CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, June 5, 2017

Stoughton on Terry Frisks

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted Terry v. Ohio and the (Un)Forgettable Frisk (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This essay is a contribution to a symposium in recognition of the fiftieth anniversary of Terry v. Ohio.

When I was first asked to participate in this symposium reflecting on the fiftieth anniversary of Terry v. Ohio, I had trouble identifying how I could contribute. Legal scholars, after all, have criticized Terry for almost the entire half-century it’s been on the books. What is there left for me to say that hasn’t already been said, often with far more eloquence than I could hope to muster? With some misgivings, I turned for inspiration to a topic that I am typically reluctant to emphasize in my scholarship: my own experiences serving as a police officer at a large municipal police department. As I considered the role Terry has played over the last fifty years, I realized that perhaps my most significant contribution comes not from what I can say, but from what I can’t.

I can’t tell you about the first time I stopped and frisked someone. In fact, I can’t tell you about any of the frisks I conducted. I can’t, because I don’t remember them.

I know I stopped people. I know I frisked people. I know I did it quite frequently. So frequently, in fact, that my memories of how I conducted frisks are fairly extensive. But I have no specific memories of any single frisk. However many there were, those incidents were the background noise of my professional life, the elevator music of my law enforcement career. I remember them in the same way that I remember my commute; I can tell you the route that I drove, but I can’t recall any details of any particular trip. Those frisks—and there were almost certainly hundreds of them—were without exception so utterly unremarkable as to be entirely forgettable. At least to me they were. I wonder now, as we mark Terry’s golden anniversary, whether those stops and frisks were as forgettable to the individuals on the receiving end. I rather doubt it.

This essay is intentionally limited. I set up, but do not here engage in, a more robust discussion of Terry’s legacy; the normalization of not just a particular set of police tactics—stops and frisks—but of a particular approach to policing itself. I do so through the frame of my own experiences with Terry, describing in some detail the stops and frisks that I conducted as an officer. By doing so, I hope to provide a useful touchstone; robust descriptions of frisks are surprisingly lacking in both academic literature and judicial opinions. There are exceptions, of course, but those exceptions tend to focus on what are easily categorized as abusive practices. Here, my goal is to describe what was, to me, an entirely routine encounter, untainted by questionable legality, verbal cruelty, or physical injury. In doing so, I hope to illustrate how the casual exercise of coercive authority may be an issue of concern even absent abuse.

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