CrimProf Blog

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

Monday, August 19, 2019

Davison on Terry and Legal Gun Possession

Aaron Davison has posted When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks (North Carolina Law Review, Vol. 97, No. 1, 2018) on SSRN. Here is the abstract:
Notwithstanding the continued violence inflicted through mass shootings, our nation's gun laws and gun ownership have steadily proliferated. Both the Supreme Court and the States played crucial roles: the former through Heller and McDonald, both fundamental changes to the Second Amendment's scope; the latter through permissive concealed and open carry laws.

As the country continues to grapple with competing ideas on appropriate next steps to ending gun violence and whether we want ever-expanding gun ownership, many have failed to recognize one offshoot result of increased gun ownership: the changed circumstances of how police engage in stop-and-frisk tactics. The frisk standard, specifically — allowing an officer to conduct a frisk only if the stopped individual is armed and dangerous — is completely turned on its head by the proliferation of gun ownership laws. In fact, this question was the cause of concern in the Fourth Circuit's United States v. Robinson opinion.

At issue was the en banc majority's interpretation of the armed and dangerous standard as conflating each element together into a unitary concept. The majority read the Supreme Court's use of "armed and thus (or therefore) dangerous" (used in merely two instances) as a mandate that an armed individual is presumptively dangerous. In other words, police need not present particularized and articulable factors that show how an individual is dangerous; being armed with a weapon conclusively satisfies the standard, thereby permitting a subsequent frisk. 

This Comment argues that the unitary concept interpretation of the armed and dangerous standard is wrong and effectively dismantles the basis of Terry frisks. First, the semantics of the standard — employing a conjunctive structure — indicates the intention that "armed" and "dangerous" are two separate elements. Second, the Supreme Court's stop-and-frisk precedent directly opposes the purported endorsement of a conflated standard. Third, and most drastic, are the multiple implications of the unitary concept standard, including the further devolution of stop-and-frisk's legitimacy by blowing a hole in its intended narrow scope, unbridled discretion to frisk lawful gun owners and those reasonably believed to be armed, and, in turn, exacerbation of past and present race issues inextricably tied to stop-and-frisk enforcement. The Comment closes by imploring the Supreme Court to grant certiorari in the first available Terry frisk case to reverse the explicit misinterpretation of the armed and dangerous standard. Simultaneously, the request to the Court is tempered with an awareness of the complexities in maneuvering a case to the Court with facts safe enough to serve as the vehicle for reversal.

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