Stop and Frisk in a Concealed Carry World

52 Pages Posted: 5 Apr 2018 Last revised: 6 Apr 2018

Shawn Fields

University of San Diego School of Law; Campbell University Norman Adrian Wiggins School of Law

Date Written: 2018

Abstract

This Article confronts the growing tension between increasingly permissive concealed carry firearms legislation and police authority to conduct investigative stops and protective frisks under Terry v. Ohio. For decades, courts upheld stops based on nothing more than an officer’s observation of public gun possession, on the assumption that anyone carrying a gun in public was doing so unlawfully. That assumption requires reexamination. All fifty states and the District of Columbia authorize their citizens to carry concealed weapons in public, and forty-two states impose little or no conditions on the exercise of this privilege. As a result, officers and courts can no longer reasonably assume that “public gun possession” equals “criminal activity.”

Courts and scholars have begun addressing discrete aspects of this dilemma, and this Article makes four contributions to the existing literature. First, it corrects the oft-repeated misconception that the Supreme Court’s recent Second Amendment jurisprudence has altered the Fourth Amendment’s reasonable suspicion standard. Second, it articulates the need for a “gun possession plus” reasonable suspicion standard to initiate a Terry stop for a suspected firearms violation. Third, it defends the right of officers to conduct automatic frisks of suspects after a lawfully-initiated stop when firearms are present, in recognition of the inherent and unique dangerousness of these weapons. Fourth, it justifies this adaptation of “reasonable suspicion” with reference to traditional risk-assessment tort principles, including the Hand Formula. In doing so, the Article seeks a balanced and defensible approach to assessing law enforcement interactions with lawfully-armed civilians in the age of concealed carry.

Keywords: Fourth Amendment, stop and frisk, Terry v. Ohio, right to carry

JEL Classification: K10

Suggested Citation

Fields, Shawn, Stop and Frisk in a Concealed Carry World (2018). Washington Law Review, Forthcoming; San Diego Legal Studies Paper No. 18-339. Available at SSRN: https://ssrn.com/abstract=3156692 or http://dx.doi.org/10.2139/ssrn.3156692

Shawn Fields (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
(619) 260-7959 (Phone)

Campbell University Norman Adrian Wiggins School of Law ( email )

225 Hillsborough Street
Raleigh, NC
United States

Register to support our free research

Register

Paper statistics

Downloads
44
Abstract Views
159
PlumX