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Mass. SJC ruling takes aim at racial profiling

Justice cites ‘indignity’ of repeated stops

Yawu Miller
Yawu Miller is the former senior editor of the Bay State Banner. He has written for the Banner since 1988.... VIEW BIO
Mass. SJC ruling takes aim at racial profiling
Ron Bell says he’s been profiled by police too many times to count, including an incident in Mattapan Square last week.

Ron Bell had just left a meeting of the group, Milton Dialogues: Building Race Relations in Milton, last week when he came across an acquaintance in Mattapan Square — a crossing guard whom he thought would add an important voice to a difficult discussion.

No sooner had he greeted her when two Boston police officers approached the two and began questioning them. Bell, who says he’s been stopped, searched and harassed numerous times, began to feel the rush of adrenaline that often accompanies such encounters.

On the web

SJC ruling, Commonwealth v. Warren (2016): www.mass.gov/courts/docs/sjc/reporter-of-decisions/new-opinions/11956.pdf

SCOTUS decision, Obergefell v. Hodges (2015): www.scotusblog.com/case-files/cases/obergefell-v-hodges/

SCOTUS decision, Utah v. Strieff (2016): www.scotusblog.com/case-files/cases/utah-v-strieff/

That fear, a feeling unfamiliar to many who are not black, was validated last week when Supreme Judicial Court Justice Geraldine Hines authored a ruling in defense of blacks fleeing the police.

The unanimous SJC ruling stated that people fleeing the police may be motivated by a desire to “avoid the recurring indignity of being racially profiled,” and that their flight should not be automatically interpreted as evidence of “criminal activity.”

While law enforcement officials and some in the local news media expressed shock and opposition to the SJC ruling, civil rights activists and defense attorneys voiced support.

“It’s very powerful that this decision is coming down unanimously and that it’s authored by Justice Hines, the first black woman on the court,” said Iván Espinoza-Madrigal, executive director of the Lawyers Committee for Civil Rights and Economic Justice. “It’s very often the case that courts are making decisions about whether we have experienced deprivation of constitutional rights. The legal analysis often does not reflect the dehumanizing effect of being deprived of our constitutional rights.”

Espinoza-Madrigal points to the 2015 Supreme Court Obergefell v. Hodges decision upholding gay couples’ constitutional right to be married, which he says used the word “dignity” 12 times.

“The court found that depriving same-sex couples of the right to marriage has an effect not only on their right to marry, but also on their dignity,” he said. “Since then, we have not heard the courts talk about our rights as people of color through the lens of dignity. In this decision, Justice Hines, by zeroing in on the indignity of repeated unconstitutional stops, is bringing attention to racial injustice.”

‘Dark clothing’

The SJC case, Commonwealth vs. Jimmy Warren, stems from the 2011 arrest of a suspect on charges of illegal possession of a firearm. Defendant Warren fled on foot after he was approached by officers responding to a call of a breaking and entering in a nearby home that had occurred 30 minutes earlier. The victim, who lived on Hutchings Street, said he saw a man in a red hooded sweatshirt climbing out of his window. The victim said he saw two other men, one in a black hooded sweatshirt, the other wearing dark clothing.

Half an hour later, an officer saw Warren on Martin Luther King Boulevard, eight tenths of a mile away. Warren, who is black, was wearing black clothing and, as such, fit the loose description given by the victim of one of the men he said he saw in proximity to the man with the red sweatshirt. The responding officer asked to speak with Warren, who turned and jogged into Malcolm X Park. A short time later, he was apprehended on Wakullah Street. A .22 caliber gun was found in a yard on that street.

Under the Fourth Amendment, which protects an individual against unlawful search and seizure by law enforcement, police are required to have reasonable suspicion that a person has, is or will commit a crime. Civil rights advocates say that law is routinely violated when police interact with blacks. Stop and frisk policies, where black and Latino youths are targeted for random pat-downs or searches and police stops based on vague descriptions — such as “black male wearing dark clothing” — are widely seen as violations of the Fourth Amendment.

“Lacking any information about facial features, hairstyles, skin tone, height, weight, or other physical characteristics, the victim’s description ‘contribute[d] nothing to the officers’ ability to distinguish the defendant from any other black male’ wearing dark clothes and a ‘hoodie’ in Roxbury,” Hines 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.”

A strong example

American Civil Liberties Union of Massachusetts Attorney Carl Williams said Hines’s defense of the Fourth Amendment is important, given the city’s contentious history of unconstitutional stops of black males. Hines cited an ACLU study that found that blacks were more likely than whites to be stopped by police, even controlling for higher crimes rates in the areas where they live.

“What we know is that it’s very rare that police who engage in stop-and-frisk actually find contraband,” he said. “For every one person they catch, there are 99 others who didn’t have anything on them. If you don’t need the Fourth Amendment, then go kick down some doors in the Back Bay. I’m sure you’ll find something there.”

U.S. Supreme Court Justice Sonia Sotomayor made a similar argument in her dissent in the Utah v. Strieff (2016) case, which upheld an officer’s right to make a stop of an individual and check for outstanding warrants.

“Surely we would not allow officers to warrant-check random joggers, dog walkers, and lemonade vendors just to ensure they pose no threat to anyone else,” she wrote in her dissent, in which Justice Ruth Bader Ginsburg joined.

Espinoza-Madrigal says Hines has made a compelling case against racial profiling.

“Being repeatedly stopped by the police is harmful,” he said. “We seldom hear this articulated by the courts in such a strong way. I think it will set a strong example for other courts around the country as they’re grappling with issues of racial profiling.”

Ron Bell certainly hopes so. He says he’s been stopped, searched and threatened by police since he was 12. Asked how many times he’s been stopped, Bell says he’s lost count.

“Fifty?” he guesses. “Probably more than that. I don’t know, man. It’s too many. I’m a dark-skinned brother. We get it worse.”

During the 1989 Charles Stewart case, when police had a blanket order to stop and search black males, Bell was stopped, and saw teens in the youth center he was running strip-searched in front of the building.

When he moved to Milton in the 1990s, he says police routinely followed him home.

“My son was four or five years old,” he says. “He would say, ‘Dad, they’re right behind us.’ If I’m a black professional and they do this to me, can you imagine what they do to other brothers?”