Unfortunately for Mayor Bloomberg and Commissioner Kelly, stop-and-frisk has no secret apparatus to shroud its workings from skeptical eyes. Police officers who make stops fill out a form (a blank version of which is included as the only appendix to Scheindlin’s opinion and order) called a Stop, Question and Frisk Report Worksheet (or UF-250), and it was from these millions of forms that the plaintiff’s criminology expert Dr. Jeffrey Fagan amassed a damning statistical profile showing that the NYPD conducts stops without requisite reasonable suspicion, and indirectly practices racial profiling.
Mayor Bloomberg’s incredulity over Scheindlin’s failure to consider stop-and-frisk’s actual effectiveness might have been allayed had Bloomberg bothered to read as far as Page 2 of the 195-page opinion, where Scheindlin notes that she had repeatedly emphasized throughout the trial that effectiveness, by any measure, is a nonstarter when assessing the constitutionality of police behavior. To bolster this same proposition, Scheindlin cleverly cites Justice Antonin Scalia’s majority opinion in Heller—the landmark Second Amendment case finding an individual right to bear arms:
“The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
Her invocation of Heller is interesting not merely because it’s from across the political aisle, so to speak, or because it serves as a perfect rebuke to the notion that effectiveness matters above constitutionality, but because it underscores what’s really at stake when weighing constitutional protections against illegal policies.
At issue in Heller was the constitutionality of a D.C. statute whose stated purpose was to “reduce the potentiality for gun-related crimes and gun-related deaths within the District of Columbia.” The D.C. statute’s effectiveness, and those like it, can and will be argued, although a March 2013 Harvard study that found a distinct correlation between low gun mortality rates and states with stricter gun control laws is persuasive. Surely, studies can be found that show exactly the opposite effect, though none of them would be government studies—the NRA’s top priority is to ensure that such reliable research never occurs.
But Scalia, like Scheindlin, understood that effectiveness isn’t the sole benchmark when assessing the constitutionality of rights. Scheindlin reminds us that coercion and preventive detention might also be effective, but aren’t on the table. Well, yet, anyway.
The Heller majority’s implicit willingness to accept a greater number of deaths in deference to the constitutional principle of an individual right to gun ownership may help us understand what’s really at stake in balancing our Fourth Amendment rights against stop-and-frisk. Bloomberg’s hysterically vivid depiction of a New York hereafter engulfed in perpetual death orgy aside, the stakes don’t feel equivalent.
By far the most common arrest resulting from the stop-and-frisk program was for marijuana possession, which accounted for 16 percent of all arrests made. As noted earlier, illegal weapons were recovered in only approximately 1 percent of all stops, only a portion of which were unconstitutional. Unwarranted police intrusion ought to be predicated on something more than its effectiveness in swelling the populations of the public and private prison industry with low-level drug offenders. We’ve eroded and made hundreds of exceptions to our Fourth Amendment protections, but only recently have we been pretending it doesn’t exist at all. We should have the courage to repeal it if we’re going to choose effectiveness in its stead.