Has it really come to this? On the heels of dramatic disagreement between the two major party presidential candidates about how to react to ongoing tension between the police and the African-American community, the Supreme Judicial Court of Massachusetts has unanimously concluded that a black man fleeing from a police officer investigating criminal activity is indicative of—nothing at all.
In the wake of recent shootings of African-American civilians by police officers in Tulsa, Oklahoma, and Charlotte, North Carolina, followed by violent protests in Charlotte, Hillary Clinton and Donald Trump had dramatically different reactions.
Clinton laid the blame on “systemic racism” and “implicit bias” and called for more community policing. Trump was equally troubled by these events, but called for more extensive use of stop-and-frisk tactics in high-crime areas. He speculated that perhaps the officer involved in the Tulsa shooting had “choked” when faced with a tense situation.
In the meantime, in a unanimous opinion issued on Tuesday, the Supreme Court of Massachusetts gave implicit approval for black men to run when the police ask to speak to them.
The facts in Commonwealth v. Jimmy Warren are pretty straightforward. Sometime after 9 p.m. on Dec. 18, 2011, in the Roxbury section of Boston (a high-crime area), a teenager entered his bedroom and saw a black male wearing a “red hoodie” jumping out the window. When he went to the window, he saw two more black men, one in a “black hoodie” and the other in dark clothes, running away.
The thieves had taken a backpack, a computer, and five baseball hats. The victim relayed the information to Officer Luis Anjos, who drove around the neighborhood for approximately 15 minutes looking for anyone who matched the victim’s admittedly vague description.
Because it was a cold night, Anjos did not encounter any pedestrians until he came upon Jimmy Warren and another black male. Both were wearing dark clothing, and one of them was wearing a hoodie.
Anjos decided to conduct a “field interrogation observation” (FIO), police jargon for a consensual encounter in which the officer asks someone what they are up to, and the person remains free to leave at any time. Anjos asked the two males to “wait a minute,” and they made eye contact with him before jogging away into a park.
The Massachusetts Supreme Court’s opinion will only serve to exacerbate racial tension and will handcuff the police in their attempts to rein in the crime epidemic that many of our inner cities are currently experiencing.
Anjos radioed what happened to his station and was overheard by two other officers in the neighborhood, who saw the two men coming out of the other side of the park. One of the officers said, “Hey fellas,” and one of the two men—Warren—ran back into the park. The officer observed Warren clutching the right side of his pants (consistent with carrying a gun in his pocket) as he ignored repeated requests to stop.
Following a brief chase, one of the officers drew his weapon and, after a struggle, arrested Warren. The officers found a gun near where Warren was apprehended, and he was subsequently charged and convicted of unlawful possession of a firearm.
Prior to trial, Warren moved to exclude the firearm as evidence, claiming that its discovery was the result of an illegal stop because the police lacked “reasonable suspicion”—the applicable legal standard under the Fourth Amendment to justify an investigatory stop—to stop him in connection with the breaking and entering that had occurred roughly a half-hour earlier.
The trial court denied the motion, but the Supreme Court of Massachusetts held that the motion should have been granted. In doing so the court noted, correctly, that an investigatory stop cannot be based on a mere hunch. However, the court acknowledged, “a combination of factors that are each innocent of themselves may, when taken together, amount to the requisite reasonable belief that a person has, is, or will commit a particular crime.”
The court noted, again correctly, that the victim’s description of the perpetrators was extremely vague. Besides, since the victim was not sure where the thieves went, and since nearly 30 minutes had elapsed, it was hard to connect the location where Anjos first spotted Warren to the crime Anjos was investigating.
Based on those facts alone, the officers would not have reasonable suspicion to tie Warren to the crime. Warren would have been well within his rights to tell the officer that he didn’t want to speak to him and to walk away. Yet that is not what Warren did.
Instead, Warren made eye contact with the officer and then hightailed it out of there, grabbing for his right pants pocket in the process. Would that be enough to justify an investigatory stop? Not according to the Massachusetts Supreme Court, which stated, “Where a suspect is under no obligation to respond to a police officer’s inquiry, we are of the view that flight to avoid that contact should be given little, if any, weight as a factor probative of reasonable suspicion.”
Noting that African-Americans are involved in a higher percentage of police-civilian encounters relative to their percentage of the city’s population, the court cited a study by the American Civil Liberties Union and an older internal study by the Boston Police Department.
According to Boston Police Commissioner Bill Evans, the latter study did not indicate any bias by the Boston police who were, and are, targeting high-crime areas. It is sadly a fact that violent crime rates are much higher in communities of color in and around the Boston area.
The court stated:
The finding that black males in Boston are disproportionately and repeatedly targeted for FIO encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.
So what is a police officer to do when he wants to ask someone a question, and the person simply runs away? Well, according to the Massachusetts Supreme Court, if the person doing the running is African-American and the officer does not have solid evidence tying that person to a crime, the answer is: nothing.
As has been noted, there is a lot of tension between police officers and many members of the African-American community. This is regrettable, to be sure, but asking the police to blink at reality and ignore what they see happening right in front of them is a bridge too far.
As far back as 1896, the U.S. Supreme Court in Allen v. United States stated that “the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt.”
The natural and eminently reasonable reaction of police officers, indeed of most people, is that unprovoked flight by an individual who encounters a police officer strongly suggests that the fleeing individual is connected to criminal activity that has been or is about to be committed. At the very least, the inferences that can be drawn from such flight should be enough to establish reasonable suspicion to support an investigatory stop.
The Massachusetts Supreme Court’s opinion will only serve to exacerbate racial tension and will handcuff the police in their attempts to rein in the crime epidemic that many of our inner cities are currently experiencing.
