Years ago, the late SDNY District Court Judge Harold Baer damn near got himself impeached by doing the unthinkable. He told the truth.
“Had the men not run when the cops began to stare at them, it would have been unusual,” the judge wrote in late January.
That was January, 1996, and the decision was United States v. Bayless. It caused a shitstorm around Judge Baer, who collapsed like a cheap suit, much to Bayless’ lawyer’s, Ramon Pagon’s, consternation. It was a huge win, and then, poof, it was gone.
The judge, Harold Baer Jr. of Federal District Court in Manhattan, made no direct reference to the political storm his ruling had whipped up from City Hall to the White House. But he expressed regret for the remarks in his original decision that prompted the greatest outrage, in which he had questioned the credibility of police officers and suggested that it was not necessarily suspicious even for innocent people in Washington Heights to run from the police.
Unfortunately,” he wrote, “the hyperbole in my initial decision not only obscured the true focus of my analysis, but regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great city.”
Baer remained on the federal bench until he died. The Massachusetts Supreme Judicial Court reached the same conclusion in Commonwealth v. Warren, albeit 20 years later. The facts of the case are painfully pedestrian.
Warren was arrested on Dec. 18, 2011, by police who were investigating a break-in in Roxbury. Police had been given a description of the suspects as three black men — one wearing a “red hoodie,” one wearing a “black hoodie” and the other wearing “dark clothing.” An officer later spotted Warren and another man (both wearing dark clothing) walking near a park. When the officer approached the men, they ran. Warren was later arrested and searched. No contraband was found on him, but police recovered an unlicensed .22 caliber firearm in a nearby yard. Warren was charged with unlawful possession of a firearm and later convicted.
For the uninitiated, this is what eyewitness identification produces, the color of a hoodie, if that. That limits the potential universe of possible suspects to, oh, two or three million. Cut back to the neighborhood where the crime occurred and you’re down to maybe a couple hundred people. And if you had the misfortune of wearing dark clothing that day, you’re screwed.
Shockingly, the court didn’t scrub this reality clean:
[T]he court said the description of the break-in suspects’ clothing was “vague,” making it impossible for police to “reasonably and rationally” target Warren or any other black man wearing dark clothing as a suspect. The court said the “ubiquitous” clothing description and the officer’s hunch wasn’t enough to justify the stop.
Lacking any information about facial features, hairstyles, skin tone, height, weight, or other physical characteristics, the victim’s description ‘contribute[d] nothing to the officers’ ability to distinguish the defendant from any other black male’ wearing dark clothes and a ‘hoodie’ in Roxbury.
This might seem too obvious to need to be said, but that’s only because you’re not a judge. If judges started requiring identifying information that actually distinguished one person from everyone else, the cops would never be able to stop anyone. IDs almost never include any information that’s unique. They’re almost always limited to generic clothing. That’s what people see and remember.
But it wasn’t “just” the perfect match of “dark clothing” upon which the prosecution relied, but that Warren, upon seeing the cops. took “flight.” * So did “dark clothing” plus “flight” do the trick?
[T]he court noted that state law gives individuals the right to not speak to police and even walk away if they aren’t charged with anything. The court said when an individual does flee, the action doesn’t necessarily mean the person is guilty. And when it comes to black men, the BPD and ACLU reports “documenting a pattern of racial profiling of black males in the city of Boston” must be taken into consideration, the court said.
In other words, what Judge Baer ruled 20 years earlier was true then and remains true now. Running away from cops is what any reasonable black guy would do if he doesn’t want to kiss concrete that day. Flight isn’t just what “guilty” people do, but what sane people do as well.
We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for FIO [Field Interrogation and Observation] encounters suggests a reason for flight totally unrelated to consciousness of guilt. 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. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.
It’s not that the court held “flight” is no longer a factor to be weighed, one piece of the probable cause puzzle, which can amount to a sufficient basis for police to pinch a black guy for wearing dark clothing, but that two worthless data points are still worthless, absent any reasonably probative piece of information.
But the controversial aspect of this opinion is that it’s a perfectly reasonable thing, “given this reality for black males,” to take off when a cop’s eyes gaze upon their hoodie “to avoid the recurring indignity of being racially profiled.” The court acknowledged, actually held, that it is reasonable for black guys to run from cops.
Judge Baer was right all along. It’s too bad he didn’t have the guts to stick with his decision. Let’s see if there will be another shitstorm 20 years later because the Massachusetts Supreme Judicial Court told the truth.
*The word “flight” is put in scare quotes, because the cop/court word makes the reaction appear more nefarious. If it was characterized, instead, as “avoiding a needless confrontation where he would get slammed to the pavement for the 17th time this year,” it wouldn’t make the perp seem nearly as guilty.