take—and find that my own half of the column doesn’t really address those objections. (We write separately, so I don’t often see Ben’s take until it’s going to the publisher.) So this week, I offer a rare fisking of my colleague.

Standard disclaimer: Ben and I agree on little, but he’s my friend—a good and loyal friend—so please understand that though my objections here may be vigorous, they are by no means personal. This is the relationship we have.

Ben starts:

Contrary to critics’ claims, stop-and-frisk is indeed an effective crime deterrent. If Judge Scheindlin’s decision holds up, New Yorkers will soon discover just how effective it was.

Okay, then, let’s examine Ben’s case.

Understand exactly what Scheindlin ruled in the class-action lawsuit against the New York Police Department’s policy: Of 19 egregious stops cited in a case covering eight years, the judge determined 14 of them were unconstitutional.

Sounds like a lot of abuse until you learn that the NYPD conducted 4.4 million stops over the same period. The judge, therefore, voided an entire program because 0.0000031 percent of stops between 2004 and 2012 violated individuals’ rights.

This is misleading. Scheindlin didn’t make her ruling purely on the basis of of those 19 stops. She also relied on statistical analyses of those 4.4 million stops, and expert testimony provided by both sides about the meaning of that statistical analysis—a task rendered somewhat difficult by the NYPD’s refusal to collect more precise data (even though it prides itself on its data-driven approach to policing). She also relied on testimony about the statements of top departmental commanders and officers in finding the policy discriminatory.

Something to note—even at its worst, “stop and frisk” isn’t supposed to be an unlimited license to police to pull over any person they choose for the stopping and the frisking. They’re required to have “reasonable suspicion” that criminal activity has or is occurring. Yet in 36 percent of those 4.4 million stops, police didn’t identify even a cursory reason for making the stop.

Contra Ben’s assertion, Scheindlin ruled with the big picture in mind. The big picture doesn’t actually aid his case.

Even one violation is too many, you say? Maybe so. But civil libertarians sometimes forget what government exists to do: protect life and property. Murder, rape, and robbery deprive people of their rights, too, in the worst ways possible.

Here’s Ben in 2010 writing about the Transportation Security Administration, and it’s worth quoting at length:

If I had my druthers, I'd abolish the Transportation Security Administration, jail its administrators and exile its agents to North Dakota. But I'd settle for Homeland Security Secretary Janet Napolitano's resignation and for Congress to simply "zero out" appropriations for these invasive, full-body scanners that have many travelers rightly outraged.

And instead of investigating citizens like John Tyner who stand up for their right not to be groped, Congress should be investigating TSA bureaucrats who openly violate those rights.

Napolitano and her allies in Congress, such as Sen. Joe Lieberman (I-Conn.), would have Americans believe their liberties and personal dignity is nothing compared with the terrible toll a terrorist could inflict without such invasive measures in place.

But the new scanners seem to be of limited utility. I went through one at Lihue Airport in Kauai a few months ago, and TSA agents still had to frisk me because of some anomaly that appeared on my shoulders, of all places. The process was laborious and slow, and I was lucky the airport wasn't very busy.

In the face of this, a CBS News poll finds 80 percent of Americans have no objection to the new policies and procedures. Obviously, those people haven't been subjected to them. But the poll suggests too many Americans are all-too eager to trade their liberties for the illusion of security.

What happened to us? In the days and months following 9/11, Americans showed real grit and determination. Shortly after air travel resumed in 2001, a United Airlines pilot famously informed his passengers of the new rules: In the face of danger, stand and fight. "We will not allow them to take over this plane," the pilot said. He concluded: "I find it interesting that the U.S. Constitution begins with the words 'We, the people.' That's who we are, the people. And we will not be defeated."

Writing on his blog, Tyner called for a recovery of that post-9/11 spirit: "It's time to stop treating passengers like criminals and start treating them as assets." We're prosecuting him? Let's make him Secretary of Homeland Security.

As you can tell, Ben rejects the idea that the security versus liberty debate is “either-or”—he goes out of his way, in fact, to heap his contempt upon those who trade their liberty too easily for security. I like this version of Ben.

So what’s the difference between angry-at-TSA Ben and fine-with-frisking Ben? He has suggested that the former is “security theater” while the latter is “effective.” But that’s a questionable distinction, and in both cases officials assert that much crime (or many terror attacks) don’t occur precisely because of such theater: People know not to carry guns on the streets in New York, or bombs into planes because of TSA. This appears to be a case of “liberty for me but not for thee” by my friend.

Stop-and-frisk has been an integral part of a broader strategy to slash crime dramatically in the Big Apple. Major felonies fell 31 percent from 2001 to 2012. There were 414 murders in New York last year, the lowest since 1963.

Correlation, as Ben knows, does not equal causation. Truth is, violent crime is dropping everywhere in America, including in cities—like Chicago—where stop-and-frisk isn’t practiced. Stop and frisk advocates don’t offer evidence why we should believe that tactic is particularly effective, given the universe of declining crime rates. Using Ben’s start date, I could just as plausibly argue that the falling murder rate in New York was sparked by a collective “come to Jesus” moment after 9/11, in which would-be murderers cast aside their weapons and dark impulses to join the Brotherhood of Man.

It’s true that the vast majority of black and Hispanic men commit no violent crimes. But it’s also true that blacks and Hispanics commit nearly 99 percent of all violent crimes in New York City’s 88th Precinct, where the class-action suit originated, and more than 93 percent of crimes in the city.

Reality didn’t seem to matter to Judge Scheindlin, who selectively highlighted supposed racial disparities in stops while downplaying actual crime demographics. The implication, as City Journal’s Heather Mac Donald points out, is that while “whites and Asians commit less than 1 percent of violent crime in the 88th Precinct and less than 6 percent of all crime, they should make up 40 percent of all stops—to match their representation in the local population.” Ridiculous.

That’s a complete misrepresentation of Scheindlin’s ruling. In fact, a good portion of her ruling is devoted to an examination of “actual crime demographics.” The New Yorker describes the expert testimony  regarding that issue.

In another statistical exercise, Fagan compared the number of stops in each enforcement area, and the race of the people stopped, to a benchmark that he constructed based upon the racial composition of the area and its crime rate. This benchmark was designed to provide a rough guide to what the racial distribution of stops would have been if the police officers carrying them out had been acting in a racially neutral manner, without any personal or institutional biases. By comparing the actual history of stops in each area to the benchmark, Fagan was able to show that the number of blacks and Hispanics stopped appeared to be excessive, even allowing for the fact that these groups are more likely than others to live in high-crime areas.

And that was not all. Fagan’s analysis also showed that blacks and Hispanics, once they had been stopped, were more likely to be subjected to the use of force, even though the probability of the stop resulting in further action—like an arrest, or a summons—was actually lower in cases involving minorities than in those involving whites.

Scheindlin cites this research extensively in her ruling. In other words, she took the standards that stop-and-frisk advocates urge—let’s apply this practice where the crime is—and found that minorities were still stopped disproportionately, usually for less cause, and treated rougher than white counterparts. She makes no demands that whites be subject to 40 percent of stops; she accepts the logic of policing where the crime is and still finds discriminatory patterns. That’s a far cry from the caricature that Ben (and Heather Mac Donald) paint of her.

Ben concludes by warning that Scheindlin’s ruling will have disastrous effects. “When felonies surge, don’t be surprised that poor and minority neighborhoods—like New York’s 88th Precinct—fare the worst.” And it’s true: The proof will be in the pudding. If crime suddenly shoots up in New York after this ruling (despite the lower crime trends everywhere else, remember) then we—all of us—will have to re-assess our convictions. Right now, though, the evidence doesn’t offer much to support the idea that we should be trampling on the liberties and Constitutional rights of brown people in New York.

POSTSCRIPT: I’ll conclude with an observation about conservatism and race. My conservative friends hate, hate, hate to be called racist. I take them at their word that they genuinely wish to view the world in race-neutral fashion, but that still leaves me with a problem.

When it comes time to dole out society’s goodies—jobs, entrance into top-flight schools that help one get those jobs—conservatives are insistent that it is unfair to award extra consideration to individuals based on their being of a minority race. An individual’s own merit should decide whether they obtain those rewards, conservatives say. Here’s Mac Donald in 2007, writing about affirmative action opponent Ward Connerly. “Ward Connerly’s courageous pursuit of a government that ignores race is delivering on the most fundamental promise of the American Constitution: equal treatment for all.”

When it comes time to dole out society’s burdens and punishments, though, conservatives are insistent that it is only fair to award extra consideration to individuals based on their being of a minority race. Here’s Mac Donald writing this year, after the Trayvon Martin verdict: “Here is a proposal: For a good five-year stretch, blacks bring their crime rate down to white and Asian levels. Once it becomes widely understood that blacks are no more likely to steal, rob, rape, or shoot than whites or Asians, we’ll see if blacks still elicit the defensive reactions that Obama alleges in elevators and department stores.”

So conservatives demand we judge individual on their own merit, unless of course they share a skin color with somebody who has committed crime. It’s hard to see a consistent philosophy bridging those two positions, but it’s easy to see a consistent result: Minorities get the short end of the stick.


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