Fleeing man, regardless of race, may give police reasonable suspicion, Md. high court says

A Black man’s speedy departure upon seeing Baltimore police in a high-crime area may give officers reasonable suspicion of criminal activity to stop him despite the possibility that his hasty exit was a validly fearful reaction amid publicized instances of police brutality against Black men, the Maryland Supreme Court ruled Monday.

Before giving chase, officers may consider the “totality of the circumstances” and, based on surrounding factors, reasonably suspect the fleeing individual’s fear is of getting caught committing a crime and not of being brutalized by them, the high court said.

Factors leading to reasonable suspicion to give chase include recent instances of criminal activity in that specific area and the person’s “unprovoked, headlong flight” from that location upon seeing the officers, the court said.

The court added that a Black man’s reasonable fear of the police is among the circumstances officers must consider before giving chase.

In their 6-1 decision, the justices rejected Tyrie Washington’s argument that his gun possession conviction must be overturned because the only reason officers suspected him of a crime was that he ran after seeing their police car – a reasonable response for a Black man in Baltimore, he said. An officer who frisked Washington after he was caught found a handgun in his waistband.

In upholding Washington’s conviction, the Supreme Court said he did not merely run but sprinted upon seeing the police while standing on a block where illegally possessed guns had recently been seized. Washington also jumped a fence and hid behind a bush, the court added.

“Even when we consider in the analysis the possibility that Washington may have feared the police due to an increased public awareness of officers having mistreated citizens, the facts remain that Washington engaged in serial unprovoked, headlong flight, took evasive maneuvers, and attempted to conceal himself after merely seeing officers drive by,” Justice Shirley M. Watts wrote for the majority. “There was no provocation or even a suggestion that the detectives were going to initiate contact with Washington.”

At issue before the court was the continuing vitality of a 2000 U.S. Supreme Court decision that unprovoked flight from police in a high-crime neighborhood gives officers reasonable suspicion of crime and permits them to detain the person and conduct a pat-down if they suspect the person is armed.

Washington argued through counsel that police brutality against Black individuals has become more pronounced in the past 22 years and the mere presence of officers has become provocative for Black men since the justices’ ruling in Illinois v. Wardlow concerning the U.S. Constitution’s Fourth Amendment protection against unreasonable searches and seizures.

Washington cited as the basis for his fear the 2015 death of Freddie Gray while in Baltimore police custody; a 2016 U.S. Justice Department report that the Baltimore Police Department used enforcement tactics that had an “unjustified” impact on Black people; the BPD’s disgraced and disbanded Gun Trace Task Force’s planting of evidence, primarily on Black men; and the murder of George Floyd, an unarmed Black man, by former Minneapolis police Officer Derek Chauvin in May 2020.

In response, the high court said it “does not take lightly” the effect of those events.

“Although there is undoubtedly an increased awareness of police misconduct involving race-based violence, which may amplify fear of police officers in the African American community and in other communities, it is still as accurate today as it was when the Supreme Court issued Wardlow in 2000 that people flee from police officers for reasons associated with involvement in criminal activity,” Watts wrote.

“That has not changed,” she added. “With this reality, we cannot establish a bright line rule that eliminates unprovoked flight as a factor in the reasonable suspicion analysis. Instead, we reaffirm our commitment to the totality of the circumstances analysis.”

The high court added that the Maryland Constitution provides individuals no greater protection against unreasonable searches and seizures than the Fourth Amendment.

Justice Michele D. Hotten, the court’s sole dissenter, said the officers who chased and caught Washington gave no reason for suspecting him other than that he ran upon seeing them in a high-crime neighborhood, an act she called understandable based on recent instances of police brutality.

Those living in “overly policed neighborhoods have a myriad of innocent reasons to distrust and evade law enforcement, and that evasion, alone, cannot categorically satisfy the reasonable suspicion test” for officers giving chase, Hotten wrote.

“Police, through whatever metric they may have, may label those communities as ‘high crime areas’ – communities that many Maryland residents call home,” Hotten added. “Children raised in those communities may learn to avoid police as a survival tactic. For those communities, the presence of law enforcement does not necessarily herald hope.”

The Maryland attorney general’s office declined to comment on the high court’s decision.

Assistant Maryland Public Defender Claire R. Caplan, Washington’s appellate counsel, did not immediately return messages Monday seeking comment on the decision and any plans to seek review by the U.S. Supreme Court.

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 Maryland Appellate Court upheld the conviction in an unreported opinion last March, prompting Washington to seek review by the high court.

The Maryland Supreme Court issued its decision in Tyrie Washington v. State of Maryland, No. 15, September Term 2022.