Trump’s false claim that stop and frisk in NYC wasn’t ruled unconstitutional

Moderator Lester Holt: “Stop and frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”
Donald Trump: “No, you’re wrong. It went before a judge, who was a very against-police judge. It was taken away from her. And our mayor, our new mayor [Bill de Blasio], 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.”
Holt: “The argument is that it’s a form of racial profiling.”
Trump: “No, the argument is that we have to take the guns away from these people that have them and they are bad people that shouldn’t have them.”
— Exchange at the first presidential debate, Sept. 26

There was a lot of discussion before the first Clinton-Trump debate about the role of fact-checking by a moderator. In this case, Lester Holt correctly presented the facts about stop and frisk. Trump has called on a national stop-and-frisk policy, praising former New York City mayor Rudolph W. Giuliani for enacting the policy and driving down crime rates. (We awarded Three Pinocchios to his claims attributing 20 years of crime decline to the stop-and-frisk policy under Giuliani.)

The important distinction here is that stop and frisk as a tactic is constitutional. The way it was applied in New York City, and as it was challenged in the lawsuit that Trump and Holt were referring to, was found unconstitutional. For this reason, there has been some confusion in news coverage about this. We dug into the facts.

The Facts

Stop and frisk was introduced under Giuliani and expanded under former mayor Michael Bloomberg, who took office in 2002. The New York Police Department widely employed this tactic of stopping people for suspicious activities.

Blacks and Hispanics who were stopped by New York police sued the city, arguing that the use of stop and frisk violated their constitutional rights under the Fourth Amendment (prohibition against unreasonable search and seizure) and that they were targeted for stops in violation of the Equal Protection Clause of the 14th Amendment. Plaintiffs weren’t seeking the city to end the practice, and did not argue about its effectiveness in addressing crime. Instead, they requested the policy be changed so that it stays within constitutional limits.

In 2013, U.S. District Judge Shira A. Scheindlin, in the Southern District of New York (which covers Manhattan, the Bronx and some other counties), issued a 195-page ruling in favor of the plaintiffs. She  found the city liable for violations of the plaintiffs’ rights under the Fourth and 14th amendments. Scheindlin laid out the facts:

• The number of stops rose sharply from 314,000 in 2004 to its peak of 686,000 in 2011.
• Of all stops, 52 percent were followed by a frisk for weapons. Police found a weapon in 1.5 percent of those frisks — meaning 98.5 percent of 2.3 million frisks produced no weapon.
• Of 4.4 million stops, 88 percent resulted in neither arrests nor summonses.
• Among people who were stopped by police, 52 percent were black, 31 percent were Hispanic and 10 percent were white. These stops were disproportionate to the racial breakdown of New York City in 2010: about 23 percent black, 29 percent Hispanic and 33 white.
• Officers recorded using force in 23 percent of stops of blacks, 24 percent of stops of Hispanics and 17 percent of stops of whites.

She concluded her ruling by quoting New York Times columnist Charles Blow: “The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and … neighborhood watch — regardless of the collateral damage done to the majority of innocents. It’s like burning down a house to rid it of mice.”

Scheindlin ordered a series of changes to the department’s policies, and appointed a federal independent monitor to oversee compliance. The city, under Bloomberg’s administration, appealed the decision.

As Trump says, Scheindlin was removed from the case on appeal. But it wasn’t related to her being a “very against-police judge.” A federal appeals court found that Scheindlin gave an appearance of bias by using a legal maneuver to hear the case in her court, and by giving news interviews. Bloomberg’s administration praised the decision, saying Scheindlin “endangered public safety with an anti-police mindset.”

The federal appeals panel denied the city’s request to overturn Scheindlin’s ruling. But it did halt the court monitor while the city appealed Scheindlin’s decision.

Tapping into public dissatisfaction with stop and frisk, de Blasio promised to end the program if elected. In January 2014, his first month as mayor, de Blasio decided to drop the city’s appeal and agreed to the supervision by a court-approved monitor for three years.

But by the time de Blasio became mayor, stop and frisk was already on its way out. The number of stops declined after the peak in 2011, and in 2013, there were fewer than 200,000 stops. In 2014, there were just under 46,000, according to NYPD data. Last year, there were 22,939 stops, the New York Times reported.

And while the number of recorded stops decreased through 2013, the crime continued to fall — calling into question how effective the stops have been in decreasing crime. If the practice had a direct impact on crime, one would assume the crime rate would soar after police ended the stops.

Data showed that while blacks or Hispanics were not more likely than whites to carry guns or drugs, they were being stopped at extremely disproportionate rates, said Faiza Patel, co-director of the Liberty and National Security team at New York University Law School’s Brennan Center for Justice. Plus, gun recovery rates over the course of stop and frisk did not match the increase in stops through 2011, Patel said.

The Center for Constitutional Rights, which argued the case on behalf of the plaintiffs, issued a statement confirming that the practice was found unconstitutional in the 2013 case. But NYPD rejected the claim that stop and frisk is unconstitutional. In a statement, the agency acknowledged Scheindlin ordered remedies to ensure the agency “applies the lawful policing tool constitutionally.”

In an op-ed in the Wall Street Journal, Giuliani sided with Trump, citing the Supreme Court case where stop and frisk was held constitutional (Terry v. Ohio) — not the New York case.

The Pinocchio Test

Trump is incorrect: Stop and frisk was ruled unconstitutional in New York. By the time de Blasio dropped the appeal, the practice was already on its way out, although it continued through last year. There is a court-appointed monitor working with NYPD to ensure that the practice is within constitutional limits.

There has been some confusion about this issue in news coverage. Stop and frisk as a tactic is constitutional. But the way the tactic was applied in New York City has been found unconstitutional. This is an important distinction.

Trump said the argument for stop and frisk was that “we have to take the guns away from these people that have them and they are bad people that shouldn’t have them.” As noted earlier, police found a weapon in 1.5 percent of all frisks.

Kudos to Holt for sticking to the facts here. He precisely made it clear that stop and frisk was ruled unconstitutional in New York, whereas Trump resorted to word games and thus earns Four Pinocchios.

Four Pinocchios

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