Terry, Handguns, and the Hand Formula: Some Preliminary Thoughts

Abstract

This Short Essay was written in response to an invitation by the Idaho Law Review to participate in its Symposium entitled, “Terry v. Ohio at 50: Considering the Past, Present, and Future of Stop-and-Frisk.” The Essay explores the confusion surrounding an officer’s ability under Terry to conduct a protective frisk of a lawfully armed civilian solely because that individual possesses a firearm. Under well-established Fourth Amendment jurisprudence, an officer may lawfully stop an individual if she reasonably suspects that individual of engaging in criminal activity. However, the officer may only initiate a frisk if she separately develops reasonable suspicion that the individual is armed and dangerous. Courts disagree on whether this second prong of the Terry analysis is conjunctive or, alternatively, whether an armed individual is per se dangerous and subject to a protective frisk.

This Essay suggests a thought experiment: rather than employing an overly-formalistic reading of the Terry test, what if courts employed traditional tort law risk-assessment principles in determining whether an officer is justified in conducting a protective frisk? With reference to the iconic Hand Formula, this Essay suggests that, in most situations, the probability of harm to officers and the nearby public from an armed individual (P), combined with the magnitude of that potential harm (L), justifies the “precaution” of a protective frisk (B). The Essay concludes by intentionally not providing a definitive answer to this thought experiment, but merely by making preliminary observations designed to provoke further thought and discussion.