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Washington v. State of Maryland
Brief of Washington Lawyers’ Committee for Civil Rights & Urban Affairs, American Civil Liberties Union of Maryland, Public Justice Center, National Association of Criminal Defense Lawyers, and Maryland Criminal Defense Attorneys’ Association as Amici Curiae in Support of Appellant.
Argument: In 2000, the U.S. Supreme Court concluded in Illinois v. Wardlow, 528 U.S. 119 (2000), that an individual’s “unprovoked flight” in a “high-crime area” created sufficient “reasonable suspicion” of criminal activity to justify a stop, interrogation, and search of that individual under the framework prescribed in Terry v. Ohio, 392 U.S. 1 (1968). In this case, the Maryland Court of Special Appeals interpreted Wardlow as providing that “unprovoked flight from law enforcement in a high-crime area”—by itself—can be enough to trigger such an intrusion. Ct. Spec. App. Op. at 11 (Mar. 24, 2022) (hereinafter, “COSA Op.”). In reaching that conclusion, the Court of Special Appeals acknowledged that a growing number of state and federal courts—following the standard announced in Terry and applied in Wardlow—account for the “reality that Black individuals have no shortage of innocent reasons to flee at the sight of law enforcement.” Id. at 13. But the Court of Special Appeals, “constrained by [its] place in Maryland’s judicial hierarchy,” thought itself powerless to consider that reality in assessing the reasonableness of the detention and search at issue in this case. Id. at 13, 16.
As an initial matter, Wardlow did not expressly adopt a categorical rule that law enforcement is constitutionally permitted to stop and frisk anyone perceived to be fleeing from police in a purportedly “high-crime” area. See People v. Flores, 38 Cal. App. 5th 617, 631 (2019) (rejecting the argument “that ‘flight’ plus ‘high-crime area’ equals reasonable suspicion for a detention,” and confirming that “Wardlow . . . did not make such a bright-line holding”). Indeed, the term “high-crime area” has itself eluded consistent definition. Instead, Wardlow applied Terry’s holistic “reasonable suspicion” standard to the unique facts and circumstances presented. But the Wardlow Court made clear that any reasonable suspicion analysis must be based on “commonsense judgments and inferences about human behavior”—a directive that necessarily requires courts to account for societal advances, including evolving social science, over time.
Our understanding of human behavior has progressed dramatically in the twenty years since Wardlow was decided. State and federal courts around the country have relied on an expanding body of empirical evidence to deem unconstitutional under Terry police stops based on a Black individual’s flight in a supposedly “high-crime area.” Consistent with Wardlow’s teaching and that jurisdictional trend, this Court can—and should—take the opportunity to clarify that in Maryland, too, the “commonsense” implication of a Black man’s flight from police is not criminal guilt, but rather an understandable desire to avoid an interaction fraught with fear and distrust. Amici therefore urge the Court to reverse the decision below, and to hold that the mere fact of flight from law enforcement in a “high-crime area” did not, without more, give the officers in this case adequate cause to stop and search the defendant, Mr. Washington.
Robinson v. United States
Brief of the National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).
Argument: The decision below merits review because, given the expansion of lawful public carrying, it opens the door to unchecked racial profiling. Over the past two decades, and especially in recent years, states have been expanding the rights of their citizens to carry firearms in public. The per se rule endorsed below allows for unchecked racial profiling, as officers encounter more citizens who are—or may be—legally armed. The decision below merits review because it sets the Fourth Amendment against state policy judgments, the common law, and this Court’s precedent. The per se assumption endorsed by the Fourth Circuit undermines the considered policy judgments of state legislatures. A per se assumption is inconsistent with the common law and rests on a faulty reading of precedent.
- News Release
News Release ~ 08/12/2013
Federal Court Findings and Repudiation of Unconstitutional “Stop-and-Frisk” Practice Underscores Extent of Racial Profiling in America’s Criminal Justice System -- Washington, DC (August 12, 2013) – In a nearly 200-page opinion and order, U.S. District Court Judge Shira A. Scheindlin in the Southern District of New York ruled today in the closely-followed, class action case of Floyd v. City of New York that the City of New York “is liable for violating plaintiffs’ Fourth and Fourteenth amendment rights.”