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Black men have a reason to flee police, Mass. high court rules

The state’s highest court, tossing out a Boston man’s gun conviction, ordered judges Tuesday to consider whether a black person who walks away from a police officer is attempting to avoid the “recurring indignity of being racially profiled” — and not because the person is guilty of a crime.

The Supreme Judicial Court overturned the conviction of Jimmy Warren, citing studies by the American Civil Liberties Union and Boston police, both of which found that black people were more likely to be stopped and frisked by police between 2007 and 2010.

“The finding that black males in Boston are disproportionately and repeatedly targeted for [what police call “Field Interrogation and Observations,” or stops] suggests a reason for flight totally unrelated to consciousness of guilt,’’ Justice Geraldine Hines wrote in the court’s unanimous opinion.


Civil rights advocates lauded the decision, but police insisted that they did not engage in racial profiling.

“This is huge for advocates who have been trying to get courts to recognize racial profiling across the country,” said Boston NAACP president Michael Curry.

Police Commissioner William B. Evans criticized the SJC ruling, and a spokesman for the Suffolk County district attorney vowed to ask for a rehearing of the case.

“I’m troubled, basically, that this decision relied on a biased report by the ACLU,” Evans said. The ruling also cited a Police Department report that also found disparities, but to a lesser degree. The commissioner said his officers “do a great job every day taking the guns off the street, and we’re going to continue to do that. . . . I don’t believe we target anyone because of their race.”

The ruling stems from the police investigation of a Dec. 18, 2011, break-in in Roxbury. The victim gave police vague descriptions of the suspects — two men in black hooded sweat shirts and a third wearing a red hooded sweat shirt.


Some 30 minutes after the crime and at two different locations, Warren and a friend ignored two different Boston police officers who asked them to stop and talk. The second encounter led to a foot chase and ended with Officer Christopher R. Carr arresting Warren at gunpoint following a brief struggle in the backyard of a Wakullah Street home.

A .22-caliber handgun was later found on the front lawn of that home, and Warren was charged with unlawful possession of a firearm.

But the SJC ruled that police never had a constitutionally legitimate reason to interact with two men of color wearing what the justices described as “ubiquitous” hooded sweat shirts on a cold winter night in Roxbury. A “hunch” by a police officer, the court noted, is not enough for police to interrupt a citizen’s activities under both the state and federal constitutions.

“It was simply not possible for the police reasonably and rationally to target the defendant or any other black male wearing dark clothing as a suspect in the crime,’’ Hines wrote.

Under state law, in cases in which a defendant chooses not to interact with police, a judge must interpret whether a defendant’s actions are proof of a guilty mind — what lawyers call “consciousness of guilt” — or reasonable choices made by an innocent person. If a lack of interaction is deemed an innocent act, prosecutors cannot use the information during a trial.


The ruling Tuesday takes that idea further, pointing to the reason black men might be unwilling to interact with police.

“Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity,” Hines wrote in the opinion.

Hines, who was appointed by Governor Deval Patrick, wrote that judges who hear cases, especially those that involve the prosecution of young black men, must consider the results of the ACLU and Police Department studies during their analysis.

The ACLU found that even though black people made up 24 percent of the city’s population, 63 percent of more than 200,000 Field Interrogation and Observations by police between 2007 and 2010 involved a black person.

In Warren’s case, the court ruled, the evidence supported an unreasonable search that did not pass constitutional muster. The court ordered that his conviction for gun possession be overturned. He was not charged in the burglary.

“The [initial] investigation failed to transform the defendant from a random black male in dark clothing traveling the streets of Roxbury on a cold December night into a suspect in the crime of breaking and entering,” the SJC found.

Jake Wark, spokesman for the Suffolk County district attorney, said the office plans to seek a rehearing in the case and noted that the study cited by the SJC “is several years old and . . . may not reflect current police practices.”

“We all abhor racial profiling, but there is a real question as to whether the high court understood and interpreted the data correctly without hearing from the criminal justice experts who compiled and analyzed it,” Wark said in a statement.


Wark said the decision would not affect any other past cases.

Nonetheless, Ivan Espinoza-Madrigal, executive director of the Lawyers Committee for Civil Rights and Economic Justice, called for more “robust training” for police officers.

“The court is speaking in such loud, powerful words acknowledging that we have a racial profiling problem and it exists in Boston,” said Espinoza-Madrigal.

“It’s a good reminder for police officers to stay within the confines of what the law allows and is a remedy for individuals who have been illegally stopped and searched,” he said of the ruling.

Retired federal Judge Nancy Gertner described the ruling as “an extraordinarily significant decision” because the courts will be forced to consider an officer’s actions in these cases.

“Up until now it has been too easy for courts to legitimize, after the fact, police decisions on the ground, giving them deference under circumstances where deference is not warranted,” said Gertner, a senior lecturer at Harvard Law School. “It should affect police behavior going forward.”

Travis Andersen of the Globe staff contributed to this report. John R. Ellement can be reached at ellement@globe.com. Follow him on Twitter @JREbosglobe. Jan Ransom can be reached at jan.ransom@globe.com. Follow her on Twitter @Jan_Ransom.