The Massachusetts Supreme Judicial Court concluded this week that black people may flee from police officers due to fear of racial profiling. A statement from the court, which cited information from the Boston Police Department and the ACLU, concluded that “black males in Boston are disproportionately and repeatedly targeted for” Field Interrogation and Observation “ encounters, and that when black males flee police, it may be motivated by seeking to avoid the “indignity of being racially profiled as by the desire to hide criminal activity.” 
 
It is in such circumstances, declared the high court, that “flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt.”
 
Police officers were called upon by the court to “consider whether the suspect if fleeing not because he’s trying to hide a crime,” but out of fear of the police. However, the court admitted that it is uncertain how this standard will be upheld. However, the court concluded, “How exactly this will be enforced in practice is hard to say, but it is now the legal standard for police stops and searches in Massachusetts.”
 
Boston Police Commissioner Bill Evans criticized the ruling and said that the stop-and-frisk policies “were targeting the individuals that were driving violence in the city and the hot spots.”
 
"I think they relied heavily on an ACLU report that I think was clearly way out of context," Evans said this week. "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.”
 
Jake Wark said for the district attorney’s office said, said it "remains to be seen" if the ruling will induce more flight 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."
 
The ACLU report found that 63 percent of the stop-and-frisks in Boston involved black people between 2007 and 2010, when the city's black population was 24 percent. The ACLU claimed that it analyzed more than 204,000-plus reports and found that Boston police only seized weapons, drugs, or other contraband in 2.5 percent of cases. 
 
The Massachusetts court thus overturned the conviction of Jimmy Warren, a black man who was convicted of unlawful possession of a gun in December 2011. Warren was with another man when he fled from police who were investigating a reported robbery. Once Warren was arrested, police also recovered an unlicensed .22 caliber handgun in a yard that Warren had run through.
 
While Warren bore a resemblance to a description of one of the robbers, the court ruled that it should not give rise to reasonable suspicion to stop him. The court admitted that flight from law enforcement may add to reasonable suspicion, fleeing from officers does not alone provide sufficient justification for a stop. Also, the court found that fleeing is not necessarily proof of guilt at trial.
 
Warren’s attorney, Nelson Lovins, contends that the court ruling does not give black men the right to flee. The vagueness of the description of the alleged perpetrators of the robbery should have vindicated his client, without the additional analysis of supposed racial prejudice on the part of Boston cops. He said that those who are stopped by police are not obliged to talk to them. Lovins said “...you should say to him, ‘you and I both know I don’t have an obligation to talk to you and I’m leaving.’” Anyone stopped by police, said Lovins, can walk or run away.
 
The ACLU of Massachusetts said in its brief to the court that its investigation found "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 sided with the ACLU's interpretation.
 
"Given this reality for black males in the city of Boston," the ACLU said, "a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor" in determining reasonable suspicion. Before the moment Warren was caught, the report said, "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."
 
Here follows a relevant excerpt from the statement by the Massachusetts court:
 
"We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative 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 FIO [Field Interrogation and Observation] 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. Given 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."

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Spero News writer Martin Barillas is a former US diplomat, who also worked as a democracy advocate and election observer in Latin America. His first novel 'Shaken Earth', is available at Amazon.

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