Sunday, June 9, 2019

Racial dynamics, and the simple desire not to interact with police offer innocent explanations of flight

“[A] black man[] had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted [the man], who was on foot, activated their lights, and pursued him by car . . . . [The man] reacted by running for about a block before the officers stopped him at gunpoint.”

So begins the Ninth Circuit’s opinion last week in United States v. Brown, reversing the district court’s denial of the defendant’s motion to suppress.

There was no reasonable suspicion. The tip was anonymous and unreliable. There was no presumptively unlawful activity. And flight is not tantamount to guilt, especially given the innocent explanations for why a person "may reasonably flee from police."

Invoking Justice Stevens’s discussion on the outer limits of Wardlow, the Ninth Circuit emphasized that established "racial disparities in policing," "racial dynamics in our society," "along with a simple desire not to interact with police" offer "innocent" explanations of flight.

“Among some citizens, particularly minorities and those residing in high crime areas, there is [] the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.” Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting in part).

To support a reasonable-suspicion finding in Brown, the government presented “little more than a black man walking down the street . . . .”

Reversed and remanded.

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