This Article investigates why the enforcement of a given legal doctrine may vary with changes in the cultural context in which it is applied. It argues that officials apply the law along an "enforcement practices continuum" in accord with changes in the prevailing articulations of the meaning of cultural identity norms associating particular groups with crime.
Terry v. Ohio doctrine allows police officers to make "stops" and "frisks" of limited scope upon reasonable suspicion of crime rather than requiring the higher standard of probable cause. The Article contends the officer discretion resulting from this "scope continuum" approach permits cultural identity norms to influence enforcement practices. While scholars have noted that the discretion permitted under Terry encourages racial profiling, this Article identifies a larger problem: Terry's "seesaw effect." That is, the cultural context in which law enforcement occurs will sometimes swing from (1) support for extreme racial profiling; to (2) a popular shift against racial profiling; to (3) a responsive "depolicing" of potential crime in racial minority communities.
For example, in the mid-1990s, cultural identity norms supported Mayor Rudolph Giuliani' s implicitly race-based campaign to maximize Terry stops. In the late 1990s, the media began criticizing the NYPD, identifying racial profiling as an underlying cause of police brutality. Consequently, the NYPD refrained from policing racial minorities at the Puerto Rican Day Parade in June 2000, resulting in sexual assaults of at least fifty-seven women.
56 Okla. L. Rev. 833 (2003).
Cooper, Frank Rudy, "Cultural Context Matters: Terry's "Seesaw Effect"" (2003). Scholarly Works. 1128.