Opinion

Shira’s ignorance

Roughly 12 percent of the pedestrian stops made by the NYPD result in an arrest or a summons. US District Judge Shira Scheindlin clearly believes that that number is too low and that it demonstrates NYPD abuse of blacks and Hispanics, who constitute the majority of stop subjects.

Presiding over Floyd v. New York, the marathon stop-question-and-frisk trial against the department that finished last week, Scheindlin frequently echoed another longstanding conceit of the anti-cop advocates: that every person who is not arrested or summonsed after a stop is by definition innocent of any wrongdoing, and has by implication been unconstitutionally stopped.

Expect to see the allegedly “low” rates of post-stop arrests and summonses figure prominently in Scheindlin’s ruling.

Yet Scheindlin, who has no policing experience whatsoever, has no idea what a proper stop-to-arrest ratio should be, nor has any court ever weighed in on the matter. Nor did the the lead attorneys in the case (the Center for Constitutional Rights and the elite law firm of Covington & Burling) offer any testimony on the constitutionality of any arrest and summons rates; they merely claimed that a 12 percent ratio represents an abuse of policing power.

So, if Scheindlin rules that that rate is illegal, she’ll be legislating in an area about which she knows nothing and with no evidentiary record on which to base her ruling.

Let’s review the facts.

First of all, just because someone is not arrested following a stop does not mean that he was not preparing for or engaged in a crime:

* If a cop sees someone trying the door handles of cars parked along a street, for example, the officer may have no grounds to make an arrest for auto theft after questioning him, but that individual may in fact have been looking to steal a car. Presumably, Scheindlin herself would want an officer to intervene if he observed such behavior on her block.

* If a public-housing project has experienced a series of sexual assaults in its elevators and stairwells and an officer sees someone loitering nervously in a lobby who then quickly follows a woman up a stairwell, that officer can’t preemptively arrest him for sexual assault — but stopping and questioning him could well avert a crime.

Moreover, even if someone is wholly innocent of wrongdoing, that doesn’t mean that the stop was unjustified — though it does mean that the officer must do everything in his power to explain the grounds for what can be a humiliating, infuriating experience.

The legal standard for making a stop is whether the officer has a reasonable suspicion that the individual is committing or about to commit a crime. That “reasonable suspicion” standard is far lower than the “probable cause” standard for making an arrest.

Indeed, the first official salvo in the anti-stop-and-frisk campaign — the 1999 state Attorney General’s Report, which analyzed NYPD stop activity — said that it was “obvious” that the “fact that a large number of stops did not result in an arrest is not evidence of poor policing.” Given the lower threshold for making a stop, the report opined, “it is not surprising that . . . many such stops should fail to result in an actual arrest.”

The Floyd plaintiffs’ own expert witness, Columbia law professor Jeffrey Fagan, deemed just 6 percent of the NYPD’s stops over the last eight years apparently unjustified. So Scheindlin will have to ignore his analysis on that point if she finds the 88 percent of stops that result in neither arrest nor summons to be presumptively invalid.

Scheindlin and the advocates have also lambasted the gun yield from stops: 768 firearms recovered in 2011, out of 685,000 stops (only about half of which involved a pat-down). This low harvest, they say, shows that stops are ineffective.

But getting guns off the street is only one purpose of stops; officers question pedestrians for plenty of crimes that don’t involve a gun, such as burglary, trespass and strong-arm robbery.

And the relatively low yield demonstrates stops’ effectiveness, not the opposite. Many criminals have been deterred from carrying guns; the self-reported rate at which New York teens pack heat is at its lowest recorded level and lower than in any other major US city, as confirmed by New York’s small-town level of homicides.

Most fundamentally, Scheindlin misunderstands the nature of New York policing. The NYPD brought crime down to unprecedented lows over the last two decades by shifting the department’s focus from reacting to crime after it had occurred to preventing crime before it takes place. Using an officer’s powers of observation on the street to look out for and intervene in suspicious behavior is a key component of such crime prevention.

Thus, the ultimate measure of stops’ success isn’t how many arrests they yield, but how many crimes they deter.

It is precisely New York’s proactive style of policing that the lawyers in Floyd v. New York want to shut down. In closing arguments, attorney Jonathan Moore disapprovingly cited Mayor Bloomberg’s full-throated April 30 defense of the NYPD: “The days of being a first responder [are] over,” Bloomberg had said. “We should consider ourselves first preventers.”

Moore told the judge: “That’s a very dangerous concept, a very dangerous notion to instruct your police officers. What are the constitutional limits of being a first preventer?”

He’d tipped his hand. The advocates claim they don’t aim to preclude stops entirely, yet in fact their goal is to return New York to purely reactive policing.

If they succeed in that mission with Judge Scheindlin’s assistance, New York’s unexpected freedom from fear will come to an end.

Heather Mac Donald is a contributing editor to the Manhattan Institute’s City Journal and the author of “Are Cops Racist?”