Bloomberg on “Stop and Frisk” (Part 1 of 2)

I can’t stand Michael Bloomberg. I don’t intend to vote for him, and regard his entry into the presidential race as a net loss for liberty and justice. That said, I also think that some of what’s been said in criticism of him is confused, and in some cases downright childish. Unfortunately, this is particularly true of the policy that most obviously redounds to Bloomberg’s discredit: stop and frisk. If we’re going to nail Bloomberg on stop and frisk, we need to get the issue right, or at least avoid getting it wrong. But “we” haven’t.

Bloomberg has widely been taken to task for his “support for stop and frisk,” full stop, as though “stop and frisk” were by itself the root of the problem. The problem is that “stop and frisk” is a highly ambiguous colloquial expression with two completely different meanings. To conflate the two meanings is to entangle oneself in confusion and set oneself up for defeat.

In one sense, a “stop and frisk,” taken absolutely literally, is a stop by a law enforcement officer in which the officer involuntarily detains someone, gives them orders, and pats down, or “frisks” the person stopped, to check for weapons. Call this ordinary stop and frisk.* In a narrower, specialized sense, “stop and frisk” is shorthand for the specific, racialized, unconstitutional version of stop and frisk employed by the New York Police Department (and other departments) under both Rudolph Giuliani and Michael Bloomberg, often but not invariably regarded as a practical application of so-called “Broken Windows Policing” (which goes by a variety of other, equally euphemistic names). Call this Bloombergian stop and frisk.

An obvious, crucial point: Ordinary stop and frisk and Bloombergian stop and frisk are not even remotely the same thing, whether in theory or in practice. Bloombergian stop and frisk is a racialized, illegal, dishonest, unconstitutional abuse of ordinary stop and frisk. Ordinary stop and frisk need not be racialized, illegal, dishonest, or unconstitutional. Even someone who rejected both varieties of stop and frisk would have to admit to the existence of a big difference between them. Having been on the receiving end of both sorts of stop and frisk, I was able to differentiate between them well before I had studied a word of criminal procedure. To ignore the differences between them is to flout reality in a brazen, egregious way.

Without rehearsing an entire canned lecture on criminal procedure, two basic points are worth making here.

(1) There is no way to enforce the criminal code–any criminal code–without relying on some version of stop and frisk. A critic might reasonably dispute the standard by which stop and frisks are currently conducted, or the currently reigning conception of that standard, or law enforcement’s tendency to water down the standard, or racialize it, or resort too quickly to the use of violent force, or whatever. But to speak of dismissing “stop and frisk” altogether is to speak nonsense, whether you’re a liberal or conservative, a socialist or an anarchist, a Zionist or an anti-Zionist, or whatever else you may be.

It’s obvious that human beings have to live under some version of the rule of law. An essential constituent of the rule of law is the criminal law. Criminals by definition are relatively indifferent to norms of voluntary interaction and rational persuasion. When they commit crimes, they have to be apprehended as a necessary condition of arraignment and trial. Once encountered, they can’t be relied on to cooperate with their apprehension. If they flee or fight, as they often do, they have to be forcibly stopped. Once stopped, they have to be rendered harmless.

It follows that criminal suspects have to be stopped and frisked, whether they ultimately turn out to be innocent or they ultimately turn out to be guilty. There is no conceivable way of avoiding this dynamic in any realistically conceivable human society. For that reason, there is no conceivable way of avoiding some form of stop and frisk, even if we reject the particular form of it that we find widely accepted in American criminal procedure, or the Bloombergian form that once reigned in New York City.

(2) I take (1) to be obvious, but it’s even more obvious that you can’t have gun control without stop and frisk.** I say this not to make a plug for or against gun control, but to highlight what strikes me as a bizarre inconsistency in public discourse, particularly on the left side of the political spectrum: some of the loudest proponents of gun control mysteriously claim to be opposed to stop and frisk.

This is a mind-blowingly nonsensical combination of commitments. To belabor what ought to be obvious: A gun control policy places involuntary regulations on the ownership and possession of firearms. Not everyone in possession of firearms can be expected to comply with every last regulation in the gun control statutes. Those who don’t comply have violated the law, and have set themselves up for enforcement action. It’s dangerous to enforce regulations against people who are armed because they might use their firearms against you and shoot you. To forestall this possibility, gun control laws have to be enforced in such a way as to neutralize the relevant threat.

If armed suspects are on the streets–and remarkably, they often are–and their firearms are illegal, and gun control laws demand enforcement against such illegalities, such people have to be stopped and frisked as a preliminary to detention, arrest, and arraignment. Incredibly enough, they may even have to be frisked if they are stopped in other places. This is because whether on the street or elsewhere, they may be carrying a device known as a “handgun.”

As the name suggests, “handguns” can be carried in one’s hand. Hence they are small enough to be concealed, and yet accessible enough to be used in a hurry. They contain small projectiles known as “bullets,” which despite their size can inflict serious injury, and are often, lamentably, used that way. So the enforcement of gun control laws practically requires an ordinary stop and frisk policy. Whether it requires Bloombergian stop and frisk is another matter. The courts have (correctly, in my opinion) ruled against it. Whether ordinary stop and frisk somehow blurs into or entails Bloombergian stop and frisk is also another matter, and one that needs an argument. It’s not self-evident. Arguably, it involves a reductio, or at least a very implausible conclusion. But if you think you can have gun control without stop and frisk, you have some regulationsplaining to do.

All this to say that people opposed to Bloomberg “because he supported stop and frisk” (full stop) are confusing the issues and playing into a trap. In one sense, everyone supports stop and frisk, and can hardly avoid doing so without giving up on the rule of law. So it makes no sense to criticize Bloomberg for doing so, as though Trump, Buttigieg, Klobuchar, Biden, Warren, Sanders, or even Tulsi Gabbard were in a different boat. They’re all in the same boat, along with 99.999% of the rest of us.

In another sense, what Bloomberg was engaged in as mayor of New York was an abuse of “stop and frisk” that legally speaking didn’t qualify as stop and frisk at all. In this sense, it makes good sense to criticize Bloomberg for tolerating the abuse, rationalizing it, and arguably lying about what he was doing. (How good is what I’ll discuss in part 2.)

But a critic who can’t differentiate ordinary from Bloombergian stop and frisk has no way of hitting the latter target while avoiding the former. If you attack ordinary stop and frisk, Bloomberg will respond (correctly, but without clarifying his meaning) that stop and frisk is a necessary tactic for garden-variety law enforcement and gun control. After all, what about those innocent people the NYPD protected under Bloomberg’s mayoralty? And what about all those guns he took off the streets? While we’re at it, why attack Michael Bloomberg but not, say, Ras Baraka, Bernard Young, or Lori Lightfoot? Or Amy Klobuchar or Mayor Pete? It’s not as though they’re against ordinary stop and frisk.

If you manage specifically to attack Bloombergian stop and frisk, Bloomberg will deftly change the subject to his support for ordinary stop and frisk. If you can’t grasp the strategy behind the bait and switch, he’ll have stopped and frisked you in the process.

Far too many liberals are setting themselves up for this trap–piously attacking stop and frisk without differentiating ordinary from Bloombergian varieties of it, piously (and incoherently) reciting mantras in defense of gun control, then disingenuously pretending that we can do away with ordinary stop and frisk, and even worse, pretending that crime is itself a matter we can wish out of existence.

Every element in this package is an expression of self-delusion and magical thinking. Without ordinary stop and frisk, there is no rule of law. Without ordinary stop and frisk, there is no gun control. To attack ordinary stop and frisk, even inadvertently, is to set oneself up for the legitimate criticism that one quixotically opposes the rule of law and inconsistently has cut the ground out from under gun control. It will be futile for liberals in this indefensible position to engage in schoolyard taunts about Bloomberg’s wealth, or to change the subject to his mistreatment of women or his arrogance or whatever. The implication will be clear: they don’t know what they’re talking about.

If liberals are experts at self-deception, Bloomberg is an expert at regular deception. Bloomberg likes to take credit for the decline in the crime rate that took place in New York City under his “watch.” And such a decline did undeniably take place. But the sly, generally unchallenged implication of Bloomberg’s claim is that were it not for his tactics, the crime rate would have gone higher rather than lower; hence his tactics, whatever they were (and however bad they were), can at least be credited with that achievement. Right? Right?

So tempting. The aim here is to drag one’s interlocutor into futile consequentialist calculations–what Robert Nozick called a “utilitarianism of rights”–about whose rights had to be violated in order for whose rights to be protected. It’s worth noting that Bloomberg employs this tactic while claiming to “apologize” for stop and frisk. In other words, he takes credit for the decline in the crime rate while pretending to disavow the methods that he regards as explaining why the crime rate went down. Only a master of deception could pull off bullshit artistry of this caliber, asserting out of one side of his mouth what he denies out of the other. In this sense, Bloomberg is more dangerous than Trump: he’s just as dishonest as Trump, but better at it.

There are three ways of disarming Bloomberg’s claims in this context.

One is to insist on consistency. Is Bloomberg taking credit for Bloombergian stop and frisk, or is he apologizing for it? He can’t have it both ways, and shouldn’t be allowed to. But he can only be held to account if the relevant distinctions are made.

A second is to insist on a showing of causality. During the relevant period, the crime rate went down nationally, not just in places like New York City that employed Bloombergian tactics. How does Bloomberg show that his tactics caused the decline in crime in New York when the absence of those tactics correlate with the same decline elsewhere? On the face of it, his assertions fail a simple inductive test, Mill’s method of difference. He’s smart enough to understand all that. I mean, he’s a billionaire who supposedly made his self-earned piles of money on the basis of his smarts about the analysis of data. So what’s his response?

A third way is to treat rights-violations by the police as additions to the crime rate. The only reason that rights violations by the police are not added to the crime rate is that legally speaking, when a police officer violates someone’s rights, we don’t call it a crime, whereas when a non-police-officer does (up to and including fare jumping), we do. Yet if a non-officer did what Bloomberg’s cops so often did, we would call it a crime. It would be a crime. So why not call it what it is?***

People like Bloomberg should be put on the defensive on this particular issue. What happens to their vaunted reductions of the crime rate if the malfeasances of law enforcement are themselves treated as crimes? And what is their argument for not treating them that way? Once Bloomberg’s critics win the latter argument, as they can and should, it becomes plausible to think that the vaunted decrease in the crime rate under Bloomberg can be revealed as a sham: a mere correlation produced by double entry bookkeeping.

In my next post, I’ll assume that Bloombergian stop and frisk is immoral, and ask what follows from it in the way of dealing with Bloomberg’s candidacy. Calling it wrong and turning it into a campaign issue are not the same thing. How does the one become the other?

*For a neutral, accurate account, you really need to consult a textbook of criminal procedure. I use Robert M. Bloom and Mark S. Brodin’s Criminal Procedure: The Constitution and the Police, 8th ed. A colleague of mine uses Matthew Lippmann, Criminal Procedure, 3rd ed. For a short, non-technical discussion, see Laura Coates, You Have the Right: A Constitutional Guide to Policing the Police.

**The point has been made independently of me by Adam Bates. But I disagree with this formulation:

Contrary to Mr. Trump’s denials, stop and frisk was indeed ruled unconstitutional by at least one federal court. That ruling is correct. Stop and frisk, as practiced in cities like New York and Chicago, refers to police detentions and searches of people with virtually no individual suspicion of wrongdoing. Advocates of the program insist that the Supreme Court’s ruling in Terry v. Ohio, allowing frisks where the police can articulate reasonable suspicion of criminal behavior, supports the practice, but that’s a far cry from the standard the NYPD used for years.

By implication, at least, this passage conflates the distinction between ordinary and Bloombergian stop and frisk that I make in the text.

***Jason Brennan’s defense of what he calls “moral parity” between law enforcement and non-law-enforcement has picture-perfect exemplification and significant real-world implications here. See Jason Brennan, When All Else Fails: The Ethics of Resistance to State Injustice, chs. 1-2. Never let it be said that I crap on everything Brennan writes.

4 thoughts on “Bloomberg on “Stop and Frisk” (Part 1 of 2)

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  3. Pingback: Bloomberg on “Stop and Frisk”: Part 2 of 2 | Policy of Truth

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