Shira Scheindlin, the federal judge who found the NYPD's implementation of "stop and frisk" unconstitutional, relied largely on a numerical analysis in concluding that there was "indirect racial profiling" in violation of the Fourth and 14th Amendments. But John Timoney, who ran police departments in New York City, Philadelphia, and Miami, told me that the numbers don't tell the full story.
The parameters for the crime-fighting tactic were established in a 1968 Supreme Court case, Terry v. Ohio, which allows stop and frisk under certain circumstances. The Terry case involved a veteran police officer who spied three men he thought were casing a store for a robbery. His pat-down of one of the men revealed he had a weapon. In Terry, the court ruled that such an intervention must be based on more than an officer's hunch.
More than any other factor, police in New York cite "furtive" movements as a justification to stop and frisk someone. That means a person was jittery. Maybe he walked in an odd fashion, or touched a pocket in a certain way. Or perhaps it seemed he was trying to determine if he was being observed. Furtive movement was the reason 48.3 percent of blacks were stopped, as well as 45.2 percent of Hispanics, but only 39.9 percent of whites. Scheindlin also found significance in the fact that 83 percent of stops between 2004 and 2012 involved blacks and Hispanics, even though they are just over 50 percent of the city's residents.
Additionally, the judge noted that between January 2004 and June 2012, the NYPD conducted more than 4.4 million Terry stops. Fifty-two percent of these were followed by a frisk for weapons, and a weapon was found in 1.5 percent of these instances. In other words, in 98.5 percent of the 2.3 million frisks, no weapon was found.
Timoney says there is more here than just the numbers.
"Well, when you look at the gross number you say, 'Oh, my God, that's an awful lot of people,' but when you break it down to the size of the police force, the size of the city, on average it averages out to one stop a week per uniformed police officer," Timoney said.
Timoney said the low yield of weapons confiscated does not justify ending the program.
"The point should not be to use the low percentage as a rationale for not using 'stop, question and frisk,' " he said. "The proper response is to make sure the officers are doing these according to law, that is, based upon reasonable suspicion and are able to articulate the rationale. Again, while the numbers, when taken in total, may alarm many people, when you break them down and give them some context it is a lot more meaningful. However, that may not satisfy the average citizen, especially from a minority community."
Timoney worries about the impact of the decision on cops.
"You know, there's a perception out there that the police departments are filled with all the eager-beaver police officers looking to get out there and lock up the bad guys, work their tails off," Timoney said. "Unfortunately, that's not true. They reflect the society they come from, and so you've got some very good cops, you've got some cops that are mediocre, and then you've got some cops that are out-and-out lazy - you can't get them to work, and I think this will play into their hands. I hope it doesn't, but I think it will. Some of the lazy cops will tell the good cops, 'You see, you do this stuff, you go out and work, and you get yourselves in trouble.' "
He also believes that his former colleague New York Police Commissioner Ray Kelly is getting a bad rap.
"The guy doesn't have a racist bone in his body," Timoney said. "I've known him for 30 years, and I know a lot of the men and women that lead that department and they are not deliberately indifferent. Clearly in every department there is room for improvement and, obviously, more training. However, the notion that you stigmatize that department, that's a heavy lift. So, we'll see how the appeal plays out."
There's another important consideration that is being lost in the celebration of Scheindlin's opinion as a victory for civil rights - namely, who might be adversely affected. Mayor Michael Bloomberg reacted to the racial implications by saying: "We go to where the reports of crime are. Those, unfortunately, happen to be poor neighborhoods, or minority neighborhoods."
His words were reminiscent of something President Obama offered in the aftermath of the Trayvon Martin verdict.
"The African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case.
"Now, this isn't to say that the African American community is naive about the fact that African American young men are disproportionately involved in the criminal-justice system, that they are disproportionately both victims and perpetrators of violence. It's not to make excuses for that fact, although black folks do interpret the reasons for that in a historical context."
Should crime rise as a result of limiting stop and frisk, the most victimized will be from the same communities whose civil liberties the judge sought to protect.
Michael Smerconish can be heard from 9 a.m. to noon on Sirius XM's POTUS Channel 124.