Amicus Briefs Filed in 2022
The Amicus Curiae Committee’s mission is to provide amicus assistance on the federal and state level in those cases that present issues of importance to criminal defendants, criminal defense lawyers, and/or the criminal justice system as a whole. Membership in NACDL is not a prerequisite either for amicus assistance from the Committee, or for authorship of an NACDL amicus brief.
Blankenship v. United States
Brief of Amicus Curiae for the National Association of Criminal Defense Lawyers in Support of Petitioner.
Argument: This case raises a question of fundamental importance to our criminal justice system. The circuits are split down the middle with respect to whether Brady v. Maryland, 373 U.S. 83 (1963), and its progeny impose affirmative obligations on criminal defendants to seek out exculpatory evidence from other sources even when the government already possesses the evidence in question. This dispute has created uncertainty about the scope of Brady's protections and has imposed investigatory obligations on some criminal defendants while imposing no such obligations on others. And it raises fundamental questions about the nature of our criminal justice system and the Constitution more broadly. These questions deserve this Court's immediate attention.
Ciminelli v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
This case is yet another example of overzealous prosecutors distorting the mail and wire fraud statutes – this time through the so-called “right-to-control” theory. That theory epitomizes the overcriminalization that plagues federal criminal law. It is an atextual invention of prosecutors that criminalizes a staggering amount of run-of-the mill dishonesty traditionally regulated, if at all, by States. And it eviscerates foundational due process protections. This Court has repeatedly rejected similarly aggressive interpretations of federal criminal statutes. The Court should do the same with the right-to-control theory.
Cruz v. Arizona
Brief of National Association Of Criminal Defense Lawyers, American Civil Liberties Union, and American Civil Liberties Union of Arizona as Amici Curiae in Support of Petitioner.
Argument: Amici submit this brief in support of petitioner's argument that Arizona's refusal to apply federal law--not merely in a single postconviction proceeding, but at every point throughout a criminal defendant's case--is not immune from this Court's review. Here, the Arizona courts have denied petitioner's Due Process claim under Simmons for more than a decade and a half, first on the grounds that Simmons did not apply to Arizona's sentencing scheme, and then, after this Court made clear that it does apply, on the ground that he should have raised it previously because Simmons applied all along. The only thing consistent about the Arizona Supreme Court's treatment of petitioner's Simmons claim is that petitioner loses either way. Under these circumstances, the Arizona Supreme Court's invocation of a procedural rule to bar petitioner's Simmons claim is not "independent and adequate," and does not bar this Court's review.
Dubin v. United States
Brief of National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner.
Argument: This amicus brief illustrates that the sweeping application of Section 1028A is a symptom of the federal overcriminalization epidemic, enabling unelected prosecutors to consolidate even more charging and plea-bargaining power. This brief also demonstrates that the statutory purpose of Section 1028A is wholly at odds with the Fifth Circuit’s expansive reading. Simply put, Congress did not intend to criminalize Dubin’s conduct under Section 1028A, a law enacted in 2004 to address the “growing problem of identity theft,” targeting those who “use false identities to commit much more serious crimes.” Congress identified numerous examples of criminal acts covered under the statute—none of which remotely resembles Dubin’s conduct and all of which involve the use of personal information to impersonate another. In other words, the statute was intended to punish theft of an identity, something that did not happen here.
Hardin v. United States
Brief of Amici Curiae Due Process Institute and the National Association of Criminal Defense Lawyers in Support of Petitioner.
Argument: This case presents the question of whether a defendant's prior conviction for statutory rape under a state law that criminalizes consensual sexual conduct between a 21-year-old and a 17-year-old can subject that defendant to a mandatory 15-year minimum sentence. Last year, the Ninth Circuit considered this question and answered "no." See United States v. Jaycox, 962 F.3d 1066. But in the decision below, the Fourth Circuit answered "yes." See Pet.App.12a-14a. In doing so, the Fourth Circuit increased Petitioner Hardin's mandatory minimum sentence from 5 years to 15 years and doubled the statutory maximum he faces from 20 years to 40. The Court should resolve this clear circuit split, which could subject hundreds of persons per year to thousands more collective years in prison based solely on geographical happenstance. As the petition explains, the Fourth Circuit's decision misinterprets the [*5] relevant statutory term--18 U.S.C. § 2252A (b)(1)'s mandatory sentencing enhancement for prior convictions "relating to . . . abusive sexual conduct involving a minor"--and distorts this Court's settled method for applying the categorical approach to sentencing enhancements. The result is a decision holding conduct that is legal in 39 States and the District of Columbia to be categorically "abusive sexual conduct" under a federal law that subjects a defendant to a 15-year mandatory minimum.
Ibarguen v. New York
Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: Both federal appellate courts and state courts of last resort have inconsistently decided whether the Fourth Amendment protects social guests from unreasonable searches when they visit a home but do not spend the night. In the decision below, the New York Court of Appeals widened this split by ruling that a social guest who [*5] visited for dinner, but did not stay the night, did not have standing to challenge the search of his host's home. See People v. Ibarguen, 37 N.Y.3d 1107, 1107-08 (2021). The inconsistent application of the Fourth Amendment [*6] to social guests also degrades the efficacy of the exclusionary rule in providing clear standards for police conduct and concomitant deterrence of police misconduct by making it difficult to institutionalize uniform practices and compliance through widely-used training materials.
Jones v. Hendrix
Brief of the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the Arkansas Civil Liberties Foundation as Amici Curiae in Support of Petitioner.
Argument: Courts of appeals that have rejected petitioner's view of Section 2255(e) have held that relief under Section 2241 is available only if an incarcerated individual shows that Section 2255's remedy "was" inadequate or ineffective at the time of the individual's "first § 2255 motion." Pet. App. 7a (emphasis [*8] added); see also McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) ("The petitioner bears the burden of establishing that the remedy by motion was 'inadequate or ineffective to test the legality of his detention.'") (emphasis added) (internal citation omitted); Prost v. Anderson, 636 F.3d 578, 594 (10th Cir. 2011) (similar). In other words, these courts have focused on the adequacy or efficacy of the remedy under Section 2255 in the past. This reasoning departs from the plain text of that statute. The relevant text of Section 2255(e) focuses on the present. It allows federal prisoners to seek habeas relief under Section 2241 when the remedy provided by Section 2255 " is inadequate or ineffective to test the legality of [their] detention." 28 U.S.C. § 2255(e) (emphasis added). Put another way, this saving clause asks whether Section 2255's remedy is currently inadequate or ineffective, not whether it was inadequate or ineffective.
Luna-Aquino v. United States
Brief of the National Association of Federal Defenders and National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner.
Argument: This case presents the question of the appropriate mens rea requirement for substantive drug offenses under 21 U.S.C. § 960. Section 960(a), which codifies the Anti-Drug Abuse Act of 1986, prohibits “knowingly or intentionally” importing or exporting a controlled substance. Section 960(b), in turn, specifies a series of aggravated offenses—and correspondingly severe punishments—based on the type and quantity of the “controlled substance” involved. See 21 U.S.C. § 960(b). A defendant who imports or distributes 280 grams of crack-cocaine, for instance, faces a mandatory minimum of ten years in prison. Id. § 960(b)(1)(C). A defendant who imports or distributes the same amount of marijuana faces no mandatory minimum and only a five-year statutory maximum. Id. § 960(b)(4) (cross-referencing id. § 841(b)(1)(D)). The question in this case is whether the government can subject a defendant to these escalating mandatory minimums and maximums without proving that he knew which illegal drug he was importing or the quantity of that illegal drug. The answer is no: Courts presume a statutory mens rea requirement applies to “all the material elements of the offense.” Rehaif v. United States, 139 S. Ct. 2191, 2195 (2019) (internal citation omitted). And any fact that increases the statutory minimum or maximum under Section 960 (or any other statute) is an element of an offense. See Alleyne v. United States, 570 U.S. 99, 116 (2013); Apprendi v. New Jersey, 530 U.S. 466, 476–85 (2000). Therefore, defendants must know what drug they were importing before a court can subject them to statutorily increased sentences. See United States v. Collazo, 984 F.3d 1308, 1338 (9th Cir. 2021) (en banc) (Fletcher, J., dissenting).
McClinton v. United States
Brief of Amici Curiae Americans For Prosperity Foundation, Dream Corps Justice, National Association of
Criminal Defense Lawyers, Niskanen Center, Right On Crime, The R Street Institute, and The Sentencing Project in Support of Petitioner.
Argument: A sentencing judge should not be allowed to functionally overrule a jury's tal acquitof a criminal defendant and punish him for that same acquitted conduct. Yet all too many criminal defendants who were acquitted of more serious criminal charges but convicted on one or more lower charges face judges doing just that. How is this constitutionally dubious sentencing practice possible? Put simply, many lower courts have mistakenly overread this Court's per curiam decision in Watts to permit sentencing judges to do what Apprendi and its progeny later prohibited; namely, find facts that increase the punishment beyond that authorized by the jury's findings of guilt. Acquitted-conduct sentencing flips the presumption of innocence on its head by allowing judges to functionally overrule unanimous jury acquittals based on judge-found facts using the far lower preponderance standard, gutting the Sixth Amendment's jury-trial right. At a minimum, the Sixth Amendment jury-trial right, coupled with the due process requirement that all facts necessary to legally authorize punishment must be proven beyond a reasonable doubt, should bar judges from using the same alleged conduct a jury acquitted a defendant of to justify dramatically increasing a defendant's Guidelines range and sentence.
New Jersey v. Arteaga
Brief of Amici Curiae Electronic Privacy Information Center, Electronic Frontier Foundation, and National Association of Criminal Defense Lawyers in support of Defendant-Appellant.
Argument: In this case of first impression, appellant argues that information about the technology and procedures underlying a facial recognition search must be disclosed to the defendant to cure the risk of misidentification and in accordance with Brady v. Maryland, even if the result of the search was used only investigatively, subject to later corroboration, and not admitted into evidence. The amicus brief explains the numerous opportunities for error present in the facial recognition process, and how error in that process determines the course of the investigation and results in racially disparate and otherwise wrongful arrests. NACDL’s Fourth Amendment Center has been working to better understand how defendants’ due process rights are impacted by the growing use of facial recognition technology and to equip defense attorneys with the knowledge and tools to combat resulting Brady violations.
Oklahoma v. Castro-Huerta
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondent.
Argument: Oklahoma asserts authority to prosecute crimes committed by non-Indians against Indians in Indian country concurrently with the federal government's authority under the General Crimes Act, 18 U.S.C. § 1152. ("GCA"). Pet. Br. 2-3. That post- McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020), power grab contradicts a century of history, precedent, and policy that allocates to the federal government and the tribes exclusive jurisdiction-- to the exclusion of the States--over Indian country crimes involving Indians absent clear congressional authorization to the contrary. Respondent and his amici demonstrate those points. This brief shows that basic principles of criminal liability rooted in the separation of powers, due process, and traditional restraint in construing criminal laws corroborate that conclusion.
Percoco v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: The Second Circuit’s reliance-and-control theory of honest services fraud epitomizes the dangers of importing equitable doctrines into the criminal law. That theory goes far beyond the core of honest services fraud. It is – by design – a fact-dependent, elastic theory incapable of precise definition. The Court should reject it and reaffirm that malleable equitable principles have no place in honest services fraud or the criminal law generally.
Reed v. Goertz
Brief of National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the ACLU Foundation Of Texas, Inc., the Cato Institute and the Rutherford Institute As Amici Curiae Supporting Petitioner.
Argument: NACDL’s amicus brief argues that the Fifth and Seventh Circuits’ rule would require § 1983 plaintiffs to initiate parallel federal litigation, contrary to principles of judicial economy, federalism, comity, and constitutional avoidance. Federal courts generally would stay a parallel § 1983 action under Pullman. Federal courts also may stay a parallel § 1983 action for declaratory relief. If federal courts do not stay a parallel § 1983 action, they risk making constitutional decisions unnecessarily or based on erroneous interpretations of state law. The Fifth and Seventh Circuits’ rule is unworkable and has no discernible benefit, despite its significant costs.
Reed v. United States
Brief for Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Petitioner.
Argument: The Court has explained “over and over” for more than twenty years that under the Sixth Amendment, “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” E.g., Mathis v. United States, 579 U.S. 500, 511-20 (2016) (citing, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). A sentencing court “can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Id. at 511-12; see also, e.g., Alleyne v. United States, 570 U.S. 99, 111-12 (2013). Yet in the context of applying the Armed Career Criminal Act’s “occasions” test, the circuits routinely permit sentencing courts to do much more. Specifically, any factfinder conducting the inquiry prescribed in Wooden v. United States, 142 S. Ct. 1063 (2022), must make a series of fine-grained determinations pertaining not just to the elements of a defendant’s prior convictions, but also to the factual circumstances and real-world conduct that gave rise to them. When such findings are made to support an increased maximum penalty (as they indisputably are in this context), they must be made by a jury, on proof beyond a reasonable doubt. “That simple point” has become a “mantra” in this Court’s jurisprudence. Mathis, 579 U.S. at 510. But both before and since Wooden, lower courts conducting the occasions inquiry have routinely ignored it. Despite this Court’s repeated teachings, they routinely sift through “legally extraneous circumstances” to support ACCA enhancements, thus conducting the precise inquiry the Sixth Amendment and this Court’s precedents unambiguously prohibit. Descamps v. United States, 570 U.S. 254, 270 (2013); see also, e.g., Mathis, 579 U.S. at 510.
As Justices Gorsuch and Sotomayor suggested in Wooden, 142 S. Ct. at 1079, 1082-87, the time has come for the Court to reestablish the controlling force of its decisions. The courts of appeals have “missed more than a few * * * clear signs” that their current approach to the occasions inquiry is unconstitutional, United States v. Perry, 908 F.3d 1126, 1135 (8th Cir. 2018) (Stras, J., concurring) (citing, inter alia, Mathis, 579 U.S. at 510-11, Descamps, 570 U.S. at 268-69, and Alleyne, 570 U.S. at 111 n.1), and, despite the existence of at least five unambiguously correct separate opinions addressing the issue, there is no indication that any lower court will change its approach unless and until this Court intervenes. The error on which the decision below (along with many others like it) depends will thus persist until the Court reaffirms its Sixth Amendment “mantra,” Mathis, 579 U.S. at 510, yet again. The Court should grant certiorari and do so.
Smith v. Maryland
Amici Curiae Brief of National Association of Criminal Defense Lawyers, Maryland Criminal Defense Attorneys Association, and the Innocence Network in Support of Appellant.
Argument: In this extraordinary case, the State conceded that it engaged in “intentional, willful, and/or reckless misconduct” to secure the conviction of Jonathan Smith when it suppressed exculpatory evidence, concealed an agreement involving a key witness who closely assisted in the State’s investigation, and repeatedly lied about this misconduct. On remand from this Court, the Attorney General agreed that this egregious and willful misconduct warranted dismissing the charges against Mr. Smith. Giving little if any weight to these concessions, the Court of Special Appeals applied an impossibly high constitutional bar for due process dismissals that is contrary to this Court’s prior opinion in this matter and to standards in other jurisdictions whose rulings the court purported to survey. Rather than sanctioning the State for its misconduct, the ruling allowed the State to retry Mr. Smith as if its misconduct never occurred and gravely minimized the resulting prejudice to Mr. Smith on any retrial. This is not a meaningful sanction to deter prosecutions, such as this one, that are pervaded from their inception by admittedly egregious and willful prosecutorial misconduct. This Court should grant certiorari to address this issue of first impression, and to devise a standard that adequately deters future prosecutorial misconduct.
Stands v. United States
Brief for Professors Stephen Smith, Hadar Aviram, John Burkoff, and the National Association of Criminal Defense Lawyers, as Amici Curiae in Support of Petitioner.
Argument: When Congress uses a term that has acquired a well-established common-law meaning, it is presumed to adopt that meaning. The well-established common-law definition of "simple assault" uniformly required an attempt or threat to inflict injury on another. Nothing in § 111 overcomes the presumption that the term "simple assault" carries its common-law meaning. A circuit split has developed regarding whether the common-law definition of "simple assault" applies to § 111.
State of Illinois v. Sneed
Brief of the American Civil Liberties Union, the American Civil Liberties Union of Illinois, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, and the Illinois Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant–Appellant.
Argument: This case presents important questions of first impression in this Court: whether the privileges against self-incrimination found in the Fifth Amendment to the United States Constitution and article I, section 10 of the Illinois Constitution1 preclude the State from forcing a criminal defendant to recall and enter the passcode to his encrypted cell phone, thereby delivering the phone’s contents to the government for use against him in a criminal proceeding. They do. Under long-standing precedent, the State cannot compel a suspect to assist in his own prosecution through recall and use of information that exists only in his mind. See Curcio v. United States, 354 U.S. 118, 128 (1957). The realities of the digital age only magnify the concerns that animate these state and federal privileges. Here, however, the Appellate Court rejected the application of those privileges, holding that the State could compel Mr. Sneed to deliver information to be used against him in his own prosecution. Sneed, 2021 IL App (4th) 210180.
United States v. Anthony Anderson
Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.
Argument: In the decision that precipitated the “unanimous verdict” issue here, Ramos v. Louisiana, 140 S. Ct. 1390 (2020), NACDL (among others) filed an amicus brief. NACDL’s interest in this issue continues because members of our Armed Forces tried by courts-martial under the Uniform Code of Military Justice [UCMJ] are not second-class citizens and do not forfeit their Fifth or Sixth Amendment rights to a unanimous verdict upon donning a military uniform. Pursuant to CAAF Rule 26(b), our amicus curiae brief “bring[s] relevant matter to the attention of the Court not already brought to its attention by the parties...” NACDL’s approach is different regarding the substantive issue, i.e., does the Sixth Amendment’s guarantee of a unanimous verdict in a criminal case, apply to noncapital courts-martial for serious offenses? Alternatively, does the Fifth Amendment’s Due Process Clause require unanimity? Our amicus brief does not duplicate Appellant’s arguments. NACDL takes a different path in arriving at the same conclusion–non-unanimous verdicts in noncapital courts-martial violate the Constitution. NACDL’s position is that Congress, when enacting Article 52(a)(3), UCMJ, provided for non-unanimous verdicts–as in Ramos–by “the concurrence of at least three-fourths of the members present when the vote is taken” –which contravenes what the Constitution commands, viz., a unanimous verdict. Article 52(a)(3), UCMJ, is therefore unconstitutional on its face.
United States v. Lewis
Brief of Amici Curiae National Association of Criminal Defense Lawyers; American Civil Liberties Union Foundation; American Civil Liberties Foundations of Delaware, New Jersey, and Pennsylvania, In Support of Defendant-Appellee.
United States v. Pritchard
Amicus Curiae Brief of the Petitioner, National Association of Criminal Defense Lawyers in Support of the Real Party in Interest.
Argument: NACDL, as amicus curiae, submits that Article 52(a)(3), UCMJ, which authorizes non-unanimous verdicts by three-fourths of the voting members in a courtmartial for serious offenses, is unconstitutional on its face. First, military law has long recognized that a military accused has a right to “a fair and impartial panel” which is “a matter of due process” under the Fifth Amendment. United States v. Wiesen, 56 M.J. 172, 174 (CAAF 2001). That is because “[i]mpartial court members are the sine qua non for a fair court-martial.” United States v. Modesto, 43 M.J. 315, 318 (CAAF 1995).
United States v. Thayer
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Defendant–Appellee Thomas P. Thayer.
Argument: This appeal presents a straightforward legal question: Does the SORNA registration duty imposed on an “individual who was convicted of a sex offense,” U.S.C. § 20911(1), defined as “an offense against a minor that involves . . . [a]ny conduct that by its nature is a sex offense against a minor,” id. § 20911(7)(I), require a court to analyze the defendant’s predicate “offense” under the categorical approach to assess its “nature,” or should the court look to the particular facts underlying the defendant’s crime? Section 20911(7)(I) bears all the textual and structural signals requiring a categorical approach. And the government’s fact-specific approach raises significant constitutional and practical concerns. Because Thayer’s Minnesota conviction was for an offense sweeping more broadly than Section 20911(7)(I)’s definition of “sex offense,” Thayer had no duty to register, and the district court correctly dismissed the indictment.
United States v. Trenkler
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellee.
Argument: NACDL’s amicus brief argues that sentencing errors can be an extraordinary and compelling reason for a reduction in sentence. Sentencing errors fit within the definition of “extraordinary” and “compelling.” The government’s argument conflicts with the First Circuit’s decision in United States v. Ruvalcaba and similar cases from other circuits. A motion for compassionate release is fundamentally different than a second habeas petition.
United States v. Warda
Amicus Curiae Brief of the National Association of Criminal Defense Lawyers in Support of Appellant.
Argument: [T]his case raises fundamental constitutional issues implicating Appellant’s right to have his Fifth Amendment right to Brady material and his Sixth Amendment right to compulsory process in securing evidence from MAB’s [the complainant] U.S. Citizenship and Immigration Services [USCIS] Alien File [A-File] produced for an in camera judicial review. That was necessary to protect Appellant’s right to confront his accuser, to include impeaching her at trial. Finally, this case implicates Appellant’s Sixth Amendment right to the effective assistance of counsel. NACDL is not alleging ineffective assistance of counsel [IAC], but rather that Appellant’s Trial Defense Counsel [TDC] was improperly thwarted by the government’s opposing his request for an immigration law expert to assist the defense, which the military judge denied, as well as access to her A-File.
United States v. Wilson
Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the American Board of Criminal Lawyers in Support of Defendant-Appellant John Wilson and Reversal.
Argument: NACDL’s amicus brief argues that the federal fraud statutes protect only traditional concepts of property. The universities lost control over the composition of their incoming classes, which is not “property.” The “right to control” theory cannot salvage the property fraud convictions in this case. That theory does not apply here and, even if it did, the theory is doctrinally unsound. The government’s theory of property fraud has no limiting principle and would criminalize even the most trivial of deceptive conduct.
Vega v. Tekoh
Brief of the National Association of Criminal Defense Lawyers and Due Process Institute as Amici Curiae in Support of Respondent.
Argument: When a police officer obtains custodial statements from a defendant in violation of Miranda and the prosecution introduces those statements at trial, the Fifth Amendment is violated and the defendant thus may sue officers under Section 1983 for damages. Even though the Court has sometimes described Miranda as a "prophylactic rule," the Court confirmed in Dickerson that the rule is indeed grounded in the Constitution. The only question in such a Section 1983 case, therefore, is whether the officers' actions were the proximate cause of the constitutional violation. At least in a case such as this, where the prosecution introduced the statements at least in part because the officers failed to provide them with complete and truthful account of the circumstances under which the statements were taken, causation is satisfied because the constitutional violation was the direct and foreseeable consequence of the officers' actions.
Washington v. State of Maryland
Brief of Washington Lawyers’ Committee for Civil Rights & Urban Affairs, American Civil Liberties Union of Maryland, Public Justice Center, National Association of Criminal Defense Lawyers, and Maryland Criminal Defense Attorneys’ Association as Amici Curiae in Support of Appellant.
Argument: In 2000, the U.S. Supreme Court concluded in Illinois v. Wardlow, 528 U.S. 119 (2000), that an individual’s “unprovoked flight” in a “high-crime area” created sufficient “reasonable suspicion” of criminal activity to justify a stop, interrogation, and search of that individual under the framework prescribed in Terry v. Ohio, 392 U.S. 1 (1968). In this case, the Maryland Court of Special Appeals interpreted Wardlow as providing that “unprovoked flight from law enforcement in a high-crime area”—by itself—can be enough to trigger such an intrusion. Ct. Spec. App. Op. at 11 (Mar. 24, 2022) (hereinafter, “COSA Op.”). In reaching that conclusion, the Court of Special Appeals acknowledged that a growing number of state and federal courts—following the standard announced in Terry and applied in Wardlow—account for the “reality that Black individuals have no shortage of innocent reasons to flee at the sight of law enforcement.” Id. at 13. But the Court of Special Appeals, “constrained by [its] place in Maryland’s judicial hierarchy,” thought itself powerless to consider that reality in assessing the reasonableness of the detention and search at issue in this case. Id. at 13, 16.
As an initial matter, Wardlow did not expressly adopt a categorical rule that law enforcement is constitutionally permitted to stop and frisk anyone perceived to be fleeing from police in a purportedly “high-crime” area. See People v. Flores, 38 Cal. App. 5th 617, 631 (2019) (rejecting the argument “that ‘flight’ plus ‘high-crime area’ equals reasonable suspicion for a detention,” and confirming that “Wardlow . . . did not make such a bright-line holding”). Indeed, the term “high-crime area” has itself eluded consistent definition. Instead, Wardlow applied Terry’s holistic “reasonable suspicion” standard to the unique facts and circumstances presented. But the Wardlow Court made clear that any reasonable suspicion analysis must be based on “commonsense judgments and inferences about human behavior”—a directive that necessarily requires courts to account for societal advances, including evolving social science, over time.
Our understanding of human behavior has progressed dramatically in the twenty years since Wardlow was decided. State and federal courts around the country have relied on an expanding body of empirical evidence to deem unconstitutional under Terry police stops based on a Black individual’s flight in a supposedly “high-crime area.” Consistent with Wardlow’s teaching and that jurisdictional trend, this Court can—and should—take the opportunity to clarify that in Maryland, too, the “commonsense” implication of a Black man’s flight from police is not criminal guilt, but rather an understandable desire to avoid an interaction fraught with fear and distrust. Amici therefore urge the Court to reverse the decision below, and to hold that the mere fact of flight from law enforcement in a “high-crime area” did not, without more, give the officers in this case adequate cause to stop and search the defendant, Mr. Washington.
Wortham v. New York
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.
Argument: The New York Court of Appeals held that law enforcement may question an individual in custody regarding “pedigree” information without violating Miranda if the questions asked are not “a disguised attempt at investigatory interrogation.” Pet. App. 7a. As the Petition explains, the Court should review this holding because it reinforces a deep and abiding conflict of authority regarding the scope of the “booking exception” to Miranda, Pet. 7-12, and because the New York Court of Appeals erred in its approach to that exception, Pet. 12-15.
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