It has been 50 years since the U.S. Supreme Court ruled in Terry v. Ohio that the Constitution does not require police to delay taking investigative action until after a crime has been committed. That action sometimes takes the form of police stopping, questioning, and frisking individuals on the basis of reasonable suspicion as opposed to probable cause (the standard required for making an arrest). “Terry stops,” as they’re called, are often painted by advocates on the political left as a tool of police oppression.
But those arguments conflate the proper use of the tactic with its abuse. 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.
In cities where police have backed off, the effects do not seem to have been very good. In Chicago, for example, stops decreased almost 90 percent in the first quarter of 2016. That year, the city had its highest homicide tally in nearly 20 years.
None of this is to say that police never abuse their authority. Nor should readers discount the intrusion and indignity inherent in being the subject of an unlawful stop and frisk. But we must remember that abuses of power are deviations from the law articulated in Terry. They are not authorized by it. Conflating what the Supreme Court ruled constitutional 50 years ago with instances of police abuse risks depriving vulnerable communities of the priceless benefits that have accrued to them in the cities that have adopted proactive policing practices around the country. And that would be a tragedy.
Rafael A. Mangual is deputy director of legal policy at the Manhattan Institute for Policy Research, where he writes primarily about criminal justice reform, crime, and policing.