Massachusetts Supremes give blacks green light to flee cops

In a decision certain to influence the debate over police interactions with black suspects, the Massachusetts Supreme Court dismissed the gun conviction of a black man arrested by Boston police, ruling his fleeing from officers can be considered legitimate given black males' fear of being racially profiled.

Jimmy Warren was arrested Dec. 18, 2011, by police who were investigating a break-in in nearby Roxbury. According to the victim, the suspects were three black men, one of whom was wearing a red hoodie, another a black hoodie and the third non-descript dark clothing. Warren was latter spotted with a second man, both wearing dark clothing, by officers.

Both men fled when approached by an officer seeking to question them. When Warren was later apprehended, he was accused of possession of an unlicensed .22-caliber pistol that police said he threw away during pursuit. While no items from the burglary were found in his possession, he was charged and convicted of unlawful possession of the weapon. Warren appealed.

The Massachusetts Supreme Court based it's decision to overturn the conviction on two arguments. The witness description of the suspected burglars was too vague, the judges ruled, and there was no cause to question the pair just because they fit the "ubiquitous" clothing description or because the officer had a "hunch," reported WBUR News.

"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," the decision read.

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Secondly, the court cited an American Civil Liberties Report charging the Boston Police Department with "a pattern of racial profiling of black males" to say blacks who flee police are not necessarily indicating guilt but may be reasonably seeking to avoid the "indignity" of discrimination.

According to the ACLU report, 63 percent of interactions between Boston police and civilians between 2007 and 2010 were with blacks, even though they accounted for just 24 percent of the population.

The judges wrote: "We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect's state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO [Field Interrogation and Observation] encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. 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."

Massachusetts law does not require citizens to talk to police or to not walk away if they are not being charged.

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The decision was hailed by the ACLU of Massachusetts as a "powerful ruling" confirming "for people of color ... their lives matter."

"The reason that's significant is that all the time in police-civilian encounters there are disputes about what is suspicious and what is not suspicious," said Matthew Segal, legal director of the ACLU of Massachusetts. "So this is an opinion that looks at those encounters through the eyes of a black man who might justifiably be concerned that he will be the victim of profiling."

That view was not shared by Boston Police Commissioner Bill Evans, who criticized the court for depending so heavily on an ACLU report that was "clearly way out of context" and "heavily tainted against the police department."

Retired federal Judge Nancy Gertner told Radio Boston the court's decision will "contribute substantially to the national debate" by forcing courts to "put in context" reasons black defendants might legitimately flee, and to not automatically view running from police as evidence of guilt.

Accusing police of frequently "pushing the envelope" to "see what this kid will do," Gertner laid the blame for much of the problem between police and black citizens on law enforcement who will now need to adapt to the decision or risk having evidence they want to obtain ruled inadmissible.

"Maybe it will force officers to pause before they begin one of these encounters, understanding what the atmosphere is. ... Police will just have to develop other investigative tools," she said.

Gertner was nominated to the U.S. District Court for the District of Massachusetts in 1993 by President Bill Clinton and served until 2011. She is currently a professor at Harvard Law School.

Prosecutors have asked for a rehearing.