HAMMER: Conservatives Should Not Oppose Stop-And-Frisk Policy

Former New York City Mayor Mike Bloomberg, who is (quite literally) currently attempting to buy the 2020 Democratic Party presidential nomination, has found himself in seriously hot water this week. A resurfaced audio clip from 2015 depicts the multibillionaire discussing in rather stark and unartful terms one key aspect of the famously aggressive policing policy he oversaw as New York City mayor. The clip can be heard here, and The Daily Wire’s James Barrett wrote it up yesterday:

“95% of your murders — murderers and murder victims fit one M.O.,” Bloomberg allegedly states in the audio. “You can just take the description, Xerox it and pass it out to all the cops. They are male, minorities, 16–25. That’s true in New York, that’s true in virtually every city and that’s where the real crime is.” …

“So, one of the unintended consequences is people say, ‘oh my God, you are arresting kids for marijuana that are all minorities.’ Yes, that’s true. Why? Because we put all the cops in the minority neighborhoods,” he stated. “Yes, that’s true. Why do we do it? Because that’s where all the crime is. And the way you get the guns out of the kids’ hands is to throw them up against the walls and frisk them. And then they start say[ing], ‘Oh I don’t want to get caught.’ So they don’t bring the gun. They still have a gun, but they leave it at home.”

There is a lot to digest and break down here. First, Bloomberg’s statistics are likely somewhat off, at least using the FBI’s national Uniform Crime Reports as a helpful proxy for the local statistics in New York City itself. Second, Bloomberg’s line about “taking[ing] the description” of a suspect, “Xerox[ing] it, and pass[ing] it out to all the cops” is ugly and plays on some rather unsavory stereotypes. Third, and perhaps most importantly for those of us conservatives of a pro-police bent, Bloomberg’s rhetoric about “throw[ing]” kids “up against the walls” paints cops in an unfortunate light and does the thin blue line little in the way of justice or charity.

It would not be improper to describe this as racially charged rhetoric, even if it not per se racist rhetoric because it is far likelier than not that Bloomberg simply exaggerated/misstated his statistics to make an overarching point. The FBI’s 2018 Uniform Crime Reporting Program states that “[w]hen the race of the offender was known” in federal murders, “54.9% were Black or African American, 42.4% were White, and 2.7% were of other races.”

The underlying policing policy at issue is stop-and-frisk, which was largely implemented in the 1990s during then-Mayor Rudy Giuliani’s historic crime reduction in the Big Apple, and which was largely continued by then-Mayor Bloomberg during New York City’s tumultuous post-9/11 years. Contrary to Bloomberg’s inflammatory description in the leaked audio clip, here is how Cornell Law School’s Legal Information Institute (LII) describes a cop’s stop-and-frisk procedure: “A stop-and-frisk refers to a brief non-intrusive police stop of a suspect. … If the police reasonably suspect that the suspect is armed and dangerous, the police may frisk the suspect, meaning that the police will give a quick pat-down of the suspect’s outer clothing.”

I understand that conservatives, (properly) unified as the overwhelming majority of us are around Donald Trump’s hopeful re-election as president of the United States, see in Bloomberg’s audio clip an easy opportunity to score a cheap political shot. I also understand, as previously mentioned, that Bloomberg’s rhetoric is neither helpful nor (in all likelihood) truly statistically spot-on.

But conservatives, who largely defended stop-and-frisk policy while it was implemented by Giuliani and Bloomberg, must not now turn on it. Stop-and-frisk is (1) constitutional, (2) effective, and (3) proper.

The 1968 U.S. Supreme Court case of Terry v. Ohio upheld standard stop-and-frisk procedure on Fourth Amendment grounds. “According to the Terry court,” LII notes, “a reasonable stop-and-frisk is one ‘in which a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous.'” The key words here are the multiple times “reasonable” (or some close derivative of it) is used. It is almost assuredly true that, while “probable cause” is traditionally required for the issuance of most search warrants, “reasonable suspicion” suffices as a legal standard to justify a mere stop-and-frisk of suspect believed to be armed and readily dangerous. The text of the Fourth Amendment, after all, prohibits “unreasonable searches and seizures” (emphasis added), and here there is necessarily “reasonable suspicion” for a Terry stop to be lawful. Some more libertarian-leaning conservatives may disagree, but I recall well my criminal procedure professor at the University of Chicago Law School, Richard Epstein, announcing to our class his belief in the constitutional soundness of Terry. And Richard Epstein, for what it’s worth, is the single most influential libertarian legal theorist of the past century.

Stop-and-frisk policy in New York City, furthermore, was undoubtedly effective. “Since 1990, major crimes have fallen 81.9% in a period that spanned the administrations of four mayors, both Republican and Democratic, including Michael Bloomberg, who switched from being a Republican to an independent during his three terms in office,” Reuters reported last month while lamenting the fact that murders in the Big Apple actually rose last year under the infamously anti-cop reign of Mayor Bill de Blasio. While it is ultimately impossible to disentangle stop-and-frisk from other aspects of the Giuliani/Bloomberg anti-crime public policy portfolio, such as so-called “broken windows policing,” the reality is that New York City became one of the safest big cities in America over the exact same time span that stop-and-frisk proliferated in popularity. It is nothing short of tragic that de Blasio has reversed these salutary trends.

Finally, stop-and-frisk, as implemented by Mayors Giuliani and Bloomberg, was a generally sound public policy initiative. It is simply true that law enforcement is beset by limited resources, and that police therefore have to routinely make decisions about how to maximize results — here, measured in terms of less crime and fewer criminals on the street — given those constraints. For example, prosecutorial discretion as a law enforcement concept has a centuries-long history in the Anglo-American tradition (that, of course, does not mean that prosecutorial secretion is not sometimes bastardized). Similarly, cops — the procedural antecedents, in a sense, to prosecutors — need to make on-the-ground decisions about where to best deploy resources in order to safeguard the public safety and the common weal. It is simply common sense that they would disproportionately target the neighborhoods where there is actually disproportionate crime committed.

By all means, conservatives can find proper bones to pick with Bloomberg’s resurfaced audio clip. But please do not lump in all of stop-and-frisk policy with those criticisms.