On behalf of MACDL, Attorney Wood and a team of attorneys from Wilmer Cutler Pickering Hale and Dorr recently filed an amicus brief urging the Supreme Judicial Court to fully enforce people’s rights not to be targeted for stops based on their race, regardless of whether the police have reasonable suspicion. The Commonwealth has repeatedly argued that if the police have reasonable suspicion, then it does not matter whether someone has been targeted because of their race. This argument is pernicious, essentially reading the equal protection clause out of the constitution. The SJC must reject such arguments.
Amicus Brief: Pretextual Stops Enable Racist Policing
Attorney Wood on behalf of MACDL joined the powerful amicus coalition in Commonwealth v. Daveiga, including CPCS, the New England Innocence Project, the ACLU of Massachusetts, and the Charles Hamilton Houston Institute for Racial Justice. The brief argues our consistent position that pretextual stops enable racist policing.
The amicus brief urges the SJC to extend the reasoning of Commonwealth v. Long and to adopt Chief Justice Budd's reasoning in her concurring opinion to ban all pretextual traffic stops. Traffic stops have become the modern equivalent of the general warrant, granting police officers arbitrary power to stop virtually any driver they want. The brief marshalls the overwhelming evidence that police use this arbitrary power disproportionately to stop and investigate people of color - most of whom are innocent of any crime.
This case has an undisputed fact pattern that exemplifies the problem. Gang unit cops were looking for a specific car but did not have probable cause to arrest anyone. The target car committed a minor traffic violation - being double parked. They saw Daveiga, who they considered as sort of "usual suspect", in the back seat. They ordered the car to move.
But later, they decided to stop the car explicitly on the "pretext" of the prior minor double parking infraction, which they had already decided to excuse! Really, they wanted to investigate the hunch that Mr. Daveiga, a Black Cape Verdean passenger, was up to no good. The arresting officer had stopped him thirty times in the past. They ordered him out, searched and found a gun in the car.
Amicus Brief Against Pretextual Stops
On behalf of MACDL, Attorney Wood co-authored an amicus brief challenging racist pretextual stops in Commonwealth v. Garner. Joining the Charles Hamilton Houston Institute for Racial Justice, the Committee for Public Counsel Services, and the New England Innocence Project, the brief argues that the routinely degrading practice of pretextual stops must be abolished. This case, dealing with a person who was repeatedly stopped by the same police officer for minor offenses, shows how pretextual stops and justifications for the inevitable searches that follow depend on racist assumptions of dangerousness, subjective police conclusions, and inferential leaps sold to courts as police “training and experience.” That kind of junk evidence in the service of an oppressive, racist practice must be banned from our courts.
The Road to Commonwealth v. Long
Following up on our recent post, Attorney Wood recently wrote a longer piece describing the litigation the led to the SJC’s recent decision in Commonwealth v. Long, which lessened the burden for defendants moving to suppress due to racial profiling or “Driving While Black.” You can read the full article at the MACDL website here.
Landmark Ruling Against Racial Profiling
MACDL, whose amicus committee is co-chaired by Attorney Wood, released a statement on September 17, 2020 lauding the SJC’s decision in Commonwealth v. Long, adopting much of a MACDL argument, that was a major step forward for racial justice on the roadways of Massachusetts. The MACDL amicus committee formed a coalition with NEIP, LCR and CHHIRJ that filed an amicus brief urging the Court to prohibit racial profiling in traffic stops. amicus arguing that the Lora equal protection standard for demonstrating that automobile stops are motivated by race was unworkable and should be replaced with a "but for" test - essentially banning pretextual stops. The Court unanimously adopted the MACDL view that the Lora test is unworkable and replaced it with a more flexible totality of the circumstances test in which the question is whether the totality of the circumstances demonstrate that the officers' decision to stop the defendant was motivated by race. Moreover, two members of the Court (Lenk & Budd) agreed with MACDL that the better solution is to ban pretextual stops altogether. The attorneys at Wood & Nathanson have been focused on changing the law regarding racial profiling for years. In Long, Attorney Wood helped put together the MACDL team that drafted its powerful amicus brief. And prior to Long, Attorney Malm was counsel in Commonwealth v. Buckley, which appears to have convinced the SJC to take the problem of pretextual stops more seriously. [click to read full post]