Todd Oppenheim is an assistant public defender in Baltimore and a candidate for Baltimore City Circuit Court judge.
“12 April, 2015 at 1700 Block of Presbury St Baltimore MD, the above named Defendant fled unprovoked upon noticing police presence.”
That’s how Baltimore police officer Garrett E. Miller described his initial encounter with Freddie Gray in his departmental report. Miller and four other officers now await trial on charges related to Gray’s death from a spinal injury he suffered while in police custody; one of Miller’s peers, William G. Porter, will face a retrial in June after a mistrial was declared in his case last week. In his report, Miller also noted that Gray was carrying a pocketknife that may or may not have been legal under Maryland law. Regardless, the knife was not discovered until after police stopped Gray and was not a factor in the decision to pursue him.
Miller’s description of the stop was extremely significant. The officer sought to spin Gray’s flight from police into a justification for a chase that ultimately ended tragically — in essence justifying the stop and search of Gray by virtue of who Gray was (a young black man) and where they were (a poor neighborhood). This stop was emblematic of police-civilian encounters in cities across the country.
“Responde nt Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking. Two of the officers caught up with him, stopped him, and conducted a protective patdown search for weapons.”
These were Chief Justice William Rehnquist’s opening words in his opinion in the 2000 Supreme Court case Illinois v. Wardlow. With this ruling, the court legitimized police stops like Gray’s by finding that they could be warranted based on circumstances surrounding the flight. However, present-day data reveals that large numbers of citizens are dying at the hands of police, justifiably and unjustifiably. Young black males are 21 times more likely to be killed by police than their white counterparts are. It is time for the courts to reexamine Wardlow from a present-day perspective within the parameters of the decision.
I have been a public defender for 11 years, and I often represent indigent people who harbor fears of police. Absent other circumstances, running from the police should not be considered a justification for a stop or search — no matter where it occurs. This is not an argument about getting people off on technicalities. Rather, I advocate upholding the Constitution, ensuring that people are not preyed upon in their own neighborhoods and restoring faith in our police departments. Remember, for every stop and search that results in a court case, many more degrading and often lengthy police encounters net no evidence or an arrest.
In Chicago in 1995, Sam Wardlow, a 44-year-old black man, ran from a street corner after police arrived. The officers chased him down, searched him and found a gun, for which he was charged. In a pretrial hearing, Wardlow challenged the legality of the stop under his Fourth Amendment right to be free from unreasonable search and seizure. If a stop or search in such a case is found to be unconstitutional, then evidence recovered in this way cannot be used in the trial. With Wardlow, no gun meant no case, but the court ruled that the combination of his unprovoked flight and the locale being a “high-crime area” provided sufficient suspicion for the stop. Ultimately, the Supreme Court agreed.
The ruling emboldened police across the country. Now, in any area characterized by police as “high-crime,” officers have carte blanche to chase down anyone who feels threatened enough by the sight of police to run. Police may even initiate flight, by jumping out on people or scaring them, but still call it “unprovoked.” In Baltimore, the circumstances seem to always disfavor defendants, because judges inevitably find the places where flights occur to be “high-crime areas” based solely on police testimony. Thus, most of Baltimore automatically gets labeled that way.
Wardlow occurred at the height of the war on drugs, during the Clinton era of mandatory sentencing and zero-tolerance policing. “Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite,” Rehnquist wrote. But this statement ignores the valid reasons for people to want to avoid a police encounter.
The country has changed since Wardlow was written . The deaths of Gray, Eric Garner, Laq uan McDonald and so many others have placed police violence squarely in the public eye. One need only watch the McDonald video to see a police officer fire 16 times at a young man who appears nonthreatening. Such images are imprinted in many minds. According to a September 2015 Marist poll, only 8 percent of African Americans say police treat blacks as fairly as they do whites.
Yet Wardlow remains “good” law.
Gray’s problematic stop and seizure was justified only by where he was and the fact that he ran away, if that is what really happened. It’s time for trial courts to both consider the rational fear that many people have for police and to reconsider the blanket labeling of poor neighborhoods as “high- crime” within the framework of Wardlow. Doing so would protect citizens’ Fourth Amendment rights while improving community-police relationships. It also might have saved Freddie Gray’s life.