Holt Said Stop-And-Frisk Was Ruled Unconstitutional — The Truth Is More Complicated


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Kevin Daley Supreme Court correspondent
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NBC’s Lester Holt, moderator of Monday’s night presidential debate, asserted in an exchange with Republican presidential nominee Donald Trump that New York City’s controversial stop-and-frisk policy had been ruled unconstitutional by the courts — but the truth is more complicated.

“Stop-and-frisk was ruled unconstitutional in New York because it largely singled out black and Hispanic young men,” Holt said.

“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 on appeal.”

Holt is correct in a narrow sense, but the idea that the courts have spoken conclusively on the question is flatly untrue.

U.S. District Judge Shira Scheindlin, a Bill Clinton appointee, found in August 2013 that the New York Police Department’s stop-and-frisk policy was unconstitutional. Scheindlin ruled that the practice raised Fourth and Fourteenth Amendment problems and ordered its discontinuation.

In U.S. courts, however, a district judge does not have the final say concerning legal controversies.

A district court is a court of original jurisdiction, and as such, its rulings are subject to review by the appellate courts, or even the U.S. Supreme Court in a handful of cases. What’s more, a decision reached by a district judge is not binding on other courts — another district judge could reasonably reach the opposite conclusion in an identical case. (RELATED: Pence: Stop-And-Frisk Literally Saves Lives)

Initially, the city of New York appealed the ruling to the 2nd U.S. Circuit Court of Appeals. That appeal was withdrawn when Mayor Michael Bloomberg was succeeded by Bill de Blasio, who made ending stop-and-frisk a marquee pledge of his successful mayoral bid.

How the 2nd Circuit would have ruled in the case is unclear, contra Trump.

Because the appeals courts have never taken up the matter, it is perfectly reasonable to say that stop-and-frisk’s constitutionality is an open question. So while Holt was correct in so far as Scheindlin’s decision is concerned, it is incorrect to assert that the courts have spoken finally and definitively about this issue.

It also bears noting that a 2nd Circuit panel expressed concerns regarding Scheindlin’s impartiality. Though it is probably hyperbolic to assert that she is “against-police,” the panel issued a blunt critique of Scheindlin’s comportment, criticizing her Byzantine maneuvering to steer the case to her court room, as well as the interviews she sat for with the press as the litigation unfolded. Her opinion in the ruling including glowing references to President Obama, New York Times columnist Charles Blow, and Trayvon Martin, the slain Florida teenager whose death at the hands of George Zimmerman sparked nationwide protest. Though she was removed from further participation in the case, the 2nd Circuit panel later hedged its chastisement, backing away from its findings of bias.

Her record has a strong liberal streak. She concluded a provision of the Military Honor and Decency Act, which prohibited the commercial exchange of smut on military bases, was unconstitutional, only to be overturned on appeal. In the aftermath of the Sept. 11 terror attacks, she found that the detention of an associate of hijacker Nawaf al-Hamzi was unconstitutional — the associate was later acquitted of involvement in the attacks.

As a district judge, Scheindlin forged a legacy in civil procedure, particularly in electronic-discovery disputes. Several of her decision were absorbed into 2006 civil procedure amendments.

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