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Police who received a tip of a black man with a gun in a concealed-carry state did not have reasonable suspicion to stop a black man who ran from their patrol car with flashing lights, a federal appeals court has ruled.
The 9th U.S. Circuit Court of Appeals at San Francisco granted a motion to suppress evidence found by police after they stopped Daniel Derek Brown, ordered him to the ground at gunpoint, found a gun in his waistband, and then found drugs and cash. How Appealing notes coverage by the Seattle Times and links to the June 5 opinion.
Police had begun to follow Brown after they received a call from a YWCA employee in Seattle who reported that an unidentified person had reported seeing someone with a gun. The person had described the armed man as a “young, black man of medium build with dreadlocks, a camouflage jacket and red shoes.”
There was no indication that the unidentified person was alarmed by the gun, or that the man had been harassing or threatening anyone, the court said. It is legal to carry a concealed gun in Washington as long as a license is obtained, the court noted. “At best, the officers had nothing more than an unsupported hunch of wrongdoing,” the 9th Circuit said in an opinion by Judge M. Margaret McKeown.
“With no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police, we are left with little more than Brown’s flight from the officers, which is not enough under the circumstances,” McKeown wrote.
The 9th Circuit ruled a few days after the Pennsylvania Supreme Court ruled that police violate the Fourth Amendment when they stop people simply because they are carrying concealed guns. People who obtain a license can carry a concealed gun in the state.
Both cases considered whether the investigatory police stops were justified under the 1968 U.S. Supreme Court decision Terry v. Ohio. That case allows police to stop and frisk a person based on a reasonable suspicion that a person is involved in criminal activity and could be armed and dangerous.
The 9th Circuit acknowledged that the U.S. Supreme Court had upheld a Terry stop in a 2000 case, Illinois v. Wardlow, which involved a man holding an opaque bag who ran from police in an area known for heavy narcotics trafficking.
The 9th Circuit court noted a partial concurrence by Justice John Paul Stevens in Wardlow. Stevens said a person could be running from police because of a belief that the contact itself could be dangerous. Since that decision, the 9th Circuit said, there has been an uptick in reporting on racial disparities in policing.
“Given that racial dynamics in our society—along with a simple desire not to interact with police—offer an ‘innocent’ explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion, we are particularly hesitant to allow flight to carry the day in authorizing a stop,” the 9th Circuit said.
The 9th Circuit case is United States v. Brown.