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SJC confronts systemic racism in interactions between police and people of color

The court ruled that “nervous and evasive” behavior can no longer be proof of suspicious activity by a Black person.
The court ruled that “nervous and evasive” behavior can no longer be proof of suspicious activity by a Black person.Matthew J. Lee/Globe Staff

The state’s highest court on Thursday confronted the issue of systemic and implicit bias against Black people during interactions with police, issuing three decisions aimed at solidifying equal protection under the law, and addressing what the panel called the “long history of race-based policing” in Massachusetts.

The unanimous rulings by the Supreme Judicial Court created new avenues for Black people to argue that racial profiling by police led to a traffic stop; declared that “nervous and evasive” behavior can no longer be proof of suspicious activity by a Black person; and decided that a lawsuit alleging civil rights violations can be pursued even if the person is convicted of some crimes during the incident.

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"We agree that the troubling past and present of policing and race are likely to inform how African-Americans and members of other racial minorities interpret police encounters,'' the court concluded in its rulings. “Even if this blight were eradicated today, a long history of race-based policing likely will remain imprinted on the group and individual consciousness of African-Americans for the foreseeable future.”

Justices also wrote that because police departments tend to be less than forthcoming with collecting and publishing data about the people they stop, statistical proof of racial bias is no longer required for a defendant to argue that a stop was racially motivated. That standard, which the court had put in place in 2008, was only successfully used once in 12 years, justices wrote.

“The right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy,” the court found.

Instead of relying on statistical proof, defendants may now point to other factors that show officers' decisions to stop them may have been racially motivated. If a judge finds the evidence convincing, prosecutors will have the job of disproving it.

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One of the cases involves Edward Long, a Black man who was driving his girlfriend’s Mercedes SUV in Dorchester’s Clam Point section in 2017. Two officers from the Boston Police Department’s Youth Violence Strike Force, also known as the gang unit, were driving behind him and decided to run the car’s license plate, though they did not see the driver breaking any traffic laws, justices wrote. They saw that the car was registered to a woman, not a man, and that it was missing a registration sticker, and decided to pull him over.

When they pulled Long over, officers recognized him from the department’s gang member database, records show. They found he had warrants for driving without a license and failure to identify himself, and arrested him. When they searched the car before towing it, they found a gun inside a bag in the back seat.

In court, Long’s attorneys argued that though officers did find a weapon in the car, Long’s race was a significant factor in deciding to stop him in the first place. To meet the SJC’s old statistical standard, Long’s lawyers presented data on who the officers who arrested him had stopped over the course of six years. They got a mathematician to interpret the numbers in court, showing that the officers were far more likely to stop a Black driver.

But a Suffolk Superior Court judge ruled that was not enough, and decided the evidence police found during that stop should be allowed in court.

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“Here you have a case where they have gone to extraordinary lengths to prove it, and the judge would not accept it,” said Geraldine Hines, who served on the SJC from 2014 to 2017 and now teaches about bias and policing at Boston College Law School. “Maybe that was one thing that was in the minds of the court.”

Hines called the decision “monumental.”

“Everyone who studies this understands that racial profiling is at the root of all the problems that Black people and other people of color have with policing,” Hines said.

Defendants will now be able to argue that they were racially profiled based on the totality of circumstances around the stop — from a particular police officer’s usual responsibilities and enforcement pattern to the department’s policies to how dangerous the alleged traffic violation was.

Hines said she will be looking forward to seeing how courts interpret the standard.

“Totality of circumstances is a familiar phrase in criminal law cases,” Hines said. “You want to look at everything, because it’s difficult to have a red line, a bright line test.”

Other advocates largely lauded the decision.

“It was extremely encouraging to see the court grapple with tough racial issues that pervade our Commonwealth,” said Iván Espinoza-Madrigal, executive director of the organization Lawyers for Civil Rights, which submitted a brief in the case. “In its opinion today, the court underscores the troubling racialized history of traffic stops and outlined a clear standard for challenging them.”

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Matthew Segal, legal director of the ACLU of Massachusetts, said the new standard set by the ruling, based on circumstances from the stop, “makes clear that racial profiling is illegal.”

“Courts have a duty to ensure equal justice for drivers who are subjected to racially motivated traffic stops,” Segal said. “But courts shouldn’t have to go it alone. The other branches of Massachusetts government must step up by passing strong data collection laws and taking steps to eliminate racially unjust policing.”

In a second ruling, involving a 17-year-old arrested by Boston police investigating a fatal shooting, the SJC said the officers had a valid reason to stop him: He was spotted a short distance from the murder and kept his right hand stuffed in his coat pocket even while running from police.

But the court said that given the bitter history between people of color and police, prosecutors can no longer cite “nervous and evasive” behavior to justify police stopping someone walking down the street, expanding the constitutional protections for people of color who challenge the validity of an arrest.

The decision expands on a 2016 high court ruling that found Black men may have legitimate reasons to flee police and should not automatically be deemed suspicious for doing so. Thursday’s ruling broadens that idea to include other behavior and body language cues often cited by police during stops. The earlier ruling was based in part on Boston police data that showed Black people were disproportionately subjected to police stops — a statistical pattern that a recent data release showed persists in the city.

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Sergeant Detective John Boyle, a Boston police spokesman, said that he had not seen the rulings but that the department will review them.

Suffolk District Attorney Rachael Rollins, whose office had prosecuted two of the cases the court ruled on Thursday, said the decisions “reflect the legal system’s ability to evolve and adapt.”

“The public is seeing that the appellate process is one avenue available to bring about changes within the system, as occurred here,” Rollins said.

The third case Thursday involved a civil lawsuit brought by a Black man against Framingham police officers who allegedly pulled him out of his car and then beat him as he lay on the street. The SJC also said one officer allegedly used a racial slur during the incident.

The court said the man cannot seek civil damages for the crimes that took place while he was sitting in his car. But, the court said, he can sue for civil rights violations for what happened to him after he was pulled out of the car, since he was not convicted of any crime for his actions at that time.


Gal Tziperman Lotan can be reached at gal.lotan@globe.com or at 617-929-2043. John R. Ellement can be reached at john.ellement@globe.com. Follow him on Twitter @JREbosglobe.