The below piece examines the legacy of Terry v. Ohio, its progeny, and its application in New York and Arizona.

Terry v. Ohio and its Legacy

The landmark Fourth Amendment case Terry v. Ohio established the reasonable suspicion standard to justify what has become widely known as the stop and frisk.[1] Prior to the 1968 holding in Terry, the sole standard for any kind of search or seizure was probable cause. While probable cause remains the standard for arrests and searches, police can “stop” and “frisk” someone with mere reasonable suspicion. Reasonable suspicion sits somewhere in between a mere hunch and probable cause.[2] A stop can occur on foot or in a car, and a frisk is meant to be a pat down of a suspect’s outer layers for weapons.[3]

From the date of its decision, Terry raised substantial concerns regarding whether it opened a workaround for police to simply avoid the probable cause requirement and search people at will. Justice Douglas’s dissent in Terry voiced this concern, noting that “had a warrant been sought, a magistrate would, therefore, have been unauthorized to issue one.”[4] It begs the question of how the majority then concluded that the officer’s actions in stopping Terry and his associates, and frisking them without probable cause, was constitutional when a judge would not have authorized that search? At the core of the reasoning behind Terry’s lower reasonable suspicion standard is the ever-paramount concern for officer safety. The Court attempted to balance that concern against Terry’s liberty interest by limiting when a frisk is proper to when the officer has reasonable suspicion that criminal activity may be afoot, and a reasonable belief that the person is armed and dangerous.[5] It is worth noting that the actual physical contact involved in a frisk could get an instructor or student fired or expelled for performing it on another student.

Terry has not been overruled. However, specific applications of the stop and frisk practice have failed constitutional scrutiny. The 2013 Floyd decision from the Southern District of New York held that the NYPD had a “policy of indirect racial profiling” in its use of stops and frisks.[6] It also ordered the NYPD to collect and report data on its stops and frisks and appoint a monitor that ensured constitutional compliance in the use of stop-and-frisk policing.

Stop and Frisk Data in New York City

The data backs the conclusion in Floyd. The order in Floyd included modifying the reporting document used by NYPD (UF-250) to include narrative sections where officers must justify both a stop and separately, a frisk.[7] The publication of form results created a comprehensive dataset that paints a picture of profiling over a decade. Interpreting that and prior datasets, the New York Civil Liberties Union found that 90% of people stopped by NYPD from 2003-2023 were people of color, despite making up only 67% of the population.[8] Young black people are even more overrepresented in NYPD stops, accounting for 18% of total stops from 2003-2022.[9]

Table 1: NYPD Stops by Race, 2003-2023.

Chart 1: NCLU’s “Stop and Frisk Over Time”

[10]

Source: https://www.nyclu.org/data/closer-look-stop-and-frisk-nyc.

The data paints a grim picture for New York: once the Floyd decision declared the stops a violation of both the Fourth and Fourteenth Amendments, stop and frisks decreased dramatically, as indicated in Graph 1. This decrease suggests that many if not most of the stops prior to the lawsuit were without justification, and as such, would not be permitted after the filing. 53% of stops made from 2003-2023 resulted in a frisk/search, with that number increasing over time.[11] Stop data over the last ten years does not show a significant change in the overrepresentation of people of color being stopped by NYPD. The proportion of people stopped by race in 2023 is not vastly different from that of 2013 (see table 2). While the number of stops has decreased by more than 90%, the race breakdown remains nearly the same.

Table 2: Stops by Race: 2013, 2018, 2023.

Source: A Closer Look at Stop-and-Frisk in NYC, NYCLU (Dec. 12, 2022), https://www.nyclu.org/data/closer-look-stop-and-frisk-nyc.

It is unclear if another Floyd-esque challenge will come to the court anytime soon, with a closer eye on reporting stops and frisks. For now, New York City serves as an illustrative example and comparison point for other states and cities.

Terry in Arizona

In Arizona, the definition for the reasonable suspicion required to stop a person has placed an emphasis on officer safety, like the Court’s justification for Terry stops. The threshold to justify a frisk, as interpreted by the Arizona Court of Appeals and Arizona Supreme Court, requires the officer to show that there is an articulable reason for the officer to fear for his or her safety.[12] Within this shift, we see a change from reasonable suspicion that the suspect is armed and dangerous to reason for the officer to fear for his or her safety, thus moving away from the individualized nature of a probable cause or reasonable suspicion determination.

Similar to New York, traffic stops have been a vehicle for racial profiling in Arizona for decades. A class action settlement in 2006 forced Arizona Department Public Safety (AZDPS) to evaluate racial profiling by the Department of Public Safety (DPS) in how they conducted traffic stops.[13] As a condition of the settlement, AZDPS collected data on their stop rates by race, search rates, rates at which contraband was found in a search “hit rate,” and stop length. AZDPS produced reports from 2006-2009 in an effort to show a decrease in profiling.[14]

Maricopa County Sheriff’s Office (MCSO) undertook a similar project from 2017 to present, also under a court order. In Melendres v. Arpaio, the court held that MCSO unconstitutionally “necessarily consider[s] race as a factor in forming the reasonable suspicion or probable cause.”[15] It also held that “MCSO's consideration of race or ethnicity as a factor in developing probable cause or reasonable suspicion also gives rise to equal protection issues.”[16] The order arising from this case requires MCSO to analyze patrol activity and “determine whether racial or ethnic disparities exist in MCSO traffic stop outcomes.”[17]

Terry and Traffic Stop Data in Arizona

The data in Arizona suggests similar minority overrepresentation as in NYC. From July 2006-June 2007, the ACLU of Arizona reported that Native Americans were 3.25 times as likely to be searched as White people. Black and Hispanic people were each 2.5 times more likely to be searched after a stop than white people.[18] This is the case, despite minority groups being less likely to have contraband.[19]

In its third-year reports (2009), DPS self-reported consistency in who was stopped within the previous two years.[20] 62% of people stopped were white, 25% were Hispanic, 5% were Black, 5% were Native, and 3% were “other” (Middle Eastern, Asian, etc.). DPS notes that due to geographical and measuring barriers, it is difficult to compare those numbers to aggregate population numbers for the State of Arizona. Therefore, it looks to post-stop outcomes for disparities. In that, several findings are noteworthy. Non-white drivers were 1.1-1.3 times less likely to receive warnings than white drivers. The impact of race/ethnicity increases with respect to the likelihood of multiple citations as well. The DPS report noted that Hispanic and Black drivers were 1.8 times more likely than white drivers to receive three or more citations compared to none. It bears mention that as other legal variables are filtered out, the impact of race/ethnicity decreases in this category. 1.8 times is the low, having removed explanatory variables. With those variables in, the number jumps to between 2.2 and 3.1 times the likelihood for Black and Hispanic drivers to be given multiple citations.[21]

The starkest finding in the DPS report was that “Hispanic, Native American, and Black drivers were 2.4, 2.5, and 2.3 times more likely to be searched compared to Whites after controlling for other legal and extra-legal variables.”[22] This metric echoes the findings in New York and the legacy of racial profiling in policing that existed even before Terry. This statistic is from the third year of a settlement demanding a reduction in profiling. While there is a decrease from the first two years, as analyzed by the ACLU, the end of the reporting period leaves much to be desired in moving away from profiling in policing. DPS stopped publishing reports after 2009, further muddying the ability to look for progress. Reports for local jurisdictions provide insight into those localities, but a current statewide report is missing at present.

Traffic Stops Recently: Maricopa County

In 2014, the Maricopa County Sheriff’s Office (MCSO) was ordered to refrain from using Hispanic ancestry in its law enforcement decisions. As of 2023, MCSO boasts that it “found no statistically significant differences between Hispanic and White drivers or between Black and White drivers in 2023.”[23] That is not to say that there is no difference at all. Also in 2023, MCSO reported that “stops involving all racial and ethnic minority drivers were more likely to be longer and were more likely to result in a citation than stops involving White drivers.”[24] That begs the question of which minority group is contributing to that difference, or is it merely the aggregate versus individual analysis? The answer to that question is beyond the scope of a law student’s data analysis skills, and of a blog post. I invite anyone with curiosity and expertise in statistics and policing to take a stab at it.

This mystery spike appears again where MCSO used propensity score matching to compare the differences in citations across race and ethnicity. According to Wikipedia, “propensity score matching is a statistical matching technique that attempts to estimate the effect of a treatment, policy, or other intervention by accounting for the covariates that predict receiving the treatment.”[25] Using that metric, AZDPS reports no statistically significant difference between Hispanic and white, and Black and white drivers, but there is a statistically significant difference between minority and white drivers, indicating that minorities are 2.5% more likely to receive citations over a warning or other outcome.

On pure speculation, Native American, Middle Eastern, and Asian drivers could be the groups that create the statistically significant difference. There is also the possibility that the difference is in Black and Hispanic drivers combined, as opposed to individually. Without further analysis, this disparity is an interesting observation without a causal conclusion.

MCSO reported fewer statistically significant disparities each year from 2017-2022,[26] as shown in Chart 2. They looked for disparities between Hispanic, Black, and minority drivers in the areas of stop length, citations, searches, and arrests each year. In 2017-2018, 9 out of 12 categories had a significant difference relative to white drivers. In 2022, that was down to 5 out of 12 categories, with the primary contributor being stop length. For each group, stops were under a minute longer than those of white drivers in 2022. For the first time, 2022 reported no statistically significant differences in arrests between Black/Hispanic/minority drivers and white drivers. While these statistics are evidence of progress, gaps remain.

Chart 2: MCSO Comparisons of statistical significance and differences across TSARs

Source: Jennifer Lafferty et al., CNA, Maricopa County Sheriff’s Office Traffic Stop Annual Report: January 2023–December 2023 (2024).

Conclusion

Arizona broadly, Maricopa County, and New York City are illustrative of how Terry contributes to racial profiling in policing. Since its decision, Terry has faced both Fourth and Fourteenth Amendment scrutiny in its application. In New York, reporting shows that stop and frisks overwhelmingly targeted minority groups. In Arizona, the reasonable suspicion standard was improperly used to target immigrants. Current data suggests some progress away from these unconstitutional practices, but much room remains for improvement. The lower standard of reasonable suspicion remains an open door to the dangers warned of in the Terry dissent: searches that an issuing magistrate may not have granted, as well as searches, seizures, and stops based on race as opposed to articulable facts.

Over the course of my work on this piece, I began to examine the Tucson Police Department Data on the topic and discovered some interesting findings about the racial and ethnic makeup of who is receiving warnings, citations, or other violations in Tucson. That quickly turned into a paper of its own and is forthcoming.

[1] 392 U.S. 1 (1968).

[2] Id. at 22.

[3] Id. at 30.

[4] Id. at 36.

[5] Id. at 27

[6] Floyd v. City of New York, 959 F. Supp. 2d 540, 568 (S.D.N.Y. 2013).

[7] Floyd v. City of New York, 959 F. Supp. 2d 668, 681 (S.D.N.Y. 2013) (remedies opinion and order).

[8] A Closer Look at Stop-and-Frisk in NYC, NYCLU (Dec. 12, 2022), https://www.nyclu.org/data/closer-look-stop-and-frisk-nyc.

[9] Id.

[10] Id.

[11] Id.

[12] Arizona v. Garcia Garcia, 821 P.2d 191, 192 (Ariz. Ct. App. 1991).

[13] Arnold v. Ariz. Dep't of Pub. Safety, No. CV-01-1463-PHX-LOA, 2006 WL 2168637, at *1 (D. Ariz. July 31, 2006).

[14] See, e.g., Robin S. Engel et al., Traffic Stop Data Analysis Study: Year 3 Final Report, Ariz. Dep't of Pub. Safety (2009), https://www.azdps.gov/sites/default/files/2023-10/Traffic_Stop_Data_Report_2009.pdf.

[15] 989 F. Supp. 2d 822, 899 (D. Ariz. 2013), adhered to, CV-07-02513, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013), aff'd in part, vacated in part, 784 F.3d 1254 (9th Cir. 2015).

[16] Id.

[17] Jennifer Lafferty et al., CNA, Maricopa County Sheriff’s Office Traffic Stop Annual Report: January 2023–December 2023, at 1 (2024), https://www.mcsobio.org/_files/ugd/b6f92b_8b0225bf8d7f4067913eee84b9618294.pdf.

[18] ACLU of Ariz., Driving While Black or Brown: An Analysis of Racial Profiling in Arizona 4 (2008), https://www.acluaz.org/sites/default/files/documents/DrivingWhileBlackorBrown.pdf.

[19] Id.

[20] Engel et al., supra note 14, at 43.

[21] Id.

[22] Robin S. Engel et al., Traffic Stop Data Analysis Study: Year 3 Final Report, Ariz. Dep't of Pub. Safety (2009), https://www.azdps.gov/sites/default/files/2023-10/Traffic_Stop_Data_Report_2009.pdf

[23]Lafferty et al., supra note 17, at 1.

[24] Id. at 2.

[25] Propensity Score Matching, Wikipedia, https://en.wikipedia.org/wiki/Propensity_score_matching (Mar. 13, 2025).

[26] Lafferty et al., supra note 17, at 30.

Ultimately, we have a “crises of human affairs.”[1] For it is our human nature—our idiosyncratic moral compasses—that has brought mankind to its zenith and nadir. Today, as groups concurrently mourn and celebrate evolving social norms, we as a Nation feel that deeply.

At the root of our division and unity is justice. Founder John Jay, and then Chief Justice of the United States Supreme Court, encapsulated the spirit of justice succinctly: “Justice is indiscriminately due to all, without regard to numbers, wealth, or rank.”[2] No matter one person’s noble charge, justice is indiscriminately due to the other presumptively ignoble charge. For one group cannot dictate what justice is—and is not—to the masses.

Notably, “[d]ifferent interests necessarily exist in different classes of citizens.”[3] We may conclude, then, that our differing perspectives on justice divide us. Yet, it is our collective commitment to justice that unites us.

Justice will not look the same for everyone. It is governed by our internal dialogue and external forces.  As such, justice is multifaceted—it is an independent variable governed by fluid dependent variables outside of our control or even knowledge. For those reasons, justice is somewhat illusive. We cannot promise to define it as applied to any given context.

While justice itself may at times be indeterminate, our approach to it must be resolute. We must commit as a Nation to hearing each other, challenging our innate biases, and being receptive to change. We must not only anticipate disagreement but invite it; because, ultimately, it is within these moments of resistance we challenge the robustness of our positions. And, through this, our ideas evolve, and our solutions strengthen.

Most importantly, as we prepare to disagree, let us do so with mutual respect and admiration for committing ourselves—respectively and collectively—to justice.

[1] M'Culloch v. Maryland, 17 U.S. 316, 415 (1819) (emphasis omitted).

[2] Georgia v. Brailsford, 3 U.S. 1, 4 (1794).

[3] The Federalist No. 51 (James Madison).

Where the chief local governmental prosecutor is elected, which is the most common practice (Connecticut—where I was an Assistant State’s Attorney—is the rare exception), prosecutors running for office by necessity enter the political fray. This is truer in bigger jurisdictions than it is in small towns and counties across the United States that also elect their chief prosecutors.

Harris was an Assistant District Attorney in San Fransisco from 1990 to 1998, then after a few years in the City Attorney’s Office on the civil side, she ran and was elected as the District Attorney in 2003, serving from 2004 to 2011.  Being a trial prosecutor anywhere is not an easy job, and being a big city elected D.A. is far more challenging.

It has become commonplace for prosecutors to use their careers to become elevated to United States Attorneys (who are appointed) and elected state attorneys general, governors, and United States senators. And when they do, they tout their previous prosecutorial experience as a campaign credential. It is often accompanied by a declaration that they are “tough on crime.” It is unprecedented, however, for any former prosecutor, whether state, local, or federal, to be elected President of the United States. Occasionally they try. Before she ran for the United States Senate, Amy Klobuchar was the chief prosecutor in Hennepin County, Minnesota, the largest county in Minnesota. She ran for President in 2020 but suspended her campaign after a few early primaries and caucuses. Former United States Attorneys like Rudy Guiliani in 2008, and Chris Christie in 2016, ran unsuccessfully in the Republican presidential primaries.

Harris’s candidacy as a major party candidate for President who is a former local prosecutor is without any modern precedent. I can’t think of a single former local prosecutor to rise to become a major party candidate for President, with one lone exception occurring more than 80 years ago. Thomas Dewey was the elected Manhattan District Attorney in New York City from 1938 to 1942, having used his high profile as an Assistant United States Attorney (and then New York State special prosecutor) in the 1930s to springboard his D.A. candidacy. From the District Attorney’s Office, he ran successfully for New York State Governor. And while Governor, Dewey ran twice for President, running and losing to Harry Truman twice: 1944 and 1948.

Dewey had a formidable record as a prosecutor, where in New York in the 1930s and 1940s he successfully prosecuted several high-profile organized crime defendants. Dewey’s prosecutions against organized crime defendant Charles "Lucky" Luciano, for example, helped build Dewey’s national reputation. Truman, on the other hand, attacked Dewey’s prosecutorial record as being exaggerated and a record characterized more as self-promotion, a common campaign response to the assertions of prosecutors turned political candidates.  

Former prosecutors who run for office and become politicians sometimes tout their prosecutorial career statistics in terms of wins and losses, like heavyweight boxers or major league baseball pitchers.  Rolling Stone magazine said South Carolina Congressman Trey Goudy “never lost a single trial in almost 20 years in court.” I am skeptical of claims like that, and Republicans do it just as often as do Democrats. Counting wins and losses in the criminal courtroom is a fool’s errand. How do you count convictions on only lesser-included offenses? How do you count convictions that occur in the retrial after a hung jury? Do you count them twice? In which column do you put the conviction reversed on appeal? Did you make decisions on which cases to bring to trial versus resolve with a plea with your conviction statistics in mind? The spectacle is unseemly; the job of a prosecutor is not to win. 

The spotlight on Kamala Harris’s record as a prosecutor, which no doubt is already occurring, will reveal what is true about any prosecutor: running on a prosecutor’s career record is a mixed blessing and not a record easily translated into political rhetoric. The record will reveal both satisfied and dissatisfied victims, sentences criticized as too harsh or not harsh enough, criticism of crimes, defendants and cases pursued as well as those not pursued. It will reveal the complexity of having to make decisions about how to treat law enforcement when they exercise undue force, and, yes, lethal force. Harris’s record will be assessed about how, as a chief prosecutor, she treated racial and ethnic minorities and other often marginalized communities. 

The career of a prosecuting attorney who handled a long list of complicated cases that took many twists and turns is not one that can be summarized in campaign soundbites.  It isn’t black and white.  I often say of my career in criminal law, “I lived in a world of grey.” Turning grey into either red or into blue is difficult.

---

James D. Diamond is a Visiting Lecturer in Law at Yale Law School and Professor of Practice at the University of Arizona James E. Rogers College of Law. Before entering academia, he practiced criminal law in Connecticut for 25 years as both a prosecutor and defense attorney and is certified by the National Board of Trial Advocacy as a criminal trial specialist. 

As a former prosecutor, I am fascinated by oral argument style, technique, and strategy.  Now, as a professor, my classes focus on written and oral advocacy.  Maybe most importantly, the law school moot court season is quickly approaching, and I am excited to help our students prepare for their competitions.  So, as I watched the debate, I couldn’t help but focus on the different oral advocacy skills each candidate used to strategically persuade the viewers.  I wondered if this demonstration of advocacy was helpful for law students and lawyers.  Or could this encourage bad habits?  

As a law student and moot court participant, I looked for opportunities to watch seasoned attorneys argue in court.  It helped me learn what advocacy styles and techniques were effective.  But watching someone with bad habits could have the reverse effect.  Thus, not only did I wonder what law students could learn about oral advocacy from this year’s debate, but also, what should they not learn.[1] 

Let’s get to the learning.  This debate illustrated three important oral advocacy lessons for moot court and the aspiring courtroom lawyer: (1) answer the question; (2) transition to your arguments; and (3) avoid “flip flopping” and misstating the law or facts.[2]   

1.    Answer the Question

One of the most notable things about the debate, from a moot court and oral argument perspective, was that neither candidate directly answered the questions.  Sometimes, the candidates eventually ended their respective responses with something that felt like an answer.  Yet, they almost never started their response with a “Yes” or “No” to the question, which was almost always a yes or no question. 

Let’s take this example:

The first question of the debate, posed to Harris, was: “When it comes to the economy, do you believe Americans are better off than they were four years ago?”[3] 

For moot court, we teach law students to try to answer a yes or no question like this with “Yes” or “No,” followed by the explanation.  However, the first sentence of Harris’s response was: “So, I was raised as a middle-class kid.”[4]  She then discussed (a) lifting up the middle class and working people; (b) housing issues; (c) tax deductions for families and small businesses; and (d) Trump’s sales tax and tax cut for billionaires and big corporations.[5] 

If you wanted to argue with me, I’m sure you could say that she implicitly answered that she does not believe Americans are better off.  However, we can agree that she didn’t start her response by answering the question, which is something you should do in moot court and legal oral arguments.

Let’s look at one of Trump’s responses.  When asked about the immigration bill, the moderator asked, “[W]hy did you try to kill that bill and successfully so?  That would have put thousands of additional agents and officers on the border.”[6] 

Trump responded, “First let me respond as to the rallies.”[7]  He started by responding to something Harris brought up, which had nothing to do with the moderator’s question.[8]  Then, the rest of his answer focused on how the current administration is “allowing millions of people to come into our country,” followed by his position on what is happening in Springfield.[9]

Unlike a debate, when a judge asks you a question, answer it!  You will only frustrate the judge if you use the judge’s question to dance around the answer or talk about something other than the specific question.  For moot court competition purposes, you will lose points by not directly answering the question.  Of course, once you answer the question, you can strategically transition to the argument you want to focus on. 

2.    Transitioning to Your Argument

Even though the candidates had trouble directly answering the moderators’ questions, both candidates transitioned well from each question to the specific arguments that they wanted to focus on.  For mock trial and oral argument purposes, you must first answer the question, but once you do, this skill of transitioning to your main arguments is very important.  And, not easy to do I must add. 

For example, the moderator asked Trump how he plans to “deport 11 million undocumented immigrants” and how this would work.[10]  Trump transitioned from the specific question—how this would work—and instead, focused on his argument that the current administration created this problem: letting millions of criminals and terrorists into the country, which he argued is why “[c]rime . . . is through the roof.”[11]  While this is not the question he was asked, he strategically directed the conversation to a topic that he wanted to emphasize for the viewers. 

Similarly, the moderators asked Harris if she should “bear any responsibility” for our “chaotic withdrawal from Afghanistan.”[12] Instead of answering the question, Harris transitioned to arguing that it was the right decision.[13]  She then further transitioned to pointing blame at Trump for why we were in that position to start with, ending with how Trump invited the Taliban to Camp David.[14]  Instead of considering whether our current administration had any responsibility for the “chaotic withdrawal,” Harris focused on supporting the decision to withdraw and directing the blame for the situation toward Trump.[15] 

For our moot court and oral argument purposes, be sure to first answer the question, then strategically pivot toward your strongest arguments that you want the judges to focus on.  This takes practice!  As my grandma used to joke: “How do you get to Carnegie Hall? Practice, practice, practice!”[16]

3.    Misstating the Law/Facts and the “Flip Flop”

Last, but not least, during an oral argument you want to avoid (1) misstating the law or facts; and (2) flip flopping between answers. 

During the debate, Trump provided us with a great example of misstating the facts.  He argued that immigrants were eating pets in Springfield, Ohio.[17]  However, the moderators contacted the Springfield city manager and responded that there have not been any credible reports to support this statement.[18]  In the context of moot court and oral arguments, you must know the law and facts.  You do not want to risk losing credibility with the judge and the legal community by misstating the law or facts. 

Similarly, while the debate context is much different from an oral argument, Harris provided us with a “flip flop” example by changing her answer on multiple issues.  At the debate, the moderators confronted her with this:

“Vice President Harris, in your last run for president[,] you said you wanted to ban fracking. Now you don't. You wanted mandatory government buyback programs for assault weapons. Now your campaign says you don't. You supported decriminalizing border crossings. Now you're taking a harder line. I know you say that your values have not changed. So then why have so many of your policy positions changed?”[19]

Bringing this back to moot court and a courtroom oral argument, you want to avoid taking a stance, making an argument, or answering a question in a way that you might need to take back if a judge calls you on it.  Ideally, this will be worked out during your pre-argument practice sessions.  However, it is easy to get caught up in the argument mentality and run the risk of taking your position too far.  Stick to the law and the facts. 

Again, you might disagree and think that the moderators were biased.  But that discussion is for another blog post.  I am simply treating the moderators as judges, where they get to decide what the law and facts are based on the “evidence.”  Thus, in moot court, you need to know the law and the facts.  If you misstate either or flip flop between answers, you will lose credibility with the court and lose points in the competition. 

Conclusion

The presidential debate gave us some great teaching points for moot court students and future courtroom advocates.  While I encourage you to watch seasoned advocates, keep in mind that they might also have some bad habits that you’ll want to avoid.  If you’re not sure, ask your law professor!

[1] I want to note two things about this post.  First, I am simply viewing the debate and considering what students can learn from it. I am not trying to use this to set forth my political agenda.  Second, yes, a presidential debate is different from a legal oral argument in many ways.  It is not surprising that the candidates are not sticking to some of the principles I mention below.  However, the candidates’ oral advocacy provides a great teaching tool for students about moot court and courtroom oral arguments.  For our purposes, the moderators are the judges, and the candidates are the lawyers.  

[2] For a comprehensive and easily digestible book on moot court, check out my colleague Susie Salmon’s book: A Short & Happy Guide to Moot Court, published by West Academic.   

[3] In addition to watching the debate, I referred to an ABC News transcript for all quotes contained in this post.  See Riley Hoffman, READ: Harris-Trump Presidential Debate Transcript, ABCNews (Sept. 10, 2024, 8:58 PM), https://abcnews.go.com/Politics/harris-trump-presidential-debate-transcript/story?id=113560542.

[4] Id.

[5] See id.

[6] Id.

[7] Id.

[8] See id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] See id.

[14] See id.

[15] See id.

[16] Since it opened in 1891, Carnegie Hall has been a prestigious destination for musicians to perform in New York.  About Carnegie Hall, Carnegie Hall, www.carnegiehall.org/About (last visited Oct. 18, 2024). 

[17] See Hoffman, supra note 3.

[18] See id.

[19] Id.

Within the DOJ press release, dated September 4th, the Department discussed the dismantling of a covert Russian government-sponsored operation aimed at spreading disinformation and influencing public opinion in the United States.^[1] This operation was reportedly designed to manipulate social media platforms through fake accounts and ‘cybersquatting’ to sow discord, amplify divisions among Americans, and promote pro-Russian, anti-Ukranian sentiment.^[2] Key elements of this Russian operation included the utilization of fake accounts and pages designed to masquerade as legitimate United States entities and news providers, thereby eroding trust in authentic information sources.

In fact, the DOJ was able to obtain internal Russian documentation from strategic planning meetings, which shed insight into their intentions. Translated from Russian, there is one key goal “[t]o secure victory of a [U.S. Political Party A] candidate ([Candidate A] or one of his current internal party opponents) at the US Presidential elections to be held in November of 2024.”^[3] While the affidavit never explicitly states that “U.S. Political Party A” is the Republican Party, the internal Russian documents state that:

 [w]hile [U.S. Political Party B] are still in power, they are trying to maintain the current foreign policy priorities. . . . It makes sense for Russia to put a maximum effort to ensure that the [U.S. Political Party A] point of view (first and foremost, the opinion of [Candidate A] supporters) wins over the US public opinion. This includes provisions on peace in Ukraine in exchange for territories, the need to focus on the problems of the US economy, returning troops home from all over the world, etc.^[4]

Further, the Russian government has decided to target specifically five demographics of people including:

(1)   “Residents of ‘swing’ states whose voting results impact the outcomes,” including Nevada, Georgia, Arizona, Pennsylvania, Michigan, and Wisconsin;^[5]

(2)   “Residents of conservative states where traditional values are strong,” including Alabama, Kansas, Texas, Wyoming, and Louisiana;^[6]

(3)   “US citizens of Hispanic descent”;^[7]

(4)   “American Jews”;^[8]

(5)   And lastly, “[c]ommunit[ies] of American gamers, users of Reddit and image boards, such as 4chan (the ‘backbone’ of the right-wing trends in the US segment of the Internet).”^[9]

These recent enforcement moves by the DOJ are critical, not only for the criminal law ramifications, but for the broader context of national security. They signify recognition that foreign influence operations are not mere geopolitical annoyances, but serious threats to the fabric of a democratic society. How can we as a democratic society exist, if one side of the political spectrum is unable to agree to the basic facts of what the situation is? The presence of ‘alternative facts’ and ‘alternative news’ erodes this notion and presents national security struggles.^[10]

Make no mistake: America is at war. This war does not involve aerial dogfights, naval blockades, or the amassing of divisions of soldiers. This war is over public sentiment in homes across the United States, from Arizona to Iowa. This form of warfare is called ‘Information Warfare,’ which is defined as an “operation conducted to gain an information advantage over the opponent,”^[11] and it can be executed with troll factories, bots, and the dissemination of fake news.^[12]

With social media and online platforms becoming battlegrounds for competing narratives, governments, tech companies, and the public are responsible for remaining aware, critical, and vigilant that the information they consume and share is correct.^[13] “A well-informed citizenry is the best defense against tyranny.” This line, widely attributed to Thomas Jefferson, rang true in the era of the quill pen with information that could travel at the speed of horseback, as it does today.

However, in today’s environment, the duties of a well-informed citizen are far more difficult. If you listen intently at an average American Thanksgiving dinner with the extended family, you will hear disinformation. Whether innocuous or sinister, silly or serious. Whether manufactured by a foreign nation or by an aggrieved candidate seeking reelection. The modern duty of an informed citizen requires looking beyond the black and white. Our patriotic duty is intertwined with investigating the gray. To seek motives and underlying intentions in the media that we consume. And above all else, to utilize critical thought to find truth from falsehood.

[1] Justice Department Disrupts Covert Russian Government-Sponsored Foreign Malign Influence Operation Targeting Audiences in the United States and Elsewhere, U.S. Dep’t of Just.: Off. of Pub. Affs. (Sept. 4, 2024), https://www.justice.gov/opa/pr/justice-department-disrupts-covert-russian-government-sponsored-foreign-malign-influence.

[2] See generally Affidavit in Support of Seizure Warrant, United States v. Certain Domains (2024) (No: 24-MJ-1395), https://www.justice.gov/opa/media/1366261/dl (filed under seal).

[3] Id. at 216 (second and third alterations in original).

[4] Id. (second, third, and fourth alterations in original).

[5] Id. at 217.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See generally Ehsan-Ul Haq, et al., Weaponising Social Media for Information Divide and Warfare (2022).

[11] Mubeen Ashraf, Cyber Deterrence: Challenges and Strategic Approaches, XXIV Islamabad Pol’y Rsch. Inst. J. 63, 64 (2024) (citation omitted).

[12] See N. Atl. Treaty Org., Media – (Dis)Information – Security 1–2 (2020).

[13] James Farrell, Russia’s 2024 Election Influence Campaign Has Started, Microsoft Analysis Finds, MSN: Forbes (Apr. 17, 2024), https://www.msn.com/en-us/money/news/russia-s-2024-election-influence-campaign-has-started-microsoft-analysis-finds/ar-BB1lO1H0.

Criminal justice is usually a place of bipartisan collaboration. Party affiliation alone doesn’t tell us much about a candidate’s policies on crime. Politicians—by necessity—will be vague whenever they can afford to be, and they aren’t as hard-pressed by the public to explain themselves on crime issues.

What constitutes a criminal act doesn’t often divide the average American audience in political debates, aside from some token issues. Cannabis possession is becoming less controversial. Even the criminalization of homelessness receives a generally apathetic response. And once an act is classified as a violent crime, it receives universal condemnation. Due to our homogenous opposition to violence and property damage, an effective way to avoid criminal justice controversy is to direct your conversation to victims and victim rights. If most people agree on what should be a crime, then most people agree on who the victims are. It’s a safe bet, and keeps you from gaffing and saying something about nature, crime, or justice.

Americans generally want crime to result in swift, certain, appropriate, and effective consequences. The truly divisive question is: what consequences are appropriate or effective? Which is to say, what divides the American public in criminal justice debates is not crime. It’s justice. Once a crime has been committed—once an injustice has occurred—we don’t tend to agree on how exactly to restore our society to justice, because we don’t agree on what justice is in the first place.

Some think justice means retribution; an equilibrium of harm. The factually guilty criminal is responsible for their willful misconduct, and justice is restored when they suffer punishment proportional to their crime. Others think justice means reconciliation; a restoration of social unity. The event of crime is the manifestation of collective suffering, and justice is restored when injured people are healed through the power of mutual recognition. Still others think that justice means progress; a technological development. Crime is an error in biology, psychology, or economy; justice is restored when the mechanism of error is understood and society engineers a solution to prevent further error. The list goes on.

Before engaging in a meaningful discussion of criminal justice, we must first address these foundational questions of justice and the nature of responsibility. Without making those fundamental positions explicit, people can only talk past each other and will never find common ground.

But the last place you will hear those issues discussed is during the United States presidential election. To take a position on the nature of justice and responsibility is uncouth. The Oval Office is no place for splitting metaphysical hairs—it is a place of business. We don’t believe in teleologies; we don’t believe that the arc of our universe bends towards anything in particular. We simply speak of Justice in the most abstract sense—a purely empty hypothetical to serve as a common denominator, so that our plurality of voters can manufacture temporary meaning through superficial discourse.

Which is to say, Justice will sort itself out, through our practical procedures. Our political discussions should thus be restricted to the material facts and the physical actions we will take to address those facts. By dutifully sticking to the facts and avoiding discussion of nature at all costs, we make way for American Justice.

We thus cannot evaluate Kamala Harris or Donald Trump for their foundational beliefs about the nature of crime, responsibility, or justice. They are seasoned political animals and have tailored their respective speeches to obscure our view into their holistic thinking. Indeed—for either candidate—it would almost appear that they don’t hold core beliefs at all on those issues.

If we narrow our view to only matters of criminal justice, both candidates generally appear as mild centrists with different special concerns. To compare their platforms as a whole would be to compare moderate apples with moderate oranges. Therefore, they are difficult to evaluate at large. But they do diverge on a few key issues, and I will highlight one here—for the sake of fulfilling my task. I will highlight the issue of qualified immunity for police officers, the legal protection of police from lawsuits for their actions while performing their official duties.

Presidential candidates must confabulate a response to popular social issues in order to harness electoral energy, even if they have no actual plans to address those issues in the long run. So, even if both candidates as President would act in a similar way around criminal justice—we can begin to map the contours of a political party’s platform on criminal justice by tracking their response to public attention. In criminal justice, our recent public attention has been directed at martyrs.

All martyrs—by definition—generate social outrage upon their tragic death, then soon fade into obscurity, and later are used as props by the very people that murdered them. George Floyd is currently between Stages One and Two. He is gone, but not quite forgotten. The Democratic party has largely retreated from demanding that police departments should be defunded. Kamala Harris can now get away with simply promising to track and review instances of police misconduct, in a way that resembles 1970s NYPD reform more than 2020s civil rights protests. Harris’s solution to police misconduct is to police the police, rather than contemplate alternatives to traditional policing. Which is not surprising, from a former prosecutor.

Despite her position’s mass appeal—which seems to be Harris’s guiding principle—she won’t satisfy people who have yet to release their 2020 convictions and want to see substantial, revolutionary change in the actual policing of crime. While these people may be mainly disappointed with Harris’s platform, they might take solace in one policy—that Harris proposes we “end qualified immunity for police officers so that victims of police brutality and excessive force can seek justice in court.”^[1] Meanwhile, Donald Trump has promised to protect and expand qualified immunity for police officers.^[2]

Per American tradition, neither candidate has described how exactly they would go about achieving their goals. But we have here a rare case of absolute political opposition between presidential candidates on an issue of criminal justice.

Thus, in the spirit of free speech to develop our political perspectives, this election season, we will take some time to evaluate the question of qualified immunity. Its history leading up to today, and what we can expect from the presidential candidates on the matter.

Perhaps nothing will come of this disagreement. Regardless of who wins the election, the President might take no action—or perhaps will be unable to—and the Supreme Court will remain steadfast in its absolution of police officers from civil liability. Perhaps this is really an issue for Congress, and the President’s only role will be to veto or not to veto. Or perhaps what happens to qualified immunity after this election will determine a new era in police accountability, for better or worse.

For now, we will look to the law and hypothesize about the practical and theoretical mechanics of qualified immunity. It won’t take us all the way to the heart of the question. And we cannot, because politics has qualified immunity from such questions.

^[1] Vice President Kamala Harris, X (June 27, 2020, 9:48 AM), https://x.com/VP/status/1276920412224487424.

^[2] Trump Wants Police to Be Above the Law, Reason , https://reason.com/2024/07/28/trump-promises-police-immunity-from-prosecution/ (last visited Oct. 15, 2024).