While not disputing the program’s effectiveness, Scheindlin spends pages on numbers to suggest little success from the program. Thus, she relates that a “weapon was found” in only 1.5 percent of the 2.3 million frisks during the eight years she considered. Sounds minuscule when phrased as 1.5 percent, but do the math: 34,500 hidden weapons found, and who knows how many lives saved by preventing their use. Similarly, Scheindlin mocks the small number of searches into clothing that resulted in the officer’s finding something. Again, doing that further search added thousands of guns taken from unlicensed people, and many people, perhaps kids, saved from the seized contraband (criminal matter such as heroin).
Likewise, Scheindlin relates that only “6% of all stops resulted in an arrest, and 6% resulted in a summons.” Doing the arithmetic makes the results meaningful: Over 520,000 persons were thereby apprehended and processed through the criminal-justice system. But even those numbers do not tell the full story that Scheindlin ignores. Police presence, by itself, reduces crime: A policeman walking the beat deters crime even if he stops no one that day. Why? Because criminals prefer committing crimes when not observed by police. Knowledge of the publicized stop-and-frisk program was enough to cause some criminals not to carry guns — thus promoting a legitimate governmental interest. Scheindlin, however, rejected this obvious benefit of police “showing the flag”; she held that it is “pure speculation,” as “no evidence was offered . . . of a single stop that . . . prevented the commission of a crime.” Wake up to reality: How could proof be offered of a crime that did not occur? — other than recognizing the substantial reduction in crime accompanying the stop-and-frisk program.
Take Scheindlin’s rejection as “speculation” of the benefit of police presence and activity in preventing crime, and contrast that with most of her supposed factual findings of discrimination and police misuse of the program. These are phrased as speculative possibilities, denying certainty to her factual grounds for declaring stop-and-frisk unconstitutional. Examples: it “may” be, “likely,” “officers may have a systemic tendency,” “it would be surprising” if it “weren’t so,” “if so,” “unconscious bias could help explain,” “may contribute,” “more likely,” “may well be,” “might be.”
Because of the program’s success, Scheindlin, as already noted, never performed the Supreme Court–required balancing to establish that the minimal intrusion on individuals outweighed the public benefit in reducing crime. Rather, she primarily rests on asserting that the program required “indirect racial profiling by directing focus [of] their stop activity on . . . demographic groups that appear most often in a precinct’s crime complaints.” Scheindlin provides an example of this racial profiling: The police instruction that “stopping ‘the right people, at the right time, in the right location’” — that is, people acting suspiciously in high-crime areas — “meant not stopping ‘a 48-year-old lady who was walking through St. Mary’s Park when it was closed,’” inaction Scheindlin labeled “deeply troubling.” Why is it “troubling” to avoid wasting police time on someone not acting suspiciously? Epitomizing Scheindlin’s totally unrealistic decision is the suggestion that, in order for the program to be constitutional, police should spend time stopping and interrogating a 48-year-old woman who was doing nothing but walking through a park.
She finds evidence of discriminatory “indirect racial profiling” in the fact that “over 80% of the . . . 4.4 million stops” made under the program between January 2004 and June 2012 “were of blacks and Hispanics.” She does not dispute that the high-crime areas targeted by stop-and-frisk are mostly populated by blacks and Hispanics. Further, she admits that “approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were black and Hispanic” — each a higher percentage than the percentage of blacks and Hispanics among those stopped. Hence, she is not able to label this police activity as intentional racial profiling because it is not, but instead is due to the make-up of the population of these areas and of the class of criminal suspects, neither of them police-controlled. Scheindlin then retreats to the label of “indirect” racial profiling because these are the “demographic groups that appear most often in a precinct’s crime complaints”; thus the police are “targeting racially defined groups for stops based on local crime data.”
Consider the total illogic of Scheindlin’s reasoning. For example, Harlem, a high-crime area, is overwhelmingly populated by blacks, so that stop-and-frisk would necessarily involve stopping mostly blacks. While Scheindlin mouths agreement that the “racial composition of the areas where they are stopped” must be considered, she never cites the racial composition in Harlem; she instead compares the percentage of blacks stopped against the percentage of blacks in all of New York City. Based on that comparison, she finds it unconstitutional. As a practical matter, therefore, to reduce the high percentage of blacks who are stopped, the police would, according to her, have to institute a stop-and-frisk program in, for example, the Upper East Side, where the population is heavily white, and would have to stop people even though no rampant street crime exists in that area and even if no suspicious activity is seen. The bottom line of her decision is that, to avoid the appearance of discrimination against blacks and Hispanics, the police must engage in actual discrimination against, and unconstitutional stopping of, whites — an unacceptable judicial direction to police to violate the constitutional rights of people because they are white! And her ruling would also discriminate against Hispanics and blacks who are potential victims of crime, by directing that police ignore the high-crime areas in which they live.