Grappling with ‘driving while black,’ SJC offers help

THE SUPREME JUDICIAL COURT on Thursday issued a ruling that will make it easier for defendants to prove they are the victim of illegal racial profiling when pulled over during a traffic stop.

The decision, hailed as a major victory for advocates for racial justice, came on the same day the court released an opinion building on a landmark 2016 decision in which the SJC held that flight is not evidence of guilt when a black man flees police because he may have reason to believe he is being racially profiled. The latest decision extends the protection for fleeing to other “nervous or evasive behavior.”

Matthew Segal, an attorney with the ACLU of Massachusetts, which filed briefs in both cases, called it a “significant moment” for the SJC. “For the past few years we’ve seen in this country powerful and tragic instances of racial injustice and police violence, and here is the highest court in Massachusetts meaningfully wrestling with these problems and trying to come up with a workable solution that will deliver meaningful justice to black and brown people in the Commonwealth,” Segal said.

The ruling on racial profiling in traffic stops stems from a case Commonwealth v. Edward Long. Long, a black man, was driving in Boston when the police decided to run his license plate. They found it was registered to a black woman and lacked an inspection sticker. When they pulled Long over, they found he had outstanding warrants and a suspended license. They searched the car and found a gun. Long was charged with firearms offenses. His attorney tried to suppress the evidence found during the search, on the grounds that the traffic stop was racially motivated. The SJC ruled in Long’s favor.

Under legal precedent until now, a defendant trying to prove that he was subject to an illegal racially-motivated traffic stop had to rely on statistical evidence showing racial bias by that officer or in that jurisdiction. But that evidence is hard to come by, and the justices concluded, in a decision written by Justice Frank Gaziano, that it was too high a burden to meet.

Under the new precedent set by the SJC in Thursday’s case, a defendant must establish “a reasonable inference” that the officer’s decision to initiate the stop was motivated by race, based on specific facts from the circumstances surrounding the stop. This could include the officer’s past patterns of enforcement, whether the officer was a traffic cop, whether the officer followed the car for an extended period of time, how the officer behaved during the stop, how serious the offense was, and whether the officer adhered to departmental policies. The defendant does not need to provide statistical analysis.

Segal said the new test “is designed to give real teeth to the right under the Massachusetts Constitution to be free of racial profiling.”

The 89-page ruling included three concurring opinions, one by Chief Justice Ralph Gants, who wrote it before he died on Monday, one by Justice Elspeth Cypher, and another by Justice Kimberly Budd, the court’s only black justice, who was joined by Justice Barbara Lenk. While all the justices agree that racial profiling in traffic stops is illegal, Budd would go even further in prohibiting all “pretextual” traffic stops, which are stops where an officer has a true motivation other than stopping a traffic violation – for example, searching a car for drugs.

“The long, difficult history of racial discrimination in law enforcement demonstrates that, without more, making it easier for defendants to raise an inference that race was the basis for their stops in discrete cases will not be enough to dismantle the practice of racial profiling,” Budd wrote, arguing for a more systemic response to the problem of racial profiling.

Rebecca Kiley, an appeals attorney for the Committee for Public Counsel Services, which wrote a brief in the Long case, said she is hopeful that although the full court stopped short of abolishing pretextual stops, “they went a really long way toward discouraging them.”

Kiley said that while a judicial opinion cannot singlehandedly abolish racism in policing, “I hope police officers take (the decision) seriously, and if they don’t, I hope they’ll be held to account by trial judges.”

Oren Nimni, an attorney with Lawyers for Civil Rights, who wrote a brief in the case, said there is a reason why “driving while black” has become a commonly used phrase to illustrate the disparity in how frequently blacks are stopped by the police compared to whites. Nimini said the decision “will hopefully provide a downstream incentive for police to examine their own biases and not engage in pretextual traffic stops generally, and particularly when they’re motivated by race or other impermissible biases.”

In the second case, Commonwealth v. Tykorie Evelyn, the police were investigating a shooting when they pulled alongside Evelyn, a 17-year-old black man who was walking on the sidewalk. When an officer got out of the cruiser, Evelyn sprinted away. The officer chased and arrested Evelyn, and found a firearm on the ground along his path. He was arrested and charged with murder. His attorney argued that the evidence should be suppressed since at the moment the officer opened his cruiser door, the officer could be considered to have stopped Evelyn without reasonable suspicion.

Evelyn argued that his age and race should be considered in determining at what point he is considered to have been stopped by the police. The court ruled against Evelyn.

In the precedent-setting parts of the unanimous, 34-page ruling, written by Gaziano, it found that age – although not race – can be considered in deciding when the police are considered to have “seized” or stopped a person. The court found that a young person is more likely to feel coerced by the police early on in their interaction, but the justices did not reach a conclusion on whether race should be considered.

On race, the decision concluded that the thinking in the 2016 case, which found that flight by a black man is not evidence of guilt, still stands and can be extended to other nervous or evasive behavior.

Katharine Naples-Mitchell, an attorney with the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, who wrote a brief in the case, said she is disappointed that the court did not allow for the use of race in determining when a seizure occurred. But she said it is a new development that the court recognized that evasive behavior by a black person may be justified because “black people may be more likely to feel uncomfortable around police because of a history of racism and racial profiling.”