Libertarian law professor Richard Epstein's column this week, on civil liberties after the Boston Marathon bombing, gets into some of the legal background of the"stop and frisk" practices that have been in the news in New York. He writes:
As far back as 1969, the United States Supreme Court, speaking through Chief Justice Earl Warren in Terry v. Ohio, held, after much handwringing, that a police officer did not have to show probable cause in order to stop and frisk a person on public streets. Reasonable suspicion that unlawful activity might happen was all that was needed to justify what are now commonly called "Terry stops." Justice John Marshall Harlan tightened the noose still further by noting that whenever the police had enough reason to stop a person, the right to frisking him followed "automatically" given the ever-present risk that the party stopped might be carrying a concealed weapon.
This decision has generated many complaints about racial profiling, an issue that the Warren Court was well aware of at the time. There is no reason to sugarcoat the painful choice. These frisks are honest-to-goodness searches and they can be highly intrusive, covering even intimate body parts where weapons could be concealed. They are also more likely to be conducted in high-crime areas with a disproportionate number of young African-American males. No one can deny the unhappy fact that a huge number of erroneous searches will take place, for which there is, after the fact, no effective remedy at all. Unsuccessful searches yield no evidence that could be rendered inadmissible at trial.
Yet there are no sensible alternatives to the Terry rule. It surely makes no sense to stop and frisk a proportionate number of white males for no reason. In addition, it is virtually impossible to construct an intelligent system of ex post compensation to redress the large number of low-level harms that undoubtedly occurred when an innocent person was frisked.