"Being black" is not probable cause

[Guinevere]

Black men have a right to walk away from Police in order to avoid racial profiling. In a unanimous decision issued yesterday, the Massachusetts SJC tossed a conviction because of an illegal search based on the suspect being black and wearing a hoodie.

Under state law, in cases in which a defendant chooses not to interact with police, a judge must interpret whether a defendant’s actions are proof of a guilty mind — what lawyers call “consciousness of guilt” — or reasonable choices made by an innocent person. If a lack of interaction is deemed an innocent act, prosecutors cannot use the information during a trial.

The ruling Tuesday takes that idea further, pointing to the reason black men might be unwilling to interact with police.

“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,” Hines wrote in the opinion.

Globe story here: http://www.bostonglobe.com/metro/2016/0 ... _campaign=

[BoSoxGal]

[Big RR]

This makes sense---Bravo.

[Guinevere]

A link to the actual opinion:
http://www.mass.gov/courts/docs/sjc/rep ... /11956.pdf

[Bicycle Bill]

Have to disagree with the SJC on this one.  Most all police investigation work is based on information they are given by a victim or a witness.  In the 2011 case that led to this decision by the SJC, the suspects were described as

a black male in a "red hoodie", and two other black males, one in a "black hoodie" and the other wearing "dark clothing". (from the second link Guin provided)

  So the police, in the course of their investigation, see a male wearing a hooded sweatshirt (in one of the two reported colors, it is to be assumed) and approached the subject who, INSTEAD OF STANDING AND SPEAKING WITH THE OFFICERS IN A NORMAL AND CIVIL MANNER, LIKE ANY RATIONAL PERSON WOULD DO, ignored their reasonable requests to do so — not just once but twice — and took off running instead.  Absent any other determining factors such as height, weight, facial hair, and yes, skin color, exactly where is the profiling here?

Although the opinion issued by the court goes into almost painful detail in the process of justifying their decision, nitpicking such things as the fact that the subject was one of two males, not three, and that neither were wearing a backpack — both of which can be easily explained from the other side of the coin as well — it is clear to me that what they are actually doing is engaging in a shameless display of "Monday-morning quarterbacking".  I also note that the case was brought not because the subject was subsequently charged for the burglary, but because of charges unrelated to the break-in (unauthorized possession of a weapon found on his person following his apprehension and detention) and the subsequent claim that the officers did not have any valid reason to have stopped him for the firearm violation.  Only at the very end of the decision and by using the most tenuous logic did the court say anything at all about black persons ignoring the police because they felt that the cops were picking on them; and even then they did not necessarily say that it was OK, merely that it was understandable that, in Boston, black males would tend to avoid any contact with the police.

Nevertheless, even if all they said was that it was understandable why someone would ignore a police officer's reasonable request ... a request based on existing, although sketchy, evidence ... we are opening the door to situations such as an impaired motorist claiming that he or she does not have to pull over for a police car's flashing emergency lights because they feel they are being "profiled" just because they were driving away from a bar or at a certain time of night, or they are being "profiled" because a car was stolen and they just happen to be driving the same make and model vehicle.  And when we start ignoring law officers and others designated to ensure the public peace and safety for any reason whatsoever, we have taken a giant step along the path to anarchy.

-"BB"-

[Guinevere]

Absent probable cause, no police office can pull you over or make you stop. The 4th Amendment means you do not have to listen to even "reasonable" commands without such probable cause. And being a black man out on the street in not in any sense of the phrase "probable cause" (this is why profiling is illegal, is doesn't meet the strictures of the 4th Amendment).

[Big RR]

Absolutely, and if the court ruled the other way it would mean the police have the unrestrained power to detain, question, and search you whenever they choose (and that any objection to this or refusal to cooperate could be used to provide the probably cause for any search, detention, or questioning).

[Bicycle Bill]

Absent probable cause, no police office can pull you over or make you stop. The 4th Amendment means you do not have to listen to even "reasonable" commands without such probable cause. And being a black man out on the street in not in any sense of the phrase "probable cause" (this is why profiling is illegal, is doesn't meet the strictures of the 4th Amendment).

A black man, matching the description given — such as it was — of a suspect of a crime, is found out on the street a short time after and a reasonable distance away (given the amount of time that had elapsed) from the crime scene.

And here again, the FSJ fucked up by saying that such a rudimentary description is no better than no description at all.  I'm sorry to have to be the one to break it to Chief Justice Gants et al, but the average citizen is not a trained observer, and the average suspect is not going to stand in place and let a witness get a good, clear, detailed look at him.  So if that's all the police have to go on — a description of "a black male wearing a red hoodie" — why, then, would this *NOT* be a probable cause for a Field Interrogation and Observation (FIO) encounter by the officer?

-"BB"-

[Big RR]

BB--but that isn't the question raised here; the trial court apparently said that description was not sufficient to warrant a stop. taking that as a given, what the court here had to decide is whether a refusal to cooperate when stopped without that probable cause is sufficient to presume that the person had a consciousness of guilt; in other words, is the standard that anyone with nothing to hide would cooperate so only the guilty person would refuse to answer questions or be searched, etc. Thankfully, the court ruled properly that we are under no obligation to cooperate, and it will take more than a lack of cooperation to give the police probable cause to force us to comply with their demands. To do otherwise would just say that probable cause doesn't matter---either cooperate or your lack of cooperation will be seen as the act of a guilty person and justify the police officer's action. Which basically means we have no right to refuse.

[MajGenl.Meade]

is the standard that anyone with nothing to hide would cooperate so only the guilty person would refuse to answer questions or be searched

Apparently that very much is the standard as evidenced in this case. The fleeing one did not want anyone to find his unlicensed pistol with which he no doubt intended at some time to use - and probably against another black person (description unnecessary) or persons.

It's not profiling to question a black person when a "black person" is descriptive of the perpetrator. It would be profiling if the perp had been described without reference to skin colour and the cops started looking only for a black.

In this narrow case, I agree however that the time/distance and vagueness of description are problematic. I can see why it was overturned.

Then again, if the first police officer intended (as he stated and the court seems to accept) that he only wanted to ask a couple of questions (one of which might have been "Have you seen a dude in a red hoodie with two other dudes and backpack tonight?"), the refusal to cooperate is less of an issue than running away - a clear admission of consciousness of guilt whether folks like that or not.

There is the nose of a camel here - blacks can now claim "fear of profiling" as justification for fleeing. Whites cannot. Mind, I can't help but wonder if "fear of police shooting" might be more the issue - it's understandable.

[Big RR]

a clear admission of consciousness of guilt whether folks like that or not.

and why is that?

blacks can now claim "fear of profiling" as justification for fleeing. Whites cannot

and you get that from where? true, the case dealt with blacks, but that was because it was the reaction of a black man. I would imagine a white person could flee and get the same treatment.

[MajGenl.Meade]

#1 Because he had a gun. That's why he ran.


#2

The ruling Tuesday takes that idea further, pointing to the reason black men might be unwilling to interact with police.

“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,” Hines wrote in the opinion.

Now that's a defense the white guy can't offer!

[Big RR]

#1 Maybe, maybe not; but why does it matter--the police had no right to search or question him and he had no obligation to stay there.

#2 No argument there, but so what? If he were in a wheelchair and rolled (instead of ran) away, the same/similar reasoning would apply.

[rubato]

Absent probable cause, no police office can pull you over or make you stop. The 4th Amendment means you do not have to listen to even "reasonable" commands without such probable cause. And being a black man out on the street in not in any sense of the phrase "probable cause" (this is why profiling is illegal, is doesn't meet the strictures of the 4th Amendment).

Being black is probable cause.


Being black means that ignoring a police order is a capital crime and you may be summarily executed for it. Legally.


yrs,
rubato

[MajGenl.Meade]

#1 the act of running from a police officer is suspicious enough to warrant a stop. Walking or standing still would not be. Mind you, try walking away from an officer and that usually doesn't work; you still get confronted and asked for ID which of course you can refuse with all the attendant risks (wear a body-cam at all times).

#3 a wheelchair guy can claim profiling because a nearby crime was committed by "a guy in a wheelchair"? Happens a lot in your neighborhood?

[Jarlaxle]

Now they might just start killing anyone that runs and drop a throw down...

[MGMcAnick]

In Tulsa Oklahoma, if you're black and walk away from a lady cop with your hands up, and then find it impossible to stick them into the closed window of your stalled SUV, she'll execute you as you fall to the ground from being tazed by another cop.

http://www.cnn.com/2016/09/21/us/terenc ... nterpoint/

The cops say they found PCP in the SUV. Sounds like CYA to me.

[Joe Guy]

If you don't want to get shot, it's not a good idea to stop your car in the middle of the road and continually ignore the police as they call out to you.

[Econoline]

The story said his car broke down; if the driver had been a white woman the police probably would have come to her assistance...maybe they wouldn't even have told her to keep her hands up.

And is it just me, or does anyone else think that they just *MIGHT* have a little trouble hearing what someone's saying when there is a helicopter hovering that closely overhead?

[Jarlaxle]

And possibly three or four cops screaming contradictory commands at the same time.