After being arrested for carrying a switchblade, Freddie Grey’s spine was, somehow, partially severed while in police custody.
Grey underwent major surgery, lapsed into a coma, and died a week later — sparking protests across Baltimore that soon escalated into riots.
Police still haven’t revealed exactly what happened in the back of the van to cause or exacerbate Grey’s injury. Regardless of the cause of his death, another important question remains.
“Did [police] have a right to stop him in the first place?” Chuck Drago, a former police chief in Florida with over 30 years of experience in law enforcement and government, told Business Insider. “That’s the big question — in addition to the obvious ones about excessive use of force.”
The police initially stopped Grey because he “fled unprovoked upon noticing police presence,” according to charging documents written by officer Garrett Miller and cited by The Baltimore Sun. Officers say they then saw a switchblade knife clipped to the inside of Grey’s pants pocket and arrested him “without force or incident.”
What prompted the arrest, however, still remains “a bit vague,” Deputy Commissioner Jerry Rodriguez told The Sun. He said the incident occurred in a high-crime area, and officers suspected Grey’s involvement in criminal activity.
A Supreme Court case from 2000, Illinois v. Wardlow, “is so much at the root of what’s going on,” Steve Zeidman, a CUNY law professor and police reform advocate, told Business Insider. The ruling in that case found that cops have a right to stop people for fleeing at the sight of officers as long as other suspicious factors are at play — like a high-crime area.
“Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such,” Chief Justice William Rehnquist wrote for the majority.
In the Supreme Court case, an officer pursued a suspect named Sam Wardlow, who had fled in an area known for narcotics dealing. The officer arrested him after finding he had an illegal handgun on him. In a 5-4 decision, the Supreme Court ruled the officer had not violated Wardlow’s Fourth Amendment rights because his flight — coupled with the shady location — justified further investigation.
“The standard understanding of the Wardlow case is that it requires both flight and a high crime area,” constitutional law professor at the University of California Los Angeles Adam Winkler told Business Insider.
In other words, officers can legally pursue someone anyone on foot. Other factors, however, must influence their decision to stop and search.
“It’s flight plus another factor,” Zeidman added. “If a cop is coming toward me, it’s my constitutional right to run away.”
Grey grew up in Gilmor Homes, a public housing complex in a struggling neighbourhood called Sandtown on Baltimore’s west side. Despite recent development projects, Sandtown has suffered from excessive vacancy, shootings, and drugs since the 1990s. As a whole, Baltimore has the fifth highest murder rate in the country in 2015 as well as deep socioeconomic and racial rifts.
Those are the precise factors that could influence an officer’s decision to pursue a suspect.
“If the police are driving down a middle-class neighbourhood, and the officer sees someone turn and run into their house, that’s not enough to follow them. If he’s in a high-crime area though, there may be enough for reasonable suspicion,” Drago explained. “It’s the area he’s in, and those areas tend to be to impoverished and African-American and Hispanic.”
The answer to the question, “Did police have a right to stop Grey in the first place?” may technically be “yes” since he was both fleeing and in a “high-crime” neighbourhood — two of the criteria necessary for the type of stop the Supreme Court’s majority laid out in Wardlow.
But whether cops should have the right to pursue people fleeing their presence, especially in high-crime and minority neighbourhoods, is an entirely different question.
The added consideration of whether an area is “high-crime” naturally raises concerns about discrimination, especially for the justices in Illinois v. Wardlow who dissented. Pedestrians may choose to run for a variety of reasons — to catch up with a friend, get out of the rain, or even catch a bus. Even if a person, especially a minority, flees as a result of police presence, previous interactions with the police may have taught them that course of action.
Justice John Paul Stevens writes:
“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.
Even though a majority of the court found police were justified in chasing and arresting Wardlow, four out of nine justices noted that allowing police to stop any fleeing suspect in a high-crime area could come with grave consequences.
One fact remains clear: If police didn’t pursue Grey to arrest him, he would probably be alive today.
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