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Rosenthal on Terry v. Ohio

By Lawrence Solum

Lawrence Rosenthal  (Chapman University - School of Law) has posted Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:

Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment?s prohibition on ?unreasonable search and seizure? has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment ?where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . . .? Terry is frequently denounced as granting the police excessively broad discretion that threatens the liberty of the innocent, and which facilitates discrimination against minorities and others that the police are all too likely to view as suspicious. Originalists attack Terry as well, claiming that it lacks adequate support in framing-era practice.

This paper, part of the 2010 Texas Tech Law Review's Fourth Amendment Symposium, offers a defense of the much-maligned Terry doctrine. It begins with an account of urban crime over the past few decades, and argues that there is a case to be made that Terry?s regime of stop-and-frisk deserves a good deal of the credit for the reductions in violent crime that major cities have experienced in recent years. It then considers the originalist attack on Terry, and argues that it runs afoul on the Achilles heel of originalism ? it relies on framing era practice and understandings to flesh out the meaning of constitutional text without taking adequate account of the context in which these practices and understandings emerged. Although the historical support for Terry?s regime of stop-and-frisk is fairly debatable, framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness. The paper finally turns to the pragmatic attacks on Terry, and after observing that the evidence that Terry has facilitated unwarranted or discriminatory police conduct is more ambiguous than the critics acknowledge, contends that theses critics undervalue the importance of Terry to saving lives in the inner city.

Full post as published by Legal Theory Blog on July 20, 2010 (boomark / email).