• Sep 22, 2020

Mass. SJC Decides Two Cases on Racism & Policing, Including Monumental Decision on Pretextual Stops

Last week the Massachusetts Supreme Judicial Court (SJC) issued a monumental decision in Commonwealth v. Long on pretextual stops and fundamental questions around racism, policing, equal protection, and criminal procedure. Advocates worked for years to reach this day, including most recently when coalitions of amici submitted briefs in the 2018 case Commonwealth v. Buckley, where the Court largely rejected the arguments that won the day this time around.

The prologue to this decision begins in 2008 in Commonwealth v. Lora. Reckoning with racial profiling in traffic enforcement, the SJC adopted an equal protection test by which a criminal defendant could establish they were pulled over because of their race: a defendant had the initial burden to raise a reasonable inference of racial profiling with statistical analysis of stops conducted by the officers involved in their stop; if the data showed racially discriminatory enforcement of traffic offenses, which the Commonwealth failed to rebut, evidence from a racially motivated stop would be suppressed. Even within that decision, members of the Court questioned whether it would result in a workable remedy for defendants. The majority noted that the defendant’s burden was “admittedly daunting,” and Justice Ireland wrote a separate concurrence, explaining “Because the ability of defendants to establish a prima facie case is fraught with such great difficulty, my concern is the degree to which the right to challenge seized evidence could seemingly be elusive in practice. . . . Time will tell how the issues concerning data reporting and analysis will be resolved.”

As Justice Ireland predicted, the Lora test didn’t work to deter or redress racial profiling. For more than a decade, defendants presented statistical analyses to show they were stopped in a pattern of racial profiling, and yet courts repeatedly found they failed to meet their burden, allowing racial profiling to flourish unchallenged. In more than a decade, only one defendant prevailed using this test, even though studies on the prevalence and harm of structural racism in traffic enforcement grew. Further, over the last fifteen years, the Massachusetts Legislature repeatedly failed to re-authorize mandatory collection and publication of officer-identified data that would be required to conduct these analyses across the hundreds of policing agencies that operate throughout the Commonwealth. Meanwhile, the General Court created new driving penalties in the hands free driving legislation adopted in 2019, creating a new possible pretext for a stop without requiring the collection of officer-identified data, and thereby making the problem of discriminatory traffic enforcement both more pervasive and more difficult to prove.

This week, the Supreme Judicial Court unanimously recognized this inherent flaw in Lora, and held that (1) the statistical analysis conducted in this particular case of Mr. Edward Long, expertly litigated by attorney John Warren, was sufficient under the existing test, warranting suppression in his case and (2) the existing test was far too stringent for most defendants to meet. As the Court explained, “[T]he the prohibition against facially discriminatory laws has been inadequate to address the role played by racism and other invidious classifications in the way facially neutral laws actually are enforced.” Accordingly, the Court adopted a modified version of what we had proposed as amici with the Massachusetts Association of Criminal Defense Lawyers, Lawyers for Civil Rights, and the New England Innocence Project: a totality of the circumstances analysis to raise a reasonable inference that the particular stop at issue was motivated at least in part by race. Significantly, the majority dispensed with two existing requirements of selective enforcement analysis, and held that “The totality of the circumstances test . . . requires only the evidence necessary to support a reasonable inference that the stop was based on race or membership in another constitutionally protected group.” Further, the decision makes clear that it is the Commonwealth’s burden to ultimately prove that a stop was not racially motivated. The majority situated its test in equal protection doctrine, rejecting our view that the fact of structural racism and unconscious bias in traffic enforcement requires an end to the authorization rule announced in Commonwealth v. Santana, as all pretextual stops are constitutionally unreasonable and both invite and produce profiling.

Justice Budd, joined by Justice Lenk, wrote a masterful concurrence, a searching treatise on racism in policing brimming with social science research and case law from other jurisdictions. Justices Budd and Lenk would adopt our proposal to end pretextual stops and overturn the authorization rule whole cloth under Art. 14 of the Massachusetts Declaration of Rights, our state constitutional corollary to the Fourth Amendment. As Justice Budd elucidates, “Acknowledging the unconstitutionality of pretextual stops has the added systemic benefit of removing, in the first instance, the means by which racial profiling is accomplished.” The whole 38-page concurrence is a must read, but footnotes 12 and 20 in Justice Budd’s concurrence are particularly incisive and insightful. In those footnotes, she takes on the majority’s characterization of her proposal as differing on the “best legal analysis” to achieve systemic change. The majority wrote, “It is critical to bear in mind that a disagreement about the best legal analysis to use to redress the fundamental problem of racial bias in traffic stops is not a disagreement about the importance of systemic change to attempt to reach this goal.” But Justice Budd forthrightly explains: no, the majority lacks a systemic approach.

I differ with the court, however, with regard to what is meant by a systemic solution. The court is of course correct that improvements in data collection will further illustrate the existence of systemic racism in traffic stops. But using new data to confirm the existence of an already undeniable systemic problem is not the same as changing the system of rules and practices that perpetuate racial discrimination in policing. A focus on individual instances of race-based stops without addressing the rule that enables them cannot be considered a systemic approach, no matter how well-meaning it may be. – Justice Budd, concurring (emphasis added)

The majority opinion is itself an enormous shift in the law that makes the availability of an equal protection remedy meaningful in the real world; it will allow equal protection challenges to racist traffic stops to be viable for far more criminal defendants, not just those who can afford to hire social scientists as experts and are able to access increasingly limited data. We are grateful to all the defendants, advocates, and organizers who repeatedly raised this issue before the SJC for years, finally triumphing this week. As Chief Justice Gants, may he rest in peace, said in his posthumous concurrence, “the prohibition against racial profiling must be given teeth.” But the concurrence by Justice Budd, joined by Justice Lenk, goes a step further: it evinces a genuine understanding of the way structural racism permeates policing and the role courts have played in enabling it. Justices Budd and Lenk acknowledge that courts must take responsibility for allowing racial profiling to flourish, and that courts have a fundamental role to play to shift the rules by which policing operates. In order to prevent the police from surgically targeting people and communities of color, pretextual stops must be abolished. Read the Long opinion here.

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The SJC also issued a decision in Commonwealth v. Evelyn on the same day, another case in which we had authored an amicus along with the NAACP Legal Defense Fund. Significantly, the Court determined that an individual’s youth affects the Article 14 seizure analysis (“We therefore conclude that a child’s age, when known to the officer or objectively apparent to a reasonable officer, is relevant to the question of seizure under art. 14. The question will be whether the officer objectively communicated to a person of the juvenile’s apparent age that the officer would use his or her police power to coerce the juvenile to stay.”). However, the Court declined to decide whether or how race affects the seizure standard (“We therefore attempt to focus attention on the issue of race, while not establishing brightline rules that potentially could do more harm than good. Accordingly, we do not decide here whether the race of a defendant properly informs the seizure inquiry.”). Applying the new rule, the Court found that 17-year-old Tykorie Evelyn’s age was not so perceptible as to require consideration of his youth in this case, because given his height and appearance he was not clearly under 18. Still, the Court found that the moment of seizure occurred when the officer opened the door to exit the police cruiser, which was the moment of seizure defense and amici had urged.

With respect to reasonable suspicion, the Court extended the reasoning of the landmark 2016 opinion by Justice Geraldine Hines, Commonwealth v. Warren, to find that experiencing racist policing and racial profiling affects evasive behaviors and nervousness, beyond and including flight, and therefore those behaviors should be significantly discounted in the reasonable suspicion analysis for Black people. The Court further held that the officers’ characterization of this neighborhood as a “high crime area” was not due to be given any weight in the reasonable suspicion calculus. Nevertheless, Tykorie Evelyn did not win the day. The SJC found that other factors, including the officers’ perception that he had a gun in his pocket, based on their experience and training, was sufficient to make the stop lawful even at the moment of seizure of the officer exiting his vehicle. The Court found that the motion judge did not abuse his discretion in crediting the officers’ testimony and denying the value of the expert testimony on stereotype threat. Accordingly, the SJC found the stop of Evelyn was supported by reasonable suspicion. Read the Evelyn opinion here.