SJC backslides on racial disparities in policing

IN A DECISION issued last week, the Supreme Judicial Court acquiesced in the disproportionate stopping and frisking of young people of color in the Commonwealth by upholding a police officer’s reliance for the intrusion on a juvenile’s “blading.” This amorphous amalgam of vague body movements and racially applied factors is so ambiguous that the SJC simultaneously suggested it be retired as a basis of suspicion.

In order to stop someone for investigation of potential criminal activity, a police officer must have reasonable suspicion, based on specific articulable facts, that the person has committed or is about to commit a crime. To pat them and search for weapons, the officer must also have a reasonable belief that they are “armed and dangerous.”

Substantial empirical data confirms that Black Americans are disproportionately stopped, searched, arrested, and likely to be subject to the use of force by police. Courts must therefore critically evaluate police assertions of suspicious behaviors that are often ambiguous, such as those exhibited by Karen K., the suspect who was frisked. In Karen K., the SJC addressed how courts should weigh behaviors, each innocuous standing alone, when deciding whether a search or seizure was constitutional.

Members of the Boston Police Department were dispatched to a housing complex hours after a concerned citizen informed them that a group of kids were hanging around and one had displayed a firearm. One officer observed Karen K. trying to avoid a group of seven other officers, and later testified that she kept looking back over her shoulder and adjusting her waistband, asserting that she had “bladed” her body “so as to conceal something on her person.”

Karen K. argued that because the officers lacked required suspicion that she was committing a crime or that she was armed and dangerous, they violated the state constitution in stopping her. The SJC disagreed, concluding that adjusting a waistband and “blading” gave the police reasonable suspicion.

Massachusetts courts have been at the forefront of acknowledging an important paradox in criminal procedure: nervous or evasive behavior during police interactions is disproportionality attributed to young people of color, but this behavior is also the result of racialized policing. In 2016, the SJC famously acknowledged that as a result of persistent racial profiling, Black males in particular have legitimate reasons to avoid police interactions, and thus flight from police should not contribute to reasonable suspicion. And in 2020, the court again addressed the racialized impact of policing, issuing two decisions that expanded protection against racial profiling in police stops.

But in 2021, the SJC retreated from this commitment to combat racism in policing. A fractured court affirmed the constitutionality of a patfrisk of the passenger of a car that had been stopped for a minor traffic violation, based on police testimony of his “erratic, uncharacteristic behavior,” including his “bladed stance,” defined in that instance as aggressive and threatening behavior towards the officer. Forcefully dissenting, Chief Justice Kimberly Budd explained that people of color are disproportionately likely to be searched by police, largely due to “neutral rules of deference that affirm the decision of racially biased actors.”

At a moment when state courts are essential to protecting constitutional rights, the  Karen K. decision confirms a backslide in the Commonwealth. Notably, even though the court has acknowledged that the term “‘blading’ has become both unwieldy, lacking precision or a single definition, and tinged with loaded connotations,” it has in the last two years accepted the term to mean different things: last year it concluded that a “bladed stance” suggested imminent physical attack, and then Wednesday, it accepted a definition of “blading” as an attempt “to conceal something on [petitioner’s] person.”

When affirming the constitutionality of the police officer’s actions, the SJC also relied on Karen K.’s alleged evasion of officers, adjustment of her waistband, and the hours-old tip to police. But as Budd  explained, the weakness of these factors in supporting reasonable suspicion reveals the juvenile’s “blading” was dispositive.

Racism pervades our criminal legal system. Courts must question the seemingly facially race-neutral reasoning of actors such as police officers, particularly when that reasoning consistently leads to unjust results. The SJC could have required the Commonwealth to show that vague behavioral observations have strong non-race-based foundations. Or it could have urged lower courts to question police officers on the predictive values of specific terms.

In her concurrence, Budd  insists that Karen K. does not lower the constitutional threshold for warrantless stops, reiterating that reasonable suspicion cannot be based in ordinary, innocuous behavior. But the SJC’s reliance on “blading” and other behaviors consistent with fear-based nervousness around police to ratify a stop and patfrisk suggests otherwise.

Aliza Hochman Bloom is a faculty fellow at New England Law who teaches criminal law and criminal procedure and writes about race and the Fourth Amendment.