Although Hillary Clinton condemned New York City’s stop-and-frisk policy during Monday’s debate (aided by Lester Holt, the debate moderator), the truth is that stop-and-frisk is perfectly constitutional under the Bill of Rights’ Fourth Amendment.
Mayor Rudy Giuliani implemented stop-and-frisk during his mayorship of the Big Apple—a tenure lauded as one of the most effective and successful big-city turnarounds in American history.
During the Hofstra debate, Holt asked Clinton about how she would improve race relations in America.
Clinton responded in part by pivoting to stop-and-frisk to vilify it, making part of her answer, “Stop-and-frisk was found to be unconstitutional and, in part, because it was ineffective.”
Donald Trump responded by pointing out that crime dropped under Giuliani and continued at that reduced level when his successor Michael Bloomberg continued the same policies initiated by America’s Mayor.
Crime in Gotham dropped by 85 percent from 1994 (when the policy began) through 2013, then Mayor Bill de Blasio ended the practice.
The Fourth Amendment of the Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In 1968, the nation’s highest court faced exactly the same issue of short warrantless police encounters on the street in Terry v. Ohio.
In Terry, the Supreme Court held:
When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.
For the sake of protecting the officer’s safety, and the safety of other people in the area, the Court concluded, the Fourth Amendment allows an officer “to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used against him.”
The lone dissenter in Terry, Justice William Douglas, wrote that the Fourth Amendment only allows a pat-down if the officer has probable cause to suspect a crime. All eight other justices—including archliberal Justice William Brennan—rejected that argument, in an opinion written by the most liberal chief justice the nation has ever had, Chief Justice Earl Warren.
Constitutional scholars know that 1968 was the most liberal year in the more than two centuries of the Supreme Court’s existence. Even the most liberal Supreme Court in American history rejected Clinton’s position by an 8-1 margin. But that’s exactly the position of Clinton and de Blasio.
It’s also the view of the only judge to rule against stop-and-frisk, Judge Shira Scheindlin. Well known as a liberal judicial activist, Scheindlin took unusual measures to ensure that she would get the case (claiming that it was linked to a previous case of hers that had been closed years ago), and then launched an angry broadside against police powers.
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