In a bizarre comparison, Nico Pitney at Huff Post compares Donald Trump with Louis Stokes, who argued for the petitioner in Terry v. Ohio before the Supreme Court.  The connection is Trump’s support for the police tactic of “stop and frisk,” which Pitney uses to note:

It’s a historical irony that Louis Stokes’s autobiography is being published now, just as Donald Trump has become the most prominent politician in recent memory to champion aggressive stop-and-frisk policing.

Aside from sharing the same words, the police tactic and Terry bear little in common. At best, the former is a bastardization of the latter, parlaying the rubric without the slightest gasp of the rationale. Then again, it’s worked well publicly for New York Mayor Mike Bloomberg* and his police commissioner, Ray Kelly, who rode the stop and frisk horse to notoriety until SDNY Judge Shira Scheindlin held it unconstitutional in Floyd v. City of New York and then-new mayor Bill de Blasio chose to end the City’s appeal of Judge Scheindlin’s decision in the face of a seemingly hostile Second Circuit that had removed Judge Scheindlin from the case.

The cops never got the idea. The public never got the idea. And Pitney doesn’t appear to get it either.

Stokes is the national treasure who first challenged stop-and-frisk before the Supreme Court. His law career was followed by three decades in Congress as Ohio’s first black representative. He died last year at age 90, only days after finishing work on his memoir.

Well, no. In fact, it’s just the opposite. Stokes got us stop and frisk.  Before Terry, there was no Supreme Court approval of what afterward became known as a Terry stop, a Fourth Amendment hybrid that wreaked havoc with the law. While it isn’t Stokes’ fault that the Court ruled as it did, to claim that he challenged what had yet to exist is utterly false.

The police version of stop and frisk, which Trump champions as did Bloomberg before him, involves cops tossing people at will. They stop people for any reason or no reason, frisk them for kicks, and if they find something, score a bust and request a medal. If you search people indiscriminately, you’ll occasionally find something, whether a weapon or some drugs.

This tactic was employed primarily in minority neighborhoods, because that’s where the cops were, such that the numbers of people tossed were overwhelmingly black and Hispanic. Similarly, the numbers of people arrested were absurdly low, as they were tossing people without reason, whether upon hunch, pretense or just to make the quotas (that weren’t officially called quotas such that the police could claim they didn’t have quotas even though everybody knew they did).

To the extent people were “stopped” and then “frisked,” the description was accurate. What it was not was the legal concept of stop and frisk espoused by the Supreme Court in Terry, where the Court created a hybrid authority for police to engage in a subconstitutional seizure, a stop, based upon “reasonable articulable suspicion.”

What that means is that police could conduct a “seizure” by stopping a person who otherwise had a constitutional right to be left alone.  The Fourth Amendment provided that a seizure could only be done with probable cause to believe that a person had been, was or would be engaged in a crime.  A Terry stop reduced that requirement from probable cause to reasonable articulable suspicion. As Justice Douglas wrote in dissent:

We hold today that the police have greater authority to make a ‘seizure’ and conduct a ‘search’ than a judge has to authorize such action…

To give the police greater power than a magistrate is to take a long step down the totalitarian path.

As for the “frisk” part of a Terry stop, it authorized police to conduct a search when that suspicion extended to the belief that the person stopped possessed a weapon that could harm the officer. It wasn’t a search for contraband, such as drugs, but for a weapon. Nothing more. Then again, if the frisk happened to reveal some weed, well, that couldn’t be helped, right?

The offshoot of the Terry decision in practice was the development of a cop language to create a reasonable articulable suspicion. A bulge. A furtive movement. Reaching for the waist. All the excuses that were wholly subjective and unprovable, at least until pervasive video came about, which a cop could spout to manufacture compliance with Terry. Or, as later developed by extension of these claims, shoot to kill under the reasonably scared cop rule.

Some have suggested that Terry opened up a world of problems, especially for young black and Hispanic males who have been the overwhelming target of the police tactic, by handing the cops such an easily gamed excuse for stopping and frisking people. It’s not an entirely fair observation, as it remained within the power of judges to call bullshit on the cops’ exploitation of their authority, as they did with the dropsy excuse.  Courts could have been rigorous in their oversight, but chose instead to punt to the cops.

The tactic of stop and frisk, on the other hand, made no pretense of compliance with Terry, perhaps as a result of the courts’ lax oversight, when cops figured out they didn’t even have to come up with a line of malarky to justify their unconstitutional conduct. See a black kid? Toss a black kid. Find nothing and move on. Find a gun and claim there was a bulge. Everybody was happy, except the black kids. Especially the black kid whose right to be left alone was violated for the seventh time that week. Kissing concrete on the way to school isn’t nearly as much fun as it sounds.

It certainly can’t be attributed to Louis Stokes that the police ultimately came up with a tactic that shared the words from Terry, devoid of its underlying rationale of a reasonable articulable suspicion. But at the same time, Terry gave us a lower standard under the law for the police to conduct a seizure and a search, one that enabled the cops to make a call on the street that a judge wouldn’t have been authorized to permit.

It would be unfair to suggest that Louis Stokes’ efforts gave us the tactic of stop and frisk, but it’s similarly false to pretend, as Pitney does, that it wasn’t Stokes’ case that was responsible for a fundamental reduction in the constitutional standard for police to violate our right to be left alone. It’s conceivable that had Stokes not brought Terry, there would be no stop and frisk today.

*Mike Bloomberg, it should be noted, was a moderate Democrat, which in New York City then, as in the nation today, was a moderate Republican.