Posner For Sale

With her typical clarity, Judge Shira Scheindlin shut down New York City’s attempt to spin her ruling in Floyd v. City of New York, that the execution of the stop & frisk policy violated the rights of millions to nab a handful, with a resounding smack. Via Tim Cushing at Techdirt:

As to the city’s argument that carrying out the Finest message (i.e., instructing its officers to operate in adherence with the Constitution) will cause “irreparable harm” via confusion in the ranks (especially if Sheindlin’s ruling is overturned on appeal), both in implementation and (possible) retraining (again, dependent on the success of the appeal), the judge had this to say:

The City’s first argument is circular. The Court’s orders simply require that the NYPD conform its policies and practices to well-established constitutional requirements. The City’s argument here is merely a restatement of its argument regarding the likelihood of success on the merits. Because it believes the Court’s decisions are based on an erroneous view of the law — despite repeated citations to Supreme Court and Second Circuit controlling law — it also believes that irreparable harm will result from basing any relief on those decisions. Thus, the City’s argument conflates the first two factors and fails to prove either one.

Follow the Constitution. Is that so hard?

Well, yeah. It is, says Chicago lawprof Eric Posner, who proclaims* in Slate (of all places) that “Judge Shira Scheindlin’s stop-and-frisk opinion is poorly reasoned and full of flaws.”  Not merely flawed, but full of them. Full?

Civil libertarians cheered, but the 195-page opinion is poorly reasoned and unpersuasive. Stop-and-frisk might be bad policy; it might unfairly burden minorities. But the plaintiffs—the African-Americans and Hispanics who were stopped—should have lost this case.

Everyone thinks the Fourth Amendment requires police to obtain a warrant before conducting a search. In fact, it only prohibits “unreasonable searches and seizures,” and the Supreme Court held in Terry v. Ohio that a police officer may briefly stop, question, and frisk a person if the officer has a reasonable suspicion, based on articulable facts (rather than vague hunches), that the person is engaged in criminal activity or poses a danger to others. Such stops are known as “Terry stops.”

Whether “everyone” except Posner is clueless as to the requirements of the 4th Amendment may be a bit of literary license (which is the nice way to call bullshit), but so far there’s no dispute as to what Terry demands. So, what’s the beef?

According to Judge Shira Scheindlin, from 2004 to 2012, New York police stopped people on 4.4 million occasions. About half of those stops led to frisks, and police found weapons in 1.5 percent of the frisks (indicating that 34,320 weapons were found and presumably confiscated). Twelve percent of the stops resulted in an arrest or summons.

So half the stops led to frisks, and of those frisks, 1.5% resulted in a “weapon,” which (maybe Posner doesn’t realize this, so I’ll cut him a break) doesn’t necessarily mean gun. It means anything, from a tiny, and perfectly lawful, pen knife to a large, and not entirely lawful, bazooka.  So he didn’t mention that a little more than 8,000 guns were seized, further reducing the numbers. You can do the math if it makes you happy.

But Posner knows that a Terry stop requires reasonable and articulable suspicion, individualized for the guy whose freedom is being targeted and whose pockets are being groped. If they are stopping 4.4 million people and only frisking half, why are they stopping the other 2.2 million?

After conducting a stop, police fill out a form by checking boxes next to descriptions of the reasons for the stop (for example, “Furtive Movements,” “Suspicious Bulge”). The descriptions are vague; often, the police do not fill out the forms or take them seriously. Some of the box descriptions, like “High Crime Area,” could not by themselves justify a stop since a stop requires individualized suspicion. Judge Scheindlin concluded that at least 200,000 stops thus violated the Fourth Amendment because the officer checked boxes that indicated only generalized grounds for suspicion like “High Crime Area”; that the actual number of stops lacking individualized suspicion was probably far higher given that the police did not always complete the forms, and their form-filling was likely biased; that many more thousands of stops were unconstitutional because descriptions like “Furtive Movements” are too vague and subjective to demonstrate individualized suspicion; and that the police department pressured officers to make as many stops as possible and that many officers were poorly trained. Finally, the fact that only 12 percent of stops resulted in arrests or summonses (and this number probably overstates the true rate because charges were sometimes later dismissed, among other reasons) means that most people who were stopped were innocent of any crime.

Whoa. Much as I hesitate to be the one to point this out, this really doesn’t support the contention that the stops and frisks are lawful. This isn’t going to be easy to pull out of the fire.

Does this behavior violate the Fourth Amendment? Judge Scheindlin does not estimate the number of stops lacking individualized suspicion, and does not explain how many errors justify the striking down of a government policy. But any policy will predictably result in errors. The “reasonable suspicion” standard of Terry v. Ohio is far weaker than “beyond a reasonable doubt” (required for conviction) and “probable cause” (required for a search more intrusive than a frisk)—all of which necessarily result in a large number of false positives. Why doesn’t a 12 percent hit rate (or even lower hit rate) justify the considerably less intrusive tactic of briefly stopping a person and asking him questions? Judge Scheindlin does not identify the error threshold that distinguishes a valid police tactic from an invalid one.

As Posner’s argument takes shape, one thing becomes abundantly clear: he would be absolutely right if there was no such thing as a Terry stop and the citizens of the City of New York, particularly the males, the young and the darker skinned, had no constitutional rights. If these were random stops, utterly without basis whether real or feigned to fill out forms that make a joke of the right to be left alone, Posner would have nailed it.

But there is such a thing as the Constitution, and the rights it protects belong to those young males with darker skin color, and they have the right to be left alone when the police lack a reasonable, articulable, individualized suspicion that they have done anything wrong.  And maybe are a bit jealous of that suspicious bulge, if you catch my drift.

Will there be false positives? Of course, and no one, Judge Scheindlin certainly, suggests otherwise. But to the tune of 98.5%? That’s ludicrous. And as much as grand numbers demand some degree of statistical analysis, shabby though Posner’s may be, he misses the far more important point: for every human being stopped and frisked without reasonable suspicion, it’s a one-off constitutional violation. When it’s in the millions, it is, to borrow from Arlo Guthrie, a movement.

Then again, Posner’s a smart guy and no doubt fully capable of realizing the fallaciousness of his position.  It makes me wonder whether he’ll be getting his own talk show on Bloomberg TV now that the mayor will have free time on his hands. No other explanation comes immediately to mind.

* Apologies for the length of the quotes and hence the length of this post. They say brevity is the soul of wit.  Eric Posner is thus not particularly witty.

 

6 comments on “Posner For Sale

  1. TomH

    With apologies to The Princess Bride,

    Mayor Bloomberg: 4 million people frisked and only 1.5% had weapons, its okay the police had Reasonable Suspicion.
    Justice Scheindlin: ‘Reasonable suspicion,’ you keep saying that. I do not think that means what you think it means.

  2. Wheeze The People™

    And so the dispositive question really is: “Is that a suspicious bulge in your pants or are you just happy to see me??” So I guess it kinda depends on what the word “is” is, doesn’t it?? . . .

  3. fledermaus

    “Why doesn’t a 12 percent hit rate (or even lower hit rate) justify the considerably less intrusive tactic of briefly stopping a person and asking him questions?”

    I see what he did there. Suddenly we’ve gone from forcible detention and groping, cuffing and being verbally insulted to a brief friendly chat free of all coersion (that’s an “investigatory stop” not a Terry stop if you’re reading this Prof. Posner)

  4. wildcatlh

    If Posner wants to make a percentages/error rate argument, I’d say that your hit percentage would at least have to be higher than it would be by random chance (i.e., if you just happened to randomly stop 4.4 million individuals). I don’t think it is. In fact, it might be lower (then again, I’m a lawyer, not a statistician, what do I know?)

    But what I don’t get is that Posner defines a Terry Stop as requiring individualized reasonable suspicion… and then chooses to ignore that definition later (dropping the “individualized”, which is a slightly important modifier).

    1. SHG Post author

      When he shifts from definitional to statistical, the whole Terry stop thing he discusses at the beginning magically disappears. If there was individualized reasonable suspicion, the rate of positives should be at least 50%, a coin toss, if not 80% or better. After all, the whole point of individualized suspicion is that there is a good reason to make the stop.

  5. Jack

    “And maybe are a bit jealous of that suspicious bulge, if you catch my drift.” – Oh, they are 110% jealous of that bulge:

    (I was instructed I MUST post this link!)

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