Fifty Years of (SCOTUS-legitimated) Stop-and-Frisk

I meant to write about this last weekend, but was traveling for a wedding and didn’t get to it. In any case, this past Sunday (June 10) marked the 50th anniversary of the Supreme Court’s Terry v. Ohio decision.

In Terry, the United States Supreme Court dramatically expanded the power of police officers in America, giving them constitutional cover to engage in the controversial practice known as stop and frisk.

While the Warren Court decided the case on June 10, 1968, the Terry story begins nearly five years earlier, on a Cleveland street corner on Halloween 1963. In the middle of that afternoon, veteran Cleveland police officer Martin McFadden was working the beat in downtown Cleveland when he observed “two colored men” at the corner of Euclid and Huron taking turns walking around a storefront perimeter, peering inside, and conferring between trips. McFadden observed each of the men make the trip three times, according to the official police report, before a third man, this one white, approached them and joined them in conversation before walking away. Shortly thereafter, the two black men left the corner and met up with the white man a couple of blocks away. Suspicious that they were “casing a job, a stick-up,” McFadden approached them, told them he was an officer, and asked their names. After the men “mumbled something,” McFadden spun one of them, 31-year-old John Terry, around, and patted him down. Under Terry’s clothes, he felt a pistol, at which point he ordered the three into a storefront, told them to put their hands against the wall, and conducted more thorough searches. He found a pistol on Terry and a revolver on Terry’s companion, Richard Chilton. The white man, identified in case files as “Katz,” was unarmed.

Terry and Chilton were arrested on charges of carrying a concealed weapon. Terry was convicted of carrying a concealed weapon — a conviction he appealed based upon the argument that McFadden had not had probable cause to seize (by virtue of the street stop) and search him, and had thus violated his Fourth Amendment rights. Ohio courts held that the search was permissible because McFadden had “reasonable suspicion” to believe that Terry was about to commit a crime. When Terry’s finally made it to the SCOTUS, an 8-1 majority upheld the conviction and enshrined stop-and-frisk as constitutional.

It’s worth knowing that stop-and-frisk was a somewhat common police practice even before this case. There had been state- and local-level battles over its legitimacy and constitutionality for years before 1968. (I wrote about that very briefly for TIME a couple years ago; and hey, you can read more about it in my book when it comes out in early 2019!) Be that as it may, the Terry ruling unquestionably expanded police officers’ reliance on the practice, especially when it came to patrolling communities of color in America.

Gauging the “effectiveness” of stop-and-frisk is basically impossible, for numerous reasons. First, when you’re talking about crime prevention and how much crime some policing practice or other “prevented,” you’re inherently dealing in hypotheticals (how many crimes were not committed because of X practice that would have been committed had that practice not been implemented). Second, there really isn’t much in the way of consistent data on stop-and-frisk over any long-term historical period. (Most of what we know comes from this century, and that data does not at all support stop-and-frisk’s effectiveness.)

Be that as it may, stop-and-frisk certainly has its defenders. I didn’t see much written about the 50th anniversary of Terry, except for a series of back-and-forths that ran in the Philadelphia Inquirer last week. In one of the pieces, Rafael Mangual from the Manhattan Institute argues in its favor:

The reality remains that data-driven, proactive policing tactics — including the use of stop, question, and frisk — played an integral role in the steep, sustained crime declines we saw in cities across the country throughout the 1990s.

The demonization of the tactic, and the decision that recognized its legality, put those public safety gains at risk.

In Terry, the rather liberal Warren Court held by an 8-1 majority that when police observe conduct that, under the circumstances, would arouse “reasonable suspicion” that criminal activity is afoot, they may briefly detain those observed for the purposes of investigating further. The court went on to hold that if the circumstances, viewed objectively by a reasonable officer, would justify the belief that the individual is armed and poses a danger, the officer may pat down the outside of the individual’s clothing to feel for a weapon.

Some have argued that the eight-justice majority got it wrong. They posit, as Justice William O. Douglas did in his dissent, that in the absence of probable cause, any search or seizure is unconstitutional no matter how limited. But the touchstone of the Fourth Amendment is reasonableness, and the historical record supports the view that the probable cause requirement was how the Framers addressed their concerns about the issuance of general warrants. Moreover, as the late Justice Antonin Scalia pointed out, under the common law, “it had long been considered reasonable to detain suspicious persons for the purpose of demanding that they give an account of themselves.”

As a matter of public policy, the case for Terry stops is stronger still.

In 1990, New York City had more than 2,200 homicides — a  record. Twenty-five years later, that number was down to just over 350. Much of that decrease happened during the mid- to late 1990s, when  the NYPD adopted “broken windows” policing (developed by Manhattan Institute scholar George Kelling and sociologist James Q. Wilson). The shift included both the use of Terry stops and the prosecution  of lower-level misdemeanors (which research shows was consistently correlated with decreases in violent crime during the ’90s). Though  the drop cannot be attributed solely to the use of Terry stops, they were certainly an important part of a broader strategy that elevated the importance of police proactivity.

The Terry decision also raised the transaction costs for criminals of both carrying contraband and conducting illegal transactions in public as police began to employ  the practice more often. That helped push more of the illicit drug trade indoors, which not only made public spaces more welcoming to the law-abiding, it made them safer by reducing the number of drive-by targets on street corners. Moreover, by confiscating and disincentivizing the carrying of concealed weapons, police likely prevented a number of physical altercations from escalating into shootings or stabbings—though this may not have had much of an effect on pre-planned shootings.

The problem with Mangual’s argument is that none of us knows if that relationship between rising use of stop-and-frisk and declines in violent crime are causal or correlative. The fact of the matter is that when the Terry decision came down from the Warren court, the United States was in the early stages of a dramatic uptick in violent crime that crested in the 1970s and 1980s. So in other words, the most violent decades in postwar America took place after the Supreme Court granted police departments permission to use stop-and-frisk to their hearts content. And, as mentioned above, the data from the past decade or so just doesn’t support the premise that stop-and-frisk really does much to make cities safer.

It does, of course, violate the rights of countless numbers of people, however, most of them Black and Latinx. The Inquirer also shared a few stories from people who had been stopped and frisked, which readers can check out here. For example:

Ismil Lamar

I’m from New Jersey. I went to college in the Philadelphia area. This was around the time where the murder rates were rising in the city of Philadelphia. I was in the Southwest section of the city with a couple of my friends who I went to college with. The police happened to come through while we were standing outside. They walked up on us for no reason, asked us for our I.D. No one had any identification, so then the next thing you know, the police call for backup. They had us out there, searching us, held us, ran our names through the computers while we were handcuffed to make sure nobody had any warrants or anything like that.

When they left, there wasn’t “I apologize, my fault” or anything like that. They just hopped in their cars and pulled off. Myself, I felt alienated a little bit. When did they law pass in the country that you couldn’t just stand outside on a summer day?

It wasn’t real traumatic, but it definitely was an experience that just made me feel like that I’m going to start making sure that I don’t want to be in situations where police could confuse my actions with something different. That’s how black men are living their lives nowadays.

That’s how black men (and black women and Latinx and Indigenous women and men) have been living their lives for a long time. It’s not just because of Terry, but Terry certainly expanded police power in dramatic ways.