Michael Gaynor
Hillary Clinton and Lester Holt misrepresented well established constitutional law trying to save her floundering presidential campaign
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By Michael Gaynor
September 28, 2016

Debate moderators should not appoint themselves fact checkers during a presidential debate, especially when they don't tell the truth.

Last night Democrat presidential candidate Hillary Clinton and her inept or shameless enabler, presidential debate "moderator" Lester Holt, promoted the lie that "stop and frisk" is unconstitutional during the first presidential debate.

Listen to Clinton unqualified proclaim "stop and frisk" ruled unconstitutional: www.msn.com/en-us/video/news/trump-renews-call-for-stop-and-frisk/vp-BBwFXab.

Give Holt the Candy Crowley award for presuming to act as a self-appointed fact checker during a presidential debate to help a Democrat presidential candidate try to sell a falsehood to the voting public.

As a non-lawyer, Holt would not be expected to understand the difference between unconstitutional and unconstitutional as applied, but Yale Law School graduate Clinton is supposed to know the law. She misstated it and Holt foolishly vouched for her.

Politico's Isaac Arnsdor, in "Trump's wrong: 'Stop and frisk' was ruled unconstitutional (www.politico.com/blogs/2016-presidential-debate-fact-check/2016/09/trump-is-wrong-stop-and-frisk-was-ruled-unconstitutional-228729)," promptly tried to support Holt in this three-paragraph article:

"'Stop and frisk' was ruled unconstitutional in New York, because it largely singled out black and hispanic young men...' – Lester Holt

"'No, you're wrong. 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 an appeal.' – Donald Trump

"On August 12, 2013, U.S. District Court Judge Shira A. Scheindlin ruled the controversial police tactic unconstitutional. The Bloomberg administration appealed, and the Second Circuit Court of Appeals suspended the order and sent it back to be tried under a new judge. But the court denied the city's motion to vacate Schneidlin's decision. Eventually, the de Blasio administration dropped the appeal."

Holt isn't a lawyer and apparently doesn't understand the difference between unconstitutional and unconstitutional as applied.

In 1968, the United States Supreme Court ruled "stop and frisk" constitutional in an 8 to 1 decision.

No lower court can overrule the Supreme Court and neither can Clinton and Holt.

Even Wikipedia, hardly a hotbed of conservatism, acknowledges the constitutionality of "stop and frisk" as follows (https://en.wikipedia.org/wiki/Terry_v._Ohio):

"Terry v. Ohio, 392 U.S. 1 (1968), was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person 'may be armed and presently dangerous.'

"For their own protection, after a person has been stopped, police may perform a quick surface search of the person's outer clothing for weapons if they have reasonable suspicion that the person stopped is armed. This reasonable suspicion must be based on 'specific and articulable facts' and not merely upon an officer's hunch. This permitted police action has subsequently been referred to in short as a 'stop and frisk,' or simply a 'Terry frisk.' The Terry standard was later extended to temporary detentions of persons in vehicles, known as traffic stops; see Terry stop for a summary of subsequent jurisprudence.

"The rationale behind the Supreme Court decision revolves around the understanding that, as the opinion notes, 'the exclusionary rule has its limitations.' The meaning of the rule is to protect persons from unreasonable searches and seizures aimed at gathering evidence, not searches and seizures for other purposes (like prevention of crime or personal protection of police officers)."

Wikipedia describes the "stop and frisk" litigation in New York City as follows (https://en.wikipedia.org/wiki/Stop-and-frisk_in_New_York_City):

"On August 12, 2013, U.S. District Court Judge Shira Scheindlin ruled that the stop and frisk practice was unconstitutional and directed the Police to adopt a written policy to specify where such stops are authorized. Scheindlin appointed Peter L. Zimroth, a former chief lawyer for the City of New York, to oversee the program. Mayor Bloomberg indicated that the city will appeal the ruling. Scheindlin had denied pleas for a stay in her overthrow of the policing policy, saying that 'Ordering a stay now would send precisely the wrong signal. It would essentially confirm that the past practices... were justified and based on constitutional police practices. It would also send the message that reducing the number of stops is somehow dangerous to the residents of this city.'

"On October 31, 2013, the United States Court of Appeals for the Second Circuit blocked the order requiring changes to the New York Police Department's stop-and-frisk program and removed Judge Shira Scheindlin from the case...."

Bill de Blasio succeeded Mike Bloomberg as Mayor of New York City and wants the City's appeal dismissed, but a dismissal would need change the well established constitutional law that "stop and frisk" is constitutional.

Debate moderators should not appoint themselves fact checkers during a presidential debate, especially when they don't tell the truth.

© Michael Gaynor

 

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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