Clark Neily
One of the US Supreme Court’s most significant Fourth Amendment cases was 1968’s Terry v. Ohio. In Terry, the court held that a police officer can frisk people based on reasonable suspicion that they are involved in a crime and have a weapon. Petitioner Nathan Cooper was subjected to a Terry frisk in January 2022 after reports that he was involved in a dispute at his Florida workplace. He is asking the Supreme Court to revisit the Terry decision.
Cato filed an amicus brief asking the Supreme Court to grant the petition and end the practice of Terry frisks. Under the common law and at the time of the American Founding, a Terry frisk would have qualified as the seizure of a person. But a person could only lawfully be seized based on probable cause—a higher standard than reasonable suspicion.
Overruling Terry’s authorization of frisks would be a long-overdue course correction that would strengthen the legitimacy of the Supreme Court’s originalist approach to law.
The court should grant Cooper’s petition and restore a critical protection enacted by the people Justice Scalia once referred to as the “fiercely proud men who adopted our Fourth Amendment.”