The state’s high court Monday ruled that people arrested after a pat-and-frisk search on the street have the right to challenge a resulting criminal prosecution on the grounds that they may have been targeted by the officers on the basis of their race.
In a unanimous ruling, the Supreme Judicial Court said pedestrians are entitled to the same strengthened constitutional protections against “selective prosecution” that drivers gained from a 2020 decision. That ruling gave defendants authority to review an individual officer’s work history or police department records specifically for evidence of racial animus.
“We emphasize that the equal protection clause provides an independent basis upon which a defendant may rely in pursuing claims of intentional discriminatory application of the law, separate and distinct from the right to be free from unreasonable searches and seizures,” Justice Frank M. Gaziano wrote for the court.
“The new standard we adopted in  to provide a defendant a more accessible path to pursuing an equal protection claim in the context of a motor vehicle stop, is applicable not only to traffic stops, but also to other police investigations such as pedestrian stops,” he added.
Yet the court emphasized that even if a defendant believes they were discriminated against, a criminal case will be allowed to continue if law enforcement can show their actions were based on constitutionally acceptable procedures.
“A bald allegation of selective enforcement, based only on membership in a constitutionally protected class, would not suffice,” Gaziano wrote. “We conclude that the evidence supported ... [the] determination that police stopped the defendant to investigate his involvement in a recent shooting, and not because of his race.”
In the case at issue, Suffolk Superior Court Judge Peter B. Krupp had ruled that racial bias did not play a role when two Boston police officers assigned to the Youth Violence Strike Force stopped Michael Robinson-Van Rader and a juvenile known only as JH on April 23, 2018.(The juvenile did not participate in the SJC litigation.)
Police investigating reports of gunfire said they found that Robinson-Van Rader and JH were both carrying handguns after stopping and searching them near the intersection of Columbus Avenue and Heath Street in Jamaica Plain, the SJC said. The stop took place about seven minutes after gunfire was first reported on Annunciation Road in Roxbury, which is about a mile away, according to the SJC.
The arresting officers were Reivilo Degrave and Gregory Eunis, according to court records.
Appearing as a defense witness in Suffolk Superior Court, Mary Fowler, a professor of mathematics at Worcester State University, testified that her analysis of the two officers’ field interrogation and observation reports, known as FIOs, from Jan. 2017 through Aug. 2018 statistically confirmed they had engaged in racial profiling, the SJC said.
Of the 276 individuals the officers made reports on during that time, 90 percent were Black, and 2 percent were “white, non-Hispanic,” the SJC wrote. Using US Census data about the racial makeup in the areas where the officers conducted their FIOs, Fowler concluded Black individuals were “more than five times as likely to be stopped as other individuals,” the SJC said.
Still, Krupp ruled the arrest was valid under both the Fourth Amendment and the state’s constitutional protection against unreasonable search and seizure. The SJC agreed. Both Krupp and the SJC said the arrest was also valid when examined for evidence of racial bias.
When gunfire broke out, the shooters had black hoodies on and were riding bicycles. But Robinson-Van Rader and JH were on foot when the officers stopped them, the SJC said. Police searched the juvenile when he turned his body away from police and found he was carrying a handgun, according to the ruling. The officers then seized Robinson-Van Rader, who had kept his right hand in his right sweatshirt pocket, and found a handgun in his right pants pocket, the SJC said.
“There was no violation of the defendant’s rights to be protected against unreasonable searches and seizures, and against selective enforcement of the laws,” the SJC ruled.
James Borghesani, a spokesman for Suffolk District Attorney Kevin R. Hayden, applauded the ruling because it upheld Robinson-Van Rader’s conviction.
“We’re pleased with the ruling pertaining to the underlying case, particularly given the brazenness of the shooting and the removal of two illegal firearms off the street,” he said in an e-mail. “We’re reviewing other aspects of the decision in order to assess potential long-term impacts.”
According to court records, Robinson-Van Rader has since served an 18-month sentence at the Suffolk House of Correction for illegal gun possession and other charges under a plea deal that would have wiped out his conviction if the SJC ruled in his favor.
His defense attorney, John P. Warren, declined comment on his client’s case.
In a companion ruling, the SJC upheld the conviction of Kieson Cuffee for illegal gun possession after his arrest by two police officers who saw him running moments after a shooting in Springfield.
The defense wanted to search for racial bias in the work histories of the two white officers who arrested Cuffee, who is Black. The SJC rejected the request.
“The sum total of the defendant’s motion was a statement that Caucasian police officers stopped a Black man to investigate a recent shooting,” Gaziano wrote. “To make a threshold showing of relevance, more is required.”
Clarification. An earlier version of this story identified the defendant as Michael Van Rader Jr. based on Suffolk Superior Court records. Updated court records identify him as Michael Robinson-Van Rader.