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Washington Law Review

Shawn E. Fields

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 three contributions to the existing literature. First, it corrects the oft-repeated misconception that the U.S. 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. The Article concludes with a recognition of the risks presented by a proposed “automatic frisk” regime, particularly for over-policed communities of color. In doing so, it suggests law enforcement would be well served to consider community policing alternatives to stop and frisk that respect the rights of firearms carriers in marginalized communities while protecting officers on the beat.

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