West''''s encyclopedia of American law 2ND EDITION Volume 10 docx

2ND EDITION
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How to Use This Book
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How to Use This Book
❚ 1❚ Article Title
❚ 2❚ Definition in italics with Latin
translation provided
❚ 3❚ First-level subhead
❚ 4❚ Timeline for subject of biography,
including general historical events
and life events
❚ 5❚ Sidebar expands upon an issue
addressed briefly in the article
❚ 6❚ Quotation from subject of biography
❚ 7❚ Biography of contributor to
American law
❚ 8❚ Internal cross-reference to entry
within WEAL
❚ 9❚ In Focus article examines a
controversial or complex aspect
of the article topic
❚10 ❚ Cross-references at end of article
❚11 ❚ Full cite for case
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❚ 2❚
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2ND EDITION

Volume 10
Ter to Z
Detroit • San Diego • San Francisco • New Haven, Conn. • Waterville, Maine • London • Munich
WEAL http v10 5/4/04 4:27 PM Page 3
West’s Encyclopedia of American Law, 2nd Edition
Project Editors
Jeffrey Lehman
Shirelle Phelps
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Jendrowski, Elizabeth Pilette, Beth
Richardson
Indexing Services
Lynne Maday

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Library of Congress Cataloging-in-Publication Data
West’s encyclopedia of American law / Jeffrey Lehman, editor, Shirelle
Phelps, editor.— 2nd ed.
p. cm.
Includes bibliographical references and index.
ISBN 0-7876-6367-0 (hardcover set : alk. paper)
1. Law—United States—Encyclopedias. 2. Law—United States—Popular
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DEDICATION
West’s Encyclopedia of American Law
(WEAL) is dedicated to librarians
and library patrons throughout the
United States and beyond. Your
interest in the American legal system
helps to expand and fuel the frame-
work of our Republic.
k
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VOLUME 1
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
A–Ba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .507
VOLUME 2
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Be–Col . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .511
VOLUME 3
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Com–Dor . . . . . . . . . . . . . . . . . . . . . . . . . .1

Abbreviations . . . . . . . . . . . . . . . . . . . . . .509
VOLUME 4
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Dou–Fre . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .509
VOLUME 5
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Fri–Jam . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .501
VOLUME 6
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Jap–Ma . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .469
VOLUME 7
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Mc–Pl . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .467
VOLUME 8
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Po–San . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .461
VOLUME 9
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Sar–Ten . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Abbreviations . . . . . . . . . . . . . . . . . . . . . .465
VOLUME 10
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . .ix
Contributors . . . . . . . . . . . . . . . . . . . . . . .xiii
Ter–Z . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Abbreviations . . . . . . . . . . . . . . . . . . . . . .459
VOLUME 11
Milestones in the Law
VOLUME 12
Primary Documents
VOLUME 13
Dictionary of Legal Terms
Cases Index
General Index
vii
Contents
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T
he U.S. legal system is admired around
the world for the freedoms it allows the
individual and the fairness with which it
attempts to treat all persons. On the surface, it
may seem simple, yet those who have delved
into it know that this system of federal and
state constitutions, statutes, regulations, and
common-law decisions is elaborate and com-
plex. It derives from the English common law,
but includes principles older than England,
along with some principles from other lands.
The U.S. legal system, like many others, has a

language all its own, but too often it is an unfa-
miliar language: many concepts are still
phrased in Latin. The second edition of West’s
Encyclopedia of American Law (WEAL) explains
legal terms and concepts in everyday language,
however. It covers a wide variety of persons,
entities, and events that have shaped the U.S.
legal system and influenced public perceptions
of it.
MAIN FEATURES OF THIS SET
Entries
This encyclopedia contains nearly 5,000
entries devoted to terms, concepts, events,
movements, cases, and persons significant to
U.S. law. Entries on legal terms contain a defini-
tion of the term, followed by explanatory text if
necessary. Entries are arranged alphabetically in
standard encyclopedia format for ease of use. A
wide variety of additional features, listed later in
this preface, provide interesting background and
supplemental information.
Definitions Every entry on a legal term is
followed by a definition, which appears at the
beginning of the entry and is italicized. The Dic-
tionary and Indexes volume includes a glossary
containing all the definitions from WEAL.
Further Readings To facilitate further
research, a list of Further Readings is included at
the end of a majority of the main entries.
Cross-References WEAL provides two types

of cross-references, within and following entries.
Within the entries, terms are set in small capital
letters—for example, LIEN—to indicate that
they have their own entry in the encyclopedia.
At the end of the entries, related entries the
reader may wish to explore are listed alphabeti-
cally by title.
Blind cross-reference entries are also
included to direct the user to other entries
throughout the set.
In Focus Essays
In Focus essays accompany related entries
and provide additional facts, details, and argu-
ments on particularly interesting, important, or
controversial issues raised by those entries. The
subjects covered include hotly contested issues,
such as abortion, capital punishment, and gay
rights; detailed processes, such as the Food and
Drug Administration’s approval process for new
drugs; and important historical or social issues,
such as debates over the formation of the U.S.
Constitution.
Sidebars
Sidebars provide brief highlights of some
interesting facet of accompanying entries. They
ix
Preface
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complement regular entries and In Focus essays
by adding informative details. Sidebar topics

include the Million Man March and the branches
of the U.S. armed services. Sidebars appear at the
top of a text page and are set in a box.
Biographies
WEAL profiles a wide variety of interesting
and influential people—including lawyers,
judges, government and civic leaders, and his-
torical and modern figures—who have played a
part in creating or shaping U.S. law. Each biog-
raphy includes a timeline, which shows impor-
tant moments in the subject’s life as well as
important historical events of the period.
Biographies appear alphabetically by the sub-
ject’s last name.
ADDITIONAL FEATURES OF THIS SET
Enhancements Throughout WEAL,readers
will find a broad array of photographs, charts,
graphs, manuscripts, legal forms, and other
visual aids enhancing the ideas presented in the
text.
Indexes WEAL features a cases index and a
cumulative index in a separate volume.
Appendixes
Three appendix volumes are included with
WEAL, containing hundreds of pages of docu-
ments, laws, manuscripts, and forms fundamen-
tal to and characteristic of U.S. law.
Milestone Cases in the Law
A special Appendix volume entitled Mile-
stones in the Law, allows readers to take a close

look at landmark cases in U.S. law. Readers can
explore the reasoning of the judges and the
arguments of the attorneys that produced major
decisions on important legal and social issues.
Included in each Milestone are the opinions of
the lower courts; the briefs presented by the par-
ties to the U.S. Supreme Court; and the decision
of the Supreme Court, including the majority
opinion and all concurring and dissenting opin-
ions for each case.
Primary Documents
There is also an Appendix volume contain-
ing more than 60 primary documents, such as
the English Bill of Rights, Martin Luther King
Jr.’s Letter from Brimingham Jail, and several
presidential speeches.
Citations
Wherever possible, WEAL entries include
citations for cases and statutes mentioned in the
text. These allow readers wishing to do addi-
tional research to find the opinions and statutes
cited. Two sample citations, with explanations of
common citation terms, can be seen below and
opposite.
X PREFACE
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
1. Case title. The title of the case is set in i and
indicates the names of the parties. The suit
in this sample citation was between Ernesto
A. Miranda and the state of Arizona.

2. Reporter volume number. The number pre-
ceding the reporter name indicates the
reporter volume containing the case. (The
volume number appears on the spine of the
reporter, along with the reporter name).
3. Reporter name. The reporter name is abbrevi-
ated. The suit in the sample citation is from
the reporter, or series of books, called U.S.
Reports, which contains cases from the U.S.
Supreme Court. (Numerous reporters pub-
lish cases from the federal and state courts.)
4. Reporter page. The number following the
reporter name indicates the reporter page on
which the case begins.
5. Additional reporter page. Many cases may be
found in more than one reporter. The suit in
the sample citation also appears in volume
86 of the Supreme Court Reporter, beginning
on page 1602.
6. Additional reporter citation. The suit in the
sample citation is also reported in volume 16
of the Lawyer’s Edition, second series, begin-
ning on page 694.
7. Year of decision. The year the court issued its
decision in the case appears in parentheses at
the end of the cite.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966)
12345 67
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1. Statute title.

2. Public law number. In the sample citation,
the number 103 indicates this law was
passed by the 103d Congress, and the num-
ber 159 indicates it was the 159th law passed
by that Congress.
3. Reporter volume number. The number pre-
ceding the reporter abbreviation indicates
the reporter volume containing the statute.
4. Reporter name. The reporter name is abbre-
viated. The statute in the sample citation is
from Statutes at Large.
5. Reporter page. The number following the
reporter abbreviation indicates the reporter
page on which the statute begins.
6. Title number. Federal laws are divided into
major sections with specific titles. The num-
ber preceding a reference to the U.S. Code
stands for the section called Crimes and
Criminal Procedure.
7. Additional reporter. The statute in the sam-
ple citation may also be found in the U.S.
Code Annotated.
8. Section numbers. The section numbers fol-
lowing a reference to the U.S. Code Anno-
tated indicate where the statute appears in
that reporter.
PREFACE XI
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
Brady Handgun Violence Prevention Act, Pub. L. No. 103–159, 107 Stat. 1536 (18 U.S.C.A. §§ 921–925A)
12345678

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Editorial Reviewers
Matthew C. Cordon
Frederick K. Grittner
Stephanie Schmitt
Linda Tashbook
M. Uri Toch
Contributing Authors
James Cahoy
Matthew C. Cordon
Richard J. Cretan
Mark Engsberg
Frederick K. Grittner
Lauri R. Harding
David R. Johnstone
Theresa J. Lippert
Frances T. Lynch
George A. Milite
Melodie Monahan
Kelle Sisung
Scott D. Slick
Contributors to
Previous Edition
Richard Abowitz
Paul Bard
Joanne Bergum
Michael Bernard
Gregory A. Borchard
Susan Buie
Terr y Carter

Sally Chatelaine
Joanne Smestad Claussen
Richard Cretan
Lynne Crist
Paul D. Daggett
Susan L. Dalhed
Lisa M. DelFiacco
Suzanne Paul Dell’Oro
Dan DeVoe
Joanne Engelking
Sharon Fischlowitz
Jonathan Flanders
Lisa Florey
Robert A. Frame
John E. Gisselquist
Russell L. Gray III
Frederick K. Grittner
Victoria L. Handler
Heidi L. Headlee
James Heidberg
Clifford P. Hooker
Marianne Ashley Jerpbak
Andrew Kass
Margaret Anderson Kelliher
Christopher J. Kennedy
Anne E. Kevlin
Ann T. Laughlin
Laura Ledsworth-Wang
Linda Lincoln
Gregory Luce

David Luiken
Jennifer Marsh
Sandra M. Olson
Anne Larsen Olstad
William Ostrem
Lauren Pacelli
Randolph C. Park
Gary Peter
Michele A. Potts
Reinhard Priester
Christy Rain
Brian Roberts
Debra J. Rosenthal
Mary Lahr Schier
Mary Scarbrough
Theresa L. Schulz
John Scobey
James Slavicek
Scott D. Slick
David Strom
Wendy Tien
Douglas Tueting
Richard F. Tyson
Christine Ver Ploeg
George E. Warner
Anne Welsbacher
Eric P. Wind
Lindy T. Yokanovich
xiii
Contributors

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TERM
An expression, word, or phrase that has a fixed
and known meaning in a particular art, science, or
profession. A specified period of time.
The term of a court is the legally prescribed
period for which it may be in session. Although
the session of the court is the time that it actu-
ally sits, the words term and session are fre-
quently used interchangeably.
In reference to a lease, a term is the period
granted during which the lessee is entitled to
occupy the rented premises. It does not include
the period of time between the creation of the
lease and the entry of the tenant. Similarly when
used in reference to estates, the term is the
period of time for which an estate is granted. An
estate for five years, for example, is one with a
five-year term.
A term of office is the time during which an
official who has been appointed or elected may
hold the office, perform its functions, and par-
take of its emoluments and privileges.
TERM LIMITS
See ELECTIONS.
TERM OF ART
A word or phrase that has special meaning in a
particular context.
A term of art is a word or phrase that has a
particular meaning. Terms of art abound in the

law. For example, the phrase double jeopardy can
be used in common parlance to describe any sit-
uation that poses two risks. In the law,
DOUBLE
JEOPARDY
refers specifically to an impermissible
second trial of a defendant for the same offense
that gave rise to the first trial.
The classification of a word or phrase as a
term of art can have legal consequences. In Mol-
zof v. United States, 502 U.S. 301, 112 S. Ct. 711,
116 L. Ed. 2d 731 (1992), Shirley M. Molzof
brought suit against the federal government
after her husband, Robert E. Molzof, suffered
irreversible brain damage while under the care
of government hospital workers. The federal
government conceded liability, and the parties
tried the issue of damages before the U.S. Dis-
trict Court for the Western District of Wiscon-
sin. Molzof had brought the claim as executor of
her husband’s estate under the
FEDERAL TORT
CLAIMS ACT
(FTCA) (28 U.S.C.A. §§ 1346(b),
2671–2680 [1988]), which prohibits the assess-
ment of
PUNITIVE DAMAGES against the federal
government. The court granted recovery to
Molzof for her husband’s injuries that resulted
from the

NEGLIGENCE of federal employees, but
it denied recovery for future medical expenses
and for loss of enjoyment of life. According to
the court, such damages were punitive damages,
which could not be recovered against the federal
government.
The U.S. Court of Appeals for the Seventh
Circuit agreed with the trial court, but the U.S.
Supreme Court disagreed. According to the
Court, punitive damages is a legal term of art
1
T
(cont.)
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that has a widely accepted common-law mean-
ing under state law. Congress was aware of this
meaning at the time it passed the FTCA. Under
traditional common-law principles, punitive
damages are designed to punish a party. Since
damages for future medical expenses and for
loss of enjoyment of life were meant to compen-
sate Molzof rather than punish the government,
the Court reversed the decision and remanded
the case to the Seventh Circuit.
TERMINATION
Cessation; conclusion; end in time or existence.
When used in connection with litigation, the
term signifies the final determination of the
action.
The termination or cancellation of a con-

tract signifies the process whereby an end is put
to whatever remains to be performed thereun-
der. It differs from RESCISSION, which refers to
the restoration of the parties to the positions
they occupied prior to the contract.
The termination of a lease refers to the sev-
erance of the LANDLORD AND TENANT relation-
ship before the leasehold term expires through
the ordinary passage of time.
❖
TERRELL, MARY ELIZA CHURCH
Mary Eliza Church Terrell was an influential
African American writer, lecturer, and social
activist, whose work began when the SEPARATE-
BUT-EQUAL doctrine of racial SEGREGATION was
adopted by the U.S. legal system and ended as
the U.S. Supreme Court, in BROWN V. BOARD OF
EDUCATION OF TOPEKA, KANSAS, 347 U.S. 483,
74 S. Ct. 686, 98 L. Ed. 873 (1954), rejected the
doctrine of state-sponsored segregation. Terrell
was also an advocate of
WOMEN’S RIGHTS,
including the right to vote.
Mary Church was born on September 23,
1863, in Memphis, Tennessee. She was raised in
a middle-class family and attended Oberlin
College in Ohio, graduating in 1884. She taught
at Wilberforce University in Xenia, Ohio, in
2 TERMINATION
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition

“I
F WE FIGHT
,
WE
GET OUR RIGHTS
.
W
E
’
RE SECOND
-
CLASS CITIZENS
BECAUSE WE SIT
IDLY BY
.”
—M
ARY
E
LIZA
C
HURCH
T
ERRELL
Mary Eliza Church Terrell. THE GRANGER COLLECTION, NEW
YORK
Mary Eliza Church Terrell 1863–1954
▼▼
▼▼
18501850
19001900

19251925
19501950
19751975
18751875
◆❖
1861–65
U.S. Civil War
1863 Born,
Memphis,
Tenn.
◆
1884 Graduated from
Oberlin College in Ohio
1895 Appointed to the District
of Columbia Board of Education
◆
1909
Became a
charter
member of
the NAACP
1914–18
World War I
◆
1896 Published the pamphlet "The
Progress of Colored Women"; founded the
National Association of Colored Women
1939–45
World War II
◆

1940 Published
autobiography A
Colored Woman in a
White World
◆
❖
1954 Died,
Annapolis,
Md.
◆
1954 U.S. Supreme Court outlawed,
"separate but equal" education in
Brown v. Board of Education
1961–73
Vietnam War
1950–53
Korean War
1950–53 Successfully campaigned
to end segregation in Washington
restaurants and hotels
1949 Became first African
American woman admitted
to the Washington chapter
of AAUW
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1885 and at a secondary school in Washington,
D.C., in 1886 before taking a two-year tour of
Europe. In 1888 she obtained a master’s degree
from Oberlin and married Robert Heberton
Terrell, an attorney who would become the first

African American municipal judge in Washing-
ton, D.C.
Terrell became an active member of the
National American Suffrage Association and
focused her attention on the special concerns of
African American women. In her 1896 pam-
phlet, “The Progress of Colored Women,” Terrell
noted the “almost insurmountable obstacles”
that had confronted African American women.
Not only were “colored women with ambition
and aspiration handicapped on account of their
sex, but they are everywhere baffled and mocked
on account of their race.”
In 1896 Terrell founded the National Asso-
ciation of Colored Women and established its
headquarters in Washington, D.C. As the first
president, Terrell used the association as a
means of achieving educational and social
reform and bringing an end to racial and
SEX
DISCRIMINATION. She was appointed to the
District of Columbia Board of Education in
1895, the first African American woman to hold
such a position.
Terrell became a charter member of the
National Association for the Advancement of
Colored People (
NAACP) in 1909 and continued
her
CIVIL RIGHTS crusade through the 1950s.

She worked for the end of racial segregation and
other barriers that affected the rights of African
Americans. In 1949 Terrell was admitted to the
Washington chapter of the American Associa-
tion of University Women, ending the associa-
tion’s all-white membership policy. In 1950, at
age eighty-seven, Terrell began a campaign to
end segregation in restaurants and hotels in
Washington, D.C. Three years later she achieved
her goal.
Terrell published her autobiography, A Col-
ored Woman in a White World, in 1940. She died
on July 24, 1954, in Annapolis, Maryland.
FURTHER READINGS
Fradin, Dennis B., and Judith Bloom Fradin. 2003. Fight On!:
Mary Church Terrell’s Battle for Integration. New York:
Clarion Books.
Jones, Beverly Washington. 1990. Quest for Equality: The Life
and Writings of Mary Eliza Church Terrell, 1863–1954.
Brooklyn, N.Y.: Carlson.
Terrell, Mary Church. 1996. A Colored Woman in a White
World. New York: G.K. Hall.
TERRITORIAL COURTS
Federal tribunals that serve as both federal and
state courts in possessions of the United States—
such as Guam and the Virgin Islands—that are
not within the limits of any state but are organized
with separate legislatures and executive and judi-
cial officers appointed by the president.
Territorial courts are legislative courts cre-

ated by Congress pursuant to its constitutional
power under Article I, Section 8, Clause 9, to
create tribunals inferior to the Supreme Court.
They are not constitutional courts created by
Article III of the Constitution. Congress vests
territorial courts with jurisdiction comparable
to that exercised by federal district courts. Con-
gress can, however, impose restrictions and
duties on territorial courts that cannot be
imposed on federal district courts, such as limit-
ing the tenure of the members of the bench.
Once a territory is admitted to the Union as a
state, the jurisdiction of its territorial court is
extinguished. Pending cases are transferred to
the appropriate tribunals according to the
nature of the particular action.
The Supreme Court reviews decisions ren-
dered by territorial courts if they satisfy certain
requirements.
TERRITORIAL WATERS
The part of the ocean adjacent to the coast of a
state that is considered to be part of the territory of
that state and subject to its sovereignty.
In
INTERNATIONAL LAW the term territorial
waters refers to that part of the ocean immedi-
ately adjacent to the shores of a state and subject
to its territorial jurisdiction. The state possesses
both the jurisdictional right to regulate, police,
and adjudicate the territorial waters and the

proprietary right to control and exploit natural
resources in those waters and exclude others
from them. Territorial waters differ from the
high seas, which are common to all nations and
are governed by the principle of freedom of the
seas. The high seas are not subject to appropria-
tion by persons or states but are available to
everyone for navigation, exploitation of
resources, and other lawful uses. The legal status
of territorial waters also extends to the seabed
and subsoil under them and to the airspace
above them.
From the eighteenth to the middle of the
twentieth century, international law set the
width of territorial waters at one league (three
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nautical miles), although the practice was never
wholly uniform. The United States established a
three-mile territorial limit in 1793. International
law also established the principle that foreign
ships are entitled to innocent passage through
territorial waters.
By the 1970s, however, more than forty
countries had asserted a twelve-mile limit for
their territorial waters. In 1988 President
RONALD REAGAN issued Executive Proclamation
5928, which officially increased the outer limit
of U.S. territorial waters from three to twelve

miles (54 Fed. Reg. 777). This limit also applies
to Puerto Rico, Guam, American Samoa, the
U.S. Virgin Islands, and the Northern Mariana
Islands. The Reagan administration claimed the
extension of the limit was primarily motivated
by national security concerns, specifically to
hinder the operations of spy vessels from the
Soviet Union that plied the U.S. coastline.
Another reason for the extension was the recog-
nition that most countries had moved to a
twelve-mile limit. In 1982, at the Third United
Nations Conference on the Law of the Sea, 130
member countries ratified the Convention on
the
LAW OF THE SEA, which included a recogni-
tion of the twelve-mile limit as a provision of
customary international law. Although the
United States voted against the convention, 104
countries had officially claimed a twelve-mile
territorial sea by 1988.
CROSS-REFERENCES
Law of the Sea; Navigable Waters.
TERRITORIALITY
A term that signifies a connection or limitation
with reference to a particular geographic area or
country.
TERRITORIES OF THE
UNITED STATES
Portions of the United States that are not within
the limits of any state and have not been admitted

as states.
The United States holds three territories:
American Samoa and Guam in the Pacific
Ocean and the U.S. Virgin Islands in the
Caribbean Sea. Although they are governed by
the United States, the territories do not have
statehood status, and this lesser legal and politi-
cal status sets them apart from the rest of the
United States.
The three U.S. territories are not the only
U.S. government land holdings without state-
hood status. These various lands fall under the
broad description of insular political communi-
ties affiliated with the United States. Puerto Rico
in the Caribbean and the Northern Mariana
Islands in the Pacific Ocean belong to the United
States and have the status of commonwealth, a
legal and political status that is above a territory
but still below a state.
The United States also has a number of
islands in the Pacific Ocean that are called vari-
ously territories and possessions. U.S. posses-
sions have the lowest legal and political status
because these islands do not have permanent
populations and do not seek self-determination
and autonomy. U.S. possessions include Baker,
Howland, Kingman Reef, Jarvis, Johnston, Mid-
way, Palmyra, and Wake Islands.
Finally, land used as a military base is con-
sidered a form of territory. These areas are

inhabited almost exclusively by military person-
nel. They are governed largely by military laws,
and not by the political structures in place for
commonwealths and territories. The United
States has military bases at various locations
around the world, including Okinawa, Japan,
and Guantanamo Bay, Cuba.
A precise definition of territories and terri-
torial law in the United States is difficult to fash-
ion. The U.S. government has long been in the
habit of determining policy as it goes along. The
United States was established through a defen-
sive effort against British forces and then
through alternately defensive and offensive bat-
tles against Native Americans. From this chaotic
beginning, the United States has struggled to
fashion a coherent policy on the acquisition and
possession of land.
The U.S. Constitution does not state exactly
how the United States may acquire land. Instead,
the Constitution essentially delegates the power
to decide the matter to Congress. Article IV, Sec-
tion 3, Clause 1, of the Constitution provides
that “New States may be admitted by the Con-
gress into this Union; but no new State shall be
formed by the Junction of two or more States,
or Parts of States, without the Consent of the
Legislatures of the States concerned as well as of
the Congress.” The same section of the Consti-
tution gives Congress the “Power to dispose of

and make all needful Rules and Regulations
respecting the Territory or other Property
belonging to the United States.”
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Under INTERNATIONAL LAW the United
States and other nation-states may acquire addi-
tional territory in several ways, including occu-
pation of territory that is not already a part of a
state; conquest, where allowed by the interna-
tional community; cession of land by another
nation in a treaty; and accretion, or the growth
of new land within a nation’s existing bound-
aries.
Through various statutes and court opin-
ions, Congress and the U.S. Supreme Court have
devised a system that gives Congress and the
president control over U.S. territories. Congress
delegates some of its policy-making and admin-
istrative duties to the Office of Insular Affairs
within the
INTERIOR DEPARTMENT. The presi-
dent of the United States appoints judges and
executive officers to offices in the territories.
Congress devises court systems for the territo-
ries, and the Supreme Court may review deci-
sions made by territorial courts.
Congress may pass laws governing a terri-
tory with due deference to the customs and sen-

sibilities of the native people. Congress may not
pass territorial laws that violate a fundamental
constitutional right. Such rights have not been
defined concretely by the Supreme Court in the
context of territorial law, but they can include
the right to be free from unreasonable
SEARCHES
AND SEIZURES
, the right to FREEDOM OF
SPEECH
, and the rights to EQUAL PROTECTION
and DUE PROCESS (Torres v. Commonwealth of
Puerto Rico, 442 U.S. 465, 99 S. Ct. 2425, 61 L.
Ed. 2d 1 [1979]).
Persons living in U.S. territories do not have
the right to vote for members of Congress. They
may elect their own legislature, but the laws
passed by the territorial legislature may be nulli-
fied by Congress. Each territory may elect a del-
egate who attends congressional sessions,
hearings, and conferences in Washington, D.C.
These delegates may propose legislation and
vote on legislation in committees, but they may
not participate in final votes.
U.S. territories have less political power than
do U.S. commonwealths. Commonwealths are
afforded a higher degree of internal political
autonomy than are territories. Congress and the
commonwealth work together to fashion a polit-
ical system that is acceptable to both parties. By

contrast, Congress tends to impose its will on
territories. Commonwealth status once
inevitably led to statehood, but such a progres-
sion is no longer automatic.
FURTHER READINGS
Farrand, Max. 2000. The Legislation of Congress for the Gov-
ernment of the Organized Territories of the United States,
1789–1895. Buffalo, N.Y.: Hein.
Statham, Robert, Jr. 2002. Colonial Constitutionalism: The
Tyranny of United States’ Offshore Territorial Policy and
Relations. Lanham, Md.: Lexington Books.
Van Dyke, Jon M. 1992. “The Evolving Legal Relationships
between the United States and Its Affiliated U.S Flag
Islands.” University of Hawaii Law Review 14 (fall).
CROSS-REFERENCES
Louisiana Purchase; Territorial Courts.
TERRITORY
A part of a country separated from the rest and
subject to a particular jurisdiction.
The term territory has various meanings in
different contexts. Generally, the term refers to
a particular or indeterminate geographical
area. In a legal context, territory usually
denotes a geographical area that has been
acquired by a particular country but has not
been recognized as a full participant in that
country’s affairs. In the United States, Guam is
one example of a territory. Though it is consid-
ered a part of the United States and is governed
by the U.S. Congress, Guam does not have full

rights of statehood, such as full representation
in Congress or full coverage under the U.S.
Constitution.
The term territory is also used in the law to
describe an assigned area of responsibility. A
salesperson, for example, may work in a cer-
tain area. A salesperson’s territory may be
legally significant in a contract case. Assume
that Sally has agreed to sell widgets on com-
mission in a specific territory on the condition
that no other seller from the widget supplier
will do business in that territory. If the sup-
plier arranges for another seller to encroach on
Sally’s territory, Sally may take legal action
against the supplier.
CROSS-REFERENCES
Territories of the United States.
TERRORISM
The unlawful use of force or violence against per-
sons or property in order to coerce or intimidate a
government or the civilian population in further-
ance of political or social objectives.
Since the
SEPTEMBER 11TH ATTACKS on the
United States in 2001, which resulted in the
TERRORISM 5
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destruction of the World Trade Center in New
York City and severe damage to the Pentagon in

Washington, D.C., the United States has changed
its priorities to focus upon eradicating terrorism
in the world. Terrorism involves the systematic
use of terror or violence to achieve political
goals. The targets of terrorism include govern-
ment officials, identified individuals or groups,
and innocent bystanders. In most cases terrorists
seek to overthrow or destabilize an existing polit-
ical regime, but totalitarian and dictatorial gov-
ernments also use terror to maintain their power.
Domestic Terrorism
The attacks of September 11, 2001, consti-
tuted the most severe terrorist attacks ever com-
6 TERRORISM
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
I
n June 1997 the murder and conspiracy trial of Tim-
othy J. McVeigh ended in the death sentence. The
29-year-old former Army sergeant was convicted of
bombing the Alfred P. Murrah Federal Building in
Oklahoma City on April 19, 1995. The blast, which
claimed 168 lives, was the worst terrorist act ever
committed on U.S. soil. McVeigh pleaded not guilty,
but the elaborate case mounted by federal prosecu-
tors led to a swift jury verdict of guilty on all 11
counts.
After a nationwide manhunt, investigators from
the
FEDERAL BUREAU OF INVESTIGATION (FBI) had
linked McVeigh to the blast using remnants of a

Ryder rental truck believed to have carried the bomb.
At trial, prosecutors established further ties: tele-
phone records and testimony by the owner of the
rental office suggested McVeigh had rented the truck
under an alias in Junction City, Kansas, two days
before the bombing. Residue from explosives had
also been found on McVeigh’s clothing.
Prosecutors portrayed McVeigh as an anti-
government extremist. The defendant’s sister, Jen-
nifer McVeigh, told the court that he was angry over
the government’s destruction of the Branch Davidian
compound in Waco, Texas, in April 1993, and that he
had hinted at taking action. Personal correspon-
dence was introduced as evidence in an effort to
round out the portrait of McVeigh as a follower of far-
right politics, who was disillusioned and willing to
commit acts of terror. Key testimony came from
Michael J. Fortier, an Army friend and co-conspirator
who had surveyed the Federal Building with
McVeigh, and his wife, Lori Fortier. The Fortiers said
that McVeigh wanted the bombing to start a civil war.
Led by Oklahoma attorney Stephen Jones, the
defense team was critical of every phase of the pros-
ecution. Defense attorneys attacked the methodol-
ogy of the FBI in preparing physical evidence as well
as the government’s witnesses. In particular, they
charged that the Fortiers were liars who hoped to
escape prison time and to profit financially from their
testimony. Maintaining that McVeigh was railroaded,
the defense pointed to the existence of a human leg

found in the ruins of the building to suggest that the
actual Oklahoma City bomber had died in the explo-
sion.
After the jurors returned a guilty verdict on June
2, the trial moved into an unusual penalty phase. The
defense, seeking leniency, made a lengthy presenta-
tion about the Waco siege, at which McVeigh had
been present, in what seemed to observers an odd
effort to explain his motives in Oklahoma City. It also
called to the stand William McVeigh, who made an
emotionally charged appeal for his son’s life. But the
statements of survivors who had lost family and
friends in the Oklahoma massacre apparently
swayed the jurors, who decided on execution.
FURTHER READINGS
Gottman, Andrew J. 1999. “Fair Notice, Even for Terrorists: Tim-
othy McVeigh and a New Standard for the Ex Post Facto
Clause.”
Washington and Lee Law Review
56 (spring).
Hoffman, David. 1998.
The Oklahoma City Bombing and the Pol-
itics of Terror.
Venice, Calif.: Feral House.
“Responding to Terrorism: Crime, Punishment, and War.” 2002.
Harvard Law Review
115 (February).
Rodgers, Jim, and Tim Kullman. 2002.
Facing Terror: The Gov-
ernment’s Response to Contemporary Extremists in Amer-

ica.
Lanham, Md.: Univ. Press of America.
CROSS-REFERENCES
Venue “Venue and the Oklahoma City Bombing Case” (Side-
bar).
The Oklahoma City Bombing
B
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mitted on U.S. soil. However, these were cer-
tainly not the first acts of terrorism carried out
against the United States by foreign terrorists,
nor were they the first attacks carried out against
the World Trade Center. In February 1993, a
bombing of the World Trade Center killed six
people and injured more than a thousand oth-
ers. The bomb left a crater 200 by 1,000 feet wide
and five stories deep. The FEDERAL BUREAU OF
INVESTIGATION (FBI) and the Joint Terrorist
Task Force identified and helped bring to trial 22
Islamic fundamentalist conspirators. The trial
revealed extensive plans for terrorist acts in the
United States, including attacks on government
facilities.
During the 1990s, the United States also
became more concerned about domestic terror-
ist activities carried out by U.S. citizens without
any foreign involvement. Beginning in 1978, an
individual who came to be known as the
Unabomber targeted university scientists, airline
employees, and other persons he associated with

a dehumanized, technology driven society. The
suspect killed three people and injured 23 others
with package bombs. At the Unabomber’s insis-
tence, major newspapers published his 35,000-
word manifesto describing his anti-technology
philosophy. In April 1996, a suspect, Theodore
Kaczynski, was arrested for crimes associated
with the Unabomber. After a rather bizarre trial,
in 1998, Kaczynski pled guilty in exchange for a
sentence of life without the possibility of
PAROLE.
However, it was the bombing of the Alfred P.
Murrah Federal Building in Oklahoma City,
Oklahoma, on April 19, 1995, that galvanized
concerns about domestic terrorism. The bomb-
ing killed 168 people and injured more than 500
others. The FBI arrested Timothy J. McVeigh
and Terry Nichols, who were charged with mur-
der and conspiracy. McVeigh and Nichols were
connected to the right-wing militia movement,
which opposes the powers held by the federal
government and believes in the right of its
members to bear arms.
In June 1997, McVeigh was found guilty of
murder and conspiracy, and sentenced to death.
He attempted to appeal his conviction for three
years, but gave up in late 2000. On June 11, 2001,
McVeigh was executed by lethal injection.
Nichols faced similar charges in his 1997 trial.
He was acquitted on charges of first- and second-

degree murder, but was found guilty of conspir-
ing to use a weapon of mass destruction and
INVOLUNTARY MANSLAUGHTER. A federal judge
sentenced Nichols to life in prison without the
TERRORISM 7
WEST’S ENCYCLOPEDIA OF AMERICAN LAW, 2nd Edition
International Terrorist Incidents, 1981 to 2002
SOURCE: U.S. State De
p
artment, Patterns o
f
Terrorism, 2002.
Number of incidents
0
100
200
300
400
500
600
700
800
1981 1983 1985 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
489
497
635
665
605
375
437

565
363
431
322
440
296
304
274
395
426
355
199
Year
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possibility of parole. However, at the state level,
Nichols faced 161 counts of first-degree murder,
which could result in the death penalty. The
Oklahoma state trial was scheduled to begin in
March 2004.
A year after the Oklahoma City bombing, a
bomb erupted at Atlanta’s Centennial Olympic
Park during the celebration of the Olympic
Games in July 1996. The bomb killed one
woman and injured 111 others in what Presi-
dent
BILL CLINTON called an “evil act of terror.”
The initial investigation focused on Richard
Jewell, a security guard at the park. At first Jew-
ell was considered to be a hero when he alerted
authorities to a knapsack containing a pipe

bomb. Shortly thereafter, however, he was con-
sidered a prime suspect. After a later investiga-
tion cleared Jewell of wrongdoing, he sued a
number of media outlets for
DEFAMATION.
During the next seven years, the Atlanta
bombings remained largely unresolved. On May
31, 2003, authorities arrested Eric Rudolph, who
is considered the primary suspect. Authorities
also suspect Rudolph of bombing abortion clin-
ics in Atlanta and Birmingham, Alabama, as well
as the bombing of a gay and lesbian nightclub in
Atlanta.
Congress has responded to the threat of
domestic terrorism with the enactment of several
laws. In 1996, Congress passed the Antiterrorism
and Effective Death Penalty Act, Pub. L. No. 104-
132, 110 Stat. 1214. The law allocated $1 billion to
fund federal programs to combat terrorism. The
act also established a federal death penalty for ter-
rorist murders and strengthened penalties for
crimes committed against federal employees
while performing their official duties. In addition,
the act increased the penalties for conspiracies
involving explosives and for the possession of
nuclear materials, criminalized the use of chemi-
cal weapons, and required plastic explosives to
contain “tagging” elements in the explosive mate-
rials for detection and identification purposes.
Following the attacks of September 11, Con-

gress, at the urging of President
GEORGE W.
BUSH
, moved swiftly to enact the Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism Act (
USA PATRIOT) Act of
2001, Pub. L. No. 107-56, 115 Stat. 272. The act
seeks to enhance domestic security against ter-
rorism by setting up a Counterterrorism Fund
in the U.S. Treasury, and appropriating money
for combating terrorism to the FBI’s Technical
Support Center. It also increases the president’s
authority to seize the property of foreign per-
sons, organizations, or countries that the presi-
dent determines have planned, authorized,
aided, or engaged in hostilities or attacks against
the United States. Other provisions of the act
focus on enhancing surveillance procedures
used by federal law enforcement personnel, and
attempts to control
MONEY LAUNDERING, which
is believed to be a major source of income for
terrorist organizations.
One year later, Congress enacted the Home-
land Security Act of 2002, Pub. L. No. 107-296,
116 Stat. 2135. The act formally endorsed the
establishment of the
HOMELAND SECURITY
DEPARTMENT

, which had been created through
EXECUTIVE ORDER by President Bush in 2001.
The Homeland Security Act reorganized several
federal agencies to fall under the authority of the
Homeland Security Department in an effort to
coordinate the government’s efforts. The Amer-
ican public has become familiar with the new
department because of the color-coded Home-
land Security Advisory System, which indicates
the likely threat of terrorist attacks against the
United States. The two lowest levels are low
(coded in green) and guarded (coded in blue).
The other three levels include elevated (yellow),
high (orange), and severe (red). Throughout
much of 2003, the level was set at elevated or
high due to a number of threats identified by
department officials.
International Terrorism
The September 11 attacks have been viewed
as a continuation of a series of deadly terrorist
activities that had taken place overseas. In the
late twentieth century, terrorism became a tool
of political groups in Europe, the Middle East,
and Asia. The growth of international terrorism
led to
KIDNAPPINGS, HIJACKING of airplanes,
bombing of airplanes and buildings, and armed
attacks on government and public facilities. In
the 1980s, several countries, including Libya,
Iran, and Iraq, were identified as supporting

international terrorism by providing training,
weapons, and safe havens.
Interests of the United States overseas were
major targets of terrorism. In November 1979, a
group of Islamic students overran the U.S.
embassy in Iran and took many hostages.
Although some of the hostages were later freed,
the Iranians detained 52 American hostages for
a period of 444 days until they were released in
January 1981, just after the swearing-in of Pres-
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ident RONALD REAGAN. In 1983, a 12,000-pound
truck bomb exploded in a U.S. compound in
Beirut, Lebanon, killing 241 American soldiers.
By the 1990s, the terrorist organization al
Qaeda (Arabic for “the Base”), led by Saudi dis-
sident Osama Bin Laden, developed as the pri-
mary culprit in terrorist attacks on U.S. interests
at home and abroad. Al Qaeda is believed to be
responsible for the 1993 attacks on the World
Trade Center and, later, the September 11
attacks. On August 7, 1998, truck bombs
exploded nearly simultaneously at the U.S.
embassies in Dar es Salaam, Tanzania, and
Nairobi, Kenya. The blasts killed 224 people,
including 12 Americans, and injured another
4,600. Four members of al Qaeda were later con-
victed for their part in the bombings. In October

2000, an al Qaeda operative conducted a suicide
attack on the U.S.S. Cole, resulting in the deaths
of 17 sailors and injuries to over 30 others.
The activities of Bin Laden and al Qaeda
were well known prior to the September 11
attacks. Bin Laden had issued a religious edict,
known as a fatwah, calling for attacks on U.S.
troops and civilians.
Although many members of al Qaeda are
Middle-Eastern, U.S. officials, in 2001, captured
John Philip Walker Lindh, a U.S. citizen who had
trained with terrorist organizations in Pakistan
and Afghanistan. Lindh fought for the Taliban
government of Afghanistan even after the Sep-
tember 11 attacks. Lindh, who became known as
the “American Taliban,” was indicted on ten
counts, including conspiracy to murder U.S.
nationals. He reached a plea bargain with federal
prosecutors and pleaded guilty to supplying
services to the Taliban. In October 2000, he was
sentenced to 20 years in prison.
The United States has responded to interna-
tional terrorist organizations and the nations
that support them through a variety of military
actions. In March 1986, President Reagan
ordered the military to conduct a strike on
Libya, which was believed to have been respon-
sible for the bombing of a nightclub in Germany
as well as other terrorist acts. After the embassy
bombings in Tanzania and Kenya in 1998, Pres-

ident Clinton ordered strikes on al Qaeda mili-
tary camps in Afghanistan. However, these
attacks appeared to have little effect upon the
terrorist activities of the organizations that per-
petrated the violent acts.
Following the September 11 attacks, the
United States changed its strategy regarding ter-
rorists significantly. President Bush announced
that the United States would consider nations
that harbor terrorists as equally responsible for
terrorist activities. In the latter part of 2001, the
United States led an international coalition that
removed the Taliban regime from power in
Afghanistan. In March 2003, the United States
led another coalition in an attack on Iraq, which
the Bush administrated asserted had supported
terrorist organizations such as al Qaeda. Within
weeks, Iraq’s leader, Saddam Hussein, was
removed from power.
The attacks on Iraq did not receive support
from a number of nations, including traditional
U.S. allies Germany and France. Moreover, the
removal of the regimes in Afghanistan and Iraq
did not appear to end the threat of terrorism in
the Middle East or elsewhere. In May 2003,
shortly after the United States declared that the
active phases of its armed military operations in
Iraq had concluded, terrorists bombed residen-
tial compounds in Riyadh, Saudi Arabia, killing
at least 34 people, including nine Americans.

Four days after the Saudi Arabia attacks, bombs
erupted in Casablanca, Morocco, killing 43 peo-
ple. Authorities suspect that al Qaeda operatives
were responsible.
FURTHER READINGS
Abrams, Norman. 2003. Anti-terrorism and Criminal
Enforcement. St. Paul, Minn.: West.
Alexander, Yonah, and Edgar H. Brenner, eds. 2001. Ter ro r-
ism and the Law. Ardsley, N.Y.: Transnational Publish-
ers.
“Backgrounder: Terrorism.” 2003. Federal Emergency Man-
agement Agency. Available online at <www.fema.gov/
hazards/terrorism/terror.shtm> (accessed November
21, 2003).
“Domestic Terrorism.”1997. Close Up Foundation. Available
online at <www.closeup.org/terror.htm> (accessed
November 21, 2003).
Noone, Michael F., and Yonah Alexander. 1997. Cases and
Materials on Terrorism: Three Nations’ Response. Boston:
Kluwer Law International.
Piszkiewicz, Dennis. 2003. Terrorism’s War with America: A
History. Westport, Conn.: Praeger.
Shanty, Frank, and Raymond Picquet, eds. 2003. Encyclope-
dia of World Terrorism. Armonk, N.Y.: Sharpe Reference.
CROSS-REFERENCES
War on Terrorism.
TERRY V. OHIO
In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.
Ed. 2d 889 (1968), the U.S. Supreme Court ruled
that the

FOURTH AMENDMENT to the U.S. Con-
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stitution permits a law enforcement officer to
stop, detain, and frisk persons who are suspected
of criminal activity without first obtaining their
consent, even though the officer may lack a war-
rant to conduct a search or
PROBABLE CAUSE to
make an arrest. Now known as a Te rr y stop, this
type of police encounter is constitutionally per-
missible only when an officer can articulate a
particularized, objective, and reasonable basis
for believing that criminal activity may be afoot
or that a given suspect may be armed and dan-
gerous.
The case stemmed from an incident in
Cleveland, Ohio, in 1963. Police officer Martin
McFadden observed three men engaging in sus-
picious behavior near the corner of Euclid
Avenue and Huron Road. One of the suspects
was the defendant, John Terry. Along with code-
fendant Richard Chilton and a third man,
known only as Katz, Terry was seen pacing in
front of a downtown store. Occasionally, the
men would pause to confer with each other.
More often, McFadden witnessed the men peer-
ing into the store’s front window. Over a period
of ten to twelve minutes, the three men looked

into the same store window approximately 24
times.
Based on his training as an officer and 39
years of experience on the police force, including
35 as a detective, McFadden believed that the
suspects were “casing” the store for a
ROBBERY.
Attempting to forestall a possible robbery,
McFadden approached the three men and iden-
tified himself as a police officer. Not being famil-
iar with any of the suspects, McFadden asked for
their names. When the men mumbled unintelli-
gibly in response, McFadden grabbed Terry,
quickly patted down his overcoat, and discov-
ered a .38-caliber revolver. After removing the
pistol from Terry’s coat pocket, McFadden pat-
ted down the other two suspects, finding
another revolver in Chilton’s overcoat. Katz was
not armed.
Terry and Chilton were charged with carry-
ing concealed weapons. Prior to trial the two
defendants brought a motion to suppress the
incriminating evidence seized by McFadden.
The defendants argued that the weapons were
inadmissible because McFadden had discovered
them during an unlawful search. McFadden, the
defendants pointed out, possessed neither a
valid
SEARCH WARRANT authorizing the pat
down nor probable cause to detain them. Deny-

ing their motion to suppress, the court sched-
uled the matter for trial where both defendants
were found guilty. The Supreme Court of Ohio
affirmed the convictions, and the defendants
appealed to the nation’s highest court. The U.S.
Supreme Court divided its opinion into three
parts.
First, the Supreme Court ruled that the
defendants enjoyed qualified protection from
temporary police detention under the Fourth
Amendment. Before a court will examine the
propriety of police activity under the Fourth
Amendment, it must first determine whether
the interests asserted by a defendant are consti-
tutionally protected. The Fourth Amendment
governs areas where individuals maintain a rea-
sonable expectation of privacy, including a zone
of personal freedom in which every individual is
secure from unnecessary and unreasonable gov-
ernmental intrusion. Walking down the streets
of Cleveland, the Court said, Terry and Chilton
held a reasonable expectation that their personal
liberty would not be unlawfully restrained by
law enforcement.
Second, the Court ruled that the defendants’
freedom was effectively impeded by their
encounter with McFadden. Any time a police
officer accosts an individual to detain him for
questioning, the Court emphasized, the officer
has “seized” that person within the meaning of

the Fourth Amendment. It would be nothing
less than “torture of the English language,” the
Court added, to suggest that McFadden’s pat
down of the suspects’ clothing was anything
other than a “search” as that term is defined in
the Constitution.
Third, the Court ruled that McFadden acted
reasonably during his encounter with the defen-
dants. Acknowledging that the Constitution
generally requires probable cause to effect an
arrest and a lawfully executed warrant to con-
duct a search, the Court identified a third area of
police activity that is permissible under the
Fourth Amendment, though it may amount to
neither a full-blown search nor a technical
arrest. The central inquiry under the Fourth
Amendment, the Court wrote, is whether the
police have acted reasonably under the circum-
stances. The express language of the Fourth
Amendment does not prohibit all warrantless
searches performed without probable cause, but
only those that are unreasonable.
In dealing with rapidly unfolding and
increasingly dangerous situations, the Court
said, police may find it impractical or impossible
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to obtain a search warrant before choosing to
intervene. In other situations, injury or harm

may result to bystanders if law enforcement is
made to wait until it has probable cause before
acting. The Court indicated that the Fourth
Amendment gives law enforcement flexibility to
investigate, detect, and prevent criminal activity.
According to Ter ry, this flexibility includes the
right of police officers to stop persons suspected
of criminal activity and detain them for ques-
tioning. If during questioning police are led to
believe that a suspect is armed and dangerous,
an officer may frisk the suspect without violat-
ing the Fourth Amendment.
In this case the Court noted that McFadden
personally witnessed the two defendants engag-
ing in what appeared to be preparations for a
robbery. It would have been negligent, the Court
thought, for McFadden to have turned a blind
eye to such behavior. Given that he chose to
investigate further, the Court said, it was reason-
able for McFadden to assure himself that none
of the suspects was armed, especially after they
failed to respond intelligibly to his request for
identification. In patting down and frisking the
defendants, McFadden chose a prudent course
to stave off threats to his security and the secu-
rity of others.
The Court reached its holding by
BALANC-
ING
the legitimate needs of law enforcement

against the privacy interests of individuals.
Forcible detention of individuals for question-
ing is far from a petty indignity. Even a limited
search of outer clothing, the Court stressed, con-
stitutes a “serious intrusion upon the sanctity of
the person, which may inflict great indignity and
arouse strong resentment, and it is not to be
undertaken lightly.” At the same time, law
enforcement must not be restricted from per-
forming its job in a proficient manner. The
Fourth Amendment does not restrict police
from intervening until after a crime has been
committed. Crime prevention is a bona fide goal
of law enforcement, the Court said, and the
Fourth Amendment places only reasonable
restrictions upon pursuit of that goal.
Outlining these restrictions, the Court said
that no police officer may lawfully stop and
detain a person for questioning unless the offi-
cer first observes unusual conduct that arouses a
reasonable suspicion of criminal activity. A stop
may be no longer than necessary to confirm or
dispel an officer’s suspicion and must not be
unnecessarily restrictive or intrusive. During the
period of detention, no searches may be per-
formed unless the officer has an objective and
particularized basis for believing the suspect is
armed and dangerous. Any search must be lim-
ited to the suspect’s outer clothing and may be
performed only for the purpose of discovering

concealed weapons. Evidence obtained during
searches that comport with these restrictions,
the Court said, is admissible under the Fourth
Amendment. Evidence obtained in violation of
the limitations set forth in Te rr y may be sup-
pressed under the
EXCLUSIONARY RULE.
FURTHER READINGS
Bandes, Susan. 1999. “Terry v. Ohio in Hindsight: The Perils
of Predicting the Past.” Constitutional Commentary 16
(winter).
Lichtenberg, Illya D., Alisa Smith, and Michael Copeland.
2001. “Ter r y and Beyond: Testing the Underlying
Assumption of Reasonable Suspicion.” Touro Law
Review 17 (winter).
Whitebread, Charles H., and Christopher Slobogin. 2000.
Criminal Procedures: An Analysis of Cases and Concepts.
New York: Foundation.
CROSS-REFERENCES
Search and Seizure; Stop and Frisk.
TEST CASE
A suit brought specifically for the establishment of
an important legal right or principle.
The term test case describes a case that tests
the validity of a particular law. Test cases are use-
ful because they establish legal rights or princi-
ples and thereby serve as precedent for future
similar cases. Test cases save the judicial system
the time and expense of conducting proceedings
for each and every case that involves the same

issue or issues.
To illustrate, assume that Congress passes a
law that makes using a cellular phone while
driving a misdemeanor punishable by up to one
year in jail and a fine of $10,000. Such a law
would likely be challenged by a large number of
cell phone owners, all of whom are in essentially
identical circumstances and all of whom have
the same arguments against the law. In such a
situation, attorneys representing the plaintiffs
might look for a case with a sympathetic set of
facts with which to challenge the law. For exam-
ple, they might select a case involving a driver
who was charged with violating the law when
she used her cell phone to request medical assis-
tance for a family member. Other observant law
firms would postpone or otherwise delay their
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own similar cases to wait for the outcome of the
test case.
A test case need not concern a new law.
Suppose, for example, an attorney or client is
dissatisfied with the current state of a particu-
lar law and has strong arguments in favor of
changing it. If the facts of the case give the
attorney or client a good chance of prevailing,
the case may be called a test case because the
outcome would change the law for future per-

sons in similar circumstances.
In some cases, a person may choose to vio-
late an existing law to provoke a lawsuit, prose-
cution, or penalty. The person may then
challenge the lawsuit, prosecution, or penalty
and use the case to try and change the law
through a judicial opinion. In Druker v. Com-
missioner of Internal Revenue, 697 F.2d 46 (2d
Cir. 1982), cert. den., 461 U.S. 957, 103 S. Ct.
2429, 77 L. Ed. 2d 1316 (1983), for example,
James O. and Joan Druker, a married couple,
intentionally used the lower tax rates for unmar-
ried individuals in computing their 1975 and
1976
INCOME TAX because they believed the fed-
eral tax scheme was unconstitutional under the
EQUAL PROTECTION CLAUSE of the FOUR-
TEENTH AMENDMENT
. Before the INTERNAL
REVENUE SERVICE
(IRS) could take action
against the Drukers, the Drukers filed suit
against the commissioner of the IRS. The Druk-
ers were unsuccessful, but had they received a
favorable disposition, they would have suc-
ceeded in changing the law on federal taxation
of married couples.
CROSS-REFERENCES
Case Law; Stare Decisis.
TESTACY

The condition or state of leaving a valid will at
one’s death to direct the distribution of one’s
estate.
TESTAMENT
Another name for a will.
TESTAMENTARY
Relating to wills.
An individual is said to have testamentary
capacity to make a will when that person has
sufficient mental ability to comprehend what he
or she is doing, the nature and extent of his or
her property, the natural objects (which means
appropriate persons or recipients) of his or her
bounty, and the interrelationships among these
three concepts.
TESTATE
One who dies leaving a valid will, or the descrip-
tion of this status.
TESTATOR
One who makes or has made a will; one who dies
leaving a will.
A testator is a person who makes a valid will.
A will is the document through which a
deceased person disposes of his property. A per-
son who dies without having made a will is said
to have died intestate.
A testator must be of sound mind when
making a will. In part to ensure that a testator is
of sound mind, states require that the signing of
a will be witnessed by multiple persons. A testa-

tor also should be making the will without
duress and free of coercion from other persons.
If the testator is not acting of her own free will
in consenting to the terms of the will, a court
may later void all or part of it.
TESTIFY
To provide evidence as a witness, subject to an
oath or affirmation, in order to establish a partic-
ular fact or set of facts.
Court rules require witnesses to testify about
the facts they know that are relevant to the
determination of the outcome of the case.
Under the law a person may not testify until he
is sworn in. This requirement is usually met by a
witness swearing to speak the truth. A person
who does not believe in appealing to God may
affirm to the court that the testimony about to
be given is the truth.
A witness may testify as to facts directly
observed, which is called direct evidence; facts
learned indirectly, which is called
CIRCUMSTAN-
TIAL EVIDENCE
; or, in the case of an expert, an
opinion the expert has formed based on facts
embodied in a hypothetical question. The par-
ties to the court proceeding are free to question
a witness as to the truthfulness of the testimony
or the competence of the witness.
The

FIFTH AMENDMENT to the U.S. Constitu-
tion gives the defendant in a criminal trial the right
not to testify, so as to avoid
SELF-INCRIMINATION.
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In addition, the rule that a person must testify
when called as a witness has several exceptions
based on the existence of a special relationship
between the defendant and the potential wit-
ness. Among the most important of these
exceptions are confidential communications
between a husband and a wife, an attorney and
a client, a doctor and a patient, and a priest and
penitent.
The
RULES OF EVIDENCE govern what a per-
son may testify about at a court proceeding.
Though there are numerous exceptions, gener-
ally a witness may not testify about what she
heard another say if that testimony is offered to
prove the truth of the matter asserted. Such tes-
timony is known as
HEARSAY. For example, if
the witness testifies that he heard that
JOHN DOE
was married and this statement is offered to
prove that John Doe was married, it is hearsay
and the court will strike the testimony from the

record.
CROSS-REFERENCES
Attorney-Client Privilege; Marital Communications Privi-
lege; Physician-Patient Privilege; Privileged Communication.
TESTIMONY
Oral evidence offered by a competent witness
under oath, which is used to establish some fact or
set of facts.
Testimony is distinguishable from evidence
that is acquired through the use of written
sources, such as documents.
TEXAS V. JOHNSON
In Texas v. Johnson, 491 U.S. 397, 109 S. Ct. 2533,
105 L. Ed. 2d 342 (1989), the U.S. Supreme
Court was asked to review the constitutionality
of a Texas statute prohibiting the desecration of
certain venerated objects, including state and
national flags. The defendant was convicted
under the statute for burning the U.S. flag dur-
ing a political demonstration. In striking down
the statute, the Supreme Court ruled that flag
burning is
SYMBOLIC SPEECH protected by the
Free Speech Clause of the
FIRST AMENDMENT to
the U.S. Constitution. The case splintered the
nine Supreme Court justices, much as the issue
of flag burning splintered the rest of the nation.
The case stemmed from an incident during
the 1984 Republican National Convention in

Dallas, Texas. Outside the convention center a
group of demonstrators marched through the
streets to protest the policies of President
RONALD REAGAN. Several demonstrators dis-
tributed literature, shouted slogans, and made
speeches. One demonstrator, Gregory Lee John-
son, unfurled a U.S. flag, doused it with
kerosene, and set it on fire. While the flag
burned, several protestors chanted: “America,
the red, white, and blue, we spit on you.” Several
bystanders were offended by the flag burning,
and one took the flag’s remains home to his
backyard where he buried them. No violence or
altercations took place at any time during the
demonstration, however.
Johnson was convicted of desecrating a ven-
erated object in violation of Texas Penal Code
section 42.09(a)(3) (1989). He was sentenced to
one year in prison and fined $2,000. His convic-
tion was affirmed by the Fifth District Court of
Appeals in Dallas. Johnson’s case was then
reviewed by the Texas Court of Criminal Appeals,
which reversed his conviction, holding that the
state could not punish Johnson for burning the
U.S. flag under these circumstances (Johnson v.
State, 755 S.W.2d 92 [Tex. Crim. App. 1988]). The
Free Speech Clause, the court ruled, forbids the
government from establishing an orthodox sym-
bol of national unity that is insulated from public
criticism, symbolic or otherwise.

In a 5–4 decision the U.S. Supreme Court
affirmed the holding of the Texas Court of
Criminal Appeals. Joined by Justices
THURGOOD
MARSHALL
, HARRY A. BLACKMUN, ANTONIN
SCALIA
, and ANTHONY KENNEDY, Justice
WILLIAM J. BRENNAN JR. wrote the majority
opinion for the Court. Chief Justice
WILLIAM H.
REHNQUIST
, joined by Justices SANDRA DAY
O’CONNOR
, BYRON WHITE, and JOHN PAUL
STEVENS
, wrote the dissenting opinion. The
majority opinion was divided into two parts.
First, the Court ruled that flag burning is
expressive conduct for First Amendment pur-
poses. The Court noted that the defendant’s
method of protest was not confined to the writ-
ten or spoken word, which traditionally receives
the most constitutional protection from govern-
mental restraint. Nevertheless, the Court said,
flag burning could not be fairly characterized as
mere conduct devoid of any communicative
qualities, which traditionally receives little or no
protection under the Free Speech Clause.
Instead, the Court observed, the defendant

burned the flag as the symbolic culmination of
an ardent political demonstration. “The expres-
sive, overtly political nature of the conduct,” the
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Court wrote, “was both intentional and over-
whelmingly apparent.”
Symbolic expression has long been associ-
ated with the U.S. flag under the federal Consti-
tution. In West Virginia State Board of Education
v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed.
1628 (1943), the Supreme Court ruled that pub-
lic school children cannot be compelled to salute
the flag when doing so would violate their reli-
gious beliefs, which are protected by the First
Amendment. In Spence v. Washington, 418 U.S.
405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974), the
Court ruled that the Free Speech Clause guaran-
tees the right of individuals to attach a peace
symbol to the flag in protest of U.S. foreign pol-
icy. Finally, in Smith v. Goguen, 415 U.S. 566, 94
S. Ct. 1242, 39 L. Ed. 2d 605 (1974), the Court
ruled that individuals enjoy a First Amendment
right to express themselves by affixing the flag to
articles of clothing, even if that means allowing
certain individuals to display the flag on the seat
of their pants. Each of these cases was cited by
the Court in Texas v. Johnson to illustrate that
the defendant’s method of protest was just

another manifestation of symbolic expression
involving the U.S. flag.
Second, the Supreme Court ruled that the
interests asserted by the government were
insufficient to overcome the defendant’s right
to engage in symbolic expression. The govern-
ment had argued that the Texas statute repre-
sented a legislative attempt to prevent societal
disorder, which presumably would result if flag
burning were permitted. But the Court deter-
mined that the defendant’s actions neither
resulted in disorder nor created a substantial
likelihood that disorder would ensue. Although
several onlookers were seriously offended by
the defendant’s symbolic protest, the Court
said that the First Amendment is designed to
protect even the most disagreeable speech
unless it is likely to produce imminent lawless-
ness, such as a breach of the peace. Had disor-
der resulted on this particular occasion, the
Court pointed out, the defendant could have
been prosecuted under the relevant provisions
of the Texas Penal Code prohibiting breach of
the peace. Because no arrests were made for
breaching the peace, the Court held, the gov-
ernment’s interest in preventing disorder was
not implicated in this case.
The government also argued that the Texas
flag desecration statute was a justifiable means
of promoting national unity. The national flag,

the government contended, is the country’s
most visceral image of nationhood, reflecting
the solidarity of the 50 states for the common
good. Flag burning, by contrast, tends to cast
doubt on the strength of this image, the govern-
ment asserted, causing Americans to question
whether the United States is really united at all.
The Supreme Court agreed with the govern-
ment in part, acknowledging that the flag has
come to symbolize 200 years of nationhood no
less than the combination of letters found in the
word “America.”
At the same time, the Court cautioned, the
flag does not mean the same thing to everyone.
For some Americans the flag stands for an impe-
rialistic foreign policy and a legacy of
CIVIL
RIGHTS
violations. The defendant no doubt had
his own list of things symbolized by the flag. In
prohibiting flag burning and other forms of des-
ecration, the Court continued, the state of Texas
was attempting to prescribe a single patriotic
meaning for this national political symbol. The
Court noted, however, that the government has
no constitutional authority to restrict the con-
tent of political expression, whether it be writ-
ten, spoken, or symbolic, without offering a
compelling reason for doing so.
In this case, no compelling reasons were

offered. If the flag were protected from desecra-
tion under the First Amendment, the Court rea-
soned, the government might seek to protect
other national symbols from destruction as well,
including copies of the federal Constitution and
the Declaration of Independence. The Court
was unwilling to allow the government to
embark on this path for fear of where it might
lead. The only proper remedy for the state of
Texas, the Court emphasized, was to publicly
encourage proper respect for the flag by honor-
ing it through state-sponsored ceremonies such
as Flag Day. In the marketplace of ideas, the
Court opined, the only way to combat perni-
cious speech is through persuasive countervail-
ing speech. The First Amendment requires
individuals to persuade each other with sound
arguments, not silence each other through gov-
ernmental suppression.
In his dissenting opinion, Chief Justice
Rehnquist wrote that “No other American sym-
bol has been as universally honored as the flag.”
The chief justice paid tribute to the men and
women of the armed forces who have sacrificed
their lives to preserve the freedom symbolized
by the flag. According to the chief justice, flag
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