Home / General / Recognizing the Obvious Unconstitutionality of Bloomberg’s Stop-And-Frisk Program

Recognizing the Obvious Unconstitutionality of Bloomberg’s Stop-And-Frisk Program


It was an easy case, really, which is why defenders had to make bad arguments about the policy’s effectiveness rather than trying to argue that it wasn’t arbitrary and discriminatory:

Given the data, Scheindlin had little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as the equal protection clause of the 14th Amendment. A large number of searches have been conducted without reasonable suspicion, and these suspicionless searches have disproportionately targeted racial minorities. Of 19 individual stops, the court found that nine of the stop-and-frisks were unconstitutional, five of the frisks after stops were unconstitutional, and five were constitutionally permissible.

As MSNBC’s Adam Serwer notes, particularly telling is that most defenses of the NYPD’s program all but conceded its unconstitutionality. Rather than trying to deny that the program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: “Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”

Even if one were to argue the effectiveness of the policy should cause us to overlook those pesky Fourth and Fourteenth Amendments, the evidence for the NYPD program’s effectiveness is very weak. The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.

There’s no reason to make this causal inference. The drop in violent crime rates in New York began well before the current stop-and-frisk program. Violent crime is declining nationally, not just in New York. Violent crime continued to drop in New York in 2012 even as the number of stop-and-frisk searches declined.

More at the link.

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  • Colin Day

    Yeah, I’d to see Judge Judy read Mayor Bloomberg the Riot Act!

    Or is this a different Judge Scheindlin?

  • joe from Lowell

    But it’s hard to avoid the conclusion that vague hunches are in fact responsible for many stop-and-frisk searches.

    I think it’s worse than that. I think the police were stopping people without even a hunch, in order to generate an aggregate effect of making the general public (or a subset thereof) feel that they could be subject to being searched at any time.

    It was either Stalin of Lenin who wrote that punishing the guilty was all well and good, but punishing the innocent was how you really let the masses they’d better watch their step.

    I don’t think a veteran NYC cop’s hunch about who is carrying a gun or some coke would be wrong 9 out of 10 times. I don’t think you can get to that “failure” rate unless you’re using the same criteria on the streets of New York that the TSA uses in the security line at an airport.

    • Uncle Kvetch

      I think the police were stopping people without even a hunch, in order to generate an aggregate effect of making the general public (or a subset thereof) feel that they could be subject to being searched at any time.

      Exactly. Nicely put.

    • agorabum

      What a about a rookie cop?
      The case put together a lot of statistics for the court; the majority of stop and frisk found nothing. And not just majority: for black men, they found a weapon 1 out of every 93.
      It was actually around 1 out of 45 for ever white person stopped…I guess the veteran cops had a better eye for the white guys.

      • joe from Lowell


        Those numbers make you conclude that we really are talking about good-faith hunches?

      • DocAmazing

        This will be the inspiration for a new reality TV show: Cop Eye for the White Guy.

    • rea

      I don’t think a veteran NYC cop’s hunch about who is carrying a gun or some coke would be wrong 9 out of 10 times.

      That’s not the way it works. If the cop can articulate reason based on his experience, it’s a good stop. If he can’t articulate a reason, if he can only say, “well he looked suspicious to me, I can’t say why,” then it would not surprise me if, veteran or no, he was wrong 9 out of 10 times.

      • joe from Lowell

        That’s not the way it works.

        But, apparently, that is the way it’s been working in the stop-and-frisk program: the police have been stopping people without a reasonable suspicion.

        • L2P

          I can’t remember the last time I saw a report for a Terry Stop that didn’t have at least some BS articuable reason. It’s almost impossible for a cop to go to the effort of pulling somebody over or stop to investigate somebody and not have some “reason” to do it.

          Unless, of course, they’re just being ordered to make tons of stops. Then they end up with nothing.

          • joe from Lowell

            Well, the judge found that there was no reasonable suspicion in a very high % of the cases, so I think it’s safe to assume from that, and from the high failure rate, that there was more “BS” than “reasonableness” in that suspicion.

      • L2P

        The better cops always have a reason.

        The real tell that the NY policy is unconstitutional is that the stops are unconstitutional is that so many NYPD officers can’t even come up with a bs articuable basis for the stop. I mean, they can’t come up with anything like “I remembered a crime report of xxxxxx and the suspect seemed to fit the description in some vague way?” That the suspect “lingered in front of a store and appeared to be paying undue attention to security and the number of transactions?” That the car was “circling in a suspicious manner” around businesses?

        That’s a sign that the cops are overworked, that they’re being told to just go out and get contact. If they can’t find a reasonable suspicion for somebody they pulled over they’re just pulling over everybody. If they had any sort of leeway at all they’d at least be able to justify their stops, if not their frisks.

        • Another Holocene Human

          More proof Compstat and the last few decades of leadership of NYPD are garbage–cops minimizing crimes on the one hand to look better, like never charging anyone ever no matter how reckless for killing innocent people with a motor vehicle, while making hundreds of meaningless “contacts” probably making crime worse in the scheme of things, I mean how many times do you abuse a young person before they break, how much pressure do you put on a community before it starts to affect the economy there, etc?

          • joe from Lowell

            Compstat has been put to excellent use in Lowell.

            Of course, Lowell is the birthplace of community policing, so the idea of a “contact” is probably pretty different from NYC.

          • DAS

            Maybe as the spouse of an out-of-work attorney, I’m prejudiced in favor of allocating resources to hire more attorneys, but part of the issue here are the downstream costs and resources available and whether the city chooses to spend money on those resources … it isn’t just compstat, although it is cops trying to look busy.

            For instance, if you charge someone with vehicular homicide, you need to have a trial and what not, and that means you have to have a prosecutor available, resources for the trial and what not. OTOH, if you stop-and-frisk someone and 9/10 times you don’t even make an arrest, well as a cop you can show you are busy without giving prosecutors too much work.

            The reason why I say part of the issue is low hanging fruit and misplaced priorities and not just Compstat is when you consider other aspects of city law enforcement. For instance, NYC is maniacal about parking enforcement in relatively well-off areas (like Forest Hills) where people can afford to pay their tickets and won’t spend their valuable time asking questions and has installed red-light cameras (full disclosure, I’ve been busted a couple of times), which give tickets treated like parking tickets but are otherwise hard to fight. Meanwhile, I live in an apartment building with many families with young kids that is right across a parkway common-road from a playground. Countless drivers speed along said common-road (while avoiding parkway traffic) putting our kids at risk. But does the city even bother to send a cop around to ticket people for speeding and reckless driving? In particular, Bloomberg through a fit about even having a five minute grace period for muni-meters even though someone overstaying in their parking space even by 10 minutes doesn’t so much as give anyone a scratch but does anyone in the city government seem to give a rat’s posterior about speeders who put our kids’ lives in danger?

    • DAS

      It was either Stalin of Lenin who wrote that punishing the guilty was all well and good, but punishing the innocent was how you really let the masses they’d better watch their step.

      Isn’t that pretty much the point, as articulated even by the program’s defenders, of stop-and-frisk? Not necessarily to catch crooks but to make potential crooks realize that they could be caught no matter how un-suspicious they act? After all, you never know when you might get stopped-and-frisked, so don’t bother committing a crime …

  • NonyNony


    Rather, police officers needed to have a reasonable suspicion (“whether a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger“) that a suspect poses a dangerous threat.

    The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.

    Okay so I’ve seen the stats on the number of arrests made with the stop-and-frisk policy vs. the number of folks stopped. What I haven’t seen is any reporting on what those folks have been arrested for. How many of them are for something that might lead to violence, how many of the are for possession of enough drugs that it looks like they’re dealing, and how many of them are for possession of small amounts with no real belief that they’re intending to sell?

    In those latter two cases, it really seems like you’d be stretching the whole idea that the “safety of others is in danger” beyond belief. Is there any reporting on this? Because if that whole 10% of people who were actually arrested on a stop and frisk were all arrested on charges that might lead to violent crime, I’ll eat my hat. Without ketchup.

    • rea

      I’ve seen a defense argument win in court along these lines:

      Q. Well, officer, so you frisked my client for weapons?

      A. Yes.

      Q. And you felt an object in his pocket?

      A. Yes.

      Q. What did that object feel like to you?

      A. A medicine bottle.

      Q. Not a gun?

      A. No.

      Q. Not a knife?

      A. No.

      Q. And you seized that object from my client’s pocket?

      A. Yes.

      Q. And what did it turn out to be?

      A. A medicine bottle . . .

      Illegal search & seizure. Q. E. D.

  • Joe

    It’s good to provide analysis since few people are going to read an opinion to what Sentencing Law & Policy Blog said added up to over 200 pages.

  • rea

    Well, of course, the whole point of the program was that the stops and frisks were unlikely to uncover anything. If the stops actually turned up evidence, the prosecutors would have to defend them in court over and over again, as defendants moved to have the evidence excluded. They could only get away with a facially illegal program like this if no one was strongly motivated to contest them.

  • Unlearner

    The argument is often more like ante hoc ergo propter hoc.

  • agorabum

    I’m a big fan of Kevin Drum’s lead connection. As long as lead levels in the blood of kids keep declining (from the cessation of the use of leaded gasoline leaving less lead in the atmosphere and on the surface of things / in the soil), controlling for other factors, crime rates will continue to decline.

    • joe from Lowell

      Drum’s thesis is very tempting. What would really bring it home for me would be population of non-inner-city poor people who with high levels of childhood lead exposure who had an elevated crime rate – children of lead miners or something.

      The crime stats also line up well with another factor, that Drum doesn’t consider in his list of alternative explanations, that also has been shown to have a causal relationship with criminality: the construction of urban renewal projects, and the end of that era.

      If you go back further than 1937, you can see that the low rates in the late 30s and during World War 2 were a historical anomaly, and the rise in the decade after the war can be explained as a reversion from that anomaly. You can see the period of lower rates from about 1955 to 1965, and then rising rates after that, in the blue line in Drum’s chart. It settled right around 450 violent crimes per 100,000 people – which is also right around where it settled in the middle of the 00s, despite the lead levels continuing to fall.

      So another way to look at that data is to see 450 as the “normal” level, with a rise above that level, and a drop back to it, taking place between 1965 and 2005. This lines up with the urban renewal era with an offset of about ten years.

      I think both factors are important.

      • Another Holocene Human

        I guess you never bothered to read all of Drum’s material, because the Lead theory accounts for both of these. First of all, industry and lead paint were the major urban contributors of lead poisoning before the Great Ethyl Scam. In fact, the ugly part about it was that Lead abatement was in full swing when the leaded gasoline was foisted on the public. The urban renewal projects were sited next to the neighborhood-razing highway extensions. As you well know, these projects went hand-in-glove. Drum writes about Cabrini Green’s proximity to a congested highway where plumes of fumes enveloped the area daily.

        Lead was first suspected in the US as an issue because of the harm it wreaked on factory workers.

        Come back when you have an issue he hasn’t addressed. Researchers have looked at multiple countries, falsifying the infamous Freakonomics hypothesis but continuing to find data consistent with Lead poisoning. From a Bayesian point of view there is also a ton of prior plausibility here.

        The stuff you’re talking about may be more relevant in discussions of IQ and IQ rise. Interesting posts on PsychologyToday.com about that recently.

        • joe from Lowell

          Actually, I read Drum’s piece back when it came out, and again today thanks.

          No, he does not “account for” urban renewal. He doesn’t mention urban renewal once in the entire piece.

          Nor does he “account for” the historically-low crime levels in the World War 2 era. Another topic he doesn’t mention anywhere in the piece.

          So, I guess I can “come back” right now.

        • joe from Lowell

          The stuff you’re talking about may be more relevant in discussions of IQ and IQ rise.

          No, it really doesn’t. That would have a great deal more to do with lead.

          I’m starting to wonder if you comprehended anything I wrote at all.

        • joe from Lowell

          The urban renewal projects were sited next to the neighborhood-razing highway extensions. As you well know, these projects went hand-in-glove.

          So it is definitely one and not the other!

  • Chief Justice Roberts

    I have to disagree with the decision here. Obviously stop-and-frisk is constitutional for the same reasons that section 4 of the VRA was unconsitutional.

    • Charlie Rangel

      Cracker, please.

      • bexley

        Err I thought I was pretty clearly mocking the hacks on the Roberts court with that post.

        • MAJeff

          And I thought I was mocking Roberts himself.

  • Bloomberg’s and Kelly’s press conference yesterday was as openly racist as any I have seen by a public official in a long time.

    The basic problem here is that the fact they keep citing– “blacks commit more crimes!”– is irrelevant when the crime rate is low and most of the people you are stopping are innocent.

    Let’s pretend we got the murder rate down to 5 people per year. But 4 of those murders were committed by blacks. Would people seriously argue that we have to do mass searches of innocent black people because “blacks are 4 times more likely to commit murder than whites”?

    And it’s just plain racist. I don’t know much about Kelly, but Mike Bloomberg is not innumerate. He knows he is misusing statistics. He wants to misuse statistics because he wants to preserve white privilege in this area.

    • L2P

      I in general agree with every thing you’re saying. But I think you’re wrong in thinking people understand statistics.

      I see lots of well-intentioned (or at least not racist), normally smart, pretty savvy people get totally flummoxed by statistics when crime is involved. Small statistical chances totally confuse them. If the black population commits a crime 4/100,000, and the white population commits a crime 2/100,000, they can’t seem to get their minds around the fact that random stops directed at the black population is extremely, extremely, extremely unlikely to deter any more crime because the vast majority of that population isn’t doing anything illegal. They want action, and they see something that “should” work if you are just really summarily looking at things, and that’s it.

      I have no doubt that there’s racism involved a lot of the time. There’s plenty of racist policies out there. But directed policing, IMHO, isn’t one of them. It is very numbers driven. I have no doubt that if the murder rate was 5 people per year, but compstat showed that all 5 were killed by white people in West LA, LAPD would pull traffic from South LA start directing increased traffic stops of people in Westwood and the Palisades. I’ve seen very similar things happen.

      A lot of law enforcement honestly (if stupidly) believes that’s the best way they can stop crime.

      • I have no idea whether the cops who implement this stuff are racist (although some of them probably are). I was talking about the policymakers– and specifically, Mayor Bloomberg, who has a background in the finance sector and understands statistics.

        • L2P

          Well, I can tell you that I’ve seen a guy with a PHD in math who was a consultant hired specifically to advise law enforcement on statistics-based policing make exactly the same argument Bloomberg is making. I think you underestimate the drive on law enforcement (and the civilians who control law enforcement) to “do something” about crime.

          I don’t know if Bloomberg’s a racist. But it’s hard for me to look at this and see “preserving white privilege” as the issue. If a flood of poor white people emigrated to a different part of NY and crime rates started soaring, I have little doubt he’d be doing the exact same thing there and we’d have a bunch of poor white people showing up in reports. YMM, of course, V.

          • joe from Lowell

            LSP, “They were doing it to stop crime” doesn’t remove the racial element. Zimmerman was doing it to stop crime, too.

            Dilan, “They were doing it because they’re racist” doesn’t eliminate the intervening step of wanting to stop crime. Zimmerman was doing it because he was a racist, but his racism made him think, “That kid is a criminal,” not “Let’s keep down the darkies.”

    • Another Holocene Human

      Bloomberg has really shocked me recently. I mean, I don’t have much love for the guy, but it’s always surprising I guess to have someone say that kind of stuff openly. I mean, what is it, 1983? Can we really be flogging this old white resentment (white supremacy) narrative with a fucking straight face? Is there not a crumb of shame to be found among NYC’s leadership? What the actual fuck?

      • 1983? Are you joking? In 1983 such statements would have been even less acceptable than they are today.

        You occasionally heard that kind of thinking from some southern racist mayor back in the ’60s, but you certainly didn’t hear it from the mayor of New York in 1983.

        I know the election of Barack Obama is supposed to have “proved” something about racial attitudes in America having improved over the last couple-few decades, but the fact of the matter is that the mainstream discourse has actually become worse since the 1980s.

        • Hogan

          You realize you’re talking about Ed Koch, right?

  • I wonder if Mayor Bloomberg has ever been stopped and frisked?

    • Another Holocene Human

      In Boston and New York they used to stop and frisk patrons in gay bars to make sure they weren’t wearing underwear and socks belonging to the wrong gender, otherwise it was off to the paddywagon with the gender outlaws!

      It’s always, always intended to be dehumanizing, a form of social control enacted upon the powerless to serve some sick need of the dominators.

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