The Kickham Comment - Boston Criminal Attorney Blog
The Massachusetts SJC just issued a very controversial ruling in reviewing a criminal case that, as a Boston criminal defense lawyer, most people would expect me to agree with wholeheartedly. I don’t. My views aren’t going to win me much agreement with my colleagues in the criminal defense bar, but I just can’t support this finding.
A long case history made very short, is as follows: A black man by the name of Jimmy Warren was arrested by Boston Police officers almost five years ago, in December 2011. The arrest followed officers’ investigation of a Dec. 18, 2011 Roxbury break-in. The victim of the break-in gave police descriptions of the suspect, which included two men dressed in black hooded sweat shirts and a third man in a red hooded sweat shirt. About 30 minutes after the crime was reported as having occurred – and at two separate locations – two different Boston police officers noticed that Warren and a friend matched the description of the suspects, and asked the men to stop and speak with them. On the second occasion, the men suddenly bolted, a foot chase ensued, and one of the officers arrested Warren at gunpoint, after Warren struggled with the officer in the backyard of a home. Soon after that scuffle and arrest, a .22-caliber handgun was found on the front lawn of that home.
As a result, Warren was charged with unlawful possession of a firearm. He was convicted of the charge, in a lower court, and appealed the conviction. The argument in that appeal? That police approached Warren solely on the basis of racial profiling. The attorneys representing Warren on appeal were from the American Civil Liberties Union.
As anyone who knows me or has ever read this blog knows, as a Massachusetts criminal defense attorney, I fight tooth and nail for all my clients. I wouldn’t be a criminal defense lawyer if I didn’t believe in carefully “policing the police,” and always making sure that police adhere to the letter of the law when it comes to all areas of criminal law: Stops, searches, seizures, arrests and questioning. My viewpoint here: If the courts don’t monitor and enforce that the constitutional rights of all citizens are protected by police, who will? I will never waiver from that principle, and I have fought many a police department over unconstitutional arrests, unlawful police practices and ungrounded (bogus) criminal charges.
That having been repeated here, I cannot agree with the SJC in this decision. The court, straining logical reasoning, ruled that police never had a “legally justifiable reason” to stop and speak with two men who:
- Matched the ethnic description of the suspects ( i.e., were African-American)
- Matched the reported age of the suspects
- Matched the reported height & weight of the suspects
- Matched wearing the clothing the suspects were described as wearing (i.e., hooded sweatshirts)
- Were found near the location of the break-in
Importantly, the police didn’t arrest the suspect on the basis of all of the above – they simply asked to speak with him. At that point, Warren (the suspect) suddenly ran away without explanation – physically fought with officers when apprehended, and was later discovered, in fact, to possess an illegal handgun.
Despite this, the court ruled that neither the above facts, is sufficient for police to “interrupt a citizen’s activities” under both the Massachusetts Constitution and the United States Constitution.
Quoting from the unanimous decision written by Justice Geraldine Hines, the justices ruled that “It was simply not possible for the police reasonably and rationally to target the defendant or any other black male wearing dark clothing as a suspect in the crime.” I find this reasoning unsupported by both the law and the facts. Note: Had these police officers arrested Warren solely on the basis of his appearance and nothing else whatsoever, I would thoroughly agree with this ruling. But all the officers wanted to do was speak briefly with him – and based on the suspects descriptions above, they legally had a reasonable basis to do so. More so, the suspect suddenly ran away without explanation, and later physically fought with officers who caught up with him.
Under Massachusetts law, when a person chooses not to interact with police and is later arrested, a judge must interpret whether the defendant’s actions are evidence of what is called “consciousness of guilt” (in other words, a guilty conscience) — or whether the refusal to speak with police is a reasonable choice made by an innocent person. Here, the defendant didn’t just choose not to speak or interact with police — he fled immediately without explanation. And that can reasonably be construed to be consciousness of guilt.
Instead, the court ruled that “A black person, 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,” the opinion stated. In other words, an African-American (or conceivably, another minority,) has a right to run away from police to “avoid the recurring indignity of being racially profiled.” We need, in this country and in this state, to stop seeing police as oppressive, jack-booted Nazis. Yes, some officers have made egregious mistakes, and when that has happened, they and their Departments need to beheld accountable. But police need reasonable tools to protect the general public – that means you and me. With this decision, police officers’ hands will be tied in similar circumstances in the future.
I will walk into court tomorrow and fight just as hard as I always do for my criminal defense clients. But I will not agree with this decision. It is foolhardy, it hampers public safety efforts, and strains legitimate legal analysis.