In an effort to continue my review of the concept of equity, I have been reading and rereading Thomas Hobbes, who actually has quite a bit to say about the topic. I will be writing a post on that soon, I hope. For now though, I want to write about something I came across in Hobbes's Leviathan which I felt was very relevant to today. The issue Hobbes talks about is, in short, running from the police.
Before I talk about Hobbes, I want to talk about a court case I recalled when I was reading Hobbes. The Case was Commonwealth of Massachusetts v. Jimmy Warren.[1] This case was heard by the Supreme Judicial Court of Massachusetts, which is the highest state court. As such, this case set precedent for all Massachusetts courts.
I recently went back and reread this 2016 court case. Here's the basic gist of the events that the court was looking at:
1) Police are called to a breaking and entering incident. The suspect appears to have stolen a laptop, a backpack, and baseball caps.
2) The thief is described as a black man in a red hoodie. There is no more description.
3) The thief is seen meeting with two other people described as black men, one wearing a dark hoodie and the other wearing dark clothes. There is no more description.
4) The three black men run off, out of view, with two possible escape routes. Potential escape routes were in opposite directions.
5) A police officer talks with the victim of the crime.
6) This police officer patrols potential areas where thief/thieves escaped. He does not see anyone on the streets.
7) The police officer ends his search and heads back to his station.
8) On his way back to his station, the police officer sees two black men in dark clothing, one in a dark hoodie. One of these men is Jimmy Warren.
9) The police officer has a "hunch" these men were involved in the theft. He tells the men he wants to speak with them, yelling from the car, "Hey guys, wait a minute."
10) Legally, the officer is seeking to conduct a field interrogation observation (FIO) which is a consensual interaction. The two men are under no obligation to talk with police.
11) The two men make eye contact with the officer and jog away.
12) The officer radios dispatch and says he has found three men matching the description of the suspects. (The officer later admitted under oath he only found two.)
13) Two other officers find Mr. Warren and his companion. They yell out "Hey fellas." Mr. Warren runs away. His companion stands there.
14) One officer commands Mr. Warren to stop. He does not.
15) The same officer sees Mr. Warren clutching the right side of his pants as he runs away, a motion he described as consistent with reaching for an unholstered gun.
16) Police catch and arrest Jimmy Warren. They find no contraband on him.
17) Several minutes after arrest, a gun is found in a fenced off yard near Mr. Warren's arrest.
18) Jimmy Warren does not have a license to carry.
The question before the court is this: can the firearm be used as evidence against Mr. Warren? Mr. Warren wants the evidence to be suppressed due to an unlawful search. To determine the answer to this question, the court needs to decide whether there was reasonable suspicion to arrest Mr. Warren and conduct a search. If there was reasonable suspicion, the firearm can be used as evidence, and Mr. Warren's conviction will be upheld. If there was no reasonable suspicion, the evidence was collected unconstitutionally, and Mr. Warren is a free man.
So what did the court decide? Well, what would create reasonable suspicion? Here are the factors the court looked at.
1) The description of the suspects.
Did the two black men in dark clothes, one in a dark hoodie, match the description of the thieves? The court's answer was no. Two black men in minimally descript dark clothing is not a sufficient description to profile suspects. There were three thieves seen running from the crime, the primary one in a red hoodie, but there were only two men here, and no red hoodie. The thieves stole a laptop, backpack, or baseball caps. Mr. Warren and his companion had none of these items. The description of the suspects does not create reasonable suspicion against Mr. Warren.
2) Proximity to crime.
Were the two men in close proximity to the crime? The court's answer was no. The location of these two men was not in the vicinity that the officer was actually searching or in either direction that the thieves could have run off to. In addition, given the passage of time from when the crime was committed to when these men were encountered, the thieves could have travelled by foot up to two miles away from the crime scene. Proximity is not a cause for reasonable suspicion in this case.
3) Lack of other pedestrians.
Police believed they had reasonable suspicion because the streets were extremely quiet that night due to the cold, and the only activity seen in the streets were the thieves running away and Mr. Warren and his companion, making it likely these were the same people. The court did not like this argument at all. A half hour had elapsed from when the crime was committed to when the officer stopped the two men. That's too long a gap to suppose these were the same individuals, just because they happen to be outside.
4) Flight.
In the end, there was only one cause for suspicion, and that was the fact that Mr. Warren ran and made a motion consistent with grabbing a gun as he ran. Running from the police seems mighty suspicious. In fact, in hindsight, that suspicion seemed totally justified, because police did find a gun next to where Mr. Warren was arrested.
So the police had reasonable suspicion because Mr. Warren ran and made a motion to grab a gun?
Well not so fast!
The court has a legal problem here. Mr. Warren was not a suspect at the time that he was asked to talk with the officer. As a matter of law, as noted by the court, "unless reasonable suspicion . . . already exists, our law guards a person's freedom to speak or not to speak to a police officer. A person also may choose to walk away, avoiding altogether any contact with police." Since Mr. Warren was free to refuse to cooperate with the police officer's questions, his movements cannot be restricted, including his movement of running away. The court argued that viewing flight alone as a grounds for suspicion would "seriously undermine" the law's "long-standing jurisprudence establishing the boundary between consensual and obligatory police encounters."
The court also found that police intended to arrest Mr. Warren based on his flight and not based upon his clutching the right side of his pants. The officer yelled stop prior to seeing this movement from Mr. Warren, which might have indicated he had a gun. You cannot intend to arrest someone based on an action they only later performed. As such, this movement cannot be considered grounds for reasonable suspicion. Flight alone constituted the grounds for Mr. Warren's arrest, and this, the court determined, was unconstitutional.
What the court ruled was that flight, in and of itself, does not establish reasonable suspicion. It may only be used as a factor for determining reasonable suspicion in the presence of other grounds for suspicion. Since there were no other grounds for reasonable suspicion in the case of Jimmy Warren, the flight itself cannot create that suspicion. The court ruled that the search of Mr. Warren was unconstitutional, and therefore the gun found could not be admitted as evidence.
Dang! That's a very technical case! I sure hope the news was able to present this case in a careful and articulate way, given how thorough and technical it was. I'm sure the news did that. Right? They don't sensationalize things at all, so I'm sure when we look at the headlines for this case they . . . oh wait:
"Commonwealth v. Warren: SJC Issues Landmark Decision Recognizing the Disproportionate Impact of Police Stops on African-Americans in Boston" [2]
"Black Men May Have Cause To Run From Police, Massachusetts High Court Says" [3]
"Black Men May Have Reason to Run from Police, Mass. High Court Finds" [4]
"For Black Men, Running Is a Reasonable Reaction to Police Harassment and Racial Profiling, Concludes Massachusetts’ Supreme Court" [5]
"Black men fleeing the police is reasonable, Massachusetts court rules" [6]
Well, there goes my trust in the media. There were dozens of similar headlines, but you get the point.
Now, the news agencies were not entirely wrong to report the case this way. The court does talk about race as a factor in explaining why black men may run from the police in a situation similar to Mr. Warren's. The case refers to a contemporary report made by the Boston Police Department which showed that black men were disproportionately targeted for consensual police stops. The court used this report to conclude that the history of policing in the area might influence somebody's reaction to a police encounter. Because of this or similar factors, the court notes, "flight is not necessarily probative of a suspects state of mind or consciousness of guilt." This supports the conclusion the court came to that flight itself cannot create reasonable suspicion.
The problem with these headlines is that they completely passed over the actual legal principle which was being elucidated, and they completely ignored the technical analysis the court performed of potential sources of reasonable suspicion. Furthermore, the court explicitly states, "We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop." The court only used the racial analysis to help reach a conclusion as to whether flight alone constituted a ground for reasonable suspicion.
The legal principle the court was upholding is that flight alone is insufficient to create reasonable suspicion. As I read this court case, this section of the ruling that refers to race is dicta. For the uninitiated, dicta (also called obiter dicta) is the section of a court ruling that might explain the court's reasoning and thought process, but which does not lay down any legally deciding factors or precedents. The legal principle actually being espoused by the court - the legal principle of a court ruling is called the ratio decidendi in legalese - is that flight alone cannot establish reasonable suspicion. The section about the impact of race in police interactions with the public is used as part of the reasoning process to reach this conclusion, but it is not a part of the conclusion itself. The conclusion itself is race neutral. Now, you wouldn't know that from reading the headlines, but that's how it goes.
So, the headlines were not wrong per se, but they were misleading.
Now, what does all this have to do with Thomas Hobbes? (Did you forget that I was talking about Hobbes? I know I did.)
Well, Hobbes actually discussed a very similar issue. Hobbes is extremely sympathetic to people who run away from the police. As a matter of fact, he considers flight to be such a natural response that he says in one place that a contract that includes acquiescence to punishment is an invalid contract. No person can give away their right to flee or resist. "No one is obligated by any agreement he may have made not to resist someone who is threatening him with death, wounds, or other bodily harm. For there is in every man a kind of supreme stage of fearfulness, by which he sees the harm threatening him as the worst possible, and by natural necessity does his best to avoid it; and is understood not to be able to do otherwise." [7] For Hobbes, in whose philosophy fear plays a central role, fear is compulsive, and a person acting under compulsion cannot be held liable. This extends even to state powers. In that same section he states a short ways later, "Nor need the commonwealth itself require of anyone as a condition of punishment, an agreement not to resist, but only that no one protect others." (Hmm. . . is Hobbes saying that resisting arrest should not be considered a crime?)
Hobbes's sympathy to people suffering a flight or fight response has always fascinated me, but lately as I was looking through Leviathan, I came across a section I had not previously seen. The section is not about flight itself, per se. The section is actually about court precedent, but the example that he chooses is really fascinating.
Hobbes wants to make the point that courts are not bound to abide by bad court precedent. If a case was wrongly decided in the past, we should not decide badly in the future for the pure sake of consistency. And the example that Hobbes gives of a bad court precedent is . . . wait for it . . . a case about running away from the police!
There had apparently been a court case that Hobbes knew about (probably indirectly from what I can tell) where an innocent person fled the scene of a crime. He was brought to trial and tried for the crime. He was found innocent and was therefore not subject to any criminal penalties. However, the judge ruled that because he had fled from the scene of the crime, he was presumed to be guilty for the purposes of a civil penalty. On the basis of his flight alone, the innocent man was presumed guilty of a civil offense.
Thomas Hobbes will have none of this.
Hobbes flat out states this is bad court precedent. Where there is no evidence to support the charge of a criminal offense, flight cannot establish a presumption of guilt for a civil offense. Such a presumption he refers to as a "manifest condemnation of the innocent." Let me quote the section at a bit more length. I have taken this directly from the Project Gutenberg copy of Leviathan. [8]
Put the case now, that a man is accused of a capitall crime, and seeing the powers and malice of some enemy, and the frequent corruption and partiality of Judges, runneth away for feare of the event, and afterwards is taken, and brought to a legall triall, and maketh it sufficiently appear, he was not guilty of the crime, and being thereof acquitted, is neverthelesse condemned to lose his goods; this is a manifest condemnation of the Innocent. I say therefore, that there is no place in the world, where this can be an interpretation of a Law of Nature, or be made a Law by the Sentences of precedent Judges, that had done the same. For he that judged it first, judged unjustly; and no Injustice can be a pattern of Judgement to succeeding Judges. A written Law may forbid innocent men to fly, and they may be punished for flying: But that flying for feare of injury, should be taken for presumption of guilt, after a man is already absolved of the crime Judicially, is contrary to the nature of a Presumption, which hath no place after Judgement given. Yet this is set down by a great Lawyer for the common Law of England. “If a man,” saith he, “that is Innocent, be accused of Felony, and for feare flyeth for the same; albeit he judicially acquitteth himselfe of the Felony; yet if it be found that he fled for the Felony, he shall notwithstanding his Innocency, Forfeit all his goods, chattels, debts, and duties. For as to the Forfeiture of them, the Law will admit no proofe against the Presumption in Law, grounded upon his flight.” Here you see, An Innocent Man, Judicially Acquitted, Notwithstanding His Innocency, (when no written Law forbad him to fly) after his acquitall, Upon A Presumption In Law, condemned to lose all the goods he hath. If the Law ground upon his flight a Presumption of the fact, (which was Capitall,) the Sentence ought to have been Capitall: if the presumption were not of the Fact, for what then ought he to lose his goods? This therefore is no Law of England; nor is the condemnation grounded upon a Presumption of Law, but upon the Presumption of the Judges.
There are clearly differences between the case that Hobbes is talking about here and the case in Commonwealth v. Warren. One difference is that Hobbes is talking of a presumption of civil guilt that follows a person around even after criminal acquittal, while in Warren's case the situation concerned reasonable suspicion prior to arrest. In Hobbes case, the defendant has already presented evidence in court. In Warren's case, reasonable suspicion is precisely used in times when there is not yet court involvement.
But looking this over, I have to ask myself, based on what Hobbes says here, what would his opinion be on Warren? Well, I think he would agree with the Supreme Judicial Court in this case. Firstly, the court ruled that Warren might have cause to fear, even if he is innocent. They brought up his race when discussing this (which is where the headlines went crazy). Hobbes also 100% believes people have reason to fear the authorities, even if they are innocent. Hobbes cites specifically judicial corruption as one possible source of fear. For the purposes of the principle of law, what matters is not what the cause of fear is, but rather, whether there is any cause outside of unlawful behavior. Both answer yes. Both also believe that flight is a natural response to this fear.
Next, Hobbes explicitly looks at the fact that, in his scenario, there was no law that forbade the innocent man from fleeing. If the authorities wish to forbid the innocent from fleeing, this would need to be a separate law, which Hobbes invites the civil authorities to create. The problem is, that which is not forbidden by the law cannot be used as a presumption of lawlessness. The court in Warren's case took the same exact position. Mr. Warren was under no lawful compulsion to cooperate with the police, and there were no grounds for reasonable suspicion. Absent this lawful compulsion and any already-established grounds for suspicion, you cannot use a lawful act of free movement to create a suspicion. Doing so, in the words of the court, would blur the line between suspicion and a mere hunch. It turns a lawful act into a suspicious act. I believe Hobbes and the court are of the same mind on this point,
Finally, Hobbes looks are a situation where the only source of the presumption of guilt is the fact that individual ran. Likewise, the court ruled that in Warren's case, the only cause for suspicion is that Mr. Warren ran. The flight, the running from authorities, in both scenarios, is the sole factor of consideration. Hobbes looks at a case where all the other factors of guilt are removed through court proceedings. The court in Warren looked at a case where all other factors of reasonable suspicion have been ruled out. In question is the flight, and flight alone. Both determine that flight alone is a insufficient basis for the legal actions in question.
Now, I want to be clear. Hobbes is not talking about reasonable suspicion in Leviathan, and the threshold for reasonable suspicion is, I would suppose, different from that of a presumption of guilt which Hobbes is talking about. In fact, we do not even allow a presumption of guilt under our Constitution. So, I cannot definitively say that Hobbes would agree with the court in the Warren case. But I've read enough Hobbes to see how much he sympathizes with the fearfulness of the average person. He seems more than willing to defend the flight of those evading the authorities. Most importantly, he recognizes that even the innocent flee.
I cannot help but believe, had he been on the Massachusetts Supreme Judicial Court, he too would have said the police had no reasonable suspicion of Warren, and he would have tossed out any evidence collected in his detention.
Citations:
[1] The court decision can be found here: https://law.justia.com/cases/massachusetts/supreme-court/2016/sjc-11956.html
[2] https://www.bostonlawyerblog.com/commonwealth-v-warren-sjc-issues-landmark-decision-recognizing-disproportionate-impact-police-stops-african-americans-boston/
[3]https://www.npr.org/sections/thetwo-way/2016/09/21/494900984/black-men-may-have-cause-to-run-from-police-massachusetts-high-court-says
[4] https://www.usnews.com/news/articles/2016-09-21/black-men-may-have-reason-to-run-from-police-massachusetts-high-court-finds?context=amp
[5] https://www.aclu.org/blog/criminal-law-reform/reforming-police/black-men-running-reasonable-reaction-police-harassment
[6] https://www.pbs.org/newshour/nation/black-men-fleeing-police-reasonable-massachusetts-highest-court-rules
[7] Hobbes, On the Citizen, book on Liberty, Chapter 2, Section 18.
[8] https://www.gutenberg.org/files/3207/3207-h/3207-h.htm