Our complex world is filled with questions.  Why do we stay to the right when we drive? Is there something wrong with the left? Are countries where people drive on the left-hand side of the road wrong? Evil? Foolish? Of course not. It’s just that a choice has to be made so we don’t crash into each other, and for better or worse, our choice is the right side of the road. Done.

Even a question that’s fundamental to our legal system needs an answer. Why are defendants presumed innocent? Why not presumed guilty, and the burden placed on the defendant to prove that he’s not guilty?  The Constitution doesn’t expressly state that defendants are presumed innocent, though it does provide that a person can’t be convicted “except upon proof beyond a reasonable doubt.”

The question of what to do about the New York City Police Department stopping and frisking hundreds of thousands of men and women of color is, yet again, on the table.  From the New York Times :

The Police Department has said that it conducted a record 684,330 stops last year, and that 87 percent of those stopped were black or Hispanic. About 10 percent of the stops led to arrests or summonses and 1 percent to the recovery of a weapon, according to the Center for Constitutional Rights, which has examined police data.

These numbers aren’t new. The program isn’t new. The disproportionate impact on blacks and Hispanics isn’t new. And the results, the negligible recovery of weapons which provides the putative rationale for the stop and frisk program, isn’t new. Nothing new here at all.  But some legislators, who happen to be black or Hispanic, recall the joys of being on the wrong end of a stop.

Senator Kevin S. Parker, a Brooklyn Democrat, recalled several occasions when, as a high school student walking home in Flatbush, he was stopped by the police, patted down, told to empty his pockets, produce identification and divulge his destination.

Assemblyman Karim Camara, a Democrat from Brooklyn, remembers greeting a woman who was walking down a street in Crown Heights, Brooklyn, when, he said, officers in plain clothes approached him and demanded to know who he was, where he was going and whether he had any guns or drugs.

And when Senator Adriano Espaillat, a Manhattan Democrat, was just 14, he said, detectives threw him against a wall and patted him down in Washington Heights, in Manhattan, when he was on his way to buy a Dominican newspaper for his father.

With 684,330 stops last year, the cops were bound to snag at least three people who mattered, at least to themselves. The reason why the personal experiences of three New York politicians gets play is that nothing matters until it touches you. This touched them. Forget the other 683,327. We don’t know their names, and why should anybody with a title care if they felt dehumanized by police conduct.

But the Police Commissioner, Ray Kelly, asks the tough question:

Police Commissioner Raymond W. Kelly, facing increased complaints about the practice, has  pushed back hard against critics. Last week, assailed by the City Council over the practice, Mr. Kelly said that the policy was an important policing tool intended to reduce the violence that has victimized blacks and Hispanics, and that, “What I haven’t heard is any solution to the violence problems in these communities.”

“People are upset about being stopped,” he continued, “yet what is the answer?”

It’s a great question. People are upset about being stopped. People aren’t too thrilled about being the victim of gun violence either.  As Kelly notes, the complaining legislators haven’t offered an alternative solution to the problem of violence, so he’s sticking with the stop and frisk plan.

Kelly isn’t wrong to be concerned about making people safer by taking illegal guns off the street. Nor is he wrong about seeking a solution to violence.  The choice before him is doing what he can to make the streets safer or not stopping and frisking 683,330 people on the streets of New York, 87% of whom are black or Hispanic, and resulting in 10% being issued summons or arrested, and one percent resulting in the seizure of a weapon.

These are both legitimate concerns and competing interests. Which takes primacy is the core question Kelly asks.  And it’s giving the legislators a headache.

Fortunately, there is an answer to this very difficult question.  The answer isn’t right because it’s necessarily the better choice, or that one side is inherently superior to the other. If your child was shot on the street by a stray bullet fired from an illegal handgun by some gangbanger, chances are you would be more than happy to have many hundreds of thousands of people stopped if it could have saved your child’s life.

But this isn’t a debate between choices, as the debate was had long ago and a decision was made. The Fourth Amendment, or if you’re New York centric, Article 1, Section 12, provides that a person cannot be seized or searched “but upon probable cause.” There’s also a warrant requirement, but let’s not get hung up on something that isn’t taken seriously anymore.

The Constitution prohibits the police from stopping and frisking people for no reason.  In fact, it expressly states that the police can’t stop and frisk without a pretty good reason.  This means that some people carrying illegal guns are going to not be stopped, not be arrested and the guns will not be seized and removed from the streets where they can no longer fire a bullet into a child who doesn’t deserve to be harmed. 

It’s not that our founding fathers didn’t care about children. It’s not that they didn’t take seriously the need to protect people from harm.  it’s not that they didn’t foresee street crime as being a plague that demands a cure. It’s that a choice had to be made, and they made it.

The New York Legislature is pondering a law to prohibit the New York City Police Department from stopping and frisking hundreds of thousands of people, 87% of whom are black and Hispanic, from being stopped and frisked without cause.  They have been presented with the opposing interests and are debating which interest should prevail.

The decision has already been made, and it’s not up to Ray Kelly or the Legislature to decide otherwise.  They may not agree with the choice. Maybe they prefer to drive on the left rather than the right. Maybe they think defendants should be presumed guilty rather than innocent. But choices must be made. They have been. It’s done.  The NYPD cannot do what it’s doing. There is nothing more to discuss.