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Stop-and-frisk ruling is wrong

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It’s always a dangerous bit of hyperbole to say that someone has "blood on his hands."

Instead of pointing the finger at the actual killer of abortionist George Tiller, choice activists accused pro-lifers of having the doctor’s blood on our hands. When the Senate failed to pass gun-control legislation, anti-gun activists said that NRA president Wayne La Pierre had the blood of the Newtown kindergartners on his hands. When four Americans were assassinated in Benghazi, some conservatives accused President Obama of having their blood on his own hands.

As much as I am not a fan of La Pierre or Obama, I find it ridiculous to turn them into Lady MacBeth, lurching down the corridors of our collective conscience screaming "Out, out, damned spot!" As far as the pro-life movement being responsible for spilled blood, that is a bitter irony given the millions of lives lost in the name of "choice."

Sometimes, however, hyperbole is the only thing that accurately captures the anger of a community whose safety and welfare are being cavalierly sacrificed at the altar of good intentions and twisted thinking. Today, that community is New York. Tomorrow, it could be us.

On Monday, federal judge Shira Scheindlin came to the edge of her ivory tower and made the following pronouncement: the Big Apple’s "stop and frisk" policy, one credited with having saved thousands of lives over the past decade, is unconstitutional. She did not say it was ineffective, because she couldn’t, given the overwhelming evidence to the contrary. She did not say it was impractical, because she couldn’t do that either, given the relative efficiency of the NYPD in implementing the policy.

What the judge with the lifetime appointment said from her elevated perch above the streets with its noise and potential for mayhem was that a police officer who reasonably believed that a crime was about to be committed could not stop and then search a suspect without triggering a fourth amendment violation. And she told the city that it had to neuter the program to bring it in line with the constitution.

Never mind that the uber-liberal Warren court (which was fairly familiar with the Fourth Amendment) ruled otherwise. In Terry v. Ohio, the court held that if an officer had a reasonable suspicion that a crime was about to be committed, he could stop and then ‘frisk’ the target. Any contraband discovered could be used as evidence in court.

But Scheindlin knows better than the U.S. Supreme Court.

She reviewed 19 instances out of the approximately four million stops that had occurred in the past decade, and found that five were completely lawful, nine were completely unlawful, and five others were a hybrid. That means, then, that out of millions of applications, the policy was only proven to have violated someone’s constitutional rights in about .01 zillionth of an instance.

You might argue that this doesn’t mean all those other stops were lawful. I agree. We don’t know if the police overstepped their bounds in, say, instance number 3,000,254.

What we do know is that since the policy was implemented there has been an exponential drop in homicides. If we were talking about gun control as opposed to stop-and-frisk, advocates would be waving those statistics in front of every camera they could find, prattling about how well their policy worked.

But alas, when you raise the dreaded shadow of racial profiling, you are not supposed to exult in the bottom line. Who cares that thousands upon thousands of black and Latino children are alive today because their mothers and fathers were not murdered on the doorstep? If there is the prospect that those same children will be inconvenienced because some over-zealous police officer stops them without a really, really, really reasonable suspicion, we have to pull out copies of the constitution and hogtie the folks with the badges. In this post-Trayvon era, pretty much everyone not wearing a hoodie is a racist, after all.

Judge Scheindlin has a history of not liking the police, and she didn’t disappoint this time. Effectively co-opting the language of the aggrieved civil rights plaintiffs, Scheindlin made it sound as if the sole purpose of the NYPD was to abuse minorities.

In a 195 page lament, she called stop-and-frisk a "policy of indirect racial profiling" that targeted "blacks and Hispanics who would not have been stopped if they were white." Scheindlin sounds more like a host on MSNBC than a legal authority. Her decision is shot through (excuse the pun) with unintended irony, as when she points out that the stops "soared in number" as the crime rate plummeted. Instead of realizing that, um, maybe this shows their effectiveness, she concludes that it represents an overall disregard for the Fourth Amendment.

Someone needs to explain chickens and eggs to the good judge. Right after they give her a cloth to wipe her bloody hands.

 

Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News.

 

—McClatchy Tribune Services

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