Allow Me to Retort: A Black Guy’s Guide to the Constitution

by Elie Mystal

There’s a reason why the ruling in Terry v. Ohio was 8–1 and the opinion was written by Earl Warren and joined by Thurgood Marshall. The opinion starts off with a long recitation of fundamental principles of the Fourth Amendment, but then acknowledges that those principles have to be balanced with practical realities of “rapidly unfolding” and potentially dangerous situations the police routinely face. The court then justifies a stop and frisk as a “minor inconvenience and petty indignity” that can be imposed on citizens by police officers who have a reasonable suspicion. The frisk is meant to protect the officers’ safety, and there is a strong state interest to make sure police officers are not harmed. I should point out that Terry v. Ohio was the first Supreme Court case in history argued by two Black attorneys. Both prosecutor Reuben Payne and defense attorney Louis Stokes were Black and were able to argue their positions in front of the first Black Supreme Court justice in history. Despite the deep tensions between competing societal goals, tensions that Warren took pains to address, the result in Terry v. Ohio seems obvious and inevitable. The police must have some ability to question “suspects of crime” in situations where they do not yet have enough evidence to arrest. And while questioning those suspects, a search for dangerous weapons that could be used to harm the police officer seems like a reasonable protection to afford those officers. The Supreme Court took p...