by Brendan Kennedy
Prior to the first Presidential debate, an argument arose over the place for fact-checking in the debates. And while a number of outright lies were discussed in the lead-in to the debate, one of the most notable examples of fact-checking by moderator Lester Holt came on an issue that many Americans are unfamiliar with: stop-and-frisk.
Donald Trump’s campaign adopted a law-and-order spin in the weeks before the debate, responding to what his campaign describes as a widespread and dangerous crime wave (criminologists and statisticians have widely disputed this characterization, with one calling Trump’s evidence “a good illustration of how to lie with statistics.”) Amid questions calling for specific policy proposals to reduce crime, Trump responded with calls for widespread implementation of stop-and-frisk, using New York City as an example. In the debate, Hillary Clinton said that the policy had been ruled unconstitutional and discriminatory, which Lester Holt said was true. Donald Trump asserted that both were wrong. That debate moment sparked a wider discussion about what exactly Donald Trump meant when he said “stop-and-frisk”.
The Trump team, in an attempt to clarify their candidate’s position, has produced a vague and contradictory pretzel of logical twists that did very little to refute the policy’s criticisms.
Rudy Giuliani, a Trump surrogate and former New York City mayor, produced the campaign’s main rebuttal in an article for the Wall Street Journal. In it, Giuliani states that when Trump refers to “stop-and-frisk”, he is referring to the practice also known as a Terry stop. Terry stops are a police practice in which an officer stops a person because they have reasonable suspicion of a crime, but lack the probable cause necessary to make a full arrest. This practice was declared constitutional by the Supreme Court in Terry v. Ohio in 1968. The “stop-and-frisk” that Clinton and Holt were referring to, Giuliani says, was a specific strategy in New York City that was struck down in 2013. The practice was “not unconstitutional in general but unconstitutional as applied”, a distinction that Giuliani says is beyond Clinton and Holt’s grasp.
However, Giuliani never shows how Trump’s proposed application of Terry stops would differ from the one in New York. In fact, Giuliani never gives any indication that Trump has any application in mind at all. The furthest he goes to explain Donald Trump’s actual position is to argue that, when he says “stop-and-frisk”, he means the practice of Terry stops.
If Donald Trump is really only referring to the “practice” of Terry stops, and not discussing its application, then his proposal to “do stop-and-frisk” is completely meaningless.
Terry stops refer to an incredibly broad swath of police practices, including routine traffic stops. Giuliani himself says that “it is a technique used by all law enforcement agencies nationwide”. Proposing that police “do stop-and-frisk”, according to Giuliani’s explanation, is proposing that the police employ a tactic that is already employed everywhere. If we accept Giuliani’s explanation, then Trump’s proposal was little more than a salad of buzzwords without any real meaning or understanding.
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Of course, Trump could put actual substance behind his words by explaining what application of Terry stops he has in mind. As it stands, Trump could mean anything from asking police to pull over erratic drivers to ordering cavity searches of every person seen with baggy pants. If Trump were to put forth an actual proposal, then we would be able to measure its constitutionality. Until then, his words are meaningless.
But the question remains: were Hillary Clinton and Lester Holt reasonable in their assumption that Trump’s idea of “stop-and-frisk” referred to the unconstitutional policy in New York City? Based on the evidence, and given Trump’s lack of counterfactual, the answer is yes.
The first reason to assume that Trump is referring to the NYPD policy is that, in the field of criminology, the phrase “stop-and-frisk” is widely used to describe the policy of systematic Terry stops implemented in New York City, and policies which are similar. Media reports often makes the same connection. This can be confusing: didn’t Giuliani say that “stop-and-frisk” referred to the practice of Terry stops? This is definitely a gray area; however, Giuliani’s definition is generally used to refer to the actions of a specific officer, rather than a policy. You might say that an officer “conducted a stop-and-frisk on a pedestrian”. That refers to a Terry stop, Giuliani’s definition. But when you say “our city police department is going to implement stop-and-frisk”, then you are generally understood to be talking about a New York-style policy. Because Giuliani’s definition is broad to the point of being meaningless, most people have used the moniker “stop-and-frisk” to specifically refer to New York City’s policy. Based on this understanding, it makes perfect sense that Clinton and Holt would make that assumption of Trump.
Further, when discussing stop-and-frisk, Trump and Giuliani focus on New York City an awful lot for people who claim to be referring to a broad, universally-used practice. When he first suggested the policy, Trump immediately stated “we did it in New York, it worked incredibly well.” Giuliani’s defense, while asserting that Trump was not referring to the New York policy, still gushed over how effective that policy was. And in the debate itself, Trump stated that “stop-and-frisk had a tremendous impact on the safety of New York City”. Putting the validity of these statements aside, all of this talk certainly seems to indicate that Trump is, at the very least, using the unconstitutional New York City policy as a model.
Trump could (or should) be able to easily clarify his position on stop-and-frisk. Since he refuses to do so, widely accepted definitions as well as his own words mean that it is reasonable to assume that Donald Trump would implement a nationwide policy in the style of the one that was struck down in New York City. And, based on this reasonable assumption, Trump’s proposal would likely be discriminatory, ineffective, and unconstitutional. With the overwhelmingly negative evidence available, criticism of his proposal is fair game. And, until Trump puts forward an actual plan, arguing that his proposal may be unconstitutional is fair as well.
Brendan Kennedy is a senior at Trinity University from Dripping Springs, Texas, majoring in Political Science.
The views expressed in this article are those of the writer. The Contemporary takes no position on matters of policy or opinion.
The picture above is by Michael Fleshman and under a CC BY-SA 2.0 license and can be found here.