Student Review:

      In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court authorized Police officers to conduct brief, investigatory stops based upon reasonable, articulable suspicion, a standard significantly lower than probable cause. The Court also permitted  officers conducting such stops to frisk the detained persons if the officer had a reasonable concern for his own safety. The search or frisk is generally limited to a search for weapons. In her article, Professor Schwartz address the racial issues raised by the practice of stops and frisks. As she points out, the Terry Court acknowledged that minority groups, particularly African-Americans, may be disproportionately subjected to stops and frisks, Terry, 392 U.S. at 14, but the Court rejected the probable cause standard for such stops as a means of combating Police racism, reasoning that such would be a "futile protest" against racial harassment. Terry, 392 U.S. at 15. Schwartz shows that the attitude of the Terry Court is not justified.
      Schwartz recalls that in recent years, there have been calls for an increased use of Terry frisks. For example, noted social scientist James Q. Wilson has argued that "the best way to deal with illegal gun-carrying in the United States is to increase Police use of stops and frisks." Schwartz, supra at 317. Moreover, well-known criminologist Lawrence Sherman in his "Kansas City Gun Experiment" has, in collaboration with the Kansas City Police Department, implemented a program where, within a target area with an almost entirely non-white population, selected officers patrol exclusively for illegal guns, "using stops and frisks as a principal means for effecting gun seizures." Schwartz, supra at 318. (See also Miller & Wright casebook, Chapter 2, Page 71, Note 5.) Schwartz fears that Police activities, such as the Kansas City experiment, will cause additional tension between Police and citizen in the minority communities. She believes that a reevaluation of the standard for stops and frisks is warranted.
      Professor Schwartz is a social scientist who holds both a J.D. from Yale and a Ph.D. from The Rockefeller University. She argues that in formulating standards for stops and frisks, Police departments and policy makers should consider the racial implications of the rule. She argues that they should consider: "whether and to what extent blacks are more frequently stopped and frisked than whites"; "whether and to what extent this disparity reflects Police racial bias"; and "the nature and extent of the resulting negative effects." Schwartz, supra at 323. Professor Schwartz criticizes the attitude toward racial effects adopted by the Terry Court, and argues that racial effects are relevant consideration in formulating the standard, but she concedes a lack of empirical knowledge on which to formulate a proper standard.
      Specifically, Professor Schwartz recounts the pervasive attitude in the black community that police unduly target minority areas, and she discusses the findings of the few studies addressing the issue of stops and frisks, such as Bogomolny's 1976 study and Black and Reiss's 1967 study. However, as she points out, there have not been a lot of recent studies dealing with the search for weapons and the racial implications. "An enormous scholarly literature considers whether and to what extent greater black involvement in crime or racial bias in the criminal justice system accounts for the facts that blacks are much more likely than whites to be arrested, indicted, convicted and imprisoned." Schwartz, supra at 363. There have not been nearly the same number of studies focussing on the stop and frisk issues. The few studies that do exist suggest that "the greater incidence of stops and frisks of blacks is attributable to racial animus and/or an unwarranted cognitive equation of being black with being dangerous. The extent to which this is the case, however, is unclear." Schwartz, supra at 375.

Article Summary by: Jim Thornton
Emory School of Law 1996