6/5/19: "David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police."

In United States v. Brown, --- F.3d ---, No. 17-30191 (9th Cir. 2019), the Court reversed the district court's denial of the defendant's motion to suppress.

Here is the Opinion's intro:

David Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun—which is not a criminal offense in Washington State—police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint. 

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. In today’s world, Justice Stevens’ observations some twenty years ago are particularly prescient: 

     Among some citizens, particularly minorities and those residing in high crime areas,         there is also the possibility that the fleeing person is entirely innocent, but, with or           without justification, believes that contact with the police can itself be dangerous,             apart from any criminal activity associated with the officer’s sudden presence. Illinois       v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting         in part). 

Without more specific, articulable facts supporting their actions, we conclude that the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, we reverse the district court’s order denying Brown’s motion to suppress. 

The Court also notes:

• "In evaluating flight as a basis for reasonable suspicion, we cannot totally discount the issue of race."  

• "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."