• Apr 26, 2021

Coalition asks SJC to review quartet of pat frisk cases

Coalition asks SJC to review quartet of pat frisk cases
Groups alarmed by Appeals Court’s deviation from precedent

Kris Olson | April 23, 2021
Mass Lawyers Weekly

The Supreme Judicial Court in recent years has gone to great lengths to adjust the lens through which police interactions with people of color should be viewed. But the Appeals Court has not gotten the message, a coalition of criminal defense and community groups argue in a series of letters urging the SJC to grant further appellate review in four cases.

The cases all involve pat frisk searches of Black defendants that the Appeals Court found to be valid, despite justifications from police that arguably should have given the judges more pause, if they were faithful to SJC precedent. The SJC has already granted review in one of the cases, Commonwealth v. Bailey-Sweeting, which is set to be argued on May 3.

The case bears at least a couple of the hallmarks of cases involving dubious pat frisks, according to the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, the New England Innocence Project, the Massachusetts Association of Criminal Defense Lawyers and others.

In Bailey-Sweeting, police initiated the search on a “hunch” and then escalated the encounter based on “stereotypebased assumptions and inferential leaps,” the groups argue in their letter. Police also relied on the type of gang designation that often proves to be overbroad and unreliable, they say. The question of whether to uphold the search in Bailey-Sweeting divided the Appeals Court. Two members of the original panel — the now-retired Judge Diana Maldonado and Judge Sookyoung Shin — would have invalidated the search. But they were outnumbered once Chief Justice Mark V. Green and Judge Ariane D. Vuono were added to the

The same phenomenon occurred in the most recent case in which the SJC’s review is being sought, Commonwealth v. Karen K., involving a 16-year-old juvenile stopped on the street and frisked based on a three-hour-old report of a youth with a gun. The defendant walked away from the officers as they approached and moved her hand near her waist. The officers, drawing on “training and experience,” interpreted that as evidence of gun possession. This time, it was Judges James R. Milkey and Vickie L. Henry who found themselves in the minority after Green and Vuono joined the panel.

In his dissent in Karen K., Milkey wrote about the “prosecutor’s fallacy.” “The fact that people who suffer from an exotic disease are likely to exhibit a particular symptom (say, a fever) hardly means that someone observed to exhibit that symptom is likely to have that disease,” Milkey wrote. “As generations of medical students learning to be diagnosticians have been taught, ‘When you hear hoofbeats behind you, don’t expect to see a zebra.’”

Milkey acknowledged that it might make sense for someone walking away from police while carrying an illegal handgun in her waistband to check to see whether the gun is secure. “However, the fact that someone is both walking away from police and has her hand near her waist says remarkably little about the probability that the individual is in possession of an illegal firearm,” he wrote.

The groups urging review in Karen K. — which also include the Committee for Public Counsel Services, the ACLU of Massachusetts, Lawyers for Civil Rights, Rights Behind Bars, and Citizens for Juvenile Justice — say it is hard to reconcile the majority’s decisions in Bailey-Sweeting, Karen K. and the two other cases — Commonwealth v. Garner and Commonwealth v. Miller — with recent SJC jurisprudence in cases such as Commonwealth v. Evelyn, Commonwealth v. Long and Commonwealth v. Torres-Pagan. They also say that the decisions conflict with the letter the SJC’s seven justices issued last June, in the immediate aftermath of the death of George Floyd, in which they suggested that this “must be a time not just of reflection, but of action.”

The groups say that the SJC has practiced what it preached, issuing decisions that both acknowledge the racial disparities that pervade the criminal legal system and make changes “to ensure that the justice provided to AfricanAmericans is the same that is provided to white Americans.” But the Appeals Court has been slow to pick up the gauntlet, they add.

If you are a glass-half-full person, there may be some solace in the fact that the Appeals Court decisions in BaileySweeting and Karen K. were at least divided, suggested Radha Natarajan, executive director of the New England Innocence Project. That may mean that it will just be a matter of time before the SJC’s guidance fully permeates the Appeals Court’s decision making, she said.

Chauncey B. Wood, chair of MACDL’s Amicus Committee, was less sanguine, suggesting it is rarely good news when appellate courts indicate that they are inclined not to follow pronouncements from a higher court. “This is a profound moment for the rule of law in Massachusetts,” he said.

Unwarranted deference?

Supporters of the defendants in Bailey-Sweeting and the other cases say that one of the main flaws in the Appeals Court’s decisions is the deference given police in the absence of any kind of data that, for example, a neighborhood is in a “high crime” area. Wood noted the contrast between such deference and the fact that the defense attorney in the Long case, John P. Warren of Boston, felt he had no other choice but to meet the heavy burden the SJC had laid out in Commonwealth v. Lora to demonstrate that his client had been the victim of racial profiling by, perhaps not so coincidentally, the same officer involved in the Karen K. case. Warren used FOIA requests and other means to obtain a multi-year record of traffic stops and field interrogation and observation by the arresting officers, broken down by race.

In Long, decided last Sept. 17, the SJC concluded that Lora was unworkable and that defendants should henceforth only be required to establish a “reasonable inference” that a traffic stop was impermissibly “motivated by race.” In Bailey-Sweeting and the other cases, the defense bar is merely asking “put the shoe on the other foot, please,” Wood said, with police forced to make a similar showing of how often the way someone walks or touches his waist in fact indicates the presence of a gun.

If nothing else, Wood said he hopes the SJC in Bailey-Sweeting and other cases will help end courts’ practice of ratifying the police’s “talismanic incantation of their ‘training and experience’” as a justification for concluding a defendant is both armed and dangerous, which is the standard under the law. “All of us are trying to build a movement around the cases so it’s not just a single defendant with a lawyer going up to the SJC, but a group of people saying, ‘Please pay attention to this.’”

Natarajan noted that other time-honored tropes — such as the notion that traffic stops are inherently dangerous — fall apart upon closer scrutiny. Writing in the Michigan Law Review in 2019, University of Arkansas School of Law Professor Jordan Blair Woods demonstrated that violence during traffic stops is rare. When violence did occur during such stops, it was officers, not drivers, who escalated it, Woods also found. A 2014 study by the ACLU of Massachusetts, “Black, Brown and Targeted,” drew a similar conclusion of Boston police field interrogations and observations, which from 2007 to 2010 resulted in police seizing contraband or a weapon in only 2.5 percent of over 200,000 interactions.

But whether it is conscious or subconscious, the police tend to muddy the waters with the language they use, said Katharine Naples-Mitchell, counsel for the Charles Hamilton Houston Institute. In both Garner and Karen K., part of what the Appeals Court found justified the search was the defendants’ “bladed” stances as they walked away from police. That was interpreted as an attempt to shield a firearm in their waistbands.

But the groups note in their letter that the police jargon “blading” “sounds far more intimidating, aggressive, dangerous, and intentional than the alternate descriptor, ‘turning away from.’” Indeed, as the signatories to the letters point out, if one reflects on the circumstances that prompted the searches in the four cases, it is hard to say exactly what the defendants could have done to avail themselves of their rights to be free of unreasonable searches.

“There are many different ways the system deprives people of color of the same Fourth Amendment and Article 14 rights the rest of us enjoy,” Wood said. “That’s what we’re struggling to undo and untangle.”

Fruitless searches

In Zahkuan Bailey-Sweeting’s case, he was sitting quietly in the back seat of a car as another passenger, who had a history of what he believed to be unfair targeting by police, exited the vehicle and began to protest after a traffic stop in New Bedford. Such a fear would not have been unreasonable, a recent report issued by Citizens for Juvenile Justice suggests. The report, titled “We are the Prey: Racial Profiling and Policing of Youth in New Bedford,” concludes that the New Bedford Police Department has been reporting incidents involving young people of color at “disproportionate rates that are shocking in a white majority city.” The department has since responded, questioning the study’s methodology and conclusions.

Once the passenger in Bailey-Sweeting began to protest, the police “followed their gut down a rabbit-hole of escalating assumptions,” the amicus letter reads. “The only reason the pat frisk [in Bailey-Sweeting] was upheld was somebody else’s behavior,” Natarajan said. There is also substantial reason to question the reliability of any determination by police, as was made in BaileySweeting, that a defendant is affiliated with a gang, the groups assert.

“If you’re a young Black person wearing a red hat, talking to your cousin while standing in your neighborhood, police may designate you an associate of the Bloods gang,” the amicus letter in Bailey-Sweeting reads. “That would never happen to a young white person in a different neighborhood, where the school colors are red.”

Once someone is in a gang database, there is virtually no way to get out, Wood and Naples-Mitchell both noted.

A movement is born

In the longer term, part of the answer may be to get at least one career criminal defense lawyer onto the bench at the Appeals Court, Wood suggested. The court is currently split roughly equally between former civil practitioners and prosecutors, he said. “We might ask ourselves, ‘When we choose a court of criminal prosecutors, should it be a surprise when they have so much trouble getting it right?’” he said.

Natarajan said the reason the SJC is now being peppered with requests to review pat frisk cases is not that questionable pat frisks are occurring with more frequency but rather the pursuit of such appeals has been emboldened by the success in getting courts to take a harder look at them. Also contributing, she said, is the recent change allowing defendants to make conditional guilty pleas and then pursue appeals of denied suppression motions. Then there is the recently forged alliance of organizations with similar goals.

“All of us are trying to build a movement around the cases so it’s not just a single defendant with a lawyer going up to the SJC, but a group of people saying, ‘Please pay attention to this,’” Natarajan said.

For its part, the Charles Hamilton Houston Institute has been trying to ensure that voices from the communities most affected by racially disparate police practices are part of the courts’ review of these issues. In doing so, it has worked with the group Families for Justice as Healing and people like Stacey Borden, a longtime resident of Humboldt Avenue in Boston, whose fraught interaction with members of the Boston Police Gang Unit forms part of the amicus letter in Karen K.

Speaking to Lawyers Weekly as she anxiously awaited the verdict in the Derek Chauvin murder trial, Borden explained that, as a soon-to-be-college graduate who had long since left her non-violent criminal past behind, she was nonetheless targeted for a traffic stop.

She said she only extricated herself from the situation by contacting a childhood friend who was a member of the State Police, but not before the officers had ransacked her vehicle and improperly delved into her CORI records.

Borden said that police continue to display little understanding of or empathy for the trauma experienced by those with whom they interact. She said she hopes the SJC can help change their approach.

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