When Fleeing Police Isn’t Necessarily Incriminating
Clinical Associate Professor of Law Wendy Kaplan’s POV for BU Today examines recent racial profiling ruling from Massachusetts high court.
What constitutes reasonable suspicion to stop a crime suspect? When is it reasonable for a black man to run from the police? Should the man’s flight from police have no bearing on courts’ assuming the man’s consciousness of guilt?
This past September, the Massachusetts Supreme Judicial Court handed down an important, and unanimous, decision that sometimes African American men’s flight shouldn’t incriminate them.
The facts in Commonwealth v. Jimmy Warren are both straightforward, and unfortunately, routine. The Boston police received a call about a breaking and entering at night. Responding officers interviewed the eyewitness, the apartment resident, who told them that his backpack, computer, and baseball hat were missing. The witness described the suspects: a black male wearing a “red hoodie,” a black male wearing a “black hoodie,” and another black male in “dark clothing.” About 25 minutes later and one mile away, police saw two black males wearing dark clothing and walking near a park. What happened next is not unusual.
The police had a hunch that these two men were involved in the breaking and entering. After all, the men were black, wearing dark clothing, and out at 9:40 p.m. on a cold December night. The officers, according to testimony, decided “to figure out who they were and where they were coming from and possibly do [a field interrogation observation (FIO)].” When the officers yelled, “Wait a minute,” to the two, they turned around and jogged away.
After the two men fled, the officers put out a radio call, noting that men fitting the eyewitness’ description were traveling in a certain direction. A second set of officers approached the two men and called out. One man stopped; Jimmy Warren didn’t. He ran away, was chased by the police, and arrested. No contraband was found on his person—no backpack, no computer, no baseball hat. A gun was found in a nearby yard, and Warren was charged with unlawful possession of a firearm.
That the two men ran from the police is salient. Why? Because the presence of flight is considered in a court’s calculus when deciding whether or not the police had a reasonable suspicion to believe an individual committed a crime. In this case, the court decided that Warren’s flight from police could not be viewed as incriminating: when an officer seeks to conduct an FIO, that event constitutes, in the court’s words, “a consensual encounter because the individual approached remains free to terminate the conversation at will.” Because it is a consensual encounter, Warren was free to leave the scene, and no guilt can be presumed by his actions.
Against the backdrop of racial profiling documented by the Boston Police Department’s own survey, it was easy to see that a person in Warren’s position “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,” according to the SJC. The court noted that field interrogation observation data between 2007 and 2010 demonstrated that those stopped by Boston police were disproportionately male, young, and black. The SJC declared that “[g]iven this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.”
The court’s opinion marks the first instance where the SJC cited data to support the idea that racial profiling exists and is a valid reason for suspects to flee police. This is a groundbreaking and long-overdue acknowledgement. It doesn’t mean that every time a suspect flees police, there will be an appropriate application of this principle. But for Jimmy Warren’s case, without additional factors to substantiate the reasonable suspicion standard, the court reversed his conviction.
In a time when police-citizen encounters have raised serious questions about methods of policing, it is an important recognition that race plays a factor in many of these encounters.