Like many, I am watching the terrible events in Baltimore play out, and am also following the very disturbing details of Freddie Gray's death as they are revealed. I'm writing tonight because the police union justification of the detainment of Freddie Gray caught my eye:
Gray's family attorneys and protesters said police didn't have any probable cause to chase him but did so only because he was "running while black."
Police union attorney Michael Davey said officers had every right to give chase.
"There is a Supreme Court case that states that if you are in a high-crime area, and you flee from the police unprovoked, the police have the legal ability to pursue you, and that's what they did," he said.
"In this type of an incident, you do not need probable cause to arrest. You just need a reasonable suspicion to make the stop."
The police union attorney is correct. But that only serves to show a major problem with the rule created by the decision-- it actually gives the most brutal cops greater legal authority.
The Supreme Court case is Illinois v. Wardlow from 2000. In Wardlow, cops drove down the street in a "high crime area" and saw Wardlow standing next to a building with a bag in his hands. Wardlow took off running. Police gave chase and apprehended Wardlow. Wardlow was searched for weapons. In the bag there was a gun, and Wardlow was arrested.
Wardlow's attorneys argued that his detention and search were unconstitutional. They argued that merely running away from cops, without more, should not constitute "reasonable suspicion" that the fleeing person has committed a crime. Wardlow had done nothing else that indicated that he had committed a crime-- simply being in a high crime area or holding a bag won't cut it. Without reasonable suspicion, the cops would have had no right to stop and detain Wardlow and frisk him for weapons (aka a Terry stop and frisk, named after another controversial Supreme Court ruling).
But the court ruled that when a person runs away from a cop without provocation, reasonable suspicion that the person has committed a crime is justified. The cop then can chase, subdue, detain, and search for weapons.
The events leading to Freddie Gray's tragic death show a major weakness in the rule created in Wardlow: it can give particularly brutal cops more legal authority. If a person runs when a cop approaches, even if he runs only because he knows he is likely to be mistreated for no reason, the cop is automatically granted legal authority to pursue, subdue, detain, and (in most cases) search the person for weapons. In other words, if you bully people enough to make them so scared of you that they run when they see you, you actually gain legal authority to harass your bullying victims more: you can subdue them with force, restrain them, and conduct invasive searches of their body.
Worse, police may have been legally authorized to stop Gray even if he had not run. The court in Wardlow suggested that mere "nervous, evasive behavior", coupled with being in a "high crime area", may justify a Terry Stop and frisk. In other words, mere manifestations of being scared of the cops in a high crime area is enough. It goes without saying that what happened to Gray is enough to make anyone in the area nervous, and creates a strong incentive to avoid cops. Wardlow suggests that that gives cops "reasonable suspicion" that you've committed a crime.
As we can see with Gray, a person may not come out of such a detainment in the same condition that he went into it. But the police union attorney is still using the Wardlow authority as a fig leaf for the evident and shocking police brutality here: "Hey, we followed the law in detaining Gray (never mind the mangled body of a dying man that you see cops dragging to the paddywagon in the video)".