Proactive Policing and the Legacy of Terry

Abstract

This essay explores the critical relationship between Terry v. Ohio and contemporary proactive policing strategies. Unlike most Supreme Court cases, which portray policing only in the form of criminal investigation, in Terry’s portrayal, officers roam urban streets and intervene to solve problems as they emerge. Yet, we argue, even as Terry provided a more realistic picture of traditional patrol policing, it also made possible the forms of policing that now supplement and even displace that model. Contemporary proactive policing strategies often utilize stops and frisks programmatically to prevent crime rather than uncover or respond to it. The Terry Court recognized that constitutional law could not fully regulate traditional policing on urban streets. We argue that the doctrine is even less useful for managing the new world of policing that Terry has wrought. Though some scholars have suggested that proactive stops and frisks are inevitably unconstitutional, we maintain that some proactive strategies can satisfy current Fourth Amendment and Equal Protection standards. Nevertheless, since those doctrines do not adequately consider the aggregate and distributional harms proactive policing imposes or the trade-offs between those harms and proactive policing’s ability to deter crime, the widespread use of stops and frisks, even when constitutional, can impose unjustifiable costs on individuals and communities. Thus, states and localities need to contend with whether and when to use proactive policing strategies. Although constitutional doctrine cannot adequately govern proactive policing, we find that constitutional litigation can nevertheless help states and localities respond to proactive policing by prompting data collection and reform, by improving public debate, and by encouraging statutory changes that facilitate political assessment of these strategies.

Keywords: proactive policing, policing, Fourth Amendment, Terry, Terry v. Ohio, Equal Protection, Fourteenth Amendment, local policing, criminal procedure, Floyd v. City of New York, stop and frisk, SQF, Problem-Oriented Policing, Broken Windows, Hot Spots policing, new policing, Whren v. United States