In what is likely to be a controversial ruling, on Tuesday the Massachusetts Supreme Judicial Court threw out an illegal gun possession conviction for a Boston man named Jimmy Warren that resulted when Warren was arrested on December 18, 2011, on a night when Boston police were investigating a local home break in, and mistook Warren for one of the robbers, at which point Warren ran from officers. He was charged with illegal gun possession after police found an unregistered firearm on the ground near to where Warren was apprehended.
The court’s reasoning in tossing the gun charge was both interesting, and potentially precedent setting.
A BURGLARY, A BACKPACK AND A RED HOODY
First, it is important to know the circumstances that led up to Warren’s arrest:
The incident began as Boston police officer Luis Anjos was patrolling the Roxbury section of Boston in a police cruiser when, at 9:20 P.M., he received a radio call that nearby residents had reported a breaking and entering in progress, with the suspects fleeing the scene.
Anjos went to the house and spoke to a teenage boy and his foster mother who had reported the break in. The boy had evidently surprised a burglar in his bedroom, and the guy, who wore a red hoodie, went out the window. When the boy looked out the window, he saw two other guys—both black males—wearing dark clothes, one of them wearing a black hoodie.
Once the burglars were gone, the boy noticed that this backpack, his laptop and some baseball caps were also now missing.
The officer reportedly talked with the victims for about fifteen minutes, then drove around in a five block radius of the victims’ house, looking for possible suspects. Finding no one, officer Anjos was headed back to the local police station when he spotted two men walking near a basketball court adjacent to a park, both wearing dark clothing, one wearing a hoodie. Neither had a backpack.
Anjos decided to stop the two men on a “hunch” that they were his suspects, despite the fact that, when he saw the men, there were two of them, not three, no one had a red hoodie, and there was no backpack. Plus nothing in their behavior suggested they were fleeing a crime scene, or had engaged, or were about to engage, in criminal activity.
Anjos rolled down his squad car’s window and hailed the two men.
“Hey guys, wait a minute.”
Both men made eye-contact, then turned and jogged away into the park.
Anjos remained in his police cruiser and radioed dispatch that three men fitting the descriptions by the victim were headed in to the park, although he admitted later he had seen only two.
Two additional officers, named Carr and Santosuosso, headed to the far side of the park and observed two men in dark clothing walking out of the park, headed toward street on the far side of the park called Dale Street.
Carr parked the cruiser on Dale Street and both officers exited the car and approached the two men as they left the park. According to the officers, the men walked with their hands out of their pockets. Officer Carr stated he saw “no bulges in their clothing suggesting the presence of weapons or contraband.”
Carr, said, “Hey fellas…!” at which point the defendant, turned and ran up a hill back into the park, while his companion stood still. Carr ordered the defendant to stop running. But the defendant kept going, running down yet another street and into the back yard of a house.
After the command to stop, accord to Carr, he observed the defendant clutching the right side of his pants, a motion Carr described as consistent with carrying a gun without a holster. Carr drew his firearm, pointed it at the defendant, and yelled several verbal commands for the defendant to show his hands and to “get down, get down, get down.” The defendant moved slowly, and Carr approached him. After a brief struggle, Carr arrested and searched the defendant but found no gun or contraband.
Minutes after the arrest, the officers recovered a .22 caliber firearm inside the front yard fence of the house. When asked if he had a license to carry a firearm, the defendant replied that he did not.
The defendant, Jimmy Warren, challenged the judge’s denial of the motion to suppress the gun, claiming the judge erred in his ruling that, at the time of the stop by the second two cops, the police had a sufficient factual basis for reasonable suspicion that Warren had committed the breaking and entering.
The Mass. Supremes agreed with Warren and his lawyer. The court wrote:
With only this vague description, it was simply not possible for the police reasonably and rationally to target the defendant or any other black male wearing dark clothing as a suspect in the crime. If anything, the victim’s description tended to exclude the defendant as a suspect: he was one of two men, not three; he was not wearing a red “hoodie”; and, neither he nor his companion was carrying a backpack.10 Based solely on this description, Anjos had nothing more than a hunch that the defendant might have been involved in the crime…
As for the fact that Warren ran, the court wrote that, unless “reasonable suspicion for a threshold inquiry already exists, our [state] law guards a person’s freedom to speak or not to speak to a police officer. A person also may choose to walk away, avoiding altogether any contact with police..”
In examining, Warren’s flight, the justices cited the findings in a recent Boston Police Department report documenting a pattern of racial profiling of black males in the city of Boston, who the study found were far more likely to be stopped, frisked, and searched. They also cited a 2015 ACLU of Massachusetts report showing that the city’s blacks were greatly disproportionately stopped by police, and the racial disparities could not be explained by crime or other non-race factors.”
As a consequence, the court concluded, black men in Boston may have a legitimate reason to run from police, thus it is not an indication of guilt:
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.
SO WHAT DOES THIS MEAN BEYOND MASSACHUSETTS?
What meaning the ruling could have outside the state of Massachusetts is not clear.
In the U.S. it is not illegal per se to flee from police, according to the U.S. Supreme Court, but Scotus has made an exception to that rule in high crime neighborhoods. And if police suspect you of a crime, then running may be viewed as a suspicious activity.
That’s why this ruling is so “powerful,” said Matthew Segal, legal director of the ACLU of Massachusetts.
“..all the time in police-civilian encounters,” Segal told the Grio, “there are disputes about what is suspicious and what is not suspicious. So this is an opinion that looks at those encounters through the eyes of a black man who might justifiably be concerned that he will be the victim of profiling.”
The ruling, of course, comes at a time when tensions around the nation have once again risen due to a new series of fatal shootings of black men by police under troubling circumstances.
It also comes at a time when the efficacy and legality—or lack thereof—of the practice of stop-and-frisk is back in the news.