NYC's frisking twins beg: Please let us profile!

Michael Bloomberg and Ray Kelly appeal to their base of national elites, to salvage their legacies and reputations

Published August 19, 2013 2:00PM (EDT)

Mayor Michael Bloomberg, left and Police Commissioner Raymond Kelly  (AP/Mark Lennihan)
Mayor Michael Bloomberg, left and Police Commissioner Raymond Kelly (AP/Mark Lennihan)

New York City's two biggest boosters of the practice of humiliating and alienating young people of color took their arguments to the non-New York press this weekend, with New York City Police Commissioner Ray Kelly appearing on two Sunday shows and Mayor Michael Bloomberg publishing an Op-Ed in the Washington Post. These two men have one message: Stop-and-frisk is effective and if the NYPD is forced to obey the Constitution, people will die.

Ray Kelly, the celebrity top cop who is currently campaigning to be head of the Department of Homeland Security, in part because he worries he'll be out of a job in a couple months, appeared on "Meet the Press" and in a taped interview on "This Week." In both appearances, he promised that violent crime will rise if the police aren't allowed to continue stopping and frisking lots and lots of black and Hispanic people. He mainly repeated arguments from his dishonest Wall Street Journal editorial last month.

For some reason, a representative of the Center for Constitutional Rights did not appear on either "This Week" or "Meet the Press" to respond to Commissioner Kelly. "Meet the Press" did follow its Kelly interview with an interview with NAACP head Ben Jealous, Trayvon Martin's mother, Sybrina Fulton, and attorney Benjamin Crump. But it would have certainly been interesting to have had someone appear with Kelly to respond to arguments. I mean someone who knows the case and the law, not David Gregory.

On both shows, Kelly also sort of defended the constitutionality of the stops, saying police only ever stopped people based on reasonable suspicion, an argument that Judge Shira Scheindlin pretty neatly destroyed in her opinion in Floyd v. City of New York. Here's how Kelly put it on "This Week": "You have to apply a formula of sorts. ‘Do the stops comport with the description given by the victims of perpetrators of violent crime?’ And our stops certainly do ..."

This isn't what stop-and-frisk is. It's not rounding up suspects following crimes. Of course stops based on actual descriptions of actual suspects of actual crimes are constitutional and acceptable. The most anti-cop judge in the world would consider "fitting the description of a suspect" to meet the standard of reasonable suspicion. Judge Scheindlin found that the department's application of stop-and-frisk was illegal. She did not find that the actual action of stopping, questioning and frisking people suspected of crimes was unconstitutional.

On "Meet the Press," Kelly again argued that the NYPD's stops meet the standard of reasonable suspicion, and he again used examples that would definitely count as reasonable suspicion, like "somebody going down the street trying door handles." And again Kelly ignored the fact that the judge clearly found that a huge number of NYPD stops are about much vaguer and more subjective "suspicious" behaviors than that.

The stop statistics strongly suggest that the NYPD has been applying a different, looser standard of "reasonable suspicion" for black people than for white people. The two factors police officers used most often to justify stops in their own reports were "Furtive Movements" and "High Crime Area." "Furtive movements," to a cop, could mean anything, and indeed it looks like it often meant "moving while black." As Judge Scheindlin wrote:

Unconscious bias could help explain the otherwise puzzling fact that NYPD officers check “Furtive Movements” in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the stops of whites. There is no evidence that black people’s movements are objectively more furtive than the movements of white people.

Kelly also made another entirely unsupportable claim about the effectiveness of stop-and-frisk:

In the last 11 years, 11 full years of the Bloomberg administration, there were 7363 fewer murders in New York City than there were in the preceding 11 years. Now, if history is any guide, those lives saved are largely the lives of young men of color. So, we’re doing something…

He uses this line a lot. Conveniently, the 11-year window lets him include some of the highest-crime years in the modern history of New York. As this graph very, very plainly shows, the murder and violent crime rates in New York absolutely plummeted between 1991 and 2001, the year before Bloomberg took office. The department's current stop-and-frisk program dates to 2003. Between 2003 and 2011, murders and violent crime continued to decline, but at a much lower rate. The fact that the rate declined so much faster before stop-and-frisk seems like a great argument for ending stop-and-frisk, if you are the sort of person who abuses statistics as carelessly as Ray Kelly. (Also, the NYPD has been stopping-and-frisking less since 2012, and the murder rate has not gone back up.)

So it was mostly more of the same from Kelly, only delivered to a national audience instead of just New Yorkers. The same with Mayor Bloomberg's editorial, which he wrote (well, "wrote") because the Post editorial board (rather unexpectedly) came out against the NYPD's profiling in two editorials this month.

So, Bloomberg is furious that the Post doesn't write editorials about how bad crime and murder are, only about how bad cops are. He is mad that the Post never published an editorial about how sad it is when a cop gets shot. "Never once in the judge’s 197-page opinion," Bloomberg writes, "did she mention the lives that have been saved because of the stops those officers made."

That is because the suit was about whether or not the policy is constitutional, not whether or not it is effective. This is a pretty simple point that Bloomberg basically refuses to ever understand.

Like all stop-and-frisk proponents, Mayor Bloomberg denies that the program amounts to "racial profiling" while simultaneously arguing that racial profiling is necessary and effective. As Bloomberg says: "When it comes to policing, political correctness is deadly." (Oh, good, the mayor is complaining about "political correctness" now. What year, and city, is this again?)

Bloomberg also misrepresents some of the findings in the Floyd decision. He says that an analysis of stops found that a mere 6 percent of them were unjustified. That on its own amounts to hundreds of thousands of violations of the Fourth and 14th Amendments. But that 6 percent number was the minimum number of unjustified stops based on a very conservative -- that is, very generous to the NYPD and its self-reported justifications -- reading of the stop reports. As the judge says in the decision that anyone can read because it's online for free: "The actual number of unjustified stops was likely far higher."

But Bloomberg is not actually trying to defend the constitutionality of his NYPD's tactics, because it's clear that he doesn't actually care about constitutional policing. He'd have fired Ray Kelly after the Republican National Convention if he did. His point is to argue that it's not racial profiling, because blacks really do commit more crimes, and that racial profiling is necessary, because blacks commit more crimes. See, "it's not racial profiling," is the thing you say to make white liberals more comfortable with your actual pitch, which is, "we all know racial profiling works."

Kelly and Bloomberg, though, have lost their case in New York City, both legally and politically. The next mayor will end stop-and-frisk and perhaps (though not certainly) fire Kelly. So they are appealing to national elite opinion -- the only opinion that actually matters to either of them -- to save their reputations and salvage their legacies as their era of running New York finally comes to a close. It's nice to see them desperate.

By Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at and follow him on Twitter @pareene

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