Black Men May Have Reason to Run from Police, Massachusetts High Court Finds

Citing disproportionate stops of black men by Boston police, the Massachusetts top court declared that black males may have a legitimate reason to flee from police officers.

"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," the Massachusetts Supreme Judicial Court wrote in an opinion made public Tuesday. "Rather, the finding that black males in Boston are disproportionately and repeatedly targeted…suggests a reason for flight totally unrelated to consciousness of guilt."


The decision vacated the conviction of Jimmy Warren, an African-American man convicted of unlawful possession of a firearm in Roxbury in December 2011. Warren, walking with another man near a park, fled from police who were then investigating a reported robbery nearby. He was apprehended, and police soon recovered an unlicensed .22 caliber handgun in a yard nearby that Warren had run through.

                                           

While he vaguely matched a description of one of the robbers that had been given to police – “two black males wearing the ubiquitous and nondescriptive 'dark clothing,' and one black male wearing a 'red hoodie,'" per the court's opinion – the court ruled that did not amount to reasonable suspicion to stop Warren. While running from police can add to reasonable suspicion, the court added, fleeing from officers does not, itself, provide sufficient justification for a stop and fleeing is not necessarily proof of guilt at trial.

The court relied on data from a study of field interrogations and observations by Boston police from 2007 to 2010, and an analysis by the American Civil Liberties Union that found black males had a disproportionate number of encounters with police. While African Americans made up less than a quarter of the city's population, it found, they were "targeted" in 63 percent of police-civilian encounters – a figure that includes not just frisks, but any kind of encounter with police.

                                        

Nelson Lovins, Warren’s defense attorney, says he believes the vagueness of the description alone could have vindicated his client, as could the timing of a "stop" order, without the additional analysis of the implications of reported racial bias by Boston police. He says many people are misinterpreting the ruling.

“This is being incorrectly reported by the media: It didn’t say [black men] have a right to flee," Lovins says. "We all have a right to flee, that’s the case law. If a cop comes up to you and says ‘I want to talk to you,’ you should say to him, ‘you and I both know I don’t have an obligation to talk to you and I’m leaving.’ And that can happen by walking away or running away.”

The Boston Police Department, in announcing the results of their study in October 2014,emphasized the findings demonstrated that "the Department is targeting gang members in high crime areas," even as it acknowledged that "there is still some work be to done to ensure we are closing the gap on these racial disparities."

The ACLU of Massachusetts, by contrast, declared the results indicated "racially biased policing," adding that "the racial disparity cannot be explained away by BPD efforts to target crime.

"The racial composition of Boston neighborhoods drove police-civilian encounters even after controlling for crime rates and other factors," the organization said. "They also found that Blacks were more likely than whites to be subjected to repeat police-civilian encounters and to be frisked or searched, even after controlling for civilians' alleged gang involvement and history of prior arrest."

The court, in its ruling, sided with the ACLU's interpretation.

"Given this reality for black males in the city of Boston," it said, "a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor" in determining reasonable suspicion.

Until the point Warren was apprehended, it continued, "the investigation failed to transform the defendant from a random black male in dark clothing traveling the streets of Roxbury on a cold December night into a suspect in the crime of breaking and entering."

                                          

The Boston Police Department criticized the court's ruling.

"I think they relied heavily on an ACLU report that I think was clearly way out of context," Boston Police Commissioner Bill Evans told reporters Tuesday. "I'm a little disappointed that they relied heavily on a report that didn't take into context who was stopped and why. That report clearly shows that we were targeting the individuals that were driving violence in the city and the hot spots."

The Suffolk County District Attorney’s Office says it will be asking the state's highest court to reconsider its ruling.

The office said in a statement:
We expect to petition the SJC for a rehearing on this case so that the police and the public can better understand this decision. On the one hand the court affirms its long standing jurisprudence that flight is indeed a relevant factor in determining whether police have reasonable suspicion to stop a suspect. What’s problematic is that the Court goes on to cite studies that are several years old and don’t reflect current police practices.


Ironically, these studies were not introduced during the defendant’s suppression hearing or trial, nor were they briefed or mentioned by either party or any of the justices during oral arguments before the SJC. We all abhor racial profiling, but there is a real question as to whether the high court understood and interpreted the data correctly without hearing from the criminal justice experts who compiled and analyzed it.

The Suffolk District Attorney's office pointed out that the ruling applies "only prospectively, and will not affect past gun convictions that already have been decided," adding that "we expect the number of cases affected going forward will be low. Boston Police are rigorously trained to do a difficult job exceptionally well, and we see the results before judges, juries and appellate courts each day."


Jake Wark, press secretary for the office, says it "remains to be seen" if the ruling will inspire more people to run from police, "as does the impact in courtrooms outside Boston, where the SJC offered no guidance as to how the ruling should be interpreted or whether it applies."

Lovins says he doubts the court would rehear the case, but if a rehearing is granted, he's working with the ACLU to preserve the win by offering fresh racial bias statistics. "It doesn't look like things have changed," he says.

Still, Lovins says he believes the opinion now will reverberate widely.

“This decision is going to be cited a lot in cases where black men are defendants and they have fled the scene and the government wants to say, 'Look at this, this is consciousness of guilt'," he says. “The government in lots of cases in closing arguments will use consciousness of guilt as an argument.”