Commentary Magazine


Stop and Frisk vs. Gun Control

Few issues divide self-described libertarians from self-described conservatives quite as consistently as those related to security and defense. As we’ve seen with the debate over the NSA’s data collection, it isn’t just about foreign intervention either. And the recent ruling on the NYPD’s stop and frisk tactic is the latest episode demonstrating how far apart the two factions can be on policing.

I’ve written numerous times in defense of stop and frisk, and did so again after Judge Shira Scheindlin’s legally incoherent ruling against it. Reason magazine’s A. Barton Hinkle has written a response to one of my recent posts on the topic as well as those of Heather Mac Donald, National Review, and others. Hinkle’s libertarian perspective on the issue is thoughtful and it’s a constructive contribution to the debate, most significantly for his essential reminder that the ends don’t automatically justify the means; when individual liberty is at stake, the means themselves must be just.

I also appreciate that libertarians like Hinkle argue the case on the facts instead of taking the left’s approach to this debate, which is to assume racial animus on the part of anyone supporting the police. But I think Hinkle misfires on a couple of points, which are worth delineating. The title of Hinkle’s column is “Stop and Frisk: How the Right Learned to Love Gun Control,” and he explains early on that conservatives have accepted and parroted the “liberal logic of gun control,” which he defines as follows: “Government should infringe, or even abrogate, the rights of millions of law-abiding people in order to stop a minuscule fraction who use guns to commit mayhem.”

He closes the column on a similar note:

In fact, stop-and-frisk is not a tremendous success but a tremendous failure, because such stops turn up contraband only 2 percent of the time. In other words: 98 times out of 100 the officer’s suspicion is unjustified.

If any other program had a 98 percent failure rate, conservatives would hold it up as a shining example of everything that’s wrong with big government. That they’re so eager to defend a failing program when it happens to target minorities makes their professed concern for “the most vulnerable” ring a trifle hollow.

There are a few important points here in response. First, the point of stop and frisk is not ultimately to confiscate guns, and thus its success should not be measured by a target at which it most certainly is not aiming. That is not to say gun confiscation is irrelevant to stop and frisk. But the tactic is not a guessing game to locate guns; it is an evidence-based procedure to prevent crime.

To the extent that there is some form of gun control involved, there is a crucial difference: the police are seeking to control the use of illegal guns, not the possession of legal guns. One can, therefore, support both stop and frisk and a robust respect for the Second Amendment. Yet it is the Fourth Amendment that seems to trouble Hinkle more anyway, and here we get into the thorny issue of profiling. Hinkle writes:

By the same token, just because most perpetrators in New York are black or Hispanic does not mean most blacks or Hispanics are perpetrators. After all, most homicides are committed with guns – but that does not mean most gun owners commit homicide.

Quite right. Then Hinkle adds:

The NYPD’s defenders also contend the police did not stop and frisk minorities at random; they stopped those who acted suspiciously. This is true only if you consider perfectly normal behavior suspicious.

This again omits a crucial aspect of the tactic. “Suspicious” behavior doesn’t mean someone looks like they’re about to commit a crime, however that would look. It also includes people who match the descriptions of suspects. This was something Scheindlin and the press learned when those subjected to the stop and frisk tactic began testifying, ostensibly for the plaintiffs. When they told their stories, a different picture began to emerge, as the New York Times reported in April:

One man was stopped and frisked because of his expensive red leather jacket — similar to one that a murder suspect was wearing in a wanted poster. Another man was stopped after a woman complained to the police that he was following her. Still another was stopped by officers who had watched him jostle the door of a home, trying to get in.

This is basic police work. Take the second case, for example: a woman complained to police that a certain man was following her. The police stopped the man to question him. Hinkle’s grading system rates that stop a “failure” because the man presumably didn’t have an illegal gun on him. Scheindlin made similar mistakes in her finding, which is one reason the city is challenging the ruling.

There is one point on which both conservatives and libertarians can agree: that a tactic is successful or effective doesn’t make it constitutional. Hinkle is right to warn of the slippery slope such a mindset would lead to, and conservatives shouldn’t be hostile toward such reminders. But sometimes it’s worth pointing that libertarians should avoid the reverse fallacy, and remember that just because something is effective doesn’t mean it’s authoritarian or abusive.

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