Erasing Presence Through Reasonable Suspicion: Terry and Its Progeny as a Vehicle for State Immigration Enforcement

This Article examines the long shadow cast on local policing by Terry v. Ohio, tracing the impact of Terry’s progeny on state legislative campaigns focused on immigration enforcement. The policing tools afforded by Terry’s progeny have an unmistakable presence-deterring effect on communities of color—so painfully illustrated in New York City during the siege-like “stop-and-frisk” program—and have provided the foundation on which states like Texas and Arizona can build statutory schemes to achieve “attrition through enforcement.” This Article unpacks how the broad police power afforded by Terry and its progeny meets legislative provisions authorizing or mandating immigration inquiry at the lowest level encounter with law enforcement. At this confluence, states can use Terry as a sword to create an environmentso hostile to undocumented immigrants that they are under siege in their own communities and, ultimately, forced to leave. This Article further discusses how to arm advocacy groups to fight the harms of Terry and its progeny by seeking greater transparency and accountability through data collection on police encounters, while fighting the harms of the state legislative campaigns by engaging immigrant employers in the fight to recognize and maintain the dignity of immigrants in the United States