The Return of Stop and Frisk?

Donald Trump’s statements during the first presidential debate of 2016 raised two issues about Stop and Frisk; a controversial practice used by police departments across the country. Firstly, there was confusion about the accuracy of Mr. Trump’s statement that the practice is still constitutional. There was also speculation as to why gun rights activists, specifically the National Rifle Association (NRA), remained silent after Mr. Trump’s comments about Stop and Frisk.

What is Stop and Frisk?

As a general rule, police officers must obtain a warrant based on probable cause for a search or seizure to be constitutional under the Fourth Amendment. Stop and frisk, also known as a “terry stops,” provides an exception to the warrant requirement.  The name “terry stop,” comes from the case Terry v. Ohio, where the Supreme Court held that police officers may briefly detain a criminal suspect without a warrant. Due to safety concerns, officers may also perform a “pat-down,” or search a suspected criminal’s outer clothing, upon reasonable suspicion that the individual is armed and dangerous.  

A controversial facet of this practice is that stops require an officer’s “reasonable suspicion” that an individual committed or is about to commit a crime, rather than probable cause.  Probable cause requires at least some concrete evidence that a crime has been committed, whereas reasonable suspicion merely requires an officer’s reasonable belief of criminal activity. Stop and frisk critics argue that the practice has led to increased racial profiling, because police officers do not need concrete evidence for stops.

Are Terry Stops Still Constitutional?

After the debate, there appeared to be confusion among fact-checkers as to whether Mr. Trump was correct that terry stops are still constitutional after the decision in Floyd v. City of New York. In Floyd v. City of New York, a district court judge ruled that the New York Police Department’s stop and frisk practice was an unconstitutional violation of the plaintiff’s rights under the Equal Protection Clause and Fourth Amendment.

As Lester Holt correctly pointed out, the decision was made because the practice constituted racial profiling. The court’s decision was based on statistical data demonstrating a disproportionate impact on Blacks and Hispanics under the practice. Of the 4.4 million people stopped under the policy only 10 percent were White, while 52 percent were Black, 31 percent were Hispanic. Of the millions of people frisked, only 1.5 percent had weapons on them. It also appeared that whites were just as likely to possess drugs or weapons as their Black and Hispanic counterparts. Since the court’s decision, a monitor has been appointed at the NYPD to oversee that the practice stays within constitutional limits and Mayor de Blasio has dropped the appeal.

In short, the practice was found unconstitutional as it was applied in New York City, but, terry stops in general are still constitutional.

Why Has the NRA Been Silent about Terry Stops?

Several conservative commentators criticized the NRA for its silence regarding Mr. Trump’s support of the stop and frisk practice. During the debate, the NRA tweeted about every anti-gun comment made by Mrs. Clinton. Yet the NRA remained silent during Mr. Trump’s statement “we have to take the guns away from these people that have them and that are bad people that shouldn’t have them.”

The data generated by New York City’s stop and frisk policy supports the NRA’s anti-gun restriction arguments. In New York City, crime rates have continued to drop, even after the aggressive stop and frisk policy was modified.  In other words, crime rate reductions do not seem to correlate with weapon confiscation. These statistics provide more credibility to the organization’s famous saying “guns don’t kill people, people kill people.”

Shouldn’t the NRA join the ranks of people disputing the constitutionality of terry stops… perhaps with a Second Amendment argument?