Rereading Washington v. State after Tyre Nichols’ Homicide
A week ago, I wrote about Tyrie Washington v. State of Maryland, a decision by the Supreme Court of Maryland filed on December 19, 2022, which held that unprovoked flight in a high-crime neighborhood provides reasonable articulable suspicion to conduct a Terry stop.
Last week, like most people in the United States and abroad, I followed with horror the events leading to Tyre Nichols’ homicide.
Tyre Nichols’ flight from police was provoked by his fear and their brutality. His homicide is a painful reminder of why innocent people fear the police, especially uniformed officers patrolling high-crime neighborhoods. In Washington, the SCM precisely and explicitly recognized that reality while upholding that “unprovoked flight” in a high-crime neighborhood is a sufficiently compelling factor to justify a Terry stop. After watching body camera footage of Tyre Nichols’ visceral fear of the police in the minutes before his death, I reread the SCM’s decision in Washington. How can flight provoked by a legitimate fear of police justify the detention for criminal investigation of a citizen?
Last December, the Washington Post published frightening numbers that revealed that over 1,000 people in the United States were killed by the police in 2022. Twenty-six percent of them were African Americans. In their joint brief of Amici Curiae, the Public Justice Center, Washington Lawyer’s Committee for Civil Rights and Urban Affairs, and the ACLU of Maryland, explained why African Americans and other minorities would legitimately fear, and flee from, the police. The Amici also made the powerful point that unprovoked flight and high-crime neighborhoods have significant racial dimensions: limiting these factors would “ensur[e] that the Fourth Amendment protects all Marylanders equally.”
The Washington opinion readily acknowledges the reality that, in Baltimore and elsewhere, there are innocent reasons for people to flee the police and that flight is not necessarily indicative of criminal wrongdoing – even in a high-crime neighborhood. However, the root problem, as further acknowledged by Washington, is that the Fourth Amendment accepts the risk that officers may stop or even arrest innocent people. Over the last 60 years, the Fourth Amendment jurisprudence evolved and the Fourth Amendment’s probable cause standard became diluted.
It was once the rule that every governmental activity that constituted either a search or a seizure had to be justified by the same quantum of evidence defined by the Fourth Amendment’s standard of “probable cause.” In the late 1960s, however, the U.S. Supreme Court departed from that long-standing Fourth Amendment tradition in Camara v. Municipal Court, 387 U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541 (1967), by dispensing with the probable cause requirements for administrative searches of businesses to uncover health and safety code violations; the Court adopted instead a utilitarian balancing test for such searches, with the need for the search weighed against the nature of the intrusion entailed by it.
One year later, in the pivotal case of Terry v. Ohio, 392 U.S. 1 (1968), the Court extended this new balancing test to a seizure of the person by holding, for the first time, that a personal search was reasonable without probable cause to believe that the target of the search had committed a crime; a majority of the Court reasoned that a limited “stop and frisk” for weapons was reasonable, given the minor invasion of personal security and the police officer’s “reasonable suspicion” that the subject was armed and also dangerous. Terry was, without doubt, a dramatic shift in the direction and approach of the law of the Fourth Amendment, leading eventually to an exception even to the lessened Fourth Amendment requirement of reasonable individualized suspicion where the justification for governmental searches of persons is to further some “special” interest, i.e., one other than enforcement of the criminal law.
The serial dilution over the past 60 years of the Fourth Amendment’s probable cause standard has had real consequences for policing. A totality of circumstances reasonable suspicion standard invites exactly the sort of biased policing that reinforces the very real fear of police in high-crime neighborhoods that, in turn, provokes flight from police. It makes no sense, let alone “commonsense,” to then characterize flight from police as “unprovoked” and treat it as reasonable suspicion for police to detain a citizen in a high-crime neighborhood. The flight is provoked by that reasonable fear of the police.
The answer going forward is to recognize both the ineffectiveness of the standard of “reasonable articulable suspicion” under a totality of circumstances test and its pervasive effects. Such a test offers no guidance for good-policing and for citizens harboring legitimate fears of the police. Instead, it perpetuates the victimization of communities who legitimately fear the police and will be stopped because of that fear. How can trust be reestablished in these circumstances?
One solution that our Maryland Courts can contribute to, is to revitalize Article 26 and Maryland’s deeply rooted intolerance for police activity that resembles a general warrant without probable cause. This was an opportunity that the Court in Washington declined to take.
Another solution is for Courts to scrutinize more closely the “reasonable articulable suspicion that criminal activity is afoot.” In Washington, Justice Hotten dissented from the majority opinion and focused on the absence of criminal activity. For the dissent, the “skeleton facts” “devoid of any objectively particularized facts amounting to reasonable suspicion of criminal activity” did not support Tyrie Washington’s seizure. The lack of criminal activity before the flight is the common denominator between Tyrie Washington and Tyre Nichols.