On Friday, along with the New England Innocence Project and the Massachusetts Association of Criminal Defense Lawyers, we filed an amicus letter urging the Mass. Supreme Judicial Court to allow further appellate review in a closely divided 3-2 decision of the Massachusetts Appeals Court. The case raises substantial questions regarding how police may justify a patfrisk, which the SJC has described as “a ‘serious intrusion on the sanctity of the person [that] is not to be undertaken lightly.’” Commonwealth v. Torres-Pagan, 484 Mass. 34, 36 (2020) (quoting Commonwealth v. Almeida, 373 Mass. 266, 270–71 (1977)) (alternation in original).
The sharply divided 3-2 decision below reflects an expanded panel of the Appeals Court after the initial panel was ready to find the patfrisk in question unconstitutional. Instead, a majority of the Appeals Court found that a police officer’s hunch based on an associate’s speech and behavior, police designations of gang affiliations, and knowledge of a past juvenile adjudication justified a search of the defendant’s body at a traffic stop as he sat quietly in the backseat of a car, complying with police instructions.
Beyond the Appeals Court’s plainly erroneous application of Torres-Pagan, the added constitutional dimension of effectively criminalizing speech and association and the racial justice implications of this case demand intervention. Taking the case would allow the SJC to continue its leadership in “confront[ing] squarely the fact that the phenomenon of racial profiling is a product of more than one-off cases of individual bias or animus – it is a systemic problem that has flourished under the rules that [our courts have] set.” Commonwealth v. Long, 485 Mass. 711, 756 (2020) (Budd, J., concurring).
Read our coalition letter:
Read a companion letter by the ACLU of Massachusetts and Lawyers for Civil Rights: