Without a doubt, Judge Shira Scheindlin has a way with understatement.  During closing arguments in Floyd v. New York, the stop and frisk trial finishing up in the Southern District, the court said the obvious aloud.

Observing that only about 12 percent of police stops resulted in an arrest or summons, Judge Scheindlin, who is hearing the case without a jury, focused her remarks on Monday on the other 88 percent of stops, in which the police did not find evidence of criminality after a stop. She characterized that as “a high error rate” and remarked to a lawyer representing the city, “You reasonably suspect something and you’re wrong 90 percent of the time.”

“That is a lot of misjudgment of suspicion,” Judge Scheindlin said, suggesting officers were wrongly interpreting innocent behavior as suspicious.

Yes. Yes it is. To the untrained eye, this might have been a foregone conclusion, Mayor Bloomberg and Police Commissioner’s adoration of the tactic notwithstanding.  And yet, the City remains adamant that the massive failure of a 90% error rate in what they contend to be reasonable suspicion is protected under the ancient legal doctrine of stercus accidit.

The problem is that despite the fact that the individuals stopped were almost invariably black or Hispanic, there has been no evidence introduced of racial slurs during the course of the stops, which the City argues reflects the absence of profiling or racial animus.  Judge Scheindlin wasn’t entirely persuaded.

In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis? “If the court were to conclude there was no fair basis for the stop, but the stop was made, there has to be a reason,” Judge Scheindlin said, suggesting it might be a fair inference to find that it was a race-based stop.

No, no, no, the City responded. Never, because that would be wrong. 

Much of the statistical testimony revolved around a single, stark fact: black and Hispanic people represent an overwhelming majority of people stopped, more than 85 percent most years. The city has long argued that this reflects crime patterns. City lawyers claim that the percentage of stops involving black individuals either mirrors, or is lower than, the percentage of violent crimes committed by black suspects.

After all, is it the fault of New York Police Officers that blacks are more “criminally”?   Except, of course, for the fact that 90% of the time the black and Hispanic young men stopped aren’t “criminally” at all. Most people would think that’s a problem, but not New York City:

Heidi Grossman, the city’s lead lawyer, cautioned Judge Scheindlin, “You’re speculating what the reason is.” She noted that an improper stop could have been a mistake or based on an officer’s misunderstanding of the law, rather than a racial motivation.

Though it apparently wasn’t said, the foundation for the argument is Hanlon’s Razor, never attribute to malice what can be adequately explained by stupidity.  In other words, New York’s Finest are too clueless and incompetent to be expected to recognize when reasonable suspicion doesn’t exist or that the law precludes their unconstitutional conduct, and they should therefore be forgiven their millions of trespasses.

While it’s called “Hanlon’s Razor,” the concept is also attributed to   Robert A. Heinlein, whose 1941 short story “Logic of Empire” includes the quote, “You have attributed conditions to villainy that simply result from stupidity.”  This, of course, leads inexorably to another of Heinlein’s quotes from his 1966 opus,  The Moon is a Harsh Mistress : TANSTAAFL.

It’s time for the New York City Police Department to pay the lunch bill. Check please.