Why Stop & Frisk Is Way Too Hard For Cops

Among the many reasons why SDNY Judge Shira Scheindlin’s decision in Floyd v. City of New York, holding the stop & frisk program unconstitutional, was inevitable was this key explanation up front:

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool.

Not long. Not particularly prolix. One would think that it communicates its point pretty darn clearly. But if someone who reached as high as former first deputy police commissioner John Timoney can’t get it, something is very wrong.

Timoney, in a New York Times op-ed, writes:

No one, of course, should be stopped by a police officer on the basis of skin color or ethnic origin. The judge, Shira A. Scheindlin of Federal District Court in Manhattan, found that the benefits of ending what she considers to be unconstitutional stops would far outweigh any administrative hardships.

Why is it, then, that no one on the losing side of this decision grasps that this has nothing to do with weighing the benefits against the hardships? Hanlon’s Razor tells us not to attribute to malice that which can be adequately explained by stupidity, but it’s impossible to think that Timoney is that stupid. It also reminds us not to rule out malice, and so that’s the path I’m taking.

Immediately following the ruling, Mayor Bloomberg and Police Commissioner Ray Kelly ripped Judge Scheindlin for her activist effort to substitute her vision of effective policing for theirs. That’s to be expected, given that this was a hallmark of the Bloomberg administration, and no one took seriously the efficacy of the Mayor’s nasal incantations of stop & frisk any more than they did his soda ban.

But Timoney, taking a break from his consultancy for the Interior Ministry of Bahrain, seeks to spin the loss in a different direction.

Still, the reforms she has laid out are sweeping in their impact on the department and its 35,000 officers, who have been excoriated and vilified in the months leading up to the trial and in the aftermath of the ruling.

While most see the court’s remedies as, well, rather tepid, and to the extent any cop has been vilified, they have no one to blame but themselves and their commanders, Timoney’s effort is directed to spinning this as a pocketbook problem:

[O]ne thing seems clear: the judge’s remedy will be enormously expensive and time-consuming to implement, and at a time when the number of stops is falling dramatically.

Wow. Of the many things no one saw coming, enormously expensive? How so, John?

Officers, in effect, will be untrained in the old policy, then trained in new stop-and-frisk procedures. They will be taught about racial profiling and “unconscious racial bias,” and what constitutes a stop and the legal basis for a search.

Timoney is playing on a fundamental misconception that Judge Scheindlin sought to clear up. A police officer’s authority to stop and frisk doesn’t derive from a program, but from the Supreme Court’s decision in Terry v. Ohio, and in New York, from People v. DeBour. Kelly didn’t dream it up. Bloomberg didn’t come up with it. And Judge Scheindlin can’t create it or end it. It’s the law.

So what Timoney is apparently saying is that the NYPD has trained its 35,0000 officers wrong. Terry (1968) and DeBour (1976) were the law before most of today’s cops were born.  The NYPD has a whole department full of lawyers who ought to be fully capable of explaining, should the brass need an explanation, what the law is.  And yet, Timoney says it will be “enormously expensive” to untrain, then retrain, the police?

Why it should be expensive to correct this relatively simple, yet flagrantly gross error, is never made clear. However, being a civic-minded fellow, and inclined to help the police whenever possible, I offer an inexpensive suggestion, free of charge.

At roll call, the sergeant tells the cops:  Remember when we told you to toss anybody who piqued your interest for whatever reason, and make sure you threw at least 10 black kids against the wall every month?  Well, forget it.

From now on, you can’t stop anyone unless you have a “reasonable and articulable suspicion” that he has, is or will commit a crime.  And you can’t frisk ‘em unless you have an objective reason to believe that he has a weapon and presents a threat to your safety. Now, be safe out there…

That wasn’t so hard. But there is still one piece to the job that Timoney claims will be a huge problem:

They will learn how to fill out a new stop-and-frisk form, with the current checkboxes replaced by a “narrative section where the officer must record, in her own words, the basis for the stop.”

Fair enough, John. This could be a deal breaker. Real words, formed into sentences, spelled sufficiently well to be read by someone else and giving rise to something resembling cognizable thought?  Well, that’s a huge leap from checkboxes.

And yet, the expectation that police would be held to an actual explanation before their seizure of a person makes the CompStat tally board really isn’t too much to ask. Most cops made it through school, and can form simple sentences. Most can use words that actually explain why they took actions that made other people’s lives miserable, even if they would rather chalk it up to the old standard, “furtive movements.”

This doesn’t mean that they can’t make up a reason, just as they did when the used the check-off boxes, but only that they now have to write it out long-hand. Is that too taxing for the cops, John?

Rather than play the game of addressing the stop & frisk spin, however, the fundamental point made by Judge Scheindlin, which Timoney works hard to ignore, is that the Constitution wasn’t crafted to make the cops’ job easier, but to provide a floor below which a cop can’t go. Of course it would be more effective for police to search anyone at will for any reason or no reason, whether their bodies or homes, but that’s not the point of the Constitution or the Floyd decision.

So will it cost the city a bundle to teach cops how to write “furtive” longhand? Perhaps, but on the bright side, the time lost to police productivity by forcing them to write their reasons out in narrative form means that they won’t be out on the street randomly throwing black kids against walls.  A cost, sure, but one the public can well afford.

Enjoy Bahrain, John. I suspect it’s your kind of place.

5 comments on “Why Stop & Frisk Is Way Too Hard For Cops

  1. REvers

    Don’t you think you’re being a little hard on NYPD? After all, Terry came down only 45 years ago, and that’s not nearly enough time to draft a memo and get it circulated to the cops on the street. They’re busy people, you know.

  2. Dan

    I don’t understand the cost argument. Why does the re-training cost anything? I know the people that do the training. They’re police officers. They get paid their regular police salary. The officers that get sent to do it- also police officers on salary. What, so maybe they’re taken off the street and you gotta pay overtime to someone else? Overtime is nothing new. Police get overtime for changing a light bulb in the precinct. Its built into the budget. Perhaps Timoney is just full of it.

    1. SHG Post author

      I was trying to be kind, because they tell me I’m kinda mean to them most of the time calling out bullshit. But I don’t see any significant cost involved either.

  3. Matt James

    There should be another law: never attribute to malice or stupidity what you can attribute to politics. Public statements are often political statements, and often used to stir up a feeling rather than educate, often for the political (or other) benefit of the speaker. Maybe we can call it the “Gillibrand’s Theorem” — and I’m thinking specifically of her approach to military sexual assault prosecutions and proposed reforms of the military justice system.

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