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

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


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  1. icon
    K`Tetch (profile), 18 Jun 2019 @ 10:26am

    Re: Re: Re: Liberals try to create milieu in which gun = guilt o

    "The reason we have the second Amendment is so we can guard our lives and our families and our personal property against those who would bring harm to them."

    Nope, not even close. I literally just had to school my congressman on this as he was happily wishing the US Army its 244th birthday last week. The US Army was formed in 1792 (originally as the Legion of the US) and not 1775. The Continental Army was founded in 1775, but was disbanded in 1783.

    The idea of the second amendment being about self defense is a creation of the last 30 years, nothing more. The reason we have the second amendment is because Hamilton hated the military, and Madison was such a loser, he felt the 9 months he was employed as his fathers XO (a position his dad bought so his son wouldn't see combat, but would instead spend doing paperwork) made him a military genius. None of them trusted the military, so they disbanded ALL of the military (except for a regiment to form a central cadre for northwest defense with militia around them, and an artiliary squad to guard the west point armory). Hamilton and Madison pushed for the citizen-soldiery idea, which was a fresh coat of paint on the feudal levy system used until the 1600s. After all, it'd won them the war of independence, right? 200k armed civilian-militiamen? (Well, that and the 50,000 professional troops from France and Spain, to face off against the 25k british troops, and the 20k german mercs, and the threatening noises france and spain were making in Europe which dissuaded the uk from sending more in case they restarted the semi-continuous state of warfare that had been going on between them for the previous 50 years)

    Regardless, they pushed it though in 1791, and so it became. Then there was its first test. Battle of the Wabash. 1100 men under General St Clair, militia all, went off against Blue Jackets 1000 trained troops. The result was 30-30 - 30 or so of St Clair's men escaped, while Blue Jacket lost roughly 30 men. Biggest defeat in us history. Almost took down Washington's presidency. in response the Congress started its first ever investigation, which caused washington to call the first ever cabinet meeting, and then in the end create the concept of Executive Privilege to stop the investigation taking him down. Oh, and then he Created the Army (as the legion, as noted above), followed by the navy in 1794, and the marines on July 11 1798), and the militia concept kinda died, because htey had no way to rescind an amendment, and no political capital to do so, having spent it all to pass it a year earlier.
    And thus led to a whole series of lawsuits over the 2nd amendment. Basically though, it wasn't about guns for self defense, it was only for legitimate guns useful in warfare, and for the purpose of bolstering the army if needed.
    Thus things stayed until the rise of political Justices, there not to interpret the law as written, but as they want it to be, and they've been influenced to make it. The Thomas' and Scalia's, who create new concepts by fabricating a historical basis for it.


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