What’s really unreasonable: NYPD policy or court ruling?

Kelly Sloan

New York lies once again at the center of a controversy commanding national attention. This time, it’s not (just) Anthony Wiener’s eccentric cell phone use that’s catching the nation’s attention, but something with more serious implications. Federal district judge Shira A. Scheindlin managed to arrive at the decision the NYPD stop-and-frisk — more accurately called stop-question-and-frisk — policy was unconstitutional.

Naturally, the civil rights cultists from the American Civil Liberties Union on down were celebrating what they viewed as a victory.

A victory, one pauses to ask, for what?

It’s not inconceivable to believe in both the Constitution and the right of police officers in crime-riddled neighborhoods to stop and question an individual who fits the description, based on experience, of “suspicious.” There’s a reason such tactics are applied to “bad” neighborhoods.

At the heart of the matter is a reading of the Fourth Amendment guarantee against unreasonable search and seizure that somehow misinterprets what ought to be the operative word — unreasonable.

Absolutism is a dangerous proposition. As William F. Buckley pointed out from time to time, it’s impossible to absolutize one freedom without inexorably interfering with another absolute freedom. How, for instance, does one reconcile absolute freedom of speech without impinging on another’s right to his or her property (including reputation and good name)? How do you honor an absolute right to a free press while simultaneously guaranteeing an absolute right to a fair trial? Or the right to compel testimony on your behalf against another’s right not to testify lest he incriminate himself?

Is it unreasonable for those charged by society to enforce the law and protect the innocent to suspect a young black man dressed and acting in a certain way in a neighborhood where young black men who dress and act in certain ways have been known to cause harm to others might have similar designs?

Opponents of stop-and-frisk invariably cite racism — a somewhat paradoxical argument given that the beneficiaries of the policy are overwhelmingly residents of embattled minority neighborhoods. Opponents say the practice discriminates against minorities (mainly blacks and to a somewhat lesser extent Hispanics) by giving rise to that greatest of evils, profiling. It’s interesting how race is the only facet of this profile that these opponents bring up. How much at risk, for example, is an elderly black man, a middle aged Hispanic woman, or a professionally dressed, mid-30’s black of either sex to the stop-and-frisk policies? Conversely, what are the chances the policy could be applied to a young white male who dresses and acts as others who commit crimes in a given area dress and act?

For that matter, there are jurisdictions in the United States where crime is more associated with bike gangs, where a young black man would hardly warrant a glance from an attentive police officer, but a young white man with a beard, motorcycle, leather motorcycle club colors and an attitude most certainly would. Is this “unreasonable?”

The criteria for establishing reasonable suspicion are properly subject to any number of factors. Is it reasonable to dismiss any one factor for merely political reasons?

The practical benefits of stop-and-frisk are difficult to discount, although New York’s progressive community, including all of its Democratic candidates for mayor (one of whom will in all likelihood assume that role) never tire of trying. But there are wider political and philosophical issues here.

The most immediate is the concept of subsidiary, which in America is most often delineated at the state level as Federalism. Just as we are far too often witness to the usurpations of state authority by the federal government, so, too, do we tend to forget there are policy areas that ought to belong strictly to lower levels of government. New York in the 1970s and 80s had a serious problem, one which involved its citizens being mugged, raped and killed at alarming rates. In what was an anomalous moment of clarity for the stubbornly liberal city, voters elected Rudy Giuliani (a sign that desperation may breed rationalism) to deal with the mess. This he did, and liberals have never forgiven him for it.

But his policies worked, and they worked because they were tailored to the problems encountered in New York City. Similar approaches would properly be met with derision in places like, say, Grand Junction, because our problems are different.

There are, to be sure, other facets involved in combatting crime which cry out for attention: the erosion of public morality and encroachment of the welfare state as sources of crime, for starters, and the bureaucratic retreat from the concept of punishment. (One wonders if there ought to be a special discounted life insurance policy for death-row inmates in states other than Texas, for example.)

In the meantime, it makes little sense to permit a failure to distinguish between storm-trooping violations of liberty and responsible proactive policing to handicap a local solution to a societal problem.