North Carolina Law Review

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When One Word Changes Everything: How the Unitary Concept Dismantles the Basis of Terry Frisks

January 9, 2019

97 N.C. L. Rev. 192 (2018)


Despite ideological gridlock on gun policy, our nation’s gun laws have changed substantially in the last fifty years. All fifty states now permit concealed carry and forty-five states allow open carry of a gun, though some are more restrictive than others. Of the forty-five states that allow open carry, thirty-one allow it without a permit or license. Moreover, by 2010, District of Columbia v. Heller and McDonald v. City of Chicago had fundamentally changed the scope of Second Amendment rights. While the impetus behind this change is unclear, one thing is evident: there has been an underlying evolution in the way our nation views guns, which has impacted the pervasiveness of concealed and open carry laws and the development of Supreme Court jurisprudence.


What many Americans fail to recognize is that this change is more than simply a benefit or detriment to either side’s view of the national gun debate. Specifically, this change turns the foundation of stop-and-frisk tactics on its head. As the police and the courts are faced with changing norms and sentiments surrounding guns, strict adherence to rigid, antiquated rules—whether perceived or actual—results in perverse outcomes. Indeed, this was the issue in United States v. Robinson.


In Robinson II, the Fourth Circuit interpreted the Supreme Court’s use of “armed and thus dangerous” to create a unitary concept because “[t]he use of ‘and thus’ recognizes that the risk of danger is created simply because the person, who was forcibly stopped, is armed.” In other words, law enforcement need not identify how an individual is dangerous outside of simply carrying a weapon: under the “‘thus’ iteration,” the weapon alone makes the individual dangerous.


This Comment argues that the Fourth Circuit misinterpreted this standard and effectively dismantled the basis of Terry frisks. Permissive carry laws are ubiquitous, and many law-abiding citizens freely participate. Now more than ever, the Fourth Circuit should have held that the “armed and dangerous” standard is comprised of two distinct inquiries that each require police to identify specific and articulable facts before frisking an individual. The Fourth Circuit’s unitary concept categorically disregards the evolution of constitutional rights, permissive gun-related state laws, and, most importantly, stop-and-frisk precedent, thereby subjecting both lawful gun carriers and those merely suspected of being armed to unbridled police discretion to stop-and-frisk.



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