Brett Milano, Harvard Law Today
October 14, 2020
Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice recently co-authored amicus curiae briefs in two Massachusetts Supreme Judicial Court cases with significant impact on racial profiling.
Decided last month, Commonwealth v. Edward Long makes it easier for defendants to demonstrate that a traffic stop was racially motivated, requiring a “reasonable inference” of bias which could be based on the officer’s past performance, the specifics of the incident and other factors. In modifying the previous precedent, which it established in Massachusetts v. Lora (2008), the court adopted a version of a test to determine racial profiling that had been proposed by the Houston Institute, the Massachusetts Association of Criminal Defense Lawyers, the New England Innocence Project, and Lawyers for Civil Rights.
In a second case, Commonwealth v. Evelyn, the court agreed with arguments made by the Houston Institute and NAACP Legal Defense Fund that a juvenile’s age must be taken into account when determining the validity of a police stop. Although the court declined to rule that race should also be considered, it upheld a principle established in a previous case (Commonwealth v. Warren, 2016) that flight or other nervous behavior by a Black suspect is not evidence of guilt.
Harvard Law Today recently discussed the two landmark decisions with Katy Naples-Mitchell, a staff attorney at the Houston Institute.
Harvard Law Today: How have Massachusetts courts historically treated the question of racial profiling during traffic stops?
Katy Naples-Mitchell: In 2008, the Supreme Judicial Court decided Lora, which established the right for a defendant under the state equal protection doctrine to prove they were stopped on the basis of racial profiling. But in most cases, there wouldn’t be evidence of discriminatory animus on the part of the officer. The court created a relief valve by which people could present statistical evidence showing an inference of discrimination based on the pattern of stops made by that officer. This would require voluminous research and the availability of data, which the state didn’t necessarily track. So, though it was right in theory, prior to the recent decision in Long, only one case in the past 12 years had succeeded on this claim, even though we know that the problem of racial profiling in traffic enforcement is widespread and systematic.
HLT: Given the number of organizations that you worked with on your brief, was the Long case always seen as a potential game-changer?
Naples-Mitchell: That’s right. We were part of a coalition two years ago that built out an earlier attempt to change the law in this way. And that case was Commonwealth v. Buckley, which was challenging the idea of a pretext stop, that a police officer can stop you on the basis of a minor civil motor vehicle infraction when their real motive is to see if they can find something more. But the law has allowed since 1996—in a federal constitutional case, Whren v. United States—that practice to go unchallenged, even though the fourth amendment requires reasonable suspicion in the context of a stop of that nature under Terry [Terry v. Ohio, 1968].
So, in Buckley, a whole bunch of amicus members asked the court to outlaw that practice. People can be stopped for anything and everything, which gives officers license to discriminate in who they pull over and to engage in racial profiling. Although the Court declined in Buckley to ban pretextual stops, Justice Kimberly Budd that said in a strong concurring opinion that, ‘We are really concerned about the fact that these stops have this racially discriminatory impact, and that implicit bias might work to shield these kinds of stops from review under our existing equal protection jurisprudence.’ So [Buckley], just two years ago, teed up this new case in Long as an opportunity to say ‘The court didn’t quite get it right two years ago, here’s an opportunity to change the law.’
HLT: Two years later, the climate around racial justice issues has changed significantly.
Naples-Mitchell: That’s right. This case was submitted and argued months ago, but the opinion came down after a summer of mobilization and protests around racial injustice in this country. And I think a new awareness of the ways in which Black and brown people are disparately policed and targeted for aggressive enforcement actions has developed. In that context, the Supreme Judicial Court issued a decision in Long that would make it much easier for defendants to be able to prove that they had been the targets and victims of racial discrimination in law enforcement. The court said explicitly that the burden on defendants had clearly been too high under the previous case, Lora. The new standard is still situated under the Equal Protection Clause, and under articles one and ten of the Massachusetts Declaration of Rights under our state constitutional law, but it adopts a test that asks basically whether an analysis of the totality of the circumstances would show that the officer’s true motivation for making the stop was, at least in part, related to the race of the defendant.
HLT: You seem to see the decision in Long as a clear victory. What about the second case, Commonwealth v. Evelyn?
Naples-Mitchell: The outcome in Evelyn was more of a mixed bag. This case concerned a young Black man who was seized by police while walking down the street about a half a mile away from the scene of a recent shooting, something like 15 minutes after it had transpired. The real root of the question before the court was whether the officers had reasonable suspicion to stop him at the moment of seizure.
We argued that the fact of racism and the discriminatory policing that happens to young Black people, particularly in Black communities in Boston, and Roxbury, Dorchester and Mattapan, should affect the analysis of when somebody feels seized by the police. So, the court built on its precedent in Commonwealth v Warren, where the court had held that running away from the police, given the history of stop and frisk policies targeting Black men in Boston, is not necessarily evidence of guilt, but might instead be somebody trying to avoid the recurring indignity of being racially profiled. This court’s decision in Evelyn built on that to say that additional evasive behaviors—nervousness or fidgeting, or turning away from the police—should also be viewed with skepticism by reviewing judges about whether they actually evince guilt.
HLT: What happens going forward?
Naples-Mitchell: I think this is a pretty significant moment, with the Long case in particular. Advocates have been working to try and change the law in this direction for years, and have had limited success at state high courts. The Massachusetts Supreme Judicial Court not only created the equal protection remedy back in 2008, but has now taken it and incorporated this lower standard that should allow more people to vindicate their rights. That’s a huge shift, potentially. So now, the big challenge for the amicus teams that worked on this and the lawyer who litigated it, is to translate that into lawyer training for defense attorneys in Massachusetts to be able to take this case, and make sure that people who have clients who could be affected by it can successfully litigate those cases. I know that there are conversations ongoing about developing efforts to make sure that that happens going forward.
This interview has been edited for length and clarity.Read the article