Appeals Court To Cops: There's Nothing Inherently Suspicious About Running From The Police

Legal Issues

from the here's-the-payoff-for-abusing-the-public's-trust-repeatedly dept

The Ninth Circuit Court of Appeals has just handed down a refresher [PDF] on a few legal issues, most notably what is or isn’t “reasonable” when it comes to suspicion. Police officers thought an anonymous tip about a man carrying a gun and someone running away from them created enough suspicion to chase down Daniel Brown, stop him at gunpoint, and search him for contraband.

Contraband was found, leading to Brown’s motion to suppress. The lower court said this combination — an anonymous report of a gun and Brown’s decision to run when he saw the police cruiser — was reasonable enough. Not so, says the Ninth Circuit, pointing out the obvious fact that a person carrying a gun can’t be inherently suspicious in a state where carrying a gun in public is permitted.

In Washington State, it is presumptively lawful to carry a gun. It is true that carrying a concealed pistol without a license is a misdemeanor offense in Washington. See RCW §§ 9.41.050(1)(a) (“[A] person shall not carry a pistol concealed on his or her person without a license to carry a concealed pistol . . . .”), 9.41.810 (explaining that any violation of the subchapter is a misdemeanor “except as otherwise provided”). However, the failure to carry the license is simply a civil infraction.

There was no reason for officers to assume Brown’s gun was unlicensed. Since carrying a gun in Washington is “presumptively legal,” the officers would have needed more info than they had to perform a stop to just to ask Brown for his carry license. The anonymous tip officers received said only that a YWCA resident had approached the desk and said they’d seen a man with a gun. No further information was given by the tipster.

Faced with the weakness of the tip and the presumptive legality of gun ownership, the police then argued Brown might have been illegally “displaying” his gun to “cause alarm.” But the court denies this argument — first raised on appeal — as being no better than assuming Brown’s mere gun possession was enough to justify a stop.

Faced with this reality, the government now argues that the officers suspected that the manner in which Brown was carrying his gun was unlawful: it is “unlawful for any person to carry, exhibit, display, or draw any firearm . . . in a manner, under circumstances, . . . that warrants alarm for the safety of other persons.” RCW § 9.41.270. Never mind that nothing in the record could support such a finding. No evidence shows that the resident was alarmed at the time she reported seeing the gun. There is no report that she yelled, screamed, ran, was upset, or otherwise acted as though she was distressed. Instead, the 911 call reported only that the resident “walked in” and stated “that guy has a gun.”

Finally, the government argued that Brown’s decision to flee when he saw police officers was inherently suspicious. Again, the court says this is wrong. While fleeing officers can be suggestive of wrongdoing, it is only one factor and it’s one heavily influenced by the deteriorated relationships many law enforcement agencies have with the communities they serve. The Ninth Circuit quotes Supreme Court Justice John Paul Stevens, who put this in his dissent from the Court’s 2000 decision in Illinois v. Wardlow:

Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.

The Appeals Court adds to this, saying not much has improved since Justice Stevens authored his dissent:

In the almost twenty years since Justice Stevens wrote his concurrence in Wardlow, the coverage of racial disparities in policing has increased, amplifying awareness of these issues. […] Although such data cannot replace the “commonsense judgments and inferences about human behavior” underlying the reasonable suspicion analysis, Wardlow, 528 U.S. at 125, it can inform the inferences to be drawn from an individual who decides to step away, run, or flee from police without a clear reason to do otherwise. See id. at 133 (“Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices.” (footnote omitted)).

Attached to this paragraph is a footnote quoting the DOJ’s investigation of the Seattle Police Department — the one involved in the arrest at the center of this case. The 2011 report found the Seattle PD routinely deployed “unnecessary and excessive force” and engaged in “racially discriminatory policing.”

The court goes on to say this isn’t just a problem with the Seattle PD, but law enforcement in general, which gives plenty of people all the reason they need to dodge interactions with law enforcement.

Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an “innocent” explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop.

The public isn’t obligated to stop just because an officer says, “Stop.” In this case, the officers said nothing until Brown was already running. Lots of people have zero interest in talking to the police. Some don’t want the hassle. Most don’t enjoy the experience. And some suspect they’ll probably end up arrested or dead, even if they haven’t done anything wrong. If law enforcement doesn’t like the way this decision breaks, it really can’t blame anyone else for the public’s reaction to the unexpected presence of officers. Even the tipster said she didn’t want to talk to an officer because, according to the YWCA rep speaking to the dispatcher, she “[does not] like the police.” Running from cops isn’t inherently suspicious. Far too often, running from cops just makes sense.

Filed Under: 9th circuit, daniel brown, police, probable cause, reasonable, running from the police