Stop and Frisk in a Concealed Carry World

52 Pages Posted: 5 Apr 2018 Last revised: 13 Feb 2020

See all articles by Shawn Fields

Shawn Fields

Campbell University - Norman Adrian Wiggins School of Law

Date Written: 2018


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). 93 Washington Law Review 1675 (2018), San Diego Legal Studies Paper No. 18-339, Available at SSRN: or

Shawn Fields (Contact Author)

Campbell University - Norman Adrian Wiggins School of Law ( email )

225 Hillsborough Street
Raleigh, NC 27603
United States

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