September 23, 2016

The following piece was written by ACLU of Massachusetts executive director Carol Rose for WBUR’s Cognoscenti.

In a victory for justice, the Massachusetts Supreme Judicial Court this week unanimously ruled that black people who walk away from police officers may be justified in trying to avoid the “recurring indignity of being racially profiled.”

The decision is historic, both as a matter of law and as a matter of justice. It could protect people in Massachusetts from undue police violence, and influence court decisions across the nation.

In theory, all of us have the right to “not engage” with law enforcement if police officers do not have reasonable suspicion to stop us. The problem is that, too often, when a person refuses to engage, the police may decide that such a refusal is, itself, suspicious behavior. That logic effectively entraps people into engaging with police — or it did, until this ruling.

Legally, the opinion addressed the question of how judges should interpret a defendant’s actions when they choose not to interact with a police officer. Does such refusal indicate “consciousness of guilt”? If not, and a judge deems that the lack of interaction is an innocent act, then prosecutors cannot use such a refusal against a defendant.

The SJC ruling went even further, pointing to valid reasons that black men might refuse to interact with the police. The court cited both a 2015 Boston Police Department-commissioned study and a 2014 ACLU report, based on the same data. Both studies explored racial disparities in BPD “Field, Interrogation and Observation (FIO) encounters” — more commonly referred to as “stop and frisk.”

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