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.

Coalition letter to California Assemblymember Ed Chau regarding disparities and discrimination, abuse, accuracy, information sharing, and other issues in the proposed bill AB 2261 on facial recognition technologies.

The police regularly target people of color by using pretextual vehicle and traffic violations – including illegal window tint and disobeying a crosswalk signal – to justify the initial interaction. The goal of police officers is to escalate the encounter with false allegations of the smell of marijuana or furtive movements to enable them to conduct a full-blown search. How can defense counsel make a motion to suppress evidence based upon an allegation of racial targeting?

NACDL board member William Buckman's written statement to the Congressional Black Caucus regarding racial profiling and law enforcement training.

Amicus curiae brief of Arizona Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers in support of the respondent, United States of America.

Argument: Arizona’s Senate Bill 1070 created new criminal offenses and new authorizations for police officers in Arizona to detain and arrest persons suspected of being in the United States illegally. Section 2 modified Ariz. Rev. Stat. § 11-1051(B) so that officers would be required to determine the immigration status of a person stopped, detained, or arrested, if there is a reasonable suspicion that the person is unlawfully present in the United States, and officers would be required to verify the immigration status of any person arrested prior to releasing the person. Section 3 created a new statute, Ariz. Rev. Stat. § 13-1509, creating a crime for the failure to apply for or carry alien registration papers. Section 5 created a new statute, Ariz. Rev. Stat. § 13-2928(C), creating a crime for an unauthorized alien to solicit, apply for, or perform work. Section 6 modified Ariz. Rev. Stat. § 13-3883(A)(5) to authorize warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States. All of these portions of SB 1070 were enjoined by the District Court,2 and that order was affirmed by the United States Court of Appeals for the Ninth Circuit.

SB 1070 cannot be enforced without racially profiling Latinos in violation of the Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection Clause. SB 1070 is an unconstitutional “stop-and-identify” law that converts detentions into de facto arrests where officers rely on hunches and other impermissible factors in assuming that a person is in the country illegally. While not all Arizona law enforcement is unmindful of the state’s citizen’s Fourth and Fourteenth Amendment rights, systematic abuses of the law include Maricopa County’s “immigration sweeps” where the sheriff’s department conduct dragnet operations over large groups of people of Latino heritage and arrest first and ask questions later.

Written Statement of Edward A. Mallett on behalf of the NACDL before the Senate Committee on the Judiciary - Washington, DC (January 22, 2001) -- As the preeminent organization advancing the mission of the nation’s criminal defense lawyers to ensure justice and due process, the National Association of Criminal Defense Lawyers appreciates this opportunity to share its concern about justice in America if John Ashcroft is confirmed as Attorney General.

Documents from NJ case confirm DEA, DOT involvement Bush Justice Department should move to eliminate remnants of racial profiling - Washington, DC (December 22, 2000) -- The Justice Department in the new Bush administration should take immediate action to expunge all remnants of racial profiling from law enforcement training materials, in light of recent testimony and documents revealed in New Jersey which establish a pattern of race-based instruction by federal agencies in training state and local police officers, according to the National Association of Criminal Defense Lawyers.

Loitering Law Struck Down - Washington, DC (June 11, 1999) -- The U.S. Supreme Court ruled yesterday that Chicago’s “Gang Congregation Ordinance,” prohibiting “criminal street gang members” from “loitering” with one another or with other persons in any public place with “no apparent purpose.” Chicago v. Morales, No. 97-1121.

Under Siege: The Defense Bar Examines Police Militarization, Ethnic & Racial Dynamics of Sentencing, and Their Impact on Criminal Justice Outcomes – Community Perspective

Under Siege: The Defense Bar Examines Police Militarization, Ethnic & Racial Dynamics of Sentencing, and Their Impact on Criminal Justice Outcomes – The Issues

Fourth Amedment Forum David Oscar Markus

Fourth Amedment Forum Milton Hirsch