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Md. high court considers if fleeing Black man gives police reasonable suspicion

Maryland’s top court grappled Thursday with whether a Black man’s speedy departure upon seeing Baltimore police in a high-crime area gives officers reasonable suspicion of criminal activity to stop him or if they must view his hasty exit as a validly fearful – and suspicion-free – reaction amid local and national instances of police brutality against Black men.

Flight alone does not give officers cause to give chase, defense attorney Claire R. Caplan told the Court of Appeals in pressing the appeal of Tyrie Washington, a Black man convicted of gun possession after officers suspicious of him caught up with him and found the weapon during a pat-down.

“People in high-crime areas have legitimate reasons to fear and run from the police, whether from their own experience, the vicarious trauma of learning about the experiences of others in their community, or even merely from following the news or social media,” said Caplan, an assistant Maryland public defender. “It is equally reasonable to run from the police out of fear for your own safety as it is to run because of involvement in criminal activity.”

An attorney for the state countered that officers need not be social scientists but can reasonably conclude that a person’s “unprovoked headlong flight from the police in a high-crime area” indicates potential criminal involvement, thus permitting the officers to detain the individual and check for weapons if they suspect the person is armed.

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“The police are not required to rule out innocent explanations” for why the person ran, Assistant Maryland Attorney General Andrew J. DiMiceli told the high court. “Officers can’t walk around with sociological statistics in their back pockets to determine whether they have reasonable suspicion.”

DiMiceli cited the U.S. Supreme Court’s 2000 ruling in Illinois v. Wardlow that an individual who runs upon seeing police in a high-crime neighborhood gives officers reasonable suspicion of criminal activity and permits them to detain the person without violating the Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures. The police may then conduct a pat-down of the person if they suspect he or she is armed, DiMiceli said.

He added that the justices 22 years ago addressed and rejected the argument that running from police should not arouse suspicion because it is a reasonable response due to instances of police brutality against Black men.

But Caplan said times have changed and running from police is now far less suspicious, especially in Baltimore.

“When Wardlow was argued and decided … cellphones hadn’t happened yet, and now the reality is people can watch and are subjected often, can’t avoid watching police violence on their phones day in and day out,” Caplan said.

“They are forced to bear witness to this and that’s all in the context … of a hyper-segregated city with structural inequities, the constant specter of police harassment, assault or worse,” she added. “In high-crime areas all over Maryland, these are the communities that are over-policed, these are the communities that might feel terrorized by the police, these are the communities that have perhaps a different experience with the police.”

The attorneys’ dueling arguments drew questions from the high court.

Chief Judge Matthew J. Fader asked Caplan if a pursuing officer’s suspicions should be respected if it is just as likely that the person is fleeing  due to criminal involvement as due to fear of the police.

Caplan responded that the issue is not one of equal likeliness because police need reasonable suspicion of specific criminality – such as a report of gunfire or a certain crime – before giving chase.

Judge Jonathan Biran asked whether a police officer’s reasonable suspicion regarding a fleeing individual differs if the officer was in a patrol car or was approaching on foot and thus presented a more immediate threat to the person.

In response, Caplan said running from the police should be regarded the same whether the officer was on foot or in a car.

The decision to run is “instinctive,” Caplan added. “It is on sight. You see something that you are afraid of.”

Judge Steven B. Gould asked DiMiceli whether an individual who turned and walked “briskly” away from an officer would arouse the same reasonable suspicion as one who ran.

DiMiceli responded that mere walking should not arouse an officer’s suspicion. In Wardlow, the Supreme Court addressed an individual’s “headlong flight,” which indicates running at “top speed,” he said.

Judge Michele D. Hotten asked how broadly a high-crime neighborhood should be defined.

In response, DiMiceli said a high-crime area refers to a specific location that is rife with violence and not a generalized region, such as “west Baltimore.”

According to court papers, Washington and another person were standing at the 4300 block of Cordelia Avenue in northwest Baltimore at about noon on July 9, 2020, when they saw a police car and ran. A detective caught Washington after he fell trying to scale a fence.

After a judge denied Washington’s motion to suppress the gun that detectives found, he pleaded guilty in Baltimore City Circuit Court to carrying a loaded handgun while retaining the right to appeal the suppression ruling. He was sentenced to 10 years in prison, with all but five years suspended plus two years’ probation.

The Court of Special Appeals upheld the conviction in an unreported opinion last March, prompting Washington to seek review by the high court.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Tyrie Washington v. State of Maryland, No. 15, September Term 2022.