It is no secret that police are on-pace to shoot and kill as many people this year as they did in 2015. As of September 22, 2016, police have shot and killed 706 people; in 2015, police shot and killed close to 1,000 people. Texas has been responsible for 58 (8.22%) of the 706 so far. Massachusetts, by comparison, is responsible for 8 (0.01%) of the 706 so far. It is also no secret that, while police kill white people more often than black people in police shootings (because white people account for 62% of the total population of the United States, while black people account for 13% of the population), black people are 2.5 times more likely to be shot and killed by police than white people.
All of this to say that, on September 20, 2016, the Supreme Judicial Court of Massachusetts in Commonwealth v. Jimmy Warren did something that is nearly unheard of in our legal system: it acknowledge this reality.
On December 18, 2011, Boston police officer, Luis Anjos, was on patrol in the Foxbury section of Boston. Around 9:20pm, he received a dispatch alert that a breaking and entering was in progress on Hutchings Street, and that the suspects had fled the scene. Anjos went to the residence, and spoke with the victims—a teenage boy and his mother. The mother told Anjos that she heard a noise from her son’s bedroom and opened the door to find a black male wearing a red hoodie. The black male jumped out of the window, and the Mother saw two more black males, one wearing a black hoodie and the other black male dressed in dark clothing. All three then took off running down Hutchings Street. The teenager noticed that his backpack, a computer, and five baseball hats were missing. Anjos then left the scene, and broadcast a description of the suspects.
Anjos then began driving around a 4 or 5 block radius of the apartment looking for the suspects. He saw no pedestrians in the area, due to the cold weather. Around 9:40pm, Anjos decided to head back to the station. While on MLK Boulevard, Anjos saw two black males, both wearing dark clothing, walking near a park. Neither carried a backpack. One of the black males was Jimmy Warren.
Anjos had a hunch that they might be involved in the break-in, so he decided to “figure out who they were and where they were coming from and possible do a field interrogation.” He told the men to “wait a minute” and both men made eye contact with Anjos, and then began to jog away from him down the path. Anjos radioed in that two males matching the description of the break-in suspects were headed through the park down Dale Street.
Officers Carr and Santosuosso were nearby, and saw the two men. Carr did not note any bulges in their clothing suggesting the presence of weapons or contraband. Carr called out to the men (“hey fellas”) and one of the males, Mr. Warren, turned and began to run back up the path. Carr ordered Mr. Warren to stop, and saw Mr. Warren “clutching the right side of his pants” which Carr described as “consistent with carrying a gun without a holster.” Mr. Warren did not stop. Carr drew his weapon, aimed at Mr. Warren, and ordered Mr. Warren to show his hands and “get down, get down, get down.” Mr. Warren then complied. A search of Mr. Warren revealed a .22 caliber Walther firearm.
Mr. Warren filed a motion to suppress the gun, arguing that police did not have reasonable suspicion to stop him. His motion was denied by the trial court, and the court of appeals. Mr. Warren appealed the denial of his motion to suppress to the Supreme Judicial Court of Massachusetts, who heard the case in February of 2016.
Important to understand before we discuss what the court did is that “flight”—running from police—can be factor in determining whether reasonable suspicion to detain a person exists. Flight, the logic goes, is evidence of a guilty conscience; people don’t run unless they have done something wrong, and such.
The Supreme Judicial Court was to determine reasonable suspicion existed for Carr to detain (by pointing his gun at and ordering onto the ground) Mr. Warren. So, as part of that analysis, the Supreme Judicial Court of Massachusetts was called upon to determine whether Mr. Warren’s flight was a factor that weighed in favor of the police having reasonable suspicion to detain him.
And here’s where it gets amazing.
First, the Court noted that there is a certain illogical character to the whole “flight as guilt” thing. Legally, unless reasonable suspicion exists to detain a person, the person is free to walk or run away and avoid any contact at all with police—the person could ignore the cop altogether. But, because flight is viewed as inculpatory (evidence of guilt), a person doing just that—walking or running away—would have their flight thrown back at them as evidence of their guilt (and not as evidence, say, that they knew the law and didn’t want to chat with the police.) This is nothing new; I have made this argument myself, as have most criminal defense lawyers.
But then, the Court began to discuss why a black male suspect stopped by police might want to take flight. Writing that “where the suspect is young black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department report documenting the pattern of racial profiling of black males in the city of Boston.”
The Court continued: “Black men in the city of Boston were more likely to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. Black men were also disproportionately targeted for repeated police encounters.”
Indeed! 63% of Boston police-civilian encounters from 2007-2010 targeted black people, even though black people make up less than 25% of the city of Boston. Of 204,739 field interrogations (detentions), 89% were males, 54.7% were ages 24 or younger, and 63.3% were black. 5% of individuals repeatedly stopped or observed accounted for more than 40% of the total interrogations by police.
The Court then held that, while flight is not eliminated as a factor in reasonable suspicion analyses, where the stopped person is a black male “flight is not necessarily probative [evidence of] a suspect’s state of mind or consciousness of guilt;” “rather, the finding that black males in Boston are disproportionately and repeatedly targeted for [detentions by police] suggests a reason for flight totally unrelated to consciousness of guilt.”
“Such an individual, when approached by police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to avoid criminal activity.”
In effect, the Court acknowledge what the data from the Boston Report and the studies referenced in the first paragraph of this blog suggest: black men are often targeted by police, and any weariness or unease on the part of black men around police is entirely warranted.
And, just to note, Mr. Warren’s conviction was vacated—the Court found no reasonable suspicion for Carr to detain him.
Nicely done, Supreme Judicial Court of Massachusetts.