The bane of this past election season were the self-appointed fact checkers. On every level, the fact checkers and their sycophants in the media were the ones who have been misleading the public on this issue. The current controversy over the “Stop and Frisk” policies of local police departments have drawn scrutiny because of highly publicized police shootings of minorities and the backlash of demonstrations and violence against police officers. This is a good time to explain the correct legal standards governing police encounters with civilians.

Before going any further, this correspondent must reveal that he is an attorney in South Florida, who has practiced primarily criminal law for 34 years. He regular files Motions to Suppress asserting Fourth Amendment grounds for excluding evidence in State and Federal Court. Notwithstanding this professional bias in favor of restricting the power of police officers to detain and search suspects, he recognizes that every community has a legitimate need for proactive police work to root out crime and confiscate weapons. The Courts have, and will continue to monitor on a case by case basis whether evidence seized as the result of Stop and Frisk will be admitted as evidence at trial.

The Fourth Amendment to the U.S. Constitution guarantees that people will be protected against unreasonable searches and seizures. The Courts enforce the Fourth Amendment by excluding the evidence seized pursuant to an illegal search and seizure. In Terry vs. Ohio, which was decided in 1968, the Supreme Court authorized police to frisk someone they had stopped if they had reasonable suspicion that person had committed a crime or was in possession of a weapon. Ever since, criminal court judges around the country have wrestled with the legality of each stop and frisk that resulted in an arrest. Procedural rules were set by these judges as well as Congress and all the State Legislatures.

In 1997, in the case of Wren vs. United States, the Supreme Court decided that a racial motivation for a stop, in that case the stop of an automobile, was immaterial under the Fourth Amendment if it was otherwise valid. In other words, even if the police were subjectively deciding to stop the person because he or she was black or other minority, the stop would still be valid provided there was reasonable suspicion that a crime had been committed, even if that crime was a mere traffic infraction.

In New York City, the boundaries of those so-called “Terry Stops” were pushed to the limit by policies enacted by the NYPD. As part of what became known as the “broken windows” policy, police were encouraged to stop and question people who were not breaking the law. Frequently, those stopped would be frisked for weapons or other contraband. Statistically, the clear majority of persons who were stopped and frisked were minority group members, and in almost 90% of the cases, no arrest was made.

stop and frisk

Floyd vs. City of New York was a class action lawsuit filed in the Federal District Court in Manhattan alleging that the NYPD policy was unconstitutional under Title 42, Section 1983. A key to understanding this lawsuit was that it’s intention was not to declare Stop and Frisk unconstitutional, but to invalidate the discriminatory application of the NYPD “policy, practice, and/or custom of unconstitutional stops and frisks”. A Federal Judge who finds a violation of Section 1983 has the power to order the guilty Government agency, in this case the NYPD, to implement reforms to alleviate the unconstitutional practices.

On August 12, 2013, Federal Judge Shira Scheindlin ruled that the stop and frisk practice, not the law itself, was unconstitutional and directed the NYPD to adopt a written policy to specify when, where and under what conditions such stops would be authorized. There has been a great deal of subsequent litigation that has followed this decision, but when Mayor De Blasio decided to drop the City’s appeal, Judge Scheindlin’s decision was left standing.

So, does that mean that Stop and Frisk is unconstitutional? No, it only means that the NYPD policy implementing it was ruled unconstitutional by a Federal District Court Judge in New York City. While the NYPD has to implement the ruling, and other City Governments might be persuaded to follow it, the Court’s ruling does not possess the force of law in any other jurisdiction.

Stop and Frisk as it applies to the inner cities throughout the U.S. is justified as a tool for communities to wrest control from the criminal element that preys on their residents. During the Presidential debates, Lestor Holt, the “moderator”, interrupted Trump to suggest that his reliance on Stop and Frisk as a tool in his law and order campaign message was unconstitutional because of Judge Scheindlin’s ruling in Floyd vs. City of New York. In other words, Holt and all the fact checkers, inferred that all Stop and Frisks were unconstitutional, and that Trump was advocating the unconstitutional policy of the NYPD be applied everywhere.

When Trump addressed the specific case, he correctly summarized the subsequent developments, albeit from a political perspective. He gave his opinion that Judge Scheindlin’s Order would have been overturned if Mayor De Blasio had not withdrawn the City’s appeal. Ironically, he showed a superior grasp of the issue than Holt when he acknowledged that Judge Scheindlin’s Order still stood. That recognition suggested that he was not promoting a policy that had been declared unconstitutional, but rather a constitutional power that has been repeatedly validated by the highest Court in the land. His call for more Stop and Frisk was not a promotion of the specific NYPD policy.

Whether more Stop and Frisk will improve the lives of people in crime infested communities or not cannot be known with any degree of certainty by anyone, but it is certainly a discussion worth having. Suggesting that Stop and Frisk is unconstitutional as insisted by Holt and these “fact checkers” serves to discredit the practice and fuels more urban discontent, and violence in minority communities and against police officers. These discussions should take place in the political arena so that the correct policies can be implemented by those elected to implement them. Interrupting a candidate for President to change the subject, discredit his position by falsely suggesting it was unconstitutional, and injecting personal opinion that happened to have been wrong had the effect of stifling and sidetracking that discussion. We as a people are ill-served by people like Lestor Holt and his fact checkers. If they consider themselves journalists, they should stick to reporting the news, not criticizing it.