Automatic Authorization of Frisks in Terry Stops for Suspicion of Firearms Possession

Forthcoming, Southern Illinois University Law Journal

University of Missouri School of Law Legal Studies Research Paper

60 Pages Posted: 14 Aug 2018

See all articles by Royce de Rohan Barondes

Royce de Rohan Barondes

University of Missouri-Columbia School of Law

Date Written: July 23, 2018

Abstract

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, __ Idaho L. Rev. __ (forthcoming). This article focuses on the second issue. Most fundamentally, insofar as the stop is authorized because it is supposed the stop is a mere inconvenience, it is inconsistent then to conclude that the stop inherently authorizes the pointing of a firearm at the subject. And if a subject is treated as armed and dangerous—the criterion for authorizing the frisk—courts typically hold the subject can be frisked with weapons drawn. More broadly, by sketching the number of Terry stops that would be added by stops of persons, not police officers, who carry firearms daily, we can easily conclude that there would be a substantial increase in the most hazardous Terry stops. In light of the controversy generated by the level of Terry stops in the recent past, a substantial benefit would be required in any balancing that found the increase in stops to be reasonable. Yet prior Supreme Court authority in fact indicates the benefits of which a court may take cognizance are limited to the possession and transport itself, and exclude remote consequences prevented by the stops.

Keywords: Terry, frisk, second amendment, firearms

JEL Classification: K14, K19

Suggested Citation

Barondes, Royce de Rohan, Automatic Authorization of Frisks in Terry Stops for Suspicion of Firearms Possession (July 23, 2018). Forthcoming, Southern Illinois University Law Journal; University of Missouri School of Law Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=3223009

Royce de Rohan Barondes (Contact Author)

University of Missouri-Columbia School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO MO 65211
United States
573-882-1109 (Phone)
573-882-4984 (Fax)

HOME PAGE: http://www.missouri-k.com

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