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Lauren Carroll
By Lauren Carroll September 28, 2016

Donald Trump and Lester Holt clash over whether stop-and-frisk is constitutional in New York

Donald Trump has been pushing for cities to expand stop-and-frisk policies in order to combat crime, but some argue it’s a form of racial profiling.

At the Sept. 26 presidential debate, moderator Lester Holt asked Trump what he would do to heal racial divides. Trump said the country needs to "bring back law and order" in inner cities and praised stop-and-frisk policies in Chicago and New York. Then Holt jumped in with what sounded like a  fact-check.

"Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men," Holt posed to Trump.

"No, you're wrong," Trump responded. "It went before a judge, who was a very against-police judge. It was taken away from her. And our mayor, our new mayor, refused to go forward with the case. They would have won an appeal. If you look at it, throughout the country, there are many places where it's allowed."

Whenever there’s a disagreement over who has their facts right, we’re compelled to sort it out. So the question of whether stop-and-frisk was ruled unconstitutional in New York piqued our interest.

As it turns out, Holt and Trump are both a little bit right and a little bit wrong. But Trump's more wrong than Holt.

Stop-and-frisk is the practice of a police officer stopping and questioning a person (the stop), then patting the person down for weapons (the frisk). Stops and frisks are legal, in New York and everywhere else.

In its decision in the 1968 case Terry vs. Ohio, the Supreme Court ruled 8-1 that an officer can legally stop a person if the officer has reasonable suspicion that criminal activity is afoot. And if the officer has a reasonable suspicion that this person is armed, he or she can legally frisk the person for weapons. Because of that reasonable suspicion standard, the court said these stops would be consistent with the Fourth Amendment, which protects against unreasonable search and seizure.

A 2013 case before the U.S. District Court in Manhattan, Floyd vs. City of New York, raised the issue of the constitutionality of New York City’s stop-and-frisk policies between 2004 and 2012.

Judge Shira Scheindlin found that New York City had been conducting unconstitutional stops and frisks on two grounds: Officers were stopping and frisking people without reasonable suspicion, in violation of Terry and the Fourth Amendment; and a disproportionate number of those stopped and frisked were minorities, in violation of the equal protection clause of the 14th Amendment.

"Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites," Scheindlin wrote in her opinion. "For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband."

So Holt was right to note that a court found New York City had an unconstitutional stop-and-frisk policy because police had been disproportionately targeting black and Hispanic people.

But the Floyd case was specific to New York City’s particular way of conducting stops and frisks between 2004 and 2012. Scheindlin did not rule all stops and frisks unconstitutional, and her findings were consistent with the Supreme Court’s decision in Terry. Scheindlin ruled that New York City could continue to conduct stops and frisks as long as they made some changes.

"Stop-and-frisk was not outlawed," said Andrew Schaffer, former deputy commissioner for legal matters for the New York Police Department and an adjunct professor at New York University Law School. The ruling only sought to correct a supposed problem of officers making stops without a reasonable suspicion of criminal activity and disproportionately stopping black and Hispanic people.

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Schaffer added, "The Floyd decision in New York did not and could not overrule Terry."

"The judge made it very clear that she was not finding stop-and-frisk as a general practice unconstitutional," said David Rudovsky, a leading civil rights attorney and senior fellow at the University of Pennsylvania Law School.

So Holt’s claim — "stop-and-frisk was ruled unconstitutional in New York" — isn’t quite precise because it makes it seem as if the judge decided that all stops and frisks were unconstitutional in New York, when really her ruling said New York had to stop and frisk differently. New York cops still stop and frisk today.

But it also isn’t quite correct for Trump to call Holt’s claim "wrong" because that implies there was no finding of unconstitutionality in New York’s practices or that Scheindlin’s ruling was tossed out, when really it still stands.

There might be some confusion in the public conversation over stop-and-frisk because it seems the public has come to associate the phrase "stop-and-frisk" with unconstitutional practices, like officers stopping people for no reason, said Ian Weinstein, professor at the Fordham University School of Law in New York.

"Constitutional stop-and-frisk is legal across America, and the unconstitutional version is illegal across America," Weinstein said.  

For some additional context, we wanted to know what Trump was talking about when he said the case "was taken away" from Scheindlin.

After Scheindlin ruled against them, lawyers representing New York City went to the Court of Appeals for the Second Circuit, a rung above Scheindlin’s court. A panel of Second Circuit judges decided to remove Scheindlin from all future proceedings in the Floyd case because Scheindlin had spoken to the media while the case was pending and because the panel believed Floyd had been inappropriately assigned to her.

The panel did not make this decision because Scheindlin was "anti-police," as Trump said in the debate. The panel also did not reverse or throw out Scheindlin’s ruling.

A few months later, at the start of 2014, Bill de Blasio replaced Michael Bloomberg as the mayor of New York, and he decided to drop the appeal, accept Scheindlin’s ruling, and dramatically reduce the frequency of stops and frisks in New York City.

Our ruling

Responding to the assertion that stop-and-frisk was ruled unconstitutional in New York, Trump said "no, you’re wrong."

Trump has a point that a judge’s ruling in a 2013 case did not declare stop-and-frisk as a general practice unconstitutional in New York. Stop-and-frisk is still legal and still takes place in New York and across the country.

But his claim ignores that a judge did decide that the manner in which New York previously conducted stop-and-frisk was unconstitutional and that her ruling still stands. Trump had argued that stop-and-frisk was working effectively in New York City to reduce crime during the time period covered by the lawsuit.

Trump’s statement has an element of truth but leaves out critical context that would give a different impression, so we rate it Mostly False.

Our Sources

Presidential debate, transcript, Sept. 26, 2016

Supreme Court, Terry decision, June 10, 1968

U.S. District Court for the Southern District of New York, Floyd decision, Aug. 12, 2013

U.S. Court of Appeals for the Second Circuit, Floyd mandate, Oct. 31, 2013

New York Times, "Trial to Start in Class Suit on Stop-and-Frisk Tactic," March 17, 2013

New York Times, "A Court Rule Directs Cases Over Friskings to One Judge," May 5, 2013

New York Times, "Judge Rejects New York’s Stop-and-Frisk Policy," Aug. 12, 2013

New York Times, "Court Blocks Stop-and-Frisk Changes for New York Police," Oct. 31, 2013

New York Times, "Mayor Says New York City Will Settle Suits on Stop-and-Frisk Tactics," Jan. 30, 2014

Phone interview, civil rights attorney David Rudovsky, Sept. 27, 2016

Phone interview, NYU Law professor Andrew Schaffer, Sept. 27, 2016

Email interview, Fordham Law professor Ian Weinstein, Sept. 27, 2016

Email interview, Trump spokesman Steven Cheung, Sept. 27, 2016

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Donald Trump and Lester Holt clash over whether stop-and-frisk is constitutional in New York

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