Terry and SQF Viewed Through the Lens of the Suspicion Heuristic
79 Pages Posted: 21 Mar 2016
Date Written: February 17, 2016
This article traces the history of police stop-question-frisk (“SQF”) tactics from their early roots in English Common Law to the adoption of the reasonable suspicion standard in the companion cases of Terry v. Ohio, Sibron v. New York, and Peters v. New York. Building on the work of Richardson and Groff, we extend the so-called “suspicion heuristic” from its original use in framing how implicit racial bias manifests in split-second decision-making in self-defense situations to the SQF context. Specifically, we examine how the psychological literature on implicit racial bias helps to explain modern controversies surrounding the racially- and ethnically-biased ways in which SQF techniques are used to control crime. After documenting the empirical effects of SQF, most notably in New York City, we posit that the expansion of SQF authority in cases since the early 1980s not only collective represents a weakening of Fourth Amendment protections beyond that accomplished by Terry, but also has increasingly invited racial and ethnic disparities in American policing vis-à-vis the suspicion heuristic in ways that violate the guarantee of equal protection under law. These disparities, in turn, have damaged police legitimacy, especially in urban areas. Moreover, the implicit racial biases that underlie police decisions to stop, question, and frisk racial and ethnic minorities at significantly disparate rates than Whites leads to similar disparities in the police use of force which, in turn, both violates the constitutional rights of racial and ethnic minorities, and damages police legitimacy even further. In light of the snowballing effect that the reasonable suspicion standard invites vis-à-vis the suspicion heuristic, we question whether Terry remains constitutionally viable. At minimum, the post-1980 expansion of SQF authority (chronicled in this Article) needs to be narrowed, especially with regard to pretextual stops that provide illegitimate constitutional cover to racially-biased policing.
Keywords: stop-and-frisk, implicit bias, policing
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