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Racial Preference Explicitly Enters Criminal Law

It's bad enough that racial preference has entered numerous areas of civil law, including employment quotas and college admissions.  But once the premise of racial preference took hold in those areas, it was likely  --  some might say inevitable  -- that it would seep into criminal law.  Indeed, some might say it was intended all along.

In Massachusetts, it has.  The Supreme Judicial Court in that state has held that circumstances that would warrant a Terry stop of a white person do not necessarily warrant the same outcome for a black defendant.  The latter, so says the Court, would have reason to run from the cops that a white defendant lacks.  Therefore, what would count as a valid component of reasonable suspicion (see Illinois v. Wardlow) to detain a white man would fall short in the case of the black one, even if all the non-race based circumstances are identical.

The story is here on CNN.

I could write a long entry about how poisonous this decision is, and I may yet.  For now, I will only say that I see no principled reason black defendants in prosecutions for crack distribution or violent crime should not argue  --  and, in Massachusetts, should not win  -- shorter sentences than similarly situated white defendants solely because drug and mugging laws are "disproportionately" enforced against blacks.

Affirmative action for college applicants has turned into affirmative action for muggers. And race mongering has taken a giant leap forward. This is where we are.  


It is not clear to me why the court even reached the issue. The defendant tossed the gun before he ever yielded to authority. Even assuming a 4th violation, the discovery of the gun was not a fruit of the seizure. California v. Hodari D. (1991) 499 U.S. 621. The Commonwealth conceded that the seizure occurred at the command to stop, not when the suspect yielded. I can only hope that Mass. has a very different rule than the US Constitution on this issue.

It is true that the suppression motion applied to his post-arrest statement saying he had no license for the gun, so they would have to reach the issue there. But given the case was a court trial, couldn't any assumed error regarding the statement be harmless beyond a reasonable doubt? I saw no such discussion. Maybe that will occur on the remand.

While they don't cite Wardlaw, they sure don't like it and demand, at least for BM in Boston, that their flight is worth less in the totality of circumstances calculus than others. I thought it was a question of what is objectively reasonable to a trained officer, not a subjective inquiry into the populace as a whole, or the BM populace in part. I guess what they are saying that it is objectively reasonable for officers to think that certain segments of the population do not like the police and therefore their suspicious activity of sprinting from the police is no longer suspicious. Fascinating, and flawed. If for no other reason than any person, not matter their race, could have read the study of stops by the Boston Police and concluded that they are engaging in unconstitutional policing and therefore choose to avoid any and all contact.

It makes me wonder, can the reasonably trained officer now cite statistics in Boston regarding the over representation of certain populations in criminal offending? I would think not, but this court has me wondering? After all, the touchstone of the 4th Amendment is reasonableness.

"The Supreme Judicial Court in that state has held that circumstances that would warrant a Terry stop of a white person do not necessarily warrant the same outcome for a black defendant."
Sorry, but that is not the holding of The Supreme Judicial Court. The court found, "the police had far too little information to support an individualized suspicion that the defendant had committed the breaking and entering"
It is only in dicta that the court mentions that black males might have innocent reasons for running from the police which could figure into into a judge's determination of reasonable suspicion; with the caveat, "We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop." I fear CNN and you have overstated the racial factors in this case.


This is what they said. "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."

Dicta to be sure, but trial courts know which way the wind blows. What would be an "inappropriate" case to discount flight as evidence of reasonable suspicion after this case? It was the Court who brought up the report with specific reference to black males, which they deem an "appropriate" case by their reasoning.

I am afraid that while you are correct about the ruling and dicta, Bill is correct too. Flight by black males is now less relevant to reasonable suspicion in Boston and probably all of Massachusetts.

There is simply no way to read the decision except to understand that a black man who runs from the police, is detained partly on the basis of that flight (see Wardlow), patted down, and found to have contraband, can now beat the rap, while a white man identically situated (except for skin color) would stand convicted.

David Boyd is correct. This decision makes the difference between conviction and dismissal rest SOLELY on skin color. A detention-after-fight for a white person now, in that jurisdiction, stands on firmer ground than a detention-after-flight for a black one.

I would happily state all of the above under oath. What is not so happy is that this is the explicit introduction of race into criminal law.

Let me ask a couple of questions as well:

1. Would you as defense counsel now, in light of this case, argue that Wardlow has only a diluted application, if any, in assessing reasonable suspicion to detain your fleeing black defendant?

Could you make the same argument in the case of an identically situated fleeing white defendant?

2. Would you argue that your black defendant's sentence for selling crack cocaine should be shorter than an identically-situated white defendant's, because the local cops have disproportionately enforced crack laws (or all drug laws) against blacks? If not, why not?

The court did not find that flight of the defendant was insufficient to support reasonable suspicion because the defendant is black. The court's analysis of the facts leading up to the stop concluded that the only relevant reason for detaining the defendant was his flight from the police. The court pointed out that flight, without more, is insufficient to support reasonable suspicion, citing the Massachusetts case Mercado. That is the holding of the case, period.
The rest of the court's opinion is so ambiguous as to be nearly meaningless. The opinion specifically states that flight (of a black man) is not eliminated as a factor in determining reasonable suspicion. Rather, that in the "appropriate" case, the court should "consider" the findings of the studies listed in the footnotes. What is an "appropriate" case is left completely undefined as is the meaning of "consider." I don't know why the court brought up the report, but it is clear from the language of the opinion that it did not figure into their decision.
Dicta causes mischief when too much meaning is read into it.
Bill to answer you, Question 1. Wardlow is still the law of the land. If my client flees from the police, upon eye contact, while standing in an open air drug market his race doesn't figure into an argument about the reasonableness of the stop without more. Wardlow is only diluted if you think it stands for the proposition that flight alone always supports reasonable suspicion for a Terry stop and that the Warren decision stands for the proposition that flight alone would only be insufficient reason to stop black males. I don't believe either. Question 2. I would not make that argument because I wouldn't want to be laughed out of the courtroom.

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