Trump Is Right: Stop-And-Frisk Only ‘Unconstitutional’ Because Of One Rogue Judge

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Blake Neff Reporter
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Presidential nominees Donald Trump and Hillary Clinton clashed fiercely over the effectiveness of stop-and-frisk in Monday’s debate, while moderator Lester Holt intervened to say Trump was incorrect when he said the practice wasn’t unconstitutional.

Trump defended his position, arguing that a single ruling on stop-and-frisk by District Court Judge Shira Scheindlin hardly made the practice definitively unconstitutional.

“It went before a judge who was a very against-police judge,” Trump said. “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”

Much of the media has had a field day with the argument, saying Trump’s statements were “wrong,” a “string of lies,” and more. But Trump’s claims had a strong kernel of truth to them that has largely been ignored.

First of all, it’s worth noting that Scheindlin’s ruling is anything but authoritative for the entire country. It applies only to the jurisdiction of the Southern District of New York, which covers Manhattan, the Bronx, and a handful of other countries in the state of New York. The Supreme Court has never ruled on the matter, and while other district courts could look to Scheindlin’s ruling for inspiration, they certainly don’t have to. As a result, Trump would be entirely free to promote stop-and-frisk throughout most of the country should he win November’s election.

Pointing to Scheindlin’s ruling raises another issue: Her ruling was in many ways a politically-calculated move by a judge with a history of opposing the police.

One case early in Scheindlin’s career involved the federal government’s attempted prosecution of Antonio Fernandez, the leader of the notorious Latin Kings drug gang. Police received a tip about a gang meeting in a New York park where a white-shirted man was carrying a gun. Based on this tip, they detained Fernandez and searched him twice. The first search found marijuana, while the second found an illegal handgun hidden the crotch of Fernandez’s pants.

During the subsequent criminal case, Scheindlin threw out the gun as evidence, partly justifying it based on her personal belief police had planted the gun.

“It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber revolver hidden in Defendant’s pants,” she wrote in her ruling. “This raises a serious question as to how and when the gun came into Defendant’s possession.”

In another ruling, Scheindlin vacated the conviction of Weather Underground terrorist Judith Clark, on the grounds that Clark had been denied her right to an attorney during her felony murder trial. As the Second Circuit noted when it unanimously reversed Scheindlin, Clark had no attorney because she had insisted on representing herself, rejected offers of counsel, and then had herself expelled from the courtroom as a means of protesting its legitimacy.

Later, Scheindlin directly promoted the lawsuit that eventually brought down stop-and-frisk and took steps to make sure she was allowed to judge the case rather than another judge on the district court.

During a 2007 hearing on an individual stop-and-frisk case, Scheindlin encouraged the plaintiffs to organize and file a constitutional challenge against the entire system.

“[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit?” Scheindlin said. “You can certainly mark it as related … what I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.”

By marking the case as “related” to the one she was hearing at the time, a plaintiff could petition to have a stop-and-frisk challenge sent to Scheindlin’s sympathetic courtroom rather than that of a different judge. Under norms of judicial ethics, a judge should not show partiality by expressing a desire to hear a particular case. Yet, over the course of here career, Scheindlin took advantage of the “related” label to ensure she handled almost every stop-and-frisk case in the district.

When the major stop-and-frisk case finally came before her in 2013, Scheindlin granted numerous media interviews in which she bluntly talked about the case and attacked the administration of Mayor Michael Bloomberg for “disgraceful” behavior.

And when the ruling itself actually dropped, it was hardly a narrow legal document, but instead was a 200-page work that at times became an outright progressive tract. In the ruling, Scheindlin said it was a “stereotype” that black men have higher crime rates than other groups (when this is strongly supported by crime statistics). The ruling also quoted a speech by President Barack Obama at length and waxed philosophically about Trayvon Martin, a teenager in Florida whose death at the hands of George Zimmerman had nothing to do with police, New York, or the policy of stop-and-frisk.

Scheindlin’s behavior was so egregious that a few months later the 2nd Circuit Court of Appeals removed her from the case and ordered it to be assigned to a different judge, saying her behavior had given the appearance of impropriety to the case. Such a move is very rare, happening just one or two times per year. The Court was also poised to hear an appeal of the decision, which could have completely reversed it.

But as it happens, the Second Circuit never ruled on Scheindlin’s decision, and it remains in force. This isn’t because it was determined by any other judge to be correct. Instead, it remains in force solely because of the election of Mayor Bill de Blasio. De Blasio’s administration embraced Scheindlin’s ruling rather than fighting it, and it decided to abandon the city’s appeal almost as soon as he took office. Had the case gone before the 2nd Circuit, or the U.S. Supreme Court, Scheindlin absolutely could have been overruled. In fact, she still could be overruled in the future, should a challenge to stop-and-frisk policies in another city eventually reach the Supreme Court.

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